Freedom of Religion: Country Studies - USA
United States of America Country Study
Rankings in Freedom in the World 2016: Status: Free. Freedom Ranking: 1; Political Rights: 1; Civil Liberties: 1.
The United States is the world's oldest continuous democracy among nation states, with governments elected under its Constitution since 1789. Its democratic tradition, however, dates to the earliest English settlements in the 17th century that were founded on the principle of consent of the governed (see Section 1) and then developed politically around elected representative assemblies. America's constitutional structure includes separation of powers; checks and balances on the three branches of government; federalism (decentralization of power to the states); an independent judiciary; and guarantees for basic rights and due process of law. America’s democratic tradition also includes high levels of participation in civic life and the extensive exercise of individual liberties, including free expression and religious freedom.
The country's history also includes the brutal and ruthless treatment of Native Americans and the practice of slavery, which was abolished only after protracted political conflict and a bloody civil war from 1861–65. Discrimination against African Americans, as well as other minorities, was institutionalized in law and practice for another century. The civil rights movement that overcame this legal discrimination is considered today a worldwide example of civic achievement, but its prolonged struggle and unfinished achievements reflect the great difficulty of overcoming entrenched injustice even in the world’s oldest democracy. (See also History sections in Free Elections, Majority Rule, Minority Rights, and Human Rights.) In fact, recent elections have seen increased restrictions on voting rights that affect minority, poorer and older voters with impacts on both local and national races. Further, recent presidential elections raised questions about their democratic character, since the Electoral College system determining the outcome denied the national vote winner for the second time in sixteen years, in 2016 by nearly 3 million votes.
America's origins are rooted in struggles of religions freedom and America remains one of the most religious countries among the developed countries.
America’s origins are rooted in struggles of religious freedom (see below) and America remains one of the most religious countries among the developed countries. The latest survey of the Pew Forum for Religion and Public Life in 2014, however, shows that the US is becoming significantly less religious since its last survey in 2007 (see link in Resources). Some 89 percent of Americans surveyed still described themselves as religious believers but only 77 percent (down from 83 percent) were affiliated with an organized religion. Of all adults, 71 percent considered themselves Christian (down from 78.4 percent). Of these believers, 21 percent are Roman Catholic and 46 percent Protestant. Other religious affiliations accounted for 5.7 percent of the population, the two largest being Judaism and Islam (1.9 and .9 percent, respectively). “Unaffiliateds” made up an increasing percentage of the population at 23 percent (up from 16 percent), with 11 percent considering themselves atheist or agnostic, and the largest number being in younger generations.
From its beginnings, the country expanded westward from its East Coast states, a process that was propelled dramatically by the Louisiana Purchase in 1803 and The Treaty of Guadalupe Hidalgo in 1848 that ended the Mexican-American War. Both extended US territory to the Pacific Ocean. As settlers moved across the continent, the government forcibly displaced original inhabitants, Native Americans, and forced them onto territory known as reservations but constituting separate nation states. Today, the US’s 48 contiguous states are bordered by the Atlantic and Pacific Oceans, Canada, and Mexico. There are two discontiguous states: Alaska, northwest of Canada, which was purchased from Russia in 1867, and Hawaii, an island chain in the mid-Pacific annexed in 1898 as a result of the Spanish-American War. The US also possesses several small self-governing island territories (Puerto Rico, US Virgin Islands, and Guam), unorganized islands, and Guantanamo Bay in Cuba. The US is the third largest country in the world (after Russia and Canada) at a total area of 9.6 million square kilometers and the third most populous country (after China and India) at 323 million people (the 2016 government estimate). According to the International Monetary Fund, the US’s nominal gross domestic product (GDP) in 2014 was $17.3 trillion, $7 trillion higher than the world's second-ranked economy, China. Nominal GDP per capita in 2015 was $55,904, ranked 5th highest in the world.
The Colonies as Religious Refuge
Several of America's original English colonies were established as refuges for religious dissidents. The first were the 102 survivors of the Mayflower voyage, known as Pilgrims, who established the Plymouth Colony in 1620. The group was made up of “separatists,” a faction of the larger Puritan movement who favored separation from the Church of England as the best means to cleanse Protestant worship of Roman Catholic influences and structures. While not violently persecuted in England, separatists were harassed and threatened with fines or imprisonment. Other Puritans later came to agree with the Pilgrims' attempts to create an ideal religious community away from England and took the same voyage to establish the Massachusetts Bay Colony. The two groups united theological positions in 1648 as Congregationalists, so called because they believed in the autonomy of each church congregation created by the voluntary choice of its members.
