Religion: Where Art Thou? - Ground Realities 1. The Soldier

IT’S ME, THE CONSTITUTION

A. Ground Realities 1. The Soldier

VI. Religion: Where Art Thou?

Understanding the realm of protections, that the constitution’s religious clauses might be called upon to provide to U.S. citizens, is incomplete without fully recognizing the expansive reach of the word religion in today’s context. From a nation built on strictly Judeo-Christian religious principles, America has evolved into a nation containing multiple religious strands.

This prompts us to examine and expand on the Framers’ views on the meaning of religion.

Historical records of the constitution reveal the founders’ theistic view of the religion. This is evident in the commentaries of George Mason and James Madison, who in their characteriza-tion of religious obligacharacteriza-tion, state, “the duty which we owe to our creator, and the manner of discharging it.”⁵¹This abiding belief in a creator was further revealed by Benjamin Franklin as, “… the essentials of every religion [to be] the Deity; [and] that he made the world, govern’d it by his Providence …”⁵²Do these early writings necessarily provide a broader recognition to all existing religions, something perhaps the framers did not anticipate to be part and parcel

of the American social fabric?

Thomas Jefferson perhaps provides the clearest answer to this question. He indicates the Framers’ intention to include all religions, even the faith of Muslims and Hindus and to pro-vide them all the protective umbrella of the First Amendment’s Free Exercise Clause, as re-flected in Jefferson’s comments in the Virginia Bill for Establishing Religious Freedom. There Jefferson said, “The bill [was] meant to comprehend, within the mantel of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomi-nation.”⁵³This is probably the closest the framers have come in opining whose religious rights ought to be protected, despite being mute on what protection should be accorded to other non-orthodox, and atheistic religious practices. I will argue that this explicit recognition of all available orthodox religions of their time gives us a definitive indication of the framers’ inten-tion on inclusion and religious neutrality.

The Framers’ objective was to insert a neutral definition of “religion” that includes believers of all kinds. The detail in Jefferson’s writing on the passage of the Virginia Bill provides ample evidence of the inclusive mindset with which the Framers of the constitution intended not to discriminate against any religion. In light of what the Framers conceived more than two cen-turies back, it is remarkable and, in my view, it provides broad protection to believers of all kind. The same sentiment has been echoed by Justice Harlan who averred that the Free Exercise Clause of religion protects the non-believer, by affording equal protection to both the believer and the non-believer. As he held:

[T]he State cannot constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can (it) aid those religions based on a belief in the existence of God as against those religions founded on different be-liefs.⁵⁴

Therefore, the dual rationality ensconced in neutrality and inclusion provides us with the meaning of religion. The definition must protect the right of the Hindu to wear religious arti-cles on her person in public places, as well as protect the right of Native Americans to perform religious rituals on sacred grounds. As James Madison observed more than two centuries back, that right is encapsulated within the explicit recognition that,

This right in its nature is an unalienable right. It is unalienable; because the opin-ions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator.⁵⁵

His words eloquently remind us that in spite of our differences on religious views of religion, we would be remiss to forget that:

That Religion or the duty which we owe to our Creator and the Manner of dis-charging it, can be directed only by reason and conviction, not by force or vio-lence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.⁵⁶

A R E Y O U T H E R E G O D ?

VII. Conclusion

The Framers of the American Constitution envisioned a multi-cultural and multi-ethnic soci-etal fabric, sustenance of which depends on the spiritual vibrancy of religious pluralism. This spiritual vibrancy is at stake today. It is dogged by the dogmatic constrictions of the majority religion, gradually eroding the exuberance of free exercise of minority religions. Despite the explicit guarantee of religious liberty by the First Amendment’s Religion Clause, we are sud-denly confronted by the profound realization that the proliferation of religious pluralism might not go very far after all. The central enquiry here, is whether the highest court of the nation drifted away from its earlier promise of guaranteeing religious liberty for all? If this is indeed the case, then we are indeed experiencing a gradual shrinking of the Free Exercise Clause of Religion. My article has established that the shrinking of the Free Exercise Clause is predicated in validating the fundamental argument of Employment Division v. Smith.⁵⁷

The Smith Court was decided by invoking the constitutionality of universal application of neutral laws. My arguments questioned that framework by showing that it is not sustainable legal reasoning and therefore, the Smith Court’s rational must be invalidated. Instead of in-voking other legal doctrines, such as, equal protection, or resorting to social rights based argu-ments, this article examines the inherent inconsistency in the two basic premises.

