Making Sense of
Church & State
“We must go elsewhere, therefore, to
ascertain its meaning”
– Reynolds v. US (1878)
“A feature of the life of Asiatic & African people”
– Reynolds v. US (1878)
 "one's views of his relations to his Creator,
and to the obligations they impose of
reverence for his being and character, and
of obedience to his will."
 Davis v. Beason (1890)
“the general Principles of
Christianity, in which all
those Sects were united . . .
Now I will avow, that I then
believed, and now believe,
that those general Principles
of Christianity, are as
eternal and immutable, as
the Existence and Attributes
of God”
 The state cannot “aid those
religions based on a belief in
the existence of God as against
those religions founded on
different beliefs.
 Torasco v. Watkins (1961)
No Longer Content Specific
2011 Dana Summer
Competition
Rick Perry’s . . . an
evangelical Christian, a
follower of Jesus Christ.
Mitt Romney’s . . . not a
Christian. Mormonism is
not Christianity. It has
always been considered a
cult by the mainstream of
Christianity.” –Robert
Jeffress, First Baptist
Dallas TX
The Shape of American
Protestantism
“the general Principles of
Christianity, in which all those
Sects were united”
-- John Adams to Thomas
Jefferson,1813
The Shape of American Religion
 “not primarily confession
 “certainly not territorial
 “And unlike any previous church
in Christendom, it has no official
connection with a civil power.”
– Sidney Mead, Lively Experiment,103-104.
“The Mormon Octopus”
“I Imagine it Must be a Perfect Paradise”
Puck (Feb. 13, 1884)
“Mormonism must first show that it
satisfies the American ideas of a church,
and a system of religious faith, before it
can demand of the nation the protection
due to religion. This it cannot do, for it is
not a church; it is not religion according
to the American idea and the United
States constitution.”
-- Rev. A.S. Bailey, “Anti-American Influences in Utah” (1888)
20th Century Religious Citizenship
“Obedience to law,
tolerance of opinion,
loyalty to country –
these are the principles
which make the flag a
sacred thing and this
Republic immortal.”
- Senator Albert J. Beverage (1907)
In re: Reed Smoot (1904-07)
“Perhaps the most important question to ask a person
of faith who seeks a political office, is this:
Does he share these American values: the equality of
human kind [tolerance], the obligation to serve one
another [loyalty], and a steadfast commitment to liberty
[obedience to law]?”
-- Mitt Romney, “Faith in America” (12/6/07)
“emphatic faiths”
 “Widening gyres”
 Application to the States
 More Diversity
 . . . & the Liberal State
 Organized Advocates
Third Disestablishment
“government in this
country . . . is without
power to prescribe . . .
any program of
governmentally
sponsored
religious activity. ”
-- ENGEL v. VITALE
(1962)
Neutrality
“the right of free exercise
does not relieve an
individual of the obligation
to comply with a valid and
neutral law of general
applicability.” –
Employment Div. v Smith
(1990)
RFRA’s
Total # RFRA’s @ Year
 While two recent Supreme Court cases
on religious freedom appear sharply at
odds, in one material respect they
harmonize around an understanding
that religion is fully protected only when
exercised in private.
 -- Carl H. Esbeck, 11 First Amendment
L.R. 1 (1212)
A Process
Disestablishment ~ Liberty
 Public Money
 Bible
 Prayer
 Proselytizing
 School Curriculum
 Public Displays
 Pledge of Allegiance
 Native American Rites
 Zoning
 10 Commandments
The Law as “Case” Law
 Balancing of Interests
 Hermeneutical
 Questions & Answers
 Evolutionary
Interpreting
 Compelling state interest
 Narrowly tailored
-- Sherbert v. Verner (1963)
“General Christianity . . .
the cement of civil union, and
the essential support of legislation.”
-- Peoples v. Ruggles,
8 Johns. 290 (N.Y. 1811)
 “many of those who had fled to escape
religious test oaths turned out to be
perfectly willing, when they had the
power to do so, to force dissenters from
their faith to take test oaths in
conformity with that faith.”
Justice Black, Torasco v. Watkins, 1961