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Religious guarantees in a pluralistic
soc~ety: values, problems, and limits
Laura S Underkuffler-Freund •
1
Introduction
This essay will address a question of pressing importance in the United States and
which, I· imagine, will be of importance in the interpretation of the new South
African Constitution: the meaning of fundamental guarantees of religious
freedom. From my reading of the religious guarantees found in the new South
African Constitution, it appears that many of the issues which we have faced in
the United States will be ones faced in South Africa as well; and so it is those
issues which I will address.
The question of the meaning of religious guarantees is not a new one in the United
States. From the earliest days of the settlement ofour republic, there has been
strife over the extent to which one citizen can control the religious beliefs and
practices of another, and over the extent to which religious beliefs and practices
can be a part of collective - particularly governmental - life.
Although there is much talk in American civics lessons about the foundation of
religious freedom upon which our country was built, the history of religious
tolerance - or, one might say, religious intolerance - was quite different..
Although many individuals came to America to pursue religious freedom for
themselves, rarely did those individuals apply that concept to others. There was,
in fact, religious oppression and. persecution in virtually all of the American
colonies. In the south, the Anglican church was established and supported - by
tax monies and other laws - by the colonial governments; in the north,
governmentally established churches included the Congregational Church, the
Dutch Reformed Church, Puritan sects, and others. Quakers, Baptists, Roman
'ProfessOr ofLaw, Duke University, Durham, North Carolina, USA. This essay is adapted from an
address give!) by the author in Pretoria, South Africa, on 29 Oct· 1996.
I
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Religious guarantees in a pluralistic society ,
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Catholics, Jews, and Unitarians were particular targets for persecution. In
Virginia, for instance, laws passed in 1659, 1662, and 1693 made it a criminal act
for parents to refuse to baptize children; prohibited the unlawful assembly of
Quakers; made it a criminal act for the master of any vessel to bring a Quaker into
the Colony; and subjected any Quaker who did arrive to banishment, with the
penalty of death for the third return.! By an Act of the Virginia Assembly of
1705, any previously baptized Christian who thereafter denied the being of a God
or the Trinity, denied the Christian religion to be the true religion, or denied the
Christian scriptures to be of divine authority, was (for the fIrst offense) denied
capacity to hold any offIce of employment, ecclesiastic, civil, or military; and for
the second offense, denied the ability to sue, or to take arty gift or legacy, and was
imprisoned for three years? In the New England colonies, religious dissenters
were imprisoned for refusing to pay taxes to the established church, and
citizenship and eligibility to hold public office were restricted by law to Protestant
Christians. 3 In 1673, Uriah Oakes of Harvard College declared that 'nook upon
unbounded [religious] Toleration as the fIrst-born of all abominations'.4
By the time of the American Revolution, the struggle against religious persecution
and government establishment of favored religious groups was Widespread
throughout the colonies. The proliferation of religious sects - particularly, the
splintering of Protestant Christian religious sects into evangelical and mainline
movements - made the mono-theocratic religious model an impossibility in the
colonies. The dissenters, in short, outnumbered (in many places) the members of
the established religious sects. In addition, the dissenters were vocal, stridently
partisan, and merged their cries of oppression with the general revolutionary cry
of oppression against the government of England. Under these circumstances, the
Old-World church-state model- under which a particular religion was chosen· and
enforced by goveriunent - became radically unworkable.
It is from this history that the religious guarantees of the American Constitution
were born. It is perhaps interesting to note that the original articles of the
Constitution, as drafted and presented to the states for ratifIcation in 1787,
contained neither of the religious guarantees that so preoccupy American public
life and jurisprudence today. Rather, the original Constitution contained only one
religious-freedom guarantee: that no religious test oath would be required for any
IThomas Jefferson Notes on the state of Virginia (1788), reprinted in Merrill D Peterson (ed) The
portable Thomas Jefferson (1975) 23, 208.
2Ibid 2 10.
3See Thomas Curry The first freedoms: church and state in America to the passage of the First
Amendment (1986) 90-91.
4 Joseph B F~lt Ecclesiastical history of New England; comprising not only religious, but also
mora/, and other relations (1862) 506.
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federal office. s The First Amendment, in which our more well-known guarantees
of religious liberty are found, was adopted by the Federal Constitutional
Convention only after insistence was made by many of the ratifying state
conventions. The reason for this is not that those who attended the federal
convention favored the creation of a national religious establishment; rather, it
was based on the belief that the national government simply had no role,
whatsoever, in church-state relations. Many in the states, however, did not trust
this implicit understanding of 'non-cognizance'; they insisted that it be stated, in
writing, as a matter of fundamental principle. So we obtained the language of the
First Amendment to the Constitution: 'Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof ... '. 6
The application of these religious guarantees to state governments was not
obvious; indeed, the test refers to restraints on the national Congress alone. It is
apparent, from reading the history of the adoption of this language, that the
framers intended that it impose restraints upon the national Congress alone. It was
believed that states would, and should, resolve the problems presented by their
religious establishments in such a way and in such time as they sought fit. Indeed,
it was not until 1833 that the fmal state religious establishment - that in
Massachusetts - was officially abolished.
The enactment of federal religious guarantees, and the abolition of officially
established state churches, set certain principles in place: the idea of official
enforcement of religious toleration; the idea of the equality of persons and
religions before the law; and the idea of the separation of religious and government institutions. The subsequent extension offederal constitutional guarantees
to state as well as national actions 7 also led. to a tremendous deepening and
broadening of these principles.
Difficult areas of controversy have, however, persisted through the years. Many
of these have become more prominent, and more politically charged, with the
emergence of new kinds of religious claimants: those who reject the assumption
of the separation of the religious and the secular in society and government. Such
claimants have, of course, always been an active part of American life; indeed, it
was believers of this type who advanced early theocratic American ideals. These
new religious claimants, however, pose different challenges in the post-modem
age. They have, through political action and the filing of legal suits, challenged
SSee US Constitution art VI ('[N)o religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States. ').
6lbid Amendment 1.
