Politics, Religion, and the First Amendment
Cordes, Mark W.
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This article examines some of the lesser-studied constitutional issues surrounding the religion-in-politics debate. Part I of the article examines the perceived relation of religion and politics at the nation's founding, focusing on two issues: 1) the role religion played in America's political vision at the time, and 2) the nature of church-state separation anticipated by the First Amendment. Part I does not attempt to resolve the numerous questions revolving around both of these issues, but rather simply examines the issue of religion and politics. On such a basis, this article argues that religion, though not the dominant vision, was certainly one of several significant voices contributing to the political vision of our nation's founding. More importantly, despite the near impossibility of discerning the clear original intent of the First Amendment's religion clauses, the historical context of the clauses and the rationales for their adoption indicate that they were in no way intended to banish religion from political life. Part II of the article examines the U.S. Supreme Court's First Amendment jurisprudence and the manner in which the Court speaks to the propriety of religious beliefs informing political choice. In particular, Part II examines the relationship of the Free Speech and Establishment Clauses in current First Amendment jurisprudence. This approach illustrates that although Establishment Clause jurisprudence remains in a state of flux, it is increasingly moving toward a neutrality standard. However, when free speech issues are at stake, which is certainly the case with political debate and decision, there is no doubt that the Court has firmly established a neutrality approach. Part II concludes by showing how this approach finds support in some of the underlying First Amendment values often identified by the Court and commentators. Finally, Part III discusses under what circumstances, if any, religiously-motivated legislation violates the Establishment Clause. Part III notes that although current Establishment Clause analysis requires that there be some secular purpose to support legislation, the Supreme Court has applied this test in a highly deferential manner. The article then provides four reasons why a highly deferential approach should continue, and advocates the abandonment of the secular purpose requirement in more conventional political settings.