In our nation, there are currently many debates raging on over the scope of religious freedom and how far it can extend into the public sphere.  This work argues that the modern societal interpretation of separation of church and state has proven to be a hinderance for those proponents of greater religious freedom.[2]  Simply stated, as separation reinterpretation spreads, religious freedom becomes more and more constrained. [3]  However, through tradition and transparency much of the conflict can be deescalated.[4]

Part I of this work will explore the separation debate in terms of its historical and legal advent coupled with modern commentary.  Part II will consider the impact of the separation on religious freedom and a respected position to address it.  Part III will conclude by providing a foundational proposal for legislatures to consider when enacting laws that implicate religious freedom.

One of the central principles promulgated by opponents to religious liberty is the Separation of Church and State.  Those in that lobby often find themselves referencing Thomas Jefferson’s letter to the Danbury Baptist Association in which he explained the importance of a “Wall of Separation between Church and State (Dreisbach 39).[5]”  Later, these words were cited by the Supreme Court in Everson v. Board of Education, one of the early cases that considered questions regarding conflicts between church and state. [6]  However, there is a plausible argument that the shaping of societal sentiment with an over- reliance on these words is misdirected and can have harmful consequences to a founding principle of our nation, the freedom of religion.

1. The Evolution of Separation

The key to understanding this area of jurisprudence is in the past.  As Professor Philip Hamburger highlights in his book, the early Protestant communities in the United States found merit in the influence of religion in society.  Examples include their dedication to prayer in public forums such as appointment of chaplains.[7]  Protestant instruction and Bible reading were also viewed as core values in public schools.[8]  Additionally, laws with respect to Sunday as the Lord’s day were also considered in the culture.[9]  A main critique of religion arose when the appropriate role of ministers in the community was considered with respect to political influence.[10] The emergence of Catholics in the 1800s also were deemed to have posed a threat to the society by the Protestant citizenry because of the Catholics’ proximity to the Pope.[11]  Finally, another key factor in dispute was the impact of taxing churches on an individual basis and taxes from the citizenry to support them.[12]

In his review of Professor Hamburger’s work, “The Politics of Separation: Review of Philip Hamburger’s Separation of Church and State”, Douglas Smith reached a similar conclusion, recognizing that, “according to Professor Hamburger, this movement which began in the nineteenth century and was motivated in part by anti-Catholic bias, ultimately resulted in a fundamental reconceptualization of constitutional norms regarding religion.”[13]  The commentary of Separation was initially posed with a targeted purpose to deter ministers from preaching on political policy,  not a societal divorce entirely from religion.[14]  Jefferson’s perspective found itself going against the majoritarian view of the day and questions remain as to the true context of his words.[15]

Once this historical account rooted in discrimination is considered one must ask whether this origin should be dismissed as a necessary evil to reach a just end or rather a hollow pillar that is incapable of upholding a philosophy with several vulnerabilities.   It is very difficult for the supporters of a strict separation to overcome this hurdle.  Arguably, if the platform is embraced, then the heritage is carried into the modern day because those that recognize religious influence as a permanent element in society are attacked or marginalized in various ways.

However, Robert D. Goldstein challenged the premise that the account of anti-Catholic discrimination has resulted in the Wall of Separation in his work, “The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination.”[16]  Here, Goldstein provides some justification as to why the early Protestant communities in this nation feared the influx of Catholic immigrants and their influence. He stated:

“Linking anti-Catholic attitudes with the origins of the Wall of Separation often confuses bigotry against persons identified as Catholic with legitimate political objections to the Roman Catholic Church, established by state and empire for over a millennium. In particular, the claim of bigotry ignores the Church’s anti-democratic and anti-liberal political principles  embraced in response to the modernizing world from 1789 until Vatican II. Some of these deeply held objections to the Church are the wages of its establishment.”[17]

Goldstein finds that the innate establishment structure of the Catholic Church was a viable threat to the anti-Establishment principles upon which the nation was founded. It was the resistance on this front, rather than specific discrimination towards Catholics as individuals, that constituted the tensions between the Protestant and Catholic communities.  Specific examples presented by Goldstein include the influence the Pope and priests had over congregations.[18]  As a result of this structure, the early communities may have questioned whether a Catholic could put the nation over the church hierarchy.