The Smith Court’s rational was developed under the twin premises that, it is possible to bring in neutrality in legal paradigm, and this can be applied universally on issues dealing with religious pluralism. My assertion here is that achieving both true neutrality and univer-sal applicability is untenable within the existing framework. Therefore, the constitutional de-velopment based on Smith indeed opens up the possibility of the shrinking Free Exercise Clause. This is due to its inability to insulate the religious minorities from being swallowed by the overpowering social current of the established religion.

Finally, the kaleidoscope of America’s multiple religions must be enmeshed within the protective umbrella of the constitution’s First Amendment, and insulated from the zealous imposition of administrative burdens on harmless religious practices. If the constitutions can-not guarantee the Hindu woman’s religious ritual of wearing religious ornaments while fly-ing, if the Constitution cannot allow the Muslim defendant to place his hand on the Quran while taking an oath in a court of law, and if a Catholic soldier cannot freely express his reli-gious antipathy against state sanctioned killings in the battlefield, then America is not living up to the promise delivered by James Madison more than two hundred years back. He pro-claimed:

It is a duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Because if religion be ex-empt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The dictation is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily it is limited with regard to the constituents.⁵⁸

Burdened by legal reasoning and prompted by providential prudence, I am therefore com-pelled to issue a clarion call. Let us deliver on the promise of James Madison. Let us exorcise the exclusionary spirit of Smith. Then and only then, can we confidently embrace the mean-ing of the constitutional guarantee of religious freedom — a freedom represented in the mo-saic of beliefs, non-beliefs and traditions we call religion. All are most certainly worthy of protection under a never shrinking Free Exercise Clause.

*Dr. Saby Ghoshray is Vice President for Development and Compliance at World Compliance Co.

1See discussion infra note 8.

2See All Headlines News, Talk Show Host Under Fire For “Anti-Islamic” Comments (District of Columbia), December 8, 2006 available at http://www.allheadlinenews.com/articles/7005798707. The popular columnist and radio talk show host Dennis Prager found himself in a center of controversy after spewing out anti-religious remarks. He was com-plaining about Congressman Keith Ellison who chose to use the Quran instead of the Bible in his swearing him cere-mony. Prager said, “I have never bashed Islam in my life. I have written 1,000 columns, many on the Islamic world. I have been in broadcasting for 25 years. I’ve studied Arabic and Islam. I was a fellow in the Middle East Institute of Columbia University, where I did my graduate work.” However, Prager continued on, “Insofar as a member of Congress taking an oath to serve America and uphold its values is concerned, America is interested in only one book, the Bible. If you are incapable of taking an oath on that book, don’t serve in Congress.”

3See The Raw Story, Religious Protests Disrupt US Senate’s Hindu prayer, July 12, 2007, available at http://rawstory.

com/news/afp/Religious_protests_disrupt_US_Senat_07122007.html. Hindu Priest, Rajan Zed was invited to offer the opening prayer before a session of the Senate in July of 2007. Just as Priest Zed offered the prayer, he was inter-rupted with protest and heckles from three Christian conservative protesters. The shouts heard included, “This is an abomination.” The activists were arrested, cited and ordered to court. The group Americans United for Separation of Church and State condemned the outburst. “This shows the intolerance of many Religious Right activists.” “They say they want more religion in the public square, but it’s clear they mean only their religion,” said the group’s executive director, Reverend Barry Lynn. These protest come on the heels of the conservative American Family Association email and letter campaign to ban Hindu prayer in the chamber.

