Laws Requiring “Religious” Acts

Since the advent of the Supreme Court’s modern Establishment Clause jurisprudence in 1947, it is almost impossible to think that a state would require individuals to support a religious institution or conduct a religious exercise. This has not always been the case.

Taxing Everyone to Support One Denomination

In the early American colonies, from north to south, many civic leaders believed that the state should favor a particular denomination and/or encourage Christianity. States with established churches often required everyone, including non-adherents, to fund them. Thanks in part to Parliament’s Act of Toleration, colonial governments began to craft accommodations that allowed dissenters to support their own churches rather than the established church.  Independence from Great Britain opened the possibility that states could revoke these accommodations. Fortunately for religious dissenters, by this time even many supporters of establishments had come to the conclusion that individuals should not be required to support churches to which they did not belong.
For instance, Patrick Henry’s famous 1784 Bill for Establishing a Provision for Teachers of the Christian Religion would have required individuals to support their own churches while exempting the Quakers and Mennonites (who objected to any state involvement) from this requirement. When Connecticut revised its statutes in 1783, the state continued to favor the Congregational church, but dissenting Protestants were permitted to direct their ecclesiastical taxes to their own churches (a provision that was unfair to non-Protestants, but useful to the Anglicans, Baptists, and Quakers who resided there). In each case, supporters believed that establishments promoted the common good but were willing to accommodate most (if not all) religious dissenters.
Yet these accommodations did not satisfy all dissenters. Many believers considered supporting their clergy and houses of worship to be a religious duty. For the government to involve itself in such matters, even if the state merely required them to support their own churches, was considered by some to violate their right to religious liberty. Eventually, debates on these matters were mooted when states voluntarily abolished their religious establishments.

Flag Salute Laws

Over the past 150 years, states have rarely passed statutes explicitly requiring individuals to participate in religious acts, but several states did so inadvertently as America headed into the Second World War. In order to promote national unity, a number of states passed laws requiring school children to salute and pledge allegiance to the American flag. Most Americans have no objection to these practices, but Jehovah’s Witnesses believe that they violate the Bible’s command not to worship graven images (e.g., Exodus 20:4–5). In 1940, eight Justices ruled that the states’ interest in promoting national unity permitted them to override these objections.
Three years later, the Court returned to this issue. In a stunning reversal, six Justices concluded that states could not compel Jehovah’s Witnesses to engage in these acts. In oft-quoted words, Justice Robert H. Jackson averred:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”]
After considering the state’s interest in forcing students to salute the flag, Jackson concluded that:

If there 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 matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”]
Justice Jackson’s opinion relies on multiple provisions from the Bill of Rights and can certainly be read to protect both religious and non-religious citizens, but his argument is particularly compelling with respect to state laws that command people to participate in what they consider to be religious actions with which they disagree. That most Americans do not view saluting the flag and pledging allegiance to it as equivalent to worshiping a graven image was properly determined by the Court to be completely irrelevant. Religious liberty protects the ability of citizens to worship or not worship according to the dictates of their own consciences, not the consciences of others.
This is the sixth installment in a series by Mark Hall on religious freedom. Check out the previous installments below.