If one accepts Goldstein’s account as a viable interpretation concerning the origins of Separation in our society, it still does not address the current problematic climate surrounding the evolution of the Separation commentary. Faith communities and symbols of faith have now been endangered on a broader scale. The Catholic establishment that was once considered the threat has now become the Christian establishment that endangers our society with its influence.

In one recent example, the Fourth Circuit Court of Appeals in – American Humanist Assoc. v. Maryland-National Capital Park and Planning Commission mandated that a WWI cross that had been erected in 1928 to commemorate fallen veterans be taken down because it constituted an endorsement of religion. [19]  This decision reflects a troubling trend. Courts among the highest levels are still persuaded by a strict separation of church and state.  This doctrine has extended beyond targeting symbols for active religious practice such as the Christmas Crèche scene to symbols that are religious, but more serve as a function to memorialize such as the veteran cross presented here. This debate has now evolved from minimizing the influence of a specific faith in an interfaith conflict to minimizing faith in general. The cross is a symbol for all Christian denominations, thus Christianity in the broadest sense has come under attack. It could be fair to argue that religion as a concept is experiencing discrimination in the modern age. It should be noted that this case is now scheduled to be heard before the court during its 2018-2019 term.

II              Confronting the Impact of an Environment of Separation

With the Separation commentary still churning in the modern day among the highest levels of the judiciary, there is even greater difficulty for faith communities to rely on their enumerated religious rights because the very concept has become hollowed. There have been more cases emerging that challenge an individual’s faith traditions when those traditions draw conflict in the public realm.

In the modern era, the debate has raged on in cases such as Christian Legal Society v. Martinez[20], Township of Greece v. Galloway[21], Burwell v. Hobby Lobby Stores[22], Trinity Lutheran v. Comer[23] and  Masterpiece Bakeshop v. Colorado Civil Rights Commission.[24]  Although the Supreme Court found in favor of petitioner’s claim based on religion liberty interests in some of these cases, there are valid grounds for skepticism for the future.[25]  The clash of fundamental rights, between pre-existing and constructed can prove to be problematic in future jurisprudence.  A pre-existing fundamental right such as the freedom of religion is enumerated in the First Amendment of the Constitution, whereas a newly constructed fundamental right such as the right to marriage is read into the Constitution by the Supreme Court.  In this context, marriage was viewed as fundamental under the Due Process Clause of the 14^th Amendment.  It should be noted that marriage is not enumerated or clearly stated within the text of the Constitution, but rather it relies on the Due Process Clause to give it meaning. [26]  We must then decide if the right rooted in the text of the Constitution should take precedence over the unenumerated right.  This new conflict poses the question of where these communities can now turn to within the legal realm in defense of their rights because of the expanded framework of assessment.

Professor Marc DeGirolami proposes in his book, The Tragedy of Religious Freedom[27] that the judiciary is best equipped to handles these matters and preserve religious freedom as a foundational principle of this nation when embracing a “tragic historic” method to adjudication by considering the force of social history and legal precedent.[28]  He considers reliance on societal history and tradition a central framework to help us define religious freedom and its scope.  When looking at these assertions there are a couple points to consider.

First, it is a meritorious assertion to identify judges as holding responsibility to preserve the understanding of religious freedom in American law- acting as gatekeepers, in effect However, in the modern day with a rise of judicial activism as discussed above this concept poses complications, one must question if they will be consistent in embracing the force of the past.  The late great U.S. Supreme Court Justice Antonin Scalia described this method of interpretation as being under the umbrella of “The Living Constitution, a body of law that (unlike normal statutes, grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and find that ‘changing law.’”[29]  From the perspective of the judges inspired by Living Constitutionalism it is their duty to preserve the structure of sound laws and society and will use the Constitution to help them reach their goal. The difference is, this type of interpretive style tempts the judge to consider biases before recognizing the provided legal context. The Constitutionalist perspective in contrast, considers the Constitution to be the forefront of the analysis.