4In this way, I attempt to establish that an individual’s right to believe or not believe is central to the understanding of religious liberty. Over the course of the two centuries of American government, the Supreme Court rulings on reli-gious liberty have gone through a confusing array of mixed signals, through a litany of cases like, the military prohibi-tion of skullcaps for Jews, the school prayer issue, Native Indian religious use of peyote, and statutory exempprohibi-tions for religious organization. In almost all of these cases, the claim of religious rights is determined through vigorous analy-sis via two lines of reasoning. In the first, the determination is made as to whether the case involves legitimate issue of religious liberty, while the second, balances the claim of legitimate religious liberty against the “compelling state interests,” and area examined later in this paper. In my view, the concept of religious liberty must be examined by taking into account meaning of two components, the “religion” and the “liberty”. While the terms “rights” and “liberty”

may be used interchangeable in this work, I will provide a much broader interpretation of “religious” than can be gleaned perhaps from the writings of the framers of the constitution.

5See generally, Donald E. Lively, Dorothy E. Roberts, & Russell L. Weaver, First Amendment Anthology, Anderson Publishing Company, 1994.

6See supra note 6. The Free Exercise Clause states, “Congress shall make no law respecting an establishment of reli-gion, or prohibiting the free exercise thereof.” The Free Exercise Clause of the First Amendment along with the Establishment Clause of the First Amendment makeup the Religion Clauses. The Free Exercise Clause has often been interpreted to include two freedoms: the freedom to believe, and the freedom to act. The freedom to believe is considered absolute, while the freedom to act faces state restriction.

7See Turnto23.com, Soldier under Fire for Controversial Decal, March 5, 2007 available at http://www.turnto23.com/news/11177861/detail.html.

8See CNN.com, Airline checks claim of ‘Muslim while flying’ discrimination, November 21, 2006 available at http://www.cnn.com/2006/US/11/21/passengers.removed/index.html or

http://www.cnn.com/2007/US/03/13/imam.suit/index.html?iref=newssearch.

9See Lee A. Henderson, New Bill to Allow Texts Other Than the Bible for Courtroom Oaths, February 11, 2007, available at http://www.associatedcontent.com/article/147822/new_bill_to_allow_texts_other_than.html.

10This story reflects real experiences airline passenger Jennifer Schulke has faced as a frequent international airline traveler. She has detailed her experiences to me. Also, I have accompanied her on multiple trips and witnessed first-hand the experience as described in this short story. I affirm the authenticity. Further information can be obtained by e-mailing her at [email protected].

11See generally W. McKinney & W.C. Roof, American Mainline Religion: its Changing Shape and Future. New A R E Y O U T H E R E G O D ?

Brunswick, Rutgers University Press, 1987. ^Seealso Barry A. Kosmin, Egon Mayer and Ariela Keysar, AMERICAN RELI-GIOUS IDENTIFICATION SURVEY, 2001, THE GRADUATE CENTER OF THE CITY UNIVERSITY OF NEW YORK, available at http://www.gc.cuny.edu/faculty/research_studies/aris.pdf.(Findings include significant statistical data which highlights the change within mainstream religious adherence, to the changes seen in non-christian traditions like, Islam, Buddhism and Hinduism.)

12As part of the Bill of rights, the First Amendment prohibits the federal legislature from making laws that establish religion, this is deemed the Establishment Clause. Also, prohibited is the prevention of free exercise of religion, this is deemed the Free Exercise Clause. Both clauses important because any laws enacted that limit freedom of speech, also limit freedom of the press, limit peaceful assembly, and limit the right to seek redress from the government for grievances. See generally See Paul Marcus, The Forum of Conscience: Applying Standards Under the Free Exercise Clause, Duke Law Journal, Vol. 1973, No. 6 (Jan., 1974), pp. 1217-1272; See Dorothy Roberts, Dorothy, Donald E. Lively and Russell L. Weaver, eds. A FIRST AMENDMENT ANTHOLOGY (Anderson Publishing Company, 1994).

13Employment Division v. Smith, 494 U.S. 872 (1990).

14Despite divergence of their interpretation, constitutional historians agree that the protection mechanisms of the First Amendment are borne out of historical needs, not merely for logical, moral or ethical reasons. Religious perse-cution in medieval England was real, which brought out humanity’s innate barbarism in the severest form or reli-gious intolerance. See generally Sydney E. Ahlstrom, A Relireli-gious History of the American People, Doubleday Publishing (1972); see also, Robert S. Alley, James Madison on Religious Liberty, Prometheus Books (1989).

