Abstract
Religious diversity presents unique challenges to the American ideal of e pluribus unum (“Out of many, one”), in part because of the explicit yet ambiguous protection that religion receives in the First Amendment of the U.S. Constitution. Broad cultural and legal changes in recent decades (including the Supreme Court’s accommodationist and federalist shifts) mean that citizens and their legislative representatives (rather than judges) are more responsible than ever for protecting religious freedom in this country. Fulfilling this civic duty—not to mention getting along with fellow citizens in an increasingly pluralistic society—will require much more knowledge of religion than is presently conveyed to students in public schools. This essay explains why American public schools should teach about religions, how this serves to protect religious freedom, and why it is a positive and properly civic endeavor.
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Notes
- 1.
As Jeffrey Rosen and others have noted, the Supreme Court’s decisions generally trail public opinion rather than lead it, despite its reputation as being a counter-majoritarian institution. This is true of the European high courts as well (see Rosen, 2004). Indeed, many political scientists argue that the Court was designed to follow settled popular opinion, rather than lead it (Sisk, Heise, & Morriss, 2004, p. 491).
- 2.
To the extent that proponents of the “secularization thesis” link the differentiation of religious and nonreligious institutions to the decline of religion in the modern world, they were clearly wrong. Societal differentiation has indeed challenged religious traditions to recontextualize their claims, but not to the detriment of their relevance or authority in public life. See Asad (1999), pp. 178–196 and Casanova (1994).
- 3.
As Justice Lewis Powell noted in 1973, “[T]his Court repeatedly has recognized that tension inevitably exists between the free exercise and the establishment clauses…and that it may often not be possible to promote the former without offending the latter.” Committee for Public Education and Religious Liberty (CPERL) v. Nyquist, 413 U.S. 756, 788 (1973). For example, those who are especially adamant that the government not favor one or more religions (meaning they take an expansive view of the establishment clause) are often on opposite sides of issues as those who are especially adamant that government not disfavor one or more religions (meaning they take an expansive view of the free exercise clause). This latter position is commonly called “accommodationism,” because its proponents would have the state specially accommodate religious believers whose practices are burdened by otherwise neutral state laws. The former position is known as “neutrality” when its proponents argue that the state must be neutral in its posture toward religion, favoring neither religion or nonreligion as such, nor one religion over other religions. “Separationists” also tend to favor an expansive view of the establishment clause, though in seeking to separate religion from the state as much as possible, they are often accused of favoring nonreligion over religion. There are also accommodationist and separationist readings of each religion clause. For example, separationists interpret the establishment clause as prohibiting discrimination in favor of both religion over non-religion, and one religion over other religions. In other words, they seek to separate religion from the state as much as possible without unduly burdening free exercise rights. Accommodationists, on the other hand, interpret the establishment clause as prohibiting only discrimination in favor of one religion over other religions; they argue that strict separation amounts to discrimination against religion as such, in favor of non-religion.
- 4.
Total enrollment in U.S. public elementary and secondary schools was 54.8 million in fall 2011, and is projected to reach 57.0 million in 2023. The percentage of students in private elementary and secondary schools declined from 11.7 % in fall 2001 to 9.6 % in fall 2011, when an estimated 5.1 million students were enrolled in private schools at the elementary and secondary levels. U.S. Department of Education, National Center for Education Statistics. (2015). Digest of Education Statistics 2013 (NCES 2015-011), Chapter 1.
- 5.
- 6.
Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
- 7.
Mitchell v. Helms, 530 U.S. 793 (2000), overruling Meek v. Pittenger, 421 U.S. 349 (1975) and Wolman v. Walter, 433 U.S. 229 (1977).
- 8.
Agostini v. Felton 521 U.S. 203 (1997), overruling Aguilar v. Felton, 473 U.S. 402 (1985).
- 9.
Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993); Witters v. Washington Department of Social Services, 474 U.S. 481 (1986).