Second, the reliance on societal history and tradition when adjudicating the complexities of religious freedom cases is an optimal method to sustain the importance of religious freedom in our society today.  However, Professor DeGirolami does concede that there tends to be conflict within these disputes that allow the adjudication to pose difficulties:

The values of religious liberty conflict with other values either internal or external to them, so that a  decision must be made in favor of some and against others. The values of religious liberty conflict with others that are constitutive of the particular sociocultural conditions.[30]

Once it is acknowledged that a conflict is present, the question remains as to the proper method to remedy it and assessing the duty of the people who will experience the effect of the conflict on both sides of the dispute.

There are a few ways to address the issue.  For example, Judge William Pryor of the Court of Appeals for the Eleventh Circuit stated in his work Christian Duty and the Rule of Law:

“If the government commands a citizen to violate a Christian duty or moral obligation,as Peter’s duty to preach, then the citizen, like Peter, is obliged to disobey the government.This obligation follows from the lesson of Jesus that we are to render unto God what belongs to God. We have no obligation to render unto the government an obligation that belongs to God.”[31]

This approach emphasizes the importance of the religious believer’s conscience when drawn into conflict with secular forces that threaten the faith obligation.  Judge Pryor’s focus on the religious believer has proven to be a very timely topic in the modern day with the advent of the Masterpiece Bakeshop litigation at the Supreme Court.[32]  If one accepts Pryor’s position, the issue than becomes what defines the religious activity.

For example, Helen Alvare` of the Antonin Scalia Law School at George Mason Law school offers in her work, Religious Freedom Versus Sexual Expression: A Guide:

Catholics believe that marriage is intended to offer a glimpse of God’s self as Trinity—Father, Son, and Holy Spirit–wherein three persons are united in an interpenetrating unity of endless love, and the Father and the Son send forth the Holy Spirit. This is reflected in the marital union of the man and the woman, and the fact that this union is the unique locus of new human life.[33]

She directs us back to Christian doctrine and how the concept of marriage as a unity between one man and one woman can be considered an integral component of exercising one’s faith.  It leads to new human life being produced that is in the image and likeness of God.[34]  If this premise is understood in the context of a healthy pro-creative relationship, it is difficult to categorize as radical, even to those without a strong background in religious tradition.

In contrast, there is also a plausible argument to be made that assuming this aspect of the faith is important to the believer, a question still remains as to how this belief should have an impact on a publicly manifested commercial entity. Audrey Uhland provides a unique perspective in the work, The Business of Expression: A Commercial, Constitutional, and Historical Evaluation of the Line Between the First Amendment and Antidiscrimination Laws that draw a distinction in a business providing a ready-made cake versus a custom-made cake:

“If a gay couple were refused the ability to purchase a ready-made cake to serve at their wedding, the bakery would be in violation of the anti-discrimination laws–even if that cake included a signature marking of the business that would be displayed at the event. But if the bakery offered the possibility of a custom cake with a unique message, it would be within its rights to refuse to create one that portrayed a message that it disagreed with.”[35]

This distinction makes note of the importance of how the expression is channeled. If the cake was pre-prepared it has already entered the stream of commerce and a denial would be an anti-discrimination violation. However, the concept of customization broadens the freedom of the creator of the product and provides the necessary platform to defend against drawing the faith into conflict. A customized product enters the stream of commerce upon completion based on the customer’s inquiry.

This theory may pose an opportunity to test Professor DeGirolami’s view on how religious freedom should be assessed. The example posed by Uhland is very fact–specific in terms of the ready-made vs. customization dynamic. There may be difficulties in uncovering the rightful intent of the baker through the marketing of his product. Some questions to consider: Was a wedding cake product pre-made in the context of a traditional marriage or has that cake underwent a consistent customization process as well? What exactly defines the customization process at issue and how will it be governed? Perhaps with these difficult factual questions posed, the judge may in fact be in the advantageous position to evaluate tradition rather than a court of modern public opinion. Society may fail to assess the major factual issues at place here and could find itself passing poorly written statutes in response. The community may be inspired more by unchanneled emotional egalitarian desires and less by a rigid structure of historical practice and precedent found within U.S.  law that considers in large part, the importance of religious freedom.