As England's colonies in the New World expanded, many religious groups sought similar refuge to practice their beliefs free from the persecution and social ostracism they experienced in Europe. These included Protestant sects from various countries, including Anabaptists, Presbyterians, and the Religious Society of Friends (Quakers), as well as Catholics and Jews.
The Origins of Religious Freedom as a Principle of Governance
Some religious groups, believing theirs was the truest expression of Christianity, were as intolerant of others as their European government persecutors had been of them. A number of colonies established official religions and imposed restrictions barring other practices. The Puritans of the Massachusetts Bay Colony are well known for their strict observance and authoritarian character, but they were not the only group to insist on conformity. At the time of the country's founding, nine of the 13 states had official or state-subsidized religions and laws restricting other religious observance.
Front plate of a 1661 Book describing the repression of Quakers.
Pennsylvania took a different path. Its dominant religious group, the Quakers, were persecuted in other states for their adherence to beliefs that clashed with those of mainstream colonial society. As a result of their experience, they adopted a belief in toleration of other monotheistic sects. William Penn, a Quaker leader who established the colony of Pennsylvania, instituted a Frame of Government (1682) declaring that citizens
. . . shall in no ways be molested or prejudiced for their religious persuasion, or practice, in matters of faith and worship, nor shall they be compelled, at any time, to frequent or maintain any religious worship, place or ministry whatever.
The Frame of Government was an early landmark in the history of constitutionally protected religious freedom. Pennsylvania became a haven for many small Central European sects, including the Amish, Mennonites, Dunkers, Schwenkfelders, Moravians, and some German Baptist groups.
Religious Belief and the Founding of the Republic
The American Revolution was motivated in part by a desire to protect the religious autonomy enjoyed by many communities against British control. Some advocates of the Revolution were millennialists who believed that defeating the “evil” British would bring about the second coming of Christ. Others, like the famous Boston preacher Jonathan Mayhew, asserted that it was a Christian's duty to oppose tyranny, thus offering a religious justification for political action. The cleric Abraham Keteltas described the American Revolution more starkly as “the cause of heaven against hell — of the kind Parent of the Universe against the prince of darkness and the destroyer of the human race.”
Thomas Jefferson believed that such religiosity, reflected in many states’ laws, had led the fledgling country to a dangerous point of intolerance. His own state, Virginia, had imposed penalties, including death, for deviant religious observance (the law was aimed especially against Quakers and Baptists). He set out in the 1786 Virginia Statute for Establishing Religious Freedom — and then in debates over the Constitution — to establish the broadest possible definition of religious freedom (see also Essential Principles and History). Some of the Founders had embraced the idea of adopting a national state religion, but Jefferson, joined by James Madison and others opposed to a strong national government, won the debate. As a result, Article VI of the Constitution prohibits religious tests for federal office, while the First Amendment bans the establishment of an official religion and guarantees the freest exercise of religious worship.
George Washington stated that in relation to any religious faith that the new republic would give ‘to bigotry no sanction, to persecution no assistance.’
“To Bigotry No Sanction”
President George Washington and Vice President John Adams were both among those who believed in a role for religion in national life, but they were also strong supporters of religious liberty and the clear separation of religion from the state. George Washington’s views regarding the role of the state and religion were most famously stated in his pledge in 1790 to the Jewish congregation of the Touro Synagogue in Newport, Rhode Island (one of the oldest in the world). He stated that in relation to any religious faith that the new republic would give “to bigotry no sanction, to persecution no assistance.”
Among the first treaties signed by the US government were with the predominantly Muslim Barbary States in North Africa aimed at ending the acts of piracy that threatened trans-Atlantic trade. The 1796 Treaty of Tripoli, signed by Washington and then approved by the Senate after Adams became president in 1797, declared in Article 11 that “the government of the United States is not in any sense founded on the Christian religion and it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.” This provision, and its justification by President Adams as necessary to demonstrate the neural intentions of the US government towards a predominantly Muslim nation, is often cited as a clear, early statement that the US is a secular state and its government is religiously neutral.