- 10.
Mueller v. Allen , 463 U.S. 388 (1983).
- 11.
Programs that single out religious groups or institutions for special benefit or harm are still prohibited as discriminatory. It is noteworthy that a single principle of “separation of church and state” dominated mid-twentieth century establishment clause rulings, but since the mid-1980s individual justices have brought to bear differing principles of religious equality (including “endorsement,” “coercion,” and “equal treatment”), which the court is “struggling mightily to integrate.” (Witte & Nichols, 2011, pp. 173–186) Zelman marked a point of some integration on the concept of neutrality as equal treatment of religion and nonreligion, but Locke v. Davey (2004) pulled away from its logical conclusion.
- 12.
The Court applied increasingly strict scrutiny tests during this period. In Reynolds v. United States, 98 U.S. 145 (1878), the Court applied a lenient “rational basis test” that deferred a great deal of authority to legislatures. By this standard, if a law is properly “authorized,” “reasonable,” and “general,” and it meets a legitimate interest in restricting the action in question, it is likely to be upheld. This standard prevailed until the “intermediate scrutiny test” of Cantwell v. Connecticut, 310 U.S. 296 (1940), which protected certain areas of non-criminal religious activity from government interference. The standard of review was tightened further in Sherbert v. Verner, 374 U.S. 398 (1963), namesake of the Sherbert Test by which a state must demonstrate a “compelling interest” in limiting a person or group’s free exercise of religion and prove that the law in question was the least intrusive means of achieving that interest. This strict standard prevailed until 1990. (Witte & Nichols, 2011, pp. 132–140)
- 13.
Employment Division, Dep’t of Human Res. v. Smith (1990) 494 U.S. 872.
- 14.
- 15.
Locke v. Davey, 540 US 712 (2004).
- 16.
The Locke decision presented the justices the opportunity to define the outer limits of an integrated jurisprudence of neutrality as equal treatment of religion. Its seven-member majority balked at the idea of following the concept of equal treatment to its logical conclusion, which would have required states to fund religious education if they funded any education at all. This conclusion seemed to depart dramatically from the constitutional protection of religious liberty, not to mention states’ rights, and the Court was unwilling to take things that far. This kind of conservatism (in the apolitical meaning of the term) is normal for the Supreme Court; see note 1. At any rate, the implications of affirming the lower court ruling in Locke were great enough to scare Rehnquist, O’Connor and Kennedy from their usual accommodationist perch. [Frederick Mark Gedicks called this the “Establishment clause gag reflex.”]
- 17.
Locke v. Davey, 540 US at 725 and 718, citing Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 669 (1970).
- 18.
The Rehnquist Court limited the federal government’s power over the states in part by reducing the ability of lower courts to review state laws under the First and Fourteenth Amendments to the U.S. Constitution, as noted above. Equally important is the Court’s narrow interpretation of the Constitution’s “commerce clause” (Art. I, §8, cl.3) in U.S. v. Lopez (1995) and U.S. v. Morrison (2000), which have considerably restricted Congressional authority to regulate actions in the states not directly related to interstate commerce.
- 19.
Put another way, the majority opinions in Mitchell, Zelman and Locke show an increasingly consistent constitutional justification—viz. neutrality as equal treatment of religion and non-religion—for greater accommodation of religion in American public life. For nearly 20 years the Court has labored to integrate the multiple principles (including “endorsement,” “coercion,” and “equal treatment”) that its individual justices used to adjudicate religion cases. (See Witte & Nichols, 2011, pp. 173–186.) Though there were still some disputes among the majority in Mitchell (as well as vigorous objections from the dissenters, of course), in Zelman they largely coalesced around the concept of neutrality as “equal treatment” for religion and non-religion. Establishment clause jurisprudence was, by most accounts, a complete mess in the 1980s and into the 1990s. (Leonard Levy marveled in 1986 that “the Court has managed to unite those who stand at polar opposites on the results that the Court reaches; a strict separationist and a zealous accommodationist are likely to agree that the Court would not recognize establishment of religion if it took life and bit the Justices.” [Quoted in Witte & Nichols, 2011, p. 237]) By 2004, the systematic effort by Rehnquist and his conservative colleagues to streamline the Court’s reasoning seemed to be having its effect, and some commentators suggested that Zelman would prove to be the watershed case that provides stability to the Court’s future religion clause jurisprudence.
