Liberty, Prudence, Imperfection, and Law

“The Supreme Court’s Civil Religion versus Religion,” By Bruce Frohnen

James Madison

In court at least, one no longer hears the argument that federal policies are establishing a “religion of secular humanism.” The reason for this is simple: raising the issue is a guaranteed way of losing, immediately and with extreme prejudice, the suit in which the claim is made. This does not necessarily mean that criticizing decisions interpreting the First Amendment’s prohibition against a national, established religion for promoting their own kind of religion is clearly wrong, only that it violates judicial self-conceptions. Judges find it insulting to have their precepts, which they have been told since law school are rooted in the only enlightened, democratic vision of law possible, actually bespeak something so “irrational” and “superstitious” as faith. These decisions are rooted in faith. But it is a political, not a properly religious, faith.

The claim that judges are imposing on us a secular humanist religion is inaccurate. But its inaccuracy does not stem from its entirely valid charge that post–World War II religion clause jurisprudence is rooted in a specific conception of the human person and his relationship to God. Rather, the inaccuracy of the secular humanism argument comes from its failure to make the distinction between religion qua religion and its political doppelganger, civil religion.

Civil religion is a political faith. It takes the nation itself as not just good but holy. It insists that citizens declare their loyalty to the nation, not merely as the protector of their more primary, fundamental communities but as itself the instantiation of the good for its people. Many of the elements of civil religion are in fact benign, even salutary. Fourth of July celebrations and patriotism more generally stem from an entirely laudable identification of one’s nation with one’s way of life, and even with the state as an important protector of that way of life. So long as the political order is not wholly corrupt, feelings and celebrations of loyalty are virtuous emanations of the human heart. In times of trouble, when the nation seems under attack from within or without, there may be increased recurrence to civil religious ceremonies. Perhaps this is why the Pledge of Allegiance, originated by a socialist ideologue, was almost literally baptized through addition of “under God” to its recitation and became an object of great attachment during the Cold War.

When it becomes too systemic or prominent, unfortunately, civil religion may take the form of a totalitarian ideology. It can be an ersatz religion swallowing up the individual person into a grand conception of the secular salvation of a particular race or of mankind. This civil religion demands reconstitution of the human personality in accordance with “scientifically” divined precepts designed to establish heaven on earth through political means and violence. Such was the case with both communism and national socialism. Even in a democratic state, demands for loyalty to a specific, thick conception of the political good can crowd out more social, cultural, and even truly religious institutions, beliefs, and practices, resulting in an ideological public square inimical to full human, spiritual, religious lives.

Civil religion is not in fact religion. It is political ideology, the aim of which is to transform society to meet demands for this world rooted in a false vision of reality. The claim may be made that revolution is needed to prepare us for the next world as well. But the point is to change our society, and us, in the here and now through political action. This is precisely the case with the creed of secular humanism so fundamental to religion clause jurisprudence today.

Charges of a “religion of secular humanism” are understandable because contemporary religion clause jurisprudence is so hostile toward religious associations and expressions and is carried out in the name of a conception of politics as the very embodiment of our common life. Most of us tend to identify conceptions of the source and meaning of life with religion. The source of greatest confusion, perhaps, is the attempt by secularists to claim that they are “only” concerned with public life, being perfectly willing to allow religious folk to continue their superstitious practices in private. But this cramped vision denies religion’s reality. Religion, which means “to bind,” is a social as well as a theological phenomenon, and religions seek the good of the person in part at least by teaching that person how he should interact with others, fostering certain kinds of communities and ways of life. The Golden Rule makes no sense outside some kind of human society. Secular humanism itself is a highly antisocial creed, even in its most politicized formulations. It asserts the self-mastery of the individual and the imperative that we deal with one another as if we created our own values. It asserts that the purpose of public life is to achieve maximum comfort in this life, with references to any other life strictly relegated to the private thoughts and private, voluntary associations of particular members of society. In this way secular humanism presents a kind of ersatz religious creed of individualism enforced through politics. And, to the extent that creed is imposed on all the people by the government, it would seem to be an established religion.

But, while our civil religion increasingly is established, and increasingly hostile to genuine religion, it does not yet hold sway over all of society. It also is not truly religious. The central problem is one of definition. As John Courtney Murray, SJ, pointed out at the very beginning of the judicial assault on public expressions of faith, what has happened is that our judicial elites have accepted and preached a civil religious doctrine that sees religion itself as a purely private matter best kept out of the public square. In 1948, in the aftermath of Supreme Court decisions seeking to codify the notion of “a wall of separation between church and state,” Murray argued that these decisions were rooted in a definition of religion at odds with that accepted by the founding generation and by most Americans up to his own day.

As Murray showed, the Court’s use of the metaphor of a wall of separation in Everson v. Board of Education and McCollum v. Board of Education, two cases dealing with “aid” to religious education, was wildly misleading. The appellants in McCollum demonstrated that historical experience, traditional practice, and the clear intentions of the authors of the First Amendment all agree that it intended to forbid only national laws granting preferential status for the doctrines, practices, or modes of worship of a particular religious group. The notion that it forbade aid of any kind to religion in any form is simply not tenable. The response from the Supreme Court to this argument was to simply dismiss it, and our history, replacing it with the supposed wisdom of doctrinal development over the many decades after the fact, and especially that infinitely elastic concept of “the whole experience of our people.”[1]

Murray further pointed out that at the heart of the Everson and McCollum decisions is the rationalist definition of religion espoused by James Madison. This definition, laid out in his Memorial and Remonstrance against Religious Assessments in Virginia, was radically individualist. It was an absolute conception of religion as a purely private matter between each individual and his God that would be destroyed by even the slightest official relationship between civil and religious authorities. Madison did not simply make up his conception. He pointed to the real common law distinction between ecclesiastical and civil authority as well as Lockean natural rights theories, egalitarian principles forbidding civic distinctions being made on religious grounds, and a concern with “moderation and harmony.” But Madison’s central assumption, as noted by Murray and a number of other important observers, was that religion is a purely private matter. As Murray elucidated, “For Madison, as for John Locke, his master, religion could not by law be made a concern of the commonwealth as such, deserving in any degree of public recognition or aid, for the essentially theological reason that religion is of its nature a personal, private, interior matter of the individual conscience, having no relevance to the public concerns of the state.” Murray further noted that this conception rests on “a religious absolute, a sectarian idea of religion” forbidding “all governmental aid to religion even in the demonstrable absence of any coercion of conscience, any inhibition of full religious liberty,” violation of civil equality, or disruption of social harmony.

It is this ideology that is at the root of Supreme Court decisions decreeing that there be no “endorsement” of religion and no support for religious institutions, that, in general terms, religious expression be kept in a kind of closet, safely out of view of the public. But, while rooted in a theological principle, this ideology is not itself a religion because it is simply too general and vague regarding the nature of the deity and of the person’s duties in that regard. This is why secularist ideologues can rightly claim not to care about religion and to even be “tolerant” of all of them. They literally do not care what we believe—so long as we keep it to ourselves. Of course, being an ideology, this secular humanism has very real implications and even demands for our political life. It decrees a public square bereft of the natural expressions of faith and fellow-feeling real, full human persons bring with them from their various associations and religious communities in particular. Indeed, it posits a self-evidently false notion of a single public square in which we all must meet to make all of our important decisions regarding what our political community shall do