7See Cantwell v Connecticut 310 US 296 (1940) (Free ExerCise Clause); Everson v Board of
Education 330 US 1 (1947) (Establishment Clause).
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Religious guarantees in a pluralistic society
35
a host of practices of the 'neutral', liberal state. For instance, they resist the
enforcement of state and municipal civil rights laws, on religious grounds; they
argue that the exclusion of religious practices, particularly Christian religious
practices, from public. schools is a violation of their rights. to free religious
exercise; and they argue that the public school teaching of civic values, such as
self-reliance, or the teaching of certain scientific ideas, such as the theory of
evolution, is the 'establislimerit' of religion in violation of principles of equality
and religious rights. These challenges have highlighted fundamental problems in
existing United States Supreme Court jurisprudence, and forced those of us who
believe in liberal democratic ideals to re!hink how we view religion, religious
citizens, and the boundaries of public life.
The extent to which any of these issues will, in fact, be important in the
interpretation of the new Constitution of South Africa is, of course, unknown. An
initial reading of the South African Constitution indicates that the understanding
of religious freedom found there. is more guarded, at least as a starting point, than
is usually the case (at least rhetorically) in the United States. For instance, the
South African guarantee of religious freedom is expressly subject tomajoritarian
notions ofhwnan dignity, equality, and freedom (section 36(1». It is also subject
to judicial enforcement of the same values (section 39(1». By contrast, the
religious guarantees in the United States Constitution contain no such limitations;
they are absolute. in their written terms. However, American courts and
commentators have struggled to provide limitations, generating many issues that
will likely be faced in South Africa as well.
From what I have read about the history of church-state relations in South Africa,
it also appears that some other starting points that are assumed in the United
States are not assumed in South Africa. For instance, the 'wall of separation'
model that has (at least rhetorically) been used in the United States is not, in fact,
a South African assumption. Professor Dlamini of the University of Zululand has
stated that in South Africa, religious and governmental institutions will often 'cooperate and collaborate ... in certain matters'. 8 This is clearly a radically different
starting point from that ordinarily used in the United States. However,despite
such differences, I believe that many of the issues which underlie American
religious guarantees are common difficulties in democratic,pluralistic societies;
and that an analysis of our experience may, accordingly, be useful to the
development of the law in South Africa.
8Charles Dlamini 'Culture, education and religion' in Van Wyk et al (eds) Rights and constitutionalism: the new South African legal order (1994) 573, 593.
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2
Basic principles: the United States Supreme Court
2.1
The meaning of 'religion'
The First Amendment's guarantees of free exercise of religion and freedom from
government establishment of religion have followed different doctrinal paths. The
two guarantees have been largely treated as separate in nature, with a different
test developed for each. Both begin, however, with the same threshold question:
what 'religion', for constitutional purposes, should mean.
In a society where different religious identities are old, established, and welltolerated, the formulation of a definition of religion for constitutional purposes
may not be difficult. In the United States, for instance, the Supreme Court's early
understandings of religion tracked traditional, theistic terms: religion was 'one's
views of his relations to his Creator,9 or a 'belief in a relation to God involving
duties superior to those arising from any human relation'. 10 However, increased
religious diversity in the United States forced the Court to acknowledge nontheistic religions as well. In a more recent case, for instance, the Court stated that
a religious belief is one that is 'sincere and meaningful' and 'occupies in the life
of its possessor a place parallel to that filled by ... God'. II
The problem with such broad definitions iS,of course, a determination of their
limits. A devolution of , religion' into simply 'important beliefs and practices'
threatens to include any belief or practice within the constitutional embrace. In
addition, since 'religion' is - by its very essence - necessarily a matter of strictly
personal determination, I 2 problems of the scope of this constitutional right are
severe indeed.
The United States Supreme Court has attempted to provide such limits, by
distinguishing 'religious' from 'philosophical' beliefs and affording protection
only for the former. 13. However, this distinction tends to dissolve under any kind
9Davis v Beason 133 US 333 at 342 (1890).
IOUnited States v Macintosh 283 US 605 at 633-34 (1931) (Hughes CJ dissenting).
II United States v Seeger 380 US 163 at 176 (1965).
12See, eg, United States v Ballard 322 US 78 at 86-87 (1944)(boundaries of religious belief are
su~ective, understood and defined by the individual alone). Members of the Supreme Court have
suggested that judicial formulation of a definition of religion may itself violate Establishment Clause
guararitees. See, eg, West Virginia State Board ofEducation v Barnette 319 US 624 at 658 (1943)
(Frankfurter J dissenting) ('Certainly this Court cannot be called upon to determine what claims of
conscience should be recognized and what should be rejected as satisfying the "religion" which the
Constitution protects. That would indeed resurrect the very discriminatory treatment of religion
which the Constitution sought forever to forbid. ').
13 Wisconsin v Yoder 406 US 205 at 215-16 (1972)(stating that religious beliefs are more than
personal philosophical convictions).
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Religious guarantees in a pluralistic society
37
of scrutiny. A philosophical belief could, .for instance, clearly be 'sincere and
meaningful' and 'occupfy] in the life of its possessor a place parallel to that filled
by ... God'. The Court has accordingly been left with the use of a critical term
whose meaning is Wlexplored and Wlexplained.
2.2
Free exercise of religion
The United States Supreme Court has often emphasized the importance of free
religious exercise, and the need for constitutional protection from state
interference with religious practices and beliefs. The Court has stated that.
'[f]reedom of thought~ which includes freedom of religious thought, is basic in a
society of free men'.14 In a famous case, the Court stated that '[i]fthere is any .
. fixed star in our constitutional constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics, nationalism, religion, or other
.
f ..
,15
matters 0 OpInIOn... .
The protection that can be afforded to religious claims is, however, obviously not
absolute. Important state interests will often conflict with claims of religious free
exercise, and sometimes state interests must prevail. Traditionally, the Court has
attempted to separate protected from non-protected claims on the basis of two
doctrinal principles: first, that (pure) religious belief should be distinguished from
religiously-motivated action; and second, that any such action should be weighed
against the competing state interests involved.