Justice Neil Gorsuch, in Trinity Lutheran v. Comer[36] acknowledges in his concurrence the limits of government compulsion against people of faith and stated, “Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion.”[37]  The facts in Trinity revolved around a religious school that brought suit because it felt that it was unfairly being discriminated against by the state in being denied public grants to support replacing the gravel on its school playground with rubber. Justice Gorsuch, a critic of lines drawn between what he calls “religious status and religious use,” proceeded to question this application if the judiciary looks to draw a distinction, “Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?” [38]  He finds that this does not matter because it still constitutes a free exercise of faith.[39]

Justice Gorsuch’s opinion considers an example where a religious conflict in the public realm is resolved in favor of the religious interest. When applied to the bakery facts, it would then be reasonable to conclude that the founding of the commercial entity on a religious basis or actions to follow the faith tradition in performing services when the entity is established should not alter the outcome of the religious matter at issue. There is a viable free exercise argument on both grounds.

Professor DeGirolami references Wisconsin v. Yoder[40] to assess the constitutional tradition adjudicating free exercise claims and the complexities these claims pose.  In this case the question revolved around the government forcing Amish children to attend public or private school at a certain age. This violated the lifestyle of Amish community and was a clash between faith and external societal expectations. Ultimately, the Supreme Court found in favor of the Amish and did not require them to follow the mandated school attendance statute.[41]  The Court relied on the tradition of the Amish to continue the process of education in the vocational context overseen by parental influence and how this should not be considered a detriment to society, but rather a productive contribution.[42]

Professor DeGirolami finds that it is unrealistic for there to be a common script to address all conflicts arising from religious freedom:

“[T]here is a complex of conflicting and incommensurable values-an interminable clash-that swirls around the idea of religious liberty and that will take very different shape and carry different inflections depending on the particulars of claims being asserted.”[43]

The perspective of the religious individual or community does not always harmonize with the government or societal forces at play. Despite the Supreme Court finding in favor here, this does not guarantee an absolute right for the faith-based party to succeed. Parentage and schooling may not be looked at from the same lens as bakeries and weddings. While the dilemma may not be possible to entirely solve considering the varying facts and ideology of the judges comprising the respective court, it is possible to find ways to reduce the amount of conflicts to avoid these difficult questions.  The faith-based pillars of American law and the heterogeneous perspectives on religion can both be considered in a system based in transparency.

Transparency acting as Mediator to Conflict

As has been established, the gradual evolution of “Separation” sentiment in America has led to a societal reluctance in embracing the merits of religious freedom.  A position that Professor DeGirolami presented considered the judiciary as the consistent presence best equipped to regulate the emerging conflicts in which religious freedom has become entangled in the modern day.  The more society drifts from the appreciation of the faith structures in constitutional law, the higher the probability that there will be a further hollowing through legislative enactment and other means.

While the judiciary may be imperfect in some respects its mandate is to exercise judgment authority over constitutional matters as Hamilton had envisioned in Federalist 78.[44]  It possesses the ability to slow the weathering process, if not bring it to an end if Constitutionalists begin to see their numbers increase on the federal benches.

However, this does not entirely solve the problem which is the persistent litigation brought against people of faith because of their conscious decisions formed by a moral compass. It would be optimal to have some of these conflicts not even begin if sound laws were passed that consider the interests of faith in the business context.  There needs to be room for compromise between the broader societal expectations of ever-evolving views on faith and those that continue to hold their specific faith based traditions consistent in the modern day.  Ross Douthat of the New York Times warns that the republic is threatened when society resorts to bitter partisan conflicts and fails to work towards meaningful solutions to bridge the gap in charged ideological conflicts.  Civility should be a central goal to maintain a sense of stability among the communities when brokering solutions.[45]

Legislation that focuses on greater transparency of the interests that are parties to this conflict may prove effective to address these problems.  It is a way to mediate conflict and could lead to less divisiveness and litigation that will further alienate people against one another.  Perhaps small-business owners should be allowed to openly identify as a faith-based mission entity upon registration via incorporation of a published statement that is readily accessible.  The registration process with the respective locality might allow for a tangible identifier that would be legally binding.  Considerations may include a stamp in the window as a noticeable identifier similar to the grading system found outside New York restaurants.

