A Secular Government for a Religious People

Justice William O. Douglas famously said that "We are a religious people whose institutions presuppose a Supreme Being." The justice was half-right. We are a religious people. Although studies show increasing rates of those who identify as atheist or agnostic, we still have rates of religious belief and observance that consistently rank the United States among the most religious countries in the developed world. Religious movements have played central roles throughout American history, from the first European settlements through abolitionism to the contemporary debates over abortion and same-sex marriage. Indeed, many people believe deeply that the nation itself, including its government, has special religious significance.

But Justice Douglas was also half-wrong. Our political institutions do not "presuppose" a Supreme Being. The Constitution does not mention a deity, and the institutions described in that founding document are not logically dependent on the idea or existence of a deity. The authority of law does not rest on revealed truth or even the idea of a Supreme Being. Moreover, the Constitution specifically bars any religious test for federal office, so government service may not be conditioned on belief in a deity. Although many see a Supreme Being actively at work in the nation, the government may not make that claim. We are a religious people, but we have a secular government.

This book explores the idea of secular government for a religious people. The idea rests on a foundational claim that is often overlooked or rejected — the distinction between the government and the people. The government, in Abraham Lincoln's words, is "of the people, by the people, and for the people," but the two are distinct. The people have diverse and robust views about religion, and display an impressive range of religious beliefs and practices. The government respects and recognizes those commitments by acknowledging that they exist, by accommodating many of the religious needs of communities and individuals, by providing various forms of assistance to religious entities, and by guaranteeing rights related to religious exercise. But the government does not have a religious identity of its own. Whatever the current religious demography of America, we do not have a Christian state — or a Jewish, Islamic, theist, or atheist state, for that matter.

Some people argue, however, that the idea of secular government is hostile to religion, and effectively establishes an official "religion" of secularism. Those concerns are misplaced. Properly understood, the idea of secular government is not hostile or even indifferent to religion. Instead, it simply reflects the limited authority of civil government. The genius of our political system is the distribution of power and responsibilities — some matters lie within the jurisdiction of federal authorities, others belong to the states, and still others belong only to the people. Within the federal government, the executive, legislative, and judicial branches occupy distinct spheres of competence. At their best, these structures and relationships reflect mutual respect among the various institutions, and an awareness that usurpation of another institution's authority undermines the welfare of the whole.

We believe that the relationship between civil government and religion is similar in important, though certainly not all, respects to the Constitution's allocation of powers among various political institutions. In the late eighteenth century, most European states — and several states of the United States — assigned the government responsibility to care for the religious welfare of the people. Through various kinds of religious establishments, governments declared and enforced orthodox beliefs, imposed taxes to support ministers and churches, and compelled attendance at worship. The nonestablishment principle withdraws that responsibility from civil government. Under the nonestablishment principle, the government does not promote religious worship, oversee religious indoctrination, or exercise religious authority. Instead, that responsibility belongs solely to the people and their voluntary religious communities.

It may seem unusual to think of nonestablishment in terms of the character and structure of civil government, because most Americans tend to view the relationship between government and religion through the language of rights. In conflicts over that relationship, some emphasize the right to be free from unwanted religious experience, while others assert the right to freely exercise their faith in all dimensions of life, including public institutions. Although their differences are sharp, these rival claims both focus on religious liberty — the right of individuals and communities in religious matters.

In this book, however, we ask how the interaction between religion and government shapes the character of civil authority. By examining the relationship in terms of the character of civil government, we reach a quite different understanding of the nonestablishment principle. As we explain, the nonestablishment principle defines a government that receives its authority from the people, not from revealed or transcendent sources, and that recognizes the limited scope of its authority over the people.

This chapter, which sketches the broad outlines of this approach, begins by looking at why current conflicts over the relationship between government and religion are typically expressed in the language of rights. Then it briefly discusses structural approaches in other legal contexts, most notably federalism and the separation of powers, but also in relations between government and nongovernmental entities such as families. The chapter then moves to the core of our approach, which turns on the idea that religion constitutes a jurisdictional limit on civil government. That limit, we argue, arises from the distinctive relationship between religion and the quality of government authority. Under the nonestablishment principle, the state may not invoke religion as a source of civil authority; must disclaim the comprehensive sweep of religion as a subject within the scope of civil authority; and may not invoke the concept of worship as the character of citizens' response to civil authority.

As we elaborate later in the book, our understanding of nonestablishment also has striking implications for the government's role in preserving the religious liberties of the people. Those liberties are...