Beginning in 1940, the Court took the relationship between religion and government in America in a radically new direction. First, it decided that all of the limits it read into the First Amendment applied to the states through the Fourteenth Amendment. Then it changed the definition of the term “religion” in the First Amendment to include all sincerely held beliefs that impact on a person’s life. With this expansive new power the Court took an interventionist approach to invalidate many local laws. In particular, the Court struggled to reconcile its new constitutional approach with the mass of official and unofficial laws and declarations that the Court had previously trumpeted as clear evidence that “this is a Christian nation.” In the process of replacing Christianity as the overarching religion and system of values in America with Secular Humanism, the Court would lament that “[t]he history of this Nation, it is perhaps sad to say, contains numerous examples of official acts that endorsed Christianity specifically.”
All of this began with the 1940 case of Cantwell v. Connecticut, which the Supreme Court used to take the first step in altering the constitutional framework for the relationship between religion and government. The Court invalidated a Connecticut statute prohibiting the solicitation of money for alleged religious, charitable, or philanthropic causes without approval of the Secretary of Public Welfare. The Court said that the concept of liberty in Fourteenth Amendment “embraces the liberties guaranteed by the First Amendment.” The First Amendment “embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” Conduct is subject to regulation but cannot “unduly infringe” a protected freedom. A state may “by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community” without violating the Fourteenth Amendment. The essential purpose of these protected liberties is “that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed.”
Subsequent to this decision, the Supreme Court continued to develop this new constitutional framework for dealing with “religion” in at least five significant areas: (1) the definition of religion, (2) the extent that government institutions can embrace religion, (3) the relationship between religion and public schools, (4) the balance between the majority and minority religion, and (5) the Court’s treatment of homosexuality.
1) Religion Redefined:
In 1961, the Court began to redefine the “religion” protected by the First Amendment. In Tocaso, the Court held that the requirement for a declaration of belief in God as a test for office in the Maryland constitution violated the First and Fourteenth Amendment to the Constitution. The Court said:
"Neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs… Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”
The Supreme Court continued with its expansive definition of religion when it interpreted the conscientious objector statute in two cases. The statute exempts from military combat training and service those who “by reason of their religious training and belief are conscientiously opposed to participation in war in any form.” The statute defined “religious training” as “an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but (not including) essentially political, sociological, or philosophical views or a merely personal moral code.” The Court concluded that the statute did not violate the Constitution because it embraced all religions. The Court held that “the test of belief ‘in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.”
In U.S. v. Seeger, the Court held that a man qualified under this test who said he was skeptical about the existence of God and that his objection to war was based on a “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.”
Two years later, an Amendment to the act deleted the reference to ‘Supreme Being’ but continued to provide that the persons religion does not include “essentially political, sociological, or philosophical views, or a merely personal moral code.” In Welsh v. U.S., Mr. Welsh crossed out “religious” entirely and characterized his own beliefs against war as having been formed “by reading in the fields of history and sociology.” The Court said Mr. Welsh qualifies for two reasons. First, it doesn’t matter that he did not consider his beliefs to be religious if the court finds them to be sincere and meaningfully occupying a place for the person parallel to orthodox religion. The Court said that a “registrant’s statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering the exemption.” Second, the Court said that once a person’s beliefs meet the Court’s definition of ‘religious’ then they cannot possibly be “essentially political, sociological, or philosophical… [or] merely personal moral code.” Therefore, Mr. Welsh qualifies for the exemption.
Justice Harlan, concurring in the result, admitted that the natural reading of the statute, “quite evidently draws a distinction between theistic and non-theistic religions…” The Seeger court performed a “remarkable feat of judicial surgery to remove” the “theistic requirement.” He went on to say that the majority opinion “has performed a lobotomy and completely transformed the statute by reading out of it any distinction between religiously acquired beliefs and those deriving from ‘essentially political, sociological, or philosophical views or a merely personal moral code.’” Justice Harlan goes on to suggest that the Court has entered “an Alice-in-Wonderland world where words have no meaning” in order to avoid a clear constitutional violation. According to the Justice, the Constitution forbids drawing a line between theistic and non-theistic religions so Congress cannot exclude beliefs emanating from “a purely moral, ethical, or philosophical source.” Yet he concludes saying that he is prepared to accept the Court’s opinion as a “patchwork of judicial making” to fix the unconstitutional aspect of the statute.
Three justices dissented arguing that “a statutory exemption for religionists required by the Free Exercise Clause is not an invalid establishment because it fails to include nonreligious believers as well… It cannot be ignored that the First Amendment itself contains a religious classification” Therefore, not including non-theistic religions in the statutes exemption is not a constitutional problem because the “the Free Exercise Clause offers no protection whatsoever” to them.