One may contend that perhaps to compromise with the exemption, there may need to be a referral system included that requires the opting out owner to gather a list of alternative bakeshops to provide to the customer who seeks to purchase the gay wedding cake.  However, this may result in a troubling path because the argument of complicity would return as was the case in the Little Sisters of the Poor litigation.[46]

Lawsuits would be prohibited on grounds that concern established faith traditions practiced by the business if it followed protocol and clearly identified its mission for the public sphere.  Those that do not find themselves religious or have lifestyles in conflict with the belief system would not be permitted to burden the religious small-business with the controversial service request, but rather be encouraged to make the request to an entity that did not register with a religious mission.  If an entity did not register, it would be subject to lawsuits for failing to provide the service.  This would also have an economic effect and open up economic opportunities for diverse groups of small business owners.[47]

While this modest proposal is foundational in nature, if the law began to reflect some of the concepts articulated in it, there would be less conflicts while more diverse interests would be met.

Conclusion

Overall, the strict separation argument that was considered at earlier points in the history of the nation has arisen in stronger forms in the modern day.  This has been detrimental to acceptance of religious freedom and those that remain faithful to established faith traditions. However, if the nation reflects on its traditional embrace of religion and begins to consider transparency in enacting legislative solutions for this pluralistic society, less divisive clashes will be present.  Indeed, we may even progress to a Post-Separation time period.

[1] Attorney and St. John’s Law Graduate 2017

[2] Philip A. Hamburger, Separation of Church and State (2002). Professor Philip A. Hamburger of Columbia Law School provides an in-depth historical analysis of the roots of the Separation of Church and State doctrine in his work.

[3] In modern American society, there has been consistent anti-religious sentiment when clashes arise in the public sphere and the concept of the value of faith itself is questioned. This is seen in the movement to remove faith based practices, beliefs and symbols from the public sphere. Often, this is done in the name of egalitarian principles and the desire to not elevate faith to a position of high value. In recent years, there has been an evolution from symbolism such as the Ten Commandments to more conscience-based interests such as small business owners.

[4] Marc o. degirolami, The Tragedy of Religious Freedom (2013). Professor Marc O. DeGirolami provides a compelling case for Tradition in adjudicating religious freedom in his work.

[5]  Daniel L. Dreisbach, “Sowing Useful Truths and Principles: The Danbury Baptists, Thomas Jefferson, and the Wall of Separation” 39 J of Church & St. 455, 468 (1997).

[6]Everson v Bd. of Ed. of Ewing Tp., 330 U.S. 1 (1947).

[7] Hamburger, supra note 2, at 12-13.

[8] Id. at 220.

[9] Id. at 200.

[10] Id. at 24, 112.

[11] Id. at 10.

[12] Degirolami, supra note 4, at 196—97.

[13] Douglas G. Smith, “The Politics of Separation: Review of Philip Hamburger’s Separation of Church and State”, 36 UC Davis L Rev 967, 978 (2003).

[14] Hamburger, supra note 2, at 111.

[15] Id. at 11, 163.

[16] Robert D. Goldstein, “The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination), 13 Cardozo Pub L Pol’y & Ethics J 173 (2014).

[17] Id. at 200.

[18] Id. at 201, “Furthermore, specifically anti-Papist and anti-clerical rhetoric (in America and more so in Europe) is attributable not primarily to ethnic prejudice, as some try to suggest, but to religious differences that go to Protestant core beliefs, rejecting the Pope’s and priestly claims of authority over daily life and intercessional authority.”