A Wall of Separation Gives Rise to Many Religious Traditions
As president, Thomas Jefferson argued for an even broader constitutional doctrine. He stated that not only should there be no established religion but also that the state’s practices should not favor religion in any way and in this way guarantee the “freest exercise thereof.” In a letter to the Danbury (Connecticut) Baptist Association in 1802, he wrote that there should be “a wall of separation between church and state.” That phrase has since been cited in many Supreme Court decisions on religious issues as a clear intent of the wording of the First Amendment.
As president, Thomas Jefferson argued for an even broader constitutional doctrine that . . . there should be ‘a wall of separation between church and state.’
The flourishing of religious practices and beliefs did not mean an end to religious persecution: many acts of violence and repression of religious groups are a matter of record. Religious bigotry and discrimination of Jews, Roman Catholics, non-traditional Protestant sects, Muslims, and practitioners of Asian religions was common in American society. Still, throughout the United States and for most of its history, religious institutions, societies, and practices flourished. A wide variety of religious institutions and beliefs — including new ones like the Church of Latter Day Saints and 7th Day Adventism — generally found a haven in the great expanse of territory stretching to the Pacific Ocean. Most Americans practiced Protestant Christianity, but Catholicism thrived as immigrants from predominantly Catholic countries like Ireland and Italy arrived in the US. African Americans established their own denominations due to discriminatory practices of Protestant churches, including the African Methodist Episcopal (AME) Church and black Baptist congregations. Judaism became more widely practiced with immigration from Eastern Europe of Jews escaping pogroms in the late 19th and early 20th centuries and subsequently those escaping from Nazi tyranny. (Today the United States has the largest diaspora population of Jews in the world.) Practitioners of other faiths like Islam, Hinduism, and Buddhism, among others, also found a home in the US and have recently grown in number with new immigration.
Religious institutions had more than a spiritual function in American history: they served as important community organizations and formed the bulk of private humanitarian and social service organizations in America. As Alexis de Tocqueville noted in Democracy in America, religious institutions were a community bulwark of democracy capable of mobilizing citizens to act on their own behalf and on behalf of others. He wrote that “all citizens in the United States . . . believed religion to be indispensable to the maintenance of republican institutions.”
Freedom of Religion
As noted above, the basic principles of freedom of religion in the United States are grounded in Article VI of the Constitution barring a religious test for federal office and the First Amendment to the Constitution: “Congress shall make no law respecting the establishment of religion or prohibiting the exercise therof. . . .” This broadly declared freedom allowed full practice of many different religious faiths. Often, however, the principle of separation of church and state has fallen into conflict with America's popular religiosity. There have also been difficult constitutional debates involving how freedom of religion should work in practice and form the subject of an ongoing national discussion that has often been determined by decisions of the Supreme Court. Several decisions reflecting the complex issues of religious liberty are discussed below.
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
Freedom of Religion, the Constitution, and the Supreme Court
Early decisions of the Supreme Court interpreted the First Amendment's Establishment Clause as applying only to the federal government, which left the individual states with the option of maintaining their own official religions. In the end, the states decided the issue: all disestablished their respective churches from the state by the 1830s. The 14th Amendment to the Constitution, enacted soon after the Civil War, has since been interpreted as applying all the protections of the Bill of Rights — including the Establishment and Free Exercise Clauses in the First Amendment — to the states.
Still, many issues remained unclear. In the 1878 case Reynolds v. United States, the Supreme Court validated a federal law against polygamy despite a Mormon man's claims that the practice was for him a religious duty. The Court, referring to language in Jefferson's letter to the Danbury Baptists (see above), found that while the Constitution barred Congress from interfering in religious “opinion,” it was empowered to regulate “actions which were in violation of social duties or subversive of good order.” Reynolds has remained an important precedent for laws against polygamy and other religious practices that violate social norms as established in law.