- 20.
The courts, of course, will always play a role—and rightfully so. As Stephen Macedo writes, “To leave accommodations and exceptions to the democratic branches is virtually to insure that complaints advanced by minority religious communities will often be slighted, so the courts must play a role” (Macedo, 1995, p. 487).
- 21.
Citizens will of course disagree about the nature and extent of these rights and liberties; the point is that citizens now have wider range of options as to how they choose to promote or protect those rights at the state level. For the purposes of this paper, I do not address the metaphysical question of whether we are free to choose our religious beliefs, or whether the fact of religious plurality has any meaning for the truth of one or another religious tradition. Rather, my focus is on the lived experience of religion within a diverse polity.
- 22.
This definition is adapted from Gamwell (1995), p. 10.
- 23.
The right to free exercise (within limits) is deeply ingrained in the American political and cultural consciousness, notwithstanding the challenges that have been made to the concept of religious freedom as a coherent philosophical, legal or theological principle.
- 24.
That the distinction between education and religious indoctrination is blurred in this case (because the plaintiff attended an evangelical “Bible college”) does not imply a similar blurring in the context of public education at the primary and secondary levels.
- 25.
“The notion that formal educational attainment is the primary mechanism behind citizenship characteristics is basically uncontested. A half-century of empirical evidence in American politics points to the consistent and overwhelming influence of ‘the education variable’ on various aspects of democratic citizenship,” including civic knowledge, tolerance, and activity such as voting. Nie, Junn, and Stehlik-Barry (1996), p. 2.
- 26.
A useful bibliography of surveys that document the inadequacy of education about religion in public schools can be found in Wexler (2002), pp. 1164–66, notes 23–27.
- 27.
- 28.
Americans are poorly informed about many of the topics discussed in this paper, including the legal grounds and extent of religious freedom itself in the United States (Nord, 1995, p. 206). The so-called “culture wars” of the 1980s and the post-9/11 national discussion of Islam are other examples of times when broader public education about religion would have helped considerably.
- 29.
Abington School District v. Schempp, 374 U.S. 203, 225 (1963).
- 30.
Edwards v. Aguillard, 482 U.S. 578 (1987) (Powell, J., concurring); Wexler (2002), pp. 1172–75.
- 31.
This strategy is sometimes called “natural inclusion” because it takes up religion whenever it “naturally” relates to understanding the subject at hand. Nord (1995), pp. 203 ff., p. 316. This way of making the point—to use speak of religion as a “natural” key to understanding—is more problematic than the curricular issue itself, so I have avoided the term.
- 32.
In 2012 there were more than 98,000 public elementary and secondary schools in the United States, including about 24,000 high schools. U.S. Department of Education, National Center for Education Statistics. (2015). Digest of Education Statistics 2013 (NCES 2015-011), Chapter 2.
- 33.
Participating groups included the American Academy of Religion, American Federation of Teachers, American Jewish Congress, Baptist Joint Committee on Public Affairs, Islamic Society of North America, National Association of Evangelicals, National School Boards Association, among others. This is not a group of organizations often found in the same room.
- 34.
These guidelines are published in Haynes and Thomas (2001), pp. 75–6.
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Owens, E. (2016). Religious Freedom and Civic Education in American Public Schools. In: Pirner, M., Lähnemann, J., Bielefeldt, H. (eds) Human Rights and Religion in Educational Contexts. Interdisciplinary Studies in Human Rights, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-39351-3_21
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