Under the Court's decisions, freedom of belief is absolutely protected. 16 Few in
a liberal democracy would disagree; this proposition is, I believe, entirely
noncontroversial in our society and in yours. What a person believes in the
privacy of his own mind is not a matter for coercion - indeed, is generally not the
appropriate subject for knowledge - by the society at large. Protection of freedom
to believe is (in short) an important principle, but an easy one.
The difficulty is presented when belief is put into action, whether through speech,
writings, solicitations, worship services, or other activities. Under the Court's
traditional test, freedom to act is protected as religious exercise only if it is
required by a central religious belief, is substantially burdened by a government
action, and is not outweighed by a compelling government interest. 17
United States v Ballard (n 12) 86.
West Virginia State Board ofEducation v Barnette 319 US 624 at 642 (1943).
16See Braunfeld v Brown 366 US 599 at 603-05 (1961); Cantwell v Connecticut (n 7) 304-305.
"See Hernandez v Commissioner 490 US 680 at 699 (1989); Thomas v Review Board 450 US
707 at 717-19 (1981); Wisconsin v Yoder (n 13) (1972).
14
15
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As a practical matter, virtually all important cases decided by the Court have been
deemed to involve religiously-motivated action. Cases involving the right of
parents to withhold children from public schools,18 the right to distribute religious
literature,19 and even the right of a minister or priest to hold legislative office, 20
were held to involve religious 'action', not 'belief - a sweeping interpretation
indeed. In the history of the Court's adjudication of free exercise claims, only once
has the Court found a claim to involve religious belief alone. In that case, an
individual challenged a state requirement that belief in God be declared for the
holding of public office. 21 As a restriction on freedom to believe, this law was
summarily invalidated.
The tendency of the Court to see free exercise claims as involving, essentially,
religiously motivated action has pushed the analysis into the second part of the
test: whether there is a central religious belief or practice that is burdened by state
action and, if so, whether it is outweighed by a compelling government interest.
The first part of this test - whether the burdened religious belief or practice is
'central' to the religious claimant's belief system - has proven to be of little
practical importance. If the claimant asserts that a particular belief or practice is
'central' to his belief system, it is virtually impossible for the state to contradict
that aSsertion.
The critical question has historically been whether the claimed belief or practice
is outweighed by a compelling government interest. The weighing of such
competing interests is, of necessity, an uncertain and subjective enterprise. Even
if this inherent difficulty is accepted, the Court's decisions in this area are difficult
to explain. The Court has, for instance, held that the state's interest in assigning
every citizen a social security number,22 enforcing universal participation in the
federal social security system,23 and enforcing compulsory military service24 were
'competing'
interests which outweighed religious claims, while compulsory
.
.
18Wisconsin v Yoder(n 13).
19Cantwell vConnecticut (n 7).
2°McDanielvPary435 US 618 (1978).
21 Torcaso v Watkins 367 US 488 (1961).
22Bowen v Roy 476 US 693 (1986) (rejecting Native Americans' claim for exemption from
assignment of a federal social security number)..
DUnited Slates v Lee 455 US 252 (I 982)(rejecting Amish claim for exemption from participation
in the federal social security system).
.
1A(Jillette v United Slates 40 I US 437 (1971) (rejecting claim for exemption from the military draft
by an individual who opposed a particular war - the Vietnam War - on religious grounds).
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Religious guarantees in a pluralistic society
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education laws/5 the rules governing unemployment compensation,26 and rules
governing door-to-door solicitations,27 were not. It is difficult to argue thatthe
natme of the government interest, alone, detennined the results in th.ese cases; it
is difficult to see, for instance, how the state's interest in a system of social
security numbers (rather than some reasonable alternative) is more compelling
than its interest in universal childhood education. Often the result seems to tum
on whether the religion in question is perceived to be a 'mainstream' one,
essentially non-threatening to established religious and cultural views .. If it is, then
tolerance for religious deviation from government nonns is quite broad. If it is
not, then tolerance for religious deviation is very limited.
In two very recent cases, the Court has radically changed course, and abandoned
the 'compelling interest' test in almost all cases that involve 'religiously neutral'
state laws. Under these cases, known as Lyng 28 and Smith 29, free exercise claims
are to be handled in the following way:
•
•
If prohibiting or burdening religion is the object of the law, the law must
be justified by a compelling government interest.
I( however, prohibiting or burdening religion is not the object of the law
- if it is 'neutral' in its object - then its constitutionality will depend
solely on whether it requires or prohibits individual action. If an
individual is coerced by government to act in violation of his beliefs, a
compelling government interest must be shown. If the law simply
prohibits (allegedly) religious conduct, that (in the absence of evidence
of intent to discriminate against the religious) creates no cognizable
claim under the Free Exercise Clause.
The results in Lyng and Smith are illustrative of the practical effects of these
rules. Proving that burdening religion is the object of the law- that the state, in
effect, engaged in intentional discrimination against the religious - is extremely
difficult. Almost all laws fall into the second category: they are 'neutral' on their
face, but are claimed, in operation, to burden religious practices and beliefs. In
Lyng, for instance, Native Americans challenged the construction of a road and
15Wisconsin v Yoder (n 13) (upholding the right of Amish to refuse to send their children to public
schools).
16Hobbie v Unemployment Appeals Commission 480 US 136 «(1987); Thomas v Review Board
(n 17); and Sherbert v Vemer374 US 398 (1963) (invalidating state unemployment compensation
rules that conditioned the availability of benefits upon an applicanfs ability to work on his religious
holidays).
T'Murdock v Pennsylvania 319 US 105 (1943) and Cantwell v Connecticut (n 7) (invalidating state
regulations which burdened religious speech and door-to-door religious solicitations).
28Ly;,g v North~est Indian Cemetery Protective Association 485 US 439 (1988).
19EmpJoyment Division v Smith 494 US 872 (1990).