[19] Am. Humanist Assn. v Maryland-Natl. Capital Park and Planning Commn., 874 F3d 195, 200 (CA 4 2017).

[20]  561 U.S. 661 (2010). (Upholding a First Amendment challenge to a law school’s “All-Comers” policy that required school organizations to accept all students regardless of their status or beliefs).

[21] 134 S. Ct. 1811 (2014). (Holding that a town’s practice of opening legislative sessions with a prayer did not violate the Establishment Clause).

[22] 134 S. Ct. 2751 (2014). (Holding closely-held corporations were not required to provide contraception in accordance with the Affordable Care Act because it substantially burdened religion and was not the least restrict means of serving a compelling government interest).

[23] 137 S. Ct. 2012 (2017). (Holding the Missouri Department of Natural Resources violated the Free Exercise Clause of First Amendment when it decided that the church was ineligible to participate in a program that offered reimbursement grants to private schools for playground tire).

[24]199 L. Ed. 2d 276 | 86 U.S.L.W. 3215 | 2017 WL 4869142. (Court held in favor of barker, relying on reasoning that Colorado Commission showed unfair bias against religion. Note that the majority opinion largely ignored the merits of cake baking and service to same-sex customer

).

[25] I recommend listening to the commentary offered by Professor Marc O. DeGirolami and Professor Mark Movsesian in their podcast on the Masterpiece case.  https://lawandreligionforum.org/2017/12/12/podcast-on-masterpiece-cakeshop-oral-argument/

[26] Here I reference religion as pre-existing in free-exercise and establishment clause while the issue of marriage has recently been constructed as a fundamental right in Obergefell v. Hodges 135 S. Ct. 2584 (2015). The due process clause contains the interest of liberty and this is the clause in which marriage has been read to be incorporated under.

[27] Degirolami, supra note 4, at 184—85.

[28] Id. at 8.

[29] Antonin Scalia, A Matter of Interpretation 39 (1997).

[30] Degirolami, supra note 4, at 62.

[31] William H. Pryor Jr.  Christian Duty and the Rule of Law, 34 Cumb. L. Rev. 1, 6 (2003/2004).

[32] 199 L. Ed. 2d 276 | 86 U.S.L.W. 3215 | 2017 WL 4869142, The outcome of the Masterpiece Bakeshop case at the  Supreme Court will have major societal implications and may further cloud the definition of church and state relations in the American legal context.

[33] Helen M. Alvaré, Religious Freedom Versus Sexual Expression: A Guide, 30 JL & Religion 475, 488 (2015).

[34] Id.

[35]Audrey Uhland, The Business of Expression: A Commercial, Constitutional, and Historical Evaluation of the Line Between the First Amendment and Antidiscrimination Laws, 26 S Cal Interdisc -LJ 405, 420–21 (2017).

[36]137 S. Ct. 2012 (2017).

[37] Id. at 2026.

[38] Id. at 2025.

[39] Id. at 2026.  Justice Gorsuch writes “I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.”

[40] 406 U.S. 205 (1971).

[41] Id. at 234.

[42] Id. at 224–25.

[43] Degirolami, supra note 4, at 72.

[44]THE FEDERALIST 78  (Hamilton). Alexander Hamilton provided his vision for the role of the judiciary, “neither force nor will but merely judgment.”

[45] Ross Douthat, The Baker and the Empire, The New York Times (December 9, 2017), https://www.nytimes.com/2017/12/09/opinion/masterpiece-cakeshop-supreme-court.html

[46] 578 U.S. ___ (2016). In this case, the Little Sisters of the Poor sought an exemption as a non-church religious entity from having to facilitate access to birth control in violation of their faith. Ultimately, the Supreme Court remanded this case for the circuit courts to resolve the question. Similarly, in the bakeshop proposal, a referral would be the substance of much debate and if a referral can be considered being complicit in the activity the court would again be struggling with this question.

[47] The “Big Gay Ice Cream Shop” chain in New York City and Philadelphia is a good example of small-business diversity ownership.