15Although the constitution does not have explicit provision of “separation,” the concept grew out of perceived need for the separation of Church and State as a protection of the Church from the State, so that the Church can work un-hampered. Understanding the separation between the two religion clauses is important here, as even the Supreme Court has historically found it difficult to find effective zone of neutrality where the two clauses can operate without entangling each other. This sentiment is echoed by Justice Douglas in Zorach v. Clauson, 343 U.S. 306 (1952):

The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.

16The issue of burden is best explained against the backdrop of Smith. As any governmental burden on a religious be-lief or practice has a low threshold of justification, if it is determined to be generally applicable and not targeting a specific. For example, in 1993 the Court applied the burden principle in the Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). The Court held the law burdened a specific religious practice (e.g. animal sacrifice rit-ual of the Santeria religion), and thus the government would have to demonstrate that it had a compelling interest at stake. Ultimately, the government could not meet this burden and the law was stuck down.

17The issue of entanglement relate to the establishment clause and the concern over a state church, and more impor-tantly, assuring no government support for any particular religion, or excessive government entanglement with reli-gion.

18Lemon v. Kurtzman, 403 U.S. 602 (1971).

19The three prongs of the Lemon Test are determining that the government’s action must have a legitimate secular purpose; that the government’s action must not have the primary effect of either advancing or inhibiting religion;

that the government’s action must not result in an “excessive government entanglement” with religion. Id.

20See supra note 19.

21See supra note 18.

22The Free Exercise Clause of the First Amendment provides that government will neither advance nor inhibit reli-gious expression.

23Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

24Cutter v. Wilkinson, 544 U.S. 709 (2005).

25Van Orden v. Perry, 125 S. Ct. 2854, 2859 (2005).

26Reynolds v. United States, 98 U.S. 145 (1879).

27Reynolds v. United States, 98 U.S. 145 (1879). This Supreme Court case opined that religious duty was not a suit-able defense to a criminal indictment. A Mormon, George Reynolds was charged with bigamy. Reynolds contended that the bigamy conviction should be overturned in part because it was his religious right to practice bigamy.

28Id.

29Davis v. Beason, 133 US 333 (1890).

30Id.

31Cantwell v. Connecticut, 310 U.S. 296 (1940).

32Id.

33The 14th Amendment to the Constitution was ratified on July 28, 1868, and granted citizenship to “all persons born or naturalized in the United States,” including former slaves. It also states from denying any person “life, liberty or property, without due process of law” or to “deny to any person within its jurisdiction the equal protection of its laws.” The 14th Amendment is cited for its far reaching protection of civil rights to all Americans. See generally James

W. Hilliard, To Accomplish Fairness and Justice: Substantive Due Process, 30 J. Marshall L. Rev. 95, 102, 104, 110 (1996).

(Noting the principle of constitutional due process is aimed at protecting rights of individuals and providing legal safeguards to them. It affirms that an individual cannot be deprived of life, liberty, or property without being afforded legal protection available to him under the law. The Bill of Rights and the Fourteen Amendment to the U.S. Consti -tution ensures due process rights of individuals. Procedural and substantive due process are two types of laws. While procedural law seeks to enforce the due process rights of individuals, substantive law creates, defines, and regulates the rights.) For a cursory review of the Bill of Rights, see http://usinfo.state.gov/usa/infousa/facts/funddocs/

billeng.htm (last visited Dec 28, 2007) (outlining the first ten amendments to the Bill of Rights). Additionally, to gain a detailed understanding of the Fourteenth Amendment, visit http://www.nps.gov/malu/documents/amend14.htm;

See also Saby Ghoshray, Charting the Future of Online Dispute Resolution: An Analysis of the Constitutional and Juris -dictional Quandary, 38 U. TOL. L. REV.336-338 (2006) (explaining application of the Fourteenth Amendment for protection of constitutional rights of individuals). See also, A Century of Lawmaking for a New Nation: U.S. Congres

In document The American Experiment: Religious Freedom (Page 146-153)