This opinion piece was originally written for Father J. Bryan Hehir’s course, “Religion and Government: Choices of Morality, Law, and Policy,” taught at Harvard’s Kennedy School of Government in the fall of 2009.

The United States guarantees negative religious freedom. The government can neither dictate our religious beliefs, nor can it prevent us from acting on those beliefs. Very often, however, upholding the beliefs of one group infringes on those of another or upholding federal or state laws may contradict the religious practices of certain groups. For this reason, the United States Supreme Court often uses two tests to determine the constitutionality of the First Amendment cases that they decide. The Sherbert test, derived from Sherbert v. Verner (1963), a case involving a Seventh Day Adventist textile worker who was fired for refusing to work on Saturdays, requires the court to determine the sincerity of an individual’s religious belief and any “undue burden” a government action may put on this belief. If the first two criteria are met, then the court must decide if the government action is furthering a “compelling state interest” and whether or not this interest can be pursued in a less restrictive manner. The Lemon Test comes from Lemon v. Kurtzman (1971), a case in which the Supreme Court decided that teachers ofsecular subjects at private religious schools in Pennsylvania could not be paid with public funding. The Lemon Test has three prongs, and, unlike the Sherbert Test, none of these prongs are dependent on any other. The Lemon Test states that: 1. The law or government action must have a secular purpose; 2. It must not have the primary effect of either inhibiting or promoting religion, and; 3. It must not cause excessive government entanglement with religion. Unfortunately, what constitutes an “undue burden,” and “excessive entanglement” is extremely subjective and it is at the discretion of judges – who have their own biases – to determine the constitutionality of a particular case.

One might expect that a judge experienced enough to be nominated to the United States Supreme Court would be able to set aside personal religious or ideological beliefs in order to adjudicate fairly. This, however, can be difficult in a nation in which the majority of citizens ascribe to a common belief system. Of the current justices on the Supreme Court, six are Roman Catholic (Chief Justice Roberts, as well as Justices Scalia, Kennedy, Thomas, Alito, and Sotomayor); one is Protestant (Justice Stevens); and two are Jewish (Justices Ginsburg and Breyer). Given that over two thirds of the justices are Christian, it should be necessary for them to be even more sensitive to the different religious and belief systems present in the United States, rather than defaulting to their personal ideologies. It is evident, however, that this is not always the case. In the ongoing case regarding the memorial cross in the Mojave Desert, Justice Scalia said that: “the cross is the most common symbol of the resting place of the dead1.” In his haste to preserve an historical monument, Scalia has not only secularized the primary symbol of his own religious beliefs, but he also disregarded the oppressive meaning of that symbol to the many Americans who are not Christian.

The United States may be a nation with a Christian majority but the First Amendment’s Establishment and Free Exercise Clauses preclude us from being a Christian Nation. Since the purpose of the Supreme Court is to uphold the Constitution in all its parts, Justice Scalia has failed in his duty by presenting a Christian symbol as though it were neutral. Peter J. Eliasberg, the ACLU lawyer arguing the Mojave Cross case, countered Scalia’s contention that the cross is a neutral symbol by noting that he has never seen a cross on any headstone in a Jewish cemetery. In order to truly uphold the prohibition on the establishment of a religion, it must not appear that the government favors any religion over others, and, in contemporary society, this also requires not favoring religion over non-religion. The addition of a Buddhist shrine to the the memorial has already been denied, and Justice Scalia questions the feasibility of creating a “conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star” as an alternative memorial. But if we are to function as a truly pluralistic society – and we already are, whether we like it or not – we must find a way to include members of non Christian faiths and traditions.

1. Ken L. Salazar, Secretary of the Interior, et al. v. Frank Buono.(2009) §08-472 pp. 38-39.