The Principle in Detail
The case reflecting contemporary debate and thinking about the meaning of the Establishment Clause was Everson v. Board of Education of Ewing (1947), which involved a New Jersey taxpayer's objection to public funds being used to reimburse the transportation of Catholic students to a private school. By a 5–4 ruling, the Supreme Court upheld the practice as furthering a legitimate state purpose (the education of all children), but all nine of the justices agreed with a sweeping opinion in which Justice Hugo Black articulated the Supreme Court’s current understanding of the Establishment Clause:
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, [or] for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”
This was the first Supreme Court ruling to definitively apply the Establishment Clause to the states using the 14th Amendment. Future decisions, upholding the Everson ruling, would end obligatory prayer and Bible reading in public schools as well as the government payment of private school teachers' salaries (Lemon v. Kurtzman, 1971). But the legal status of situations on the outer boundaries of these cases continues to be debated. On a single day in 2005, the Supreme Court interpreted Lemon v. Kurtzman and other precedents in such a way as to strike down one display of the Ten Commandments in a Kentucky courthouse as unconstitutional (McCreary County v. ACLU), and uphold another display of the Ten Commandments as part of a monument outside the Texas State Capitol as constitutional (Van Orden v. Perry). Each ruling was based on subtle differences of context and intent.
Some critics of the Supreme Court believe it has gone too far in restricting or diminishing the role of public religious observance, arguing that the founders never intended the Establishment Clause to forbid government acknowledgment of religion or religious expression within a government context. Others argue that the historical record is clear on the founders’ intent to separate church from state and believe these principles have been compromised by the recent decisions allowing displays with religious themes on public property.
In other debates, the Establishment Clause forbidding the state’s favoring of any religion continues to come into conflict with the Free Exercise clause of the first amendment prohibiting state interference in the practice of religion. While Reynolds v. United States set the precedent for the assertion of the primacy of the state’s laws against polygamy in determining community norms over religious practice, many other cases have created a complex of rulings.
For example, the Supreme Court ruled in Sherbert v. Verner (1963) that the complainant (Adell Sherbert) could not be denied unemployment compensation after being fired for refusing to work on Saturdays, something prohibited by her 7th Day Adventist religion. The majority opinion established the “Sherbert Test” that an individual should not be pressured to violate or alter the exercise of his or her religion by imposing a government penalty or withholding a government benefit except in the case of a compelling state interest narrowly tailored in law (a standard called “strict scrutiny” by the court).
In 1990, however, the original Reynolds standard was given greater weight. In Employment Division v. Smith, the majority opinion of Justice Antonin Scalia upheld the state of Oregon’s right to fire employees for banned drug use in a case involving two members of the Native American Church fired for peyote use they claimed was required by religious rituals. Scalia argued that the original Reynolds standard should apply whenever a law was neutrally based and applied to all persons (in this case banning peyote as a dangerous drug) and not itself designed to prevent a specific religious practice. Otherwise, he argued, “anyone could establish the law unto himself.”
Both religious liberty and civil liberty groups, usually on opposite sides of Establishment Clause rulings, objected to the ruling. As a result of their joint public lobbying, Congress passed the Restoration of Freedom of Religion Act (RFRA) in 1996 to create a statutory basis for preventing government from restricting specific religious practices, thus restoring the “Sherbert Test” in federal law. The Supreme Court has since ruled that the RFRA applies only to federal law and cannot be applied to the states.
More recent decisions have added to the debate over the meaning and scope of religious liberty. In June 2014, the Supreme Court ruled narrowly (5-4) that under the RFRA private and for-profit corporations should not be forced to provide coverage for specific contraception under rules of the Affordable Care Act enacted by the Obama Administration if it violates their religious beliefs or practices (Burwell v. Hobby Lobby). The majority ruled that since the government had established mechanisms by which religious non-profit groups could technically exclude themselves from providing contraception and abortion coverage to employees while still providing health insurance, the same should apply to “closely held” (i.e. private) for-profit corporations. Two other 2014 rulings ruled on the controversial issue of gay marriage that states could not ban marriage between same-sex couples or refuse to recognize same-sex marriages performed in other states, in effect legalizing gay marriage and banning discrimination of same-sex marriage. Religious liberty groups have argued that the decision acts against those who believe on religious grounds that same-sex marriage should be banned and states should have the right to do so. (The majority opinion in polls in recent years has leaned towards sanctioning same-sex marriages, which had been legalized in 23 states before 2014.)
The above description of religious freedom cases is not exhaustive but is illustrative of the continuing debates over worship, belief, and state coercion in regards to religious practices and beliefs. They indicate the considerable complexities surrounding religious freedom — especially in relationship to other freedoms — both in the United States and generally. They also indicate the political conflicts that these debates cause. What remains clear from US history, however, is that religious freedom has been an essential principle of its democracy.