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That Ambiguous Establishment Clause


The first two clauses of the First Amendment to the Constitution of the United States of America reads: “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.” This seems like a simple statement and when read in its historical context the original intent seems quite clear. The European conquerors that were establishing their new outposts on the soil of the Apache and Navaho all came from “Christian” countries where certain brands of Christianity were fused with state identity. While they assumed that the religious ethos of the new nation would be molded by Judeo-Christian presuppositions, they did not desire state supremacy of Anglicanism, Catholicism, Quakerism or any other prominent denomination to which the colonists were aligned. Within the limits of a Christian constrained pluralism, all citizens were free to approach God through whatever liturgy and credo they desired.

The Rule of Law

Of course, the time at which the Religious Clauses were penned was less complex, from a socio-religious perspective. The general reference to “religion” did not anticipate a more liberal age where a number of influential non-Christian faiths would find their way to American shores. Further, those who conceived the clauses could not have imagined the future debates surrounding the morality of blood transfusion, gender reassignment surgery, inoculations, and contraceptive induced abortions. They definitely would not have envisioned the day when both supporters and detractors of the recent Sebelius vs. Hobby Lobbydecision would use the clauses to sustain the correctness of their opposing positions.

It was precisely because of the possibility of future uncertainty over the meaning of a law that the Supreme Court of the United States was established to serve as the final expositor and interpreter of the Constitution. Shielded by the idealistic concept of the “separation of powers,” the Court is supposed to provide fair and balanced judgments that are uninfluenced by Presidential or Congressional pressure or party. In the mind of the Constitution’s framers, the “rule of law” is only meaningful if the law is allowed to have the last word.

A Right Decision

With this in mind, in the case of Sebelius vs. Hobby Lobby, I have chosen to align with those who support the controversial decision. As an integral part of the system of “checks and balances,” I believe that the Supreme Court did exactly what it was supposed to do in this case. The owners of Hobby Lobby are strict Evangelicals who oppose abortion on the grounds that it falls under the general category of murder. As such, if the legislative arm of government mandates that this “closely held company” use “their” money to do something that they believe goes against God’s law, wouldn’t that be tantamount to Congress prohibiting the free exercise of religion? Remember, the defendants have never said that they oppose their employees’ rights to reproductive choices; they have simply asserted that they do not desire to pay for their choices. As far as they are concerned, paying for certain types of contraceptives is no different than paying a hit man to eliminate a business competitor.

Before I continue, let me be clear. I am not arguing for the rightness or wrongness of Hobby Lobby’s position. The very fact that their post-biblical rejection of the Sabbath has influenced their decision to close their stores on Sundays is enough to cast a shadow on their ability to faithfully interpret and apply the Word. However, the issue here has nothing to do with the correctness of their biblical interpretation. That’s a topic for theologians to debate. As I stated before, the real issue is whether the Affordable Health Care Act as voted by Congress should be enforced in a way that prohibits the free exercise of religion.

An Impossible Ideal

Having said all this, I must admit to being among those who are concerned about the implications of the ruling. While I believe that the Court was right in upholding Hobby Lobby’s refusal to pay for four of the twenty types of covered contraception, I am also of the opinion that the decision exposes the underlying weakness of the Religion Clauses. Consider the following:

·         Does the contraceptive prescription mandate of the affordable health care act infringe upon the free exercise of religion?

·         Would a law that favors administering a blood transfusion to the child of a Jehovah’s Witness infringe upon the free exercise of religion?

·         Would a ban on the ritual slaughter of chickens and goats during Santeria ceremonies influenced by PETA’s concerns about animal cruelty infringe upon the free exercise of religion?

·         Can holding parents criminally culpable for refusing to inoculate their children infringe upon the free exercise of religion?

The answer to all of these questions is a resounding “yes”! Yet, current law only permits two. This shows that in a society where the state claims jurisdiction over certain responsibilities (e.g. the welfare of children), it is impossible to guarantee the right of every individual to practice his or her religion without prohibition.

The Religion Clauses may have had a noble objective, but they failed to consider the fact that it is impossible for societies to unshackle themselves from religious interference. As we see with the careful language in the recent ruling, the government does have the final say on what is permissible religious practice. As such, while the government may not mandate a finely defined religion for its citizens, per se, it does establish the parameters within which any religion can be practiced. Consequently, we see a state endorsed religious pluralism with an umbrella that is only broad enough to include those people of faith who agree with the state’s understanding of acceptable religious practice.


In writing her thirty-five-page dissent to the ruling, Justice Ginsburg essentially warned that the Court has thrown oil on a slippery slope that declines into a disastrous “minefield.” Unfortunately, this warning is applied to the wrong case and should have been considered in previous cases that she herself supported. However, obstructed by her ideological lenses, she has failed to see that the nation has already commenced its descent down the confusing slide of no return. Why couldn’t she have seen this when the Court nullified aspects of the Defense of Marriage Act and rejected efforts to incorporate Intelligent Design into the public school curriculum? Why couldn’t she have seen that these are clear examples of government both prohibiting and establishing religion in one ruling (i.e. prohibiting the religious worldview of Bible believers while promoting the religious worldview of post modern secularists)?

In summary, the Religion Clauses may have been penned with good intentions, but it’s impossible to fully implement in a pluralistic society. Consequently, while Congress is technically forbidden from establishing or prohibiting a religion, it is only in violation if the Court says it is. Indeed, with the inherent limits of the Constitution and its amendments, it is the will of the court and not the law that has the final word on these matters.

As you assess how these realities affect the spiritual climate of society, never forget that “a tree is known by its fruit.”


Keith Augustus Burton serves as the Director for the Center for Adventist Muslim Relations at Oakwood University.



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