Faith and the First Amendment

Even laws can't keep religion away from politics. Tamara Packard looks at the struggles created when there isn’t a clear separation between church and state

Even laws can’t keep religion away from politics. Tamara Packard looks at the struggles created when there isn’t a clear separation between church and state

When I was told that this issue would focus on faith, I struggled with what to write about. What can a lawyer – raised as a Unitarian with deep-seated values but not participating in any organized religion – contribute to a forum on faith from a legal standpoint? Doesn’t the Constitution require the separation of religion from governmental laws, that is, the separation of church and state?

Then it hit me: It isn’t that simple, much as I might wish it to be. Today, some people use religion to justify governmental oppression of LGBT people, while others use it to support equality under the law for our families. As we work for equality, it helps to understand the complex relationship between the faiths of our citizens and the laws of our land.

The First Amendment to the United States Constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The first part, the “Establishment Clause,” means, in its purest state, that the American government cannot have an official faith, unlike England, which takes the Episcopal faith as their official Church.

The second part, the “Free Exercise Clause,” means that the government cannot regulate religious bodies in ways that hinder them. For instance, they cannot be taxed. Religious bodies are even free to discriminate on the basis of religion at times. Likewise, under both of these clauses, governmental officials must leave their faith at the door: If a judge who is also Christian feels there is a conflict between the government’s law and her faith, she must follow the law rather than her religion’s teaching in deciding the case before her.

On the other hand, the First Amendment does not require citizens to leave faith out of political decisions. We all take our personal experiences, knowledge, and values into the voting booth with us. We each decide how much the moral teachings of a religion should become public policy and how much we should leave room for people to follow a different morality path.

As Americans, this can be a complex calculation, for while our faith may set certain rules, such as abstinence from alcohol, we also know that our nation comprises people from many religions – as well as people who choose to follow no religion – and our government is designed to allow for that. If we create laws that veer too far from our commitment to the free practice of religion or too close to imposing the beliefs of a particular religion on the general citizenry, those laws will violate the First Amendment to our Constitution.

The Constitution is at the core of what it means to be an American, just as truly as the Bible is at the core of what it means to be a Christian.

How each citizen’s calculation involving American and faith principles impacts LGBT people in the early 21st century is quite significant. In the first half of the 20th century, only a handful of organized religions did not condemn homosexuality outright. Throughout that same period, LGBT people were at best invisible under the law, and, when recognized, they were punished for it (e.g., antisodomy laws and laws prohibiting homosexuals from working for the government).

Laws have evolved over the past 50 years to eliminate most government-mandated discrimination, to require (in many places) equal housing and employment, and (in some places) to grant same-sex relationships some measure of governmental protection.

These significant legal advances happened, in great part, because of growing disagreement among different faiths, and even within faiths, about the morality of our sexualities. Unitarian-Universalist churches are no longer one of the very few places where a same-sex couple might obtain religious blessings. The United Church of Christ, as well as many Presbyterian, Evangelical Lutheran, Jewish, and other religious bodies, celebrate commitments made by same-sex couples. Some even call that bond “holy matrimony,” just as they do for heterosexual couples. That is but one sign that understanding and acceptance of LGBT people and families has been growing within faith communities.

At the same time, conservative religious communities are pushing back. This year, a strong showing was made by a presidential candidate who stated a desire to amend the Constitution to be “in God’s standards.” In 2006, Bishop Morlino, the highest Catholic official in Wisconsin, instructed Catholics to vote “yes” to amend the Wisconsin Constitution by banning marriage for same-sex couples and anything “substantially similar.” Members of a group called Watchmen on the Walls routinely picket gay pride events and harass gays on the street. One of the group’s leaders, Scott Lively, has been quoted saying, “There is a war that is going on in the world … It’s a war between Christians and homosexuals … And in the United States, … it was the homosexual political movement that designed this strategy to attack Christianity.” In addition, Topeka, Kansas preacher Fred Phelps and his family continue to spew their unique brand of religion-laced hate toward LGBT people.

The manner in which each of us reconciles our identity as an American with our moral values (religion-based or otherwise) is complex, especially where LGBT rights are concerned. The better we understand this, the better we will fare in our struggle for legal equality and social acceptance. n