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the conducting of logging activities in an area of a national forest that had been
used for their religious worship for generations. In Smith, Native Americans
challenged a state law which denied employment compensation for work-related
'mis-conduct'; the 'misconduct' in question was the ingestion of peyote during
worship ceremonies of the Native American Church. Because both laws were
'religiously neutral', the claimants lost - despite the conceded absence of any
countervailing, 'compelling' government interest.
The elevation of 'religiously neutral' laws above religious challenge was an
intended result of these cases. In Smith, the Court candidly admitted that
if'compeUing interest' really means what it says ... , many laws will not meet the
test. Any society adopting such a system would be cowting anarchy.... [w]e
cannot afford the luxury of deeming presumptively invalid, as applied to the
religious objector, every regulation of conduct that does not protect an interest
of the highest order?O
Rather, the accommodation of religious belief in such cases must be left to the
'political process' .31 We cannot, the Court stated, have 'a system in which each
conscience is a law unto itself. ..'. 32
The Court's opinions in these cases ignore the fact that the 'compelling interest'
test was used, without apparent anarchy, for many years. The question is not
whether religious claims are 'absolute' or enjoy automatic exemption from
'religiously neutral' state laws. Rather, the question is whether a society values
religious freedom, when that freedom conflicts with the majority's laws and the
majority's values. Does free religious exercise have presumptive value, to be
overridden only when a threat to other, fundamental values is clear? Or are
religious claims to be treated - as a routine matter - simply as other law-breaking
activity is treated, with relief only in the 'religiously discriminatory' case?
2.3
Freedomjrom state establishment of religion
For many years, the Court applied a three-prong test to determine if there was an
unconstitutional 'establishment' of religion by government. Under this test,
known as the Lemon 33 test, a challenged lawis examined to see whether it has a
secular purpose; whether its primary effect is 'neutral' - ie, it neither advances
nor inhibits religion; and whether it fosters excessive government entanglement
30/bid 888.
31/bid890.
32Ibid.
33Lemon v Kurtzman 403 US 602 (1971).
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Religious guarantees in a pluralistic society
41
with religion. 34 The fIrst two prongs - whether the law has a 'secular purpose',
and whether the 'primary effect' of the law is to advance or inhibits religion - has
recently been restated by the Court. Under this restatement, the critical question
is whether the challenged government practice 'endorses' religion - whether it
'convey[s] or attempt[s] to convey a message that religion or a particular religious
belief is favored or preferred'. 35
Motivating these tests is the belief that 'freedom from governmental
establishment' of religion means the separation of religion from government. The
Court has stated that the 'union of government and religion tends to destroy
government and to degrade religion' .36 All people - religious and non-religious
- cannot be treated equally by government if government 'establishes' one
religion as a part of government law or practice. 'When the power, prestige and
ftnancial support of government [are] placed behind a particular religious belief,
[there is] ... indirect coercive pressure upon religious minorities to confonn ... '.37
For government to 'choose' one religion over other religions, or religion over nonreligion,38 violates principles of equality. It also leads to political division and
strife - 'principal evils against which the First Amendment was intended to
protect' .39
The Court's interpretation of these principles in concrete cases has been
conflicting and troubled. Public elementary and secondary schools have provided
particular battlegrounds for Establishment Clause claims. The Court decided,
early on, that the conducting of religious exercises in public schools was a direct
violation of the Establishment Clause. Bible-reading40 or prayer41 led by teachers
or other school officials was held to constitute an endorsement of particular
religious faiths to the exclusion of others. The fact that students who did not share
the chosen faiths could absent themselves from these activities did not cure the
14lbid 612-613.
3SCounty ofAllegheny vACLU 492 US 573, 593 (l989)(quoting Wallace v JajJree 472 US 38 at
70 (1985) (O'Connor] concurring in the jUdgment). See also Board ofEducation v Mergens 496.
US 226 at 249-50 (1990) (plurality opinion).
36Engel v Vitale 370 US 421 at 431 (1962).
37lbid.
38The principle of neutrality, as articulated by the Supreme Court, guarantees governmental
evenhandedness toward religion and non-religion: in theory, neither can be favored over the other
by government. See Rosenberger v Rector and Visitors of the UniverSity of Virginia 115 S Ct
2510 at 2521 (1995) and Lamb's Chapel v Center Moriches Union Free School District 113 S Ct
2141 (1993) (non-religion is not to be favored over religion); Board ofEducation of Kiryas Joel
Vii/age School District v Grumet 114 S Ct 2481 at 2491-92 (1994) (religion is not to be favored
over non-religion).
39Lemon v Kurtzman (n 33) 622.
40See Abingdon School District v Schempp 374 US 203 at 225 (1963).
41Engel v Vitale (n 36) 424-436.
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problem, since non-conforming students were either required to identify
themselves as 'different' from the favoured group, or were forced to silently
acquiesce in religious practices in which they did not believe.
In more recent cases, the Court has struggled to identify the limits of these school
exercise cases. For instance, a challenge was recently made to a state law which
required a time of 'meditation or voluntary prayer' in public schools, on the
ground that this was a religious exercise. The Court held that this law was
unconstitutional, based on evidence that state legislators were motivated by a
desire to circumvent the Court's prior rulings on school prayer, and intended to
advance religion in the public schools, when the law was passed. 42
The application of Establishment Clause principles to public school curricula has
brought even more difficult problems. The principle of equality has recently been
used by fundamentalist Christian groups to argue that religious theories - for
instance, the Biblical theory for the creation of humankind - should be included
in the curricula of the public schools. In 1982, the Louisiana legislature passed a
law which prohibited the teaching of the theory of evolution in public schools
unless it was accompanied by instruction in 'creation science' - a theory which
tells the Biblical story.43 Such even-handed treatment was necessary, the
Legislature concluded, to preserve 'academic freedom' in the public schools. The
Supreme Court struck this law down, on the ground that it failed the 'secular
purpose' test of Establishment Clause jurisprudence. After examining the
motivations and intentions of Louisiana legislators, the Court held that '[t]he
preeminent purpose of the Louisiana Legislature was clearly to advance the
religious viewpoint'44 - an impermissible endorsement of religion by government.
The Court's reasoning, of course, did not answer the fundamentalists' equality
challenge: if the Constitution requires government neutrality toward religious
sects, and toward religion and non-religion, no explanation for the apparent
favoring of non-religion in this case was offered. This 'equal time' challenge has
been used by various religious groups in recent litigation to challenge wholesale
portions of public school curricula. Standard public school curricula, they argue,
are not 'religiously neutral'; they are the establishment of certain systems of
secularism, in violation of Establishment and Free Exercise Clause guarantees. 45
42Wallace v JajJree (n 35) 56-60.
43See Edwards v Aguillard 482 US 578 (1987); La Rev Stat Ann Sees 17:286.1-7 (West 1982).
44 Edwards v Aguillard (n 43) 591.
4SSee, eg, Mozert v Hawki,1S County Board of Education (n 35); Smith v Board of School
Conunissioners 655 F Supp 939 (SDAla), rev'd 827 F 2d 684 (11 th Cir 1987). See also Crowley
v SmiJhsonian Institution 636 F 2d 738 (DC Cir 1980) (challenge to two exhibitions at the national
Smithsonian Museum ofNatural History, on the ground that they established secular humanism in
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Religious guarantees in a pluralistic society
43
To date, the Supreme Court has not answered this challenge.
The Court's consideration of government aid to sectarian elementary and
secondary schools has created a body of notoriously confusing case law. The
Court. has attempted to separate religious uses and activities from secular ones,
with state aid permissible only for the latter. ACcordingly, books, equipment, and
teachers provided at public expense are scrutinized to see whether they could be
used for religious instruction or are otherwise 'entangling' the state in religious
. affairs. Under these tests, state provision of secular textbooks,46 sign-language
interpreters,47 diagnostic services,48 and bus fares 49 to religious schools and their
students were held to be constitutional, while the provision of tape recorders,50
field trip transportatiOn,5J and guidance counseling, speech and hearing therapy,52
were not.
The constitutionality of public funding of sectarian colleges and universities has
turned on whether their 'predominant higher education mission [was] to provide
their students with a secular education' .53 In one case, state and federal subsidies
for the building of libraries, a language laboratory, and science and fme arts
buildings by a religiously-affiliated university were upheld on the basis that there
was 'no evidence that religion seep[ed] into the use of any of these facilities'54certainly a dubious factual conclusiori.
Distinguishing the constitutional from the unconstitutional has proven to be
equally difficult in cases involving government use of religious symbols. In
general, the Court has struck down· the use of a single religious symbol by
government on the ground that it communicates an 'indisputably religious'
message. 55 For instance, the placing ofa Christian creche on the staircase of a
state courthouse constituted a fusion of religion and governIi1ent, and a violation
of the principle of governmental equality toward all religious sects. 56 The Court
wrote that 'history cannot legitimate practices that demonstrate the government's
violation of Free Exercise and Establishment Clause guarantees).
46Board o/Education vAllen 392 US 236 (1968).
47Zobrest v Catalina Foothills School District 509 US 1 (1993).
41Wolman v Walter433 US 229 (1977).
49Everson v Board o/Education (n 7).
sOWolman v Walter (n 48).
SIIbid.
s2Meek v Pittenger 421 US 349 at 367-73 (1975).
s3Tilton v Richardson 403 uS 672 at 687 (1971).
S4Ibid681.
sSCounty 0/Allegheny v ACLU (n35) 598.
S6See ibid.
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(1997) 12 SAPRlPL
allegiance to a particUlar sect or creed'.S7 'Whatever else the Establishment
Clause may mean ... , it certainly means at the very least that government may not
demonstrate a preference for one particUlar sect or creed (including a preference
for Christianity over other religions)'.s8
Where, however, the syntbols of several religions were presented, S9 or religious
object were presented with non-religious objects (such as sleighs or Santa Claus
figures),60 the Court has upheld the displays on the ground that no particular
religion was endorsed by government. As stated by Justice Blackmun, '[t]he
necessary resUlt of placing a menorah next to a Christmas tree is to create an
"overall holiday setting" that represents both Christmas and Chanukah - two
holidays, not one'.61 When confronted with the argument that this could be seen
simply as an endorsement of both Christian and Jewish faiths (to the exclusion
of others), Justice Blackmun wrote that it was 'more plausible' that citizens
woUld view them as simply ~part of the same winter-holiday season'.62
When legislative prayer, the national motto ('In God we trust'), and religious
references in the Pledge of Allegiance ('one nation under God') were considered,
the Court approved them as historical, 'nonsectarian references to religion by ...
govemment'.63 Indeed, these practices have such deep, historical roots, and such
wide cultural acceptance, that a rmding of their unconstitutionality woUld be
unthinkable. 64 However; there is also no denying that such practices are clearly
religious in nature, and violate the Court's articulated non-establishment
principles. For a congressional chaplain, whose salary is paid by tax dollars, to
intone Christian prayers for the opening of official sessions of the national·
Congress, is clearly an entanglement of religion with government and the
endorsement of religion over non-religion as a matter of public life.
571bid 603.
581bid 605.
19See ibid 614 (opinion ofBlaclcmun 1).
('oSee Lynch v Donnelly 465 US 668 (1984).
61COImty ifAllegheny v ACLU (n 35) 614 (opinion ofBlackmun 1) (quoting Lynch v Donnelly (n
60) 692 (O'Connor J concurring».
621bid 616 (opinion ofBlackmun 1). Not all justices of the Court have agreed. As Justice Stevens
wrote: '[T]he fact that the State has placed its stamp of approval on two different religions instead
of one only compounds the constitutional violation. The Establishment Clause dOes not merely
prohibit the State from favoring one religious· sect over others. It also proscribes state action
supporting the establishment of a number of religions, as well as. the official endorsement of religion
in preference to nonreligion.' Capitol Square Review and Advisory Board v Pinette 115 S Ct 2440
at 2470 (1995) (Stevens J dissenting).
61lbid 602-03. See also Marsh v Chambers 463 US 783 (1983).
~, eg,Marsh v Chambers (n 63) 786 (1983) (such practices are 'deeply embedded in the history
and tradition ofthis country').
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Religious guarantees in a pluralistic society
3
45
A critique, deeper questions, and suggestions
The interpretation of constitutional religious guarantees by the United States
Supreme Court has been founded on the following principles (among others):
•
That 'religious' beliefs or practices should be identified by their basis in
traditional notions of 'religious' (as opposed to 'philosophical') content.
•
That the religious can be separated from the secular within the individual,
in society, and in government; and that such separation must be made in
determining the scope of constitutional protections and prohibitions.
•
That laws passed without an intention to benefit or burden religion are
'religiouslyneutral' and are therefore entitled to a presumption of constitutional validity.
•
That the principle of equality, among religious sects and between religion
and non-religion, is critical to the integrity of religious freedom
guarantees.
It is my belief that each of these propositions, although true in part, is deeply
problematic; and that by examining these propositions, we can illuminate some
of the deepest issues involved in religious freedom guarantees.
3.1
What 'religion' means: toward afunctional definition of
religiousfreedom guarantees
This is the first, most difficult, and (perhaps) most avoided question. It is first,
because until we know what 'religion' (for constitutional purposes) is, any discussion of its protections or prohibitions is nonsensical. It is most difficult, because
the formulation of a coherent, abstract definition of religion is very difficult. It is
most avoided, because the difficulty in defining religion is often a mirror of deep
cultural, social, and political divisions within a society. Consideration of this
question tends to illuminate dark comers that we would rather not consider - it
forces acknowledgement of the breadth, power, and divisive potential of
conflicting religious and cultural claims.
The United States Supreme Court has attempted to meet this challenge by
defining religion broadly - in a non-theistic manner - but by retaining an
approach based upon the presence of explicitly 'religious' content. The Court has
stated that religious beliefs are those that. are 'sincere and meaningful', and
'occup[y] in the life of [their] possessor[s] a place parallel to that filled by ...
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(1997) 12SAPRlPL
God' .6S In another formulation, it has held that 'religious' beliefs must be
distinguished from 'philosophical' ones, with protection for the former but not the
latter.66
I notice that the new South African Constitution has taken a decidedly different
approach, extending protection - on an apparently equal basis - to freedom of
'conscience, religion, thought, belief, and opinion' (section 15(1». It is unclear
to me whether this broad approach extendS only to freedom to believe, or to
freedom to act as well. The fact that the South African Constitution later refers
to 'fp]ersons belonging to a cultural, religious, or linguistic community' as having
the right to 'enjoy their culture, practice their religion and use their language'
(section 31(1» perhaps indicates that protected freedom to act - the more difficult
area of rights jurisprudence - is more closely tied to defmed cultural or religious
identities. If the latter is true, then the problem of a limiting defmition for
'religion' is present in South African law as well.
If constitutional freedoms are 'religious' freedoms, that word must have some
kind of distinct meaning and exclusionary power. There must be some limiting
and enforceable meaning for 'religious' rights; such rights cannot encompass, for
instance - even as a prima facie matter - all claims by individuals to act
autonomously.
In other work,67 I have suggested that we should move beyond defmitions which
are based upon traditional notions of religious content, and toward an
understanding which is based upon the jUnction and purpose of religious freedom
guarantees. I have argued that our regard for religious freedom is based upon our
recognition of the critical importance individual freedom of conscience - an
importance both to the individuals involved and to the societies and governments
that they create. It· is the protection of the exercise of individual conscience --, the
ability, and responsibility, of individuals to make personal, reasoned, moral
inqui~ - that is the core value of religious freedom guarantees. AcCordingly,
religious guarantees should focus less on the nature of the asserted belief as
conventionally 'religious', 'philosophical', or what-have-you, and more on the
protection ofacts ofconscience, generally defmed, and on the protection ofthe
process of conscience formation. Although this approach will obviously not
solve all definitional problems, focus on the protection of conscience, and on the
PUIJ>a>es served by its freedom, might well yield a more coherent understanding
6SUnitedStatesvSeeger(n ll) 176.
66Wisconsin v Yoder (n 13) 215-216.
67See Laura Underkuffier-Freund 'The separation of the religious and the secular: a foundational
challenge to First Amendment theory' ( 1995) 36 William and Mary LR 827.
.
68See Laura S Underkuffier 'Individual conscience and the law' (1992) 42 DePaul LR 93.
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Religious guarantees in a pluralistic society
47
of the scope of constitutional protections than reliance on conventional definitions
has done.
3.2
Separation of the religious and the secular: rejecting aflawed
model
The 'wall of separation' metaphor, so often associated with American First
Amendment jurisprudence, reflects a deep assumption in our Supreme Court's
interpretation of religious liberty guarantees. The Court has assumed that the
religious can be separated from the seCular on two levels: analytical separation,
or the separation of religious motives,uses,meanings, and so on, from secular
ones; and a deeper (and related) spheric separation, or the separation of religion,
as a totality, from public life and government. Although the Court has recognized
the pervasively reliiious nature of Americans as individuals, the Court has
struggled to restrict this religiosity to the private realm, and to prevent its
entanglement in governmental affairs and public institutions.
The problem, of course, is that this model - even if deemed desirable by some is impossible to achieve. Time and again, the Court has stumbled over the
difficulty of expunging religion from public life and public institutions, when the
individuals who are involved in that life and in those institutions are, in fact,
religious. Neither analytical nor spheric separation is a realistic goal in this
environment. It is impossible to separate 'religious' motivations or values of
religious legislators from 'secular' ones; to expunge religion, through the use of
'secular' materials, from a religious school classroom; or to separate the
'religious' message of a Christmas creche, placed by government on a town
square, from its possible, 'secular' counterpart. It is impossible to avoid the
'establishment' of religion, if the implementation of religious beliefs is meant. As
long as religious beliefs ~ held by citizens, religious belief systems, like all other
belief systems, will be an integral part of our public institutions and public life.
Accepting this enmeshment does not mean, however, that there are no dangers
posed by the merger of religion and government. The historical evidence is vel)'
strong that although the founders of the American republic were not concerned
about the simple existence of religion in government, they were vel)' concerned
aboUt the dangers of the merger of religious and governmental institutions. When
religious institutions become a part of government - when their powers, prestige,
and functions are merged with the powers, prestige, and functions of government
- serious dangers to the civic equality of dissenting citizens are presented. 69
69The Supreme Court has, on occasion, framed the Establishment Clause concern in these terms:
as preventing a 'fusion of governmental and religious functions'. Abingdon School District v
Schempp (n 4Q) 222. Accord Board o/Education 0/Kiryas Joel Village School District v Grumet
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Although some theocratic governments have undoubtedly operated Without
serious oppression of minority groups, distinct dangers of symbolic - if not actual
- inequality and oppression are presented by the integration of religious
instifutions and government.
Determining when institutional integration has occurred is, of course, not an easy
task. In the United States, the conducting of religious· exercises in public schools,
and the providing of significant public fimds to private religious institutions,70 are
- rightly, I think - perceived by most citizens to present these dangers. By the
explicit tenns of the South African Constitution (particularly section 15(2», the
conducting of religious observances in state-aided institutions appears - under
some conditions - to be pennissible. The interpretation of this provision might,
however, utilize principles that are similar to those suggested here: that religious
values, motivations, and expression be an accepted (and valued) part of public
life; but that the integration of religious and governmental institutions be
steadfastly avoided.
(n 38)2488-90 (1994); Larkin v Grendel's Den, Inc 459 US 116 at 126-27 (1982). Compare also
Walzv Tax Commission ofNew YorkCiry 397 US 664 at, 668 (1970) (the Establishment Clause
prohibits 'sponsorship, financial support, and active involvement of the sovereign in religious
activity').
10An issue which often arises in connection with the non-funding principle is whether the identity
of the recipient ofthe public funds is determinativefor constitutional purposes. The disbursements
of public tax money to religious institutions has been traditionally regarded as constituting the core
of prohibited establishment of religion by government. See, eg, Rosenberger vRector and Visitors
ofthe Universiry ofVirginia (n 38). As the Court has stated, '[ n]o 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'. Everson v Board ofEducation (n 7)
16 (1947). Accordingly, the Court has often attempted to distinguish 'indirect' use of public money
to support religious activities from' direct' payment. See, eg, Rosenberger v Rector and Visitors of
the Universiry of Virginia 2522-23 (distinguishing state payments to contractors, who printed
religious literature for religious groups, from 'direct money payments to an institution or group that
is engaged in religious activity'); Everson v Board of Education 17-18 (distinguishing state
payment of bus transportation costs to religious school students from direct state payment to the
students' schools). Obviously, prohibition of all indirect governmental aid to religious institutions
is neither possible nor wise. However, it is just as obvious that some 'indirect' aid is the functional
equivalent of the direct payment of public tax dollars - and should be evaluated as such.
Some have argued that the principle of equality should govern funding issues: that tax payments to
religious institutions should be permitted as long as all religious - and non-religious - institutions
are treated (and subsidized) equally. See, eg, Rosenberger v. Rector and Visitors ofthe Universiry
of Virginia 2528-33 (Thomas J concurring). This argument, however, ignores the dangers - and
the historic Establishment Clause concern - presented when the powers, prestige, and functions of
religious institutions are an integral part of the taxing and spending powers of national and state
governments. In the words of JustiCe Souter, 'evenhandedness is only a "significant factor" in ...
Establishment Clause analysis, not a dispositive one'. The state cannot "hid[e] behind the
application offormally neutral criteria and remain ... oblivious to the etTects of its actions .. .'. Ibid
2540 (Souter J dissenting); quoting Capitol Square Review and Advisory Board v Pinette (n 62)
2454 (O'Connor J concurring in part and concurring in the judgment).
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Religious guarantees in a pluralistic society
3.3
The role 0/ equality: the need/or a different understanding
A conunitment to equality - the equal treatment, Wlder law, of similarly situated
individuals - is a fundamental principle of the liberal democratic state. The
principle of equality is enshrined in the United States Constitution and, I observe,
articulated even more forcefully in the new Constitution of South Africa. For
instance, section 9 explicitly states that '[e]veryone is equal before the law and
has the right to equal protection and benefit of the law'; that '[e] quality includes
the full and equal treatment of all rights and freedoms'; and that '[t]he state may
not unfairly discriminate directly or indirectly against anyone on one or more
groWlds', including 'religion, conscience, belief, [or] culture'.
To some extent, the interaction of the principle of equality with religious
guarantees is simple and straightforward. For instance, all persons should be
eligible for the same legal benefits, and subject to the same legal burdens,
regardless of their religious affiliations or religious beliefs. In addition, most
would agree that no religious sect should be preferred or 'established' by 'law, to
the exclusion of other sects. The official establishment of the United States or of
South Africa as a Christian nation, or as an Islamic nation, would be viewed by
most citizens as a violation of constitutional principles of equality even if
equality, as a formal matter, were otherwise assured.
However, even these simple propositions are fraught with difficulty. Let us take,
for instanCe, the case of an individual who acts in a manner which he claims to be
required by his religious beliefs, but which is Wldesirable - even criminal - in the
eyes of the majority. Must his religious beliefs be honored, in order that he receive
'equal treatment' Wlder law?
One could say no - that this would not be equal treatment Wlder law, but rather
special treatment in derogation oflaw. If an individual is entitled (by reason of
his religious beliefs) to break laws to which all other citizens are subject, he has,
it could be argued, special rights and privileges that are not afforded
other
citizens. However, if religious free exercise means free exercise only if permitted
by law - only if permitted by the majority - does this constitutional right have any
meaning? The essence of a constitutional right is the establishment of a right
which may contradict, or trwnp, majoritarian decisions. If religious free exercise
means only free exercise 'if the majority permits', where is the constitutional right
here?
to
We therefore come to a difficult contradiction. If we grant our individual a
religious exemption from the application of the law, he is, in effect, receiving
'special treatmenf, in violation of the principle of equality. If, on the other hand,
we require him (with all others) to obey the law, then the 'constitutional
protection'ofreligion means nothing.
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There is, in addition, an even deeper problem here. We have been assuming that
the law is, itsel( 'neutral' - that it is not itselfthe expression of particular moral
(religious) values and beliefs. In fact, it can be persuasively argued that all law is
the 'choice' or 'establishment' of one belief system or 'religion' to the exclusion
of others - that choice being, in itself, a violation of principles of equality. This
question of the implicit favoring of governmentally-participating religions or
beliefs over non-participating ones is particularly difficult. If religion remains as we have acknowledged - a part of individual and collective life, it is
impossible to avoid the 'choice' or 'endorsement' ofthose particular religions by
government whose beliefs, exercises, symbols, or values are a part of laws and
government practices.
A simple commitment to equality - in the sense of equal treatment of individuals,
beliefs, values - does not answer these questions. Rather, we must develop a
different idea of equality - what we might call a contextual idea of equality when dealing with religion and government. This idea would include the following
important principles:
3.3.1
Equality does not mean the equality of all values or their sources
First, the fact that law - by its very nature - is not neutral must be squarely faced .
. Law is, necessarily, the selection of some beliefs or values over others. Equality,
in this context, cannot mean the equality of all values or beliefs, whatever their
content may be. To the extent that particular values or beliefs are reflected in law,
or are otherwise implemented by government, that fact alone does not constitute
a violation of the principle of equality.
Once the non-neutrality of law is acknowledged, the claim that the choice of
particular values or beliefs by government 'establishes' religion, or 'establishes'
non-religion, is clearly without substance. Every value or belief implemented by
government is presumably a part of some belief system, whether religious or nonreligious in nature. To require that all government actions be free of such beliefs
is a logical and practical impossibility. Equality does not demand equal regard,
by government, for all proposed values; neither does it demand that all values,
implemented by government, be free of congruence with individuals' subjective
systems of belief. The fact that a particular law or government action is based
upon particular religious (or non-religious) sentiments or values, or that it
coincides with particular religious (or non-religious) belief systems, can have no
constitutional importance absent the finding of an additional ground for
constitutional infirmity, such as the danger of the integration of institutional
church with institutional state.
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Religious guarantees in a pluralistic society
3.3.2
51
Equality does not require the legal equality of religion with the
provisions of general laws
In addition to this general kind of value choice by government, we also have
particuIar,fundamental values which are constitutional in nature. Constitutional
rights and values are - by defInition - privileged against the general expressions
ofmajoritarian desires. Religious freedom and other, non-constitutional goals of
government are, therefore, clearly not equal. Contrary to what the United States
Supreme Court has reCently held, the American Constitution requires that
fimdamental rights and values - such as religious expression - be privileged when
opposed by laws that are the simple expression of majoritarian desires. The
requirement that a compelling governmental interest be shown when religious
beliefs and conduct are in issue is a result of the constitutional value which we
have afforded to religion in private and public life.
3.3.3
Equality, and religion, must be understood within a context of
all fundamental rights and guarantees.
Religious freedom is, of course, not absolute; it must be constrained, like all
constitutional rights, by the other fundamental rights of the society of which it is
a part. Religious freedom (and other constitutional rights) must be interpreted in
the context of the other fimdamental rights and values which we have established.
In the South African Constitution, this requirement of contextual interpretation
is often quite explicit. 71 The Constitution of the United States contains no such
directives. However, the United States Supreme Court, when faced with conflicts
between religious claims and other fundamental rights, has acknowledged
limitations in the scope oftextually-absolute religious guarantees.72
Just as religious freedom is (of necessity) contextual in nature, so is the
competing value of equality. Equality, in this context, does not mean the equality
of all values, or the equality of religion (as a constitutional freedom) with other,
non-constitutional values or goals. Rather, it means the equal treatment of
individuals, before the law, within the context of the superiority of fundamental
freedoms (including religious freedom), and within the context of the fundamental
values that our society chooses and must hold. Equality requires that no person
be advantaged or disadvantaged by government, because of religious status or
identity; it does not require that all conduct be equally proteCted, or all values be
equally honored, by government or in public life.
71See, eg, s 15(3Xb); s 31(2); s 36(1) and (2); s 39(lXa) and (2).
nsee, eg, Chapel v Center Moriches Union Free School District (n 32); Rosenberger v Rector and
Visitors o/the University o/Virginia (n 38).
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4
Conclusion
Determining the meaning of religious freedom guarantees has proven to be one
of the most difficult areas of American constitutional jurisprudence. As American
society has become more diverse, social and cultural conflicts have often been
expressed through claims asserted under the Constitution's religion clauses.
Balancing claims for diversity against the need for universal norms is always a
difficult constitutional task. It is particularly difficult when religion is involved which, by its very nature, involves stridenfand often uncompromising beliefs
about what individual life and collective life should be.
The existence of such conflict may seem disheartening to those who are
attempting to create and sustain a sense of national identity. However, religious
claims - as uncomfortable as they may be - serve a distinct purpose in our
sOCieties. They remind us of the need for moral questioning as a part of our
cultural and political character - that we must not forget to ask what is moral, and
what is right, in public life.
LLM course in Constitutional Law and Human Rights Law
The Department of Constitutional and Public International Law of the University of
South Africa offers LLM (8 curriculum) papers in Constitutional Law (MCSTLW-R)
and Human Rights Law (MHUMLW-8).
The first course is an advanced study of South African constitutional law with special
emphasis on the historical development of the South African constitution;
constitutionalism; the doctrine of separation of powers; federalism and regionalism.
The second course deals with issues such as the character and jurisprudential basis of
human rights, the constitutional protection and limitation and suspension of
rundamental rights in South Africa.
Students interested in registering for these courses and who require additional
information, may contact Professor Gretchen Carpenter of the Department of
Constitutional and
Public
International
Law (012-429
8359;
e-mail
[email protected].~.za) or Mr QN Cox of the Department of Postgraduate Student
Affairs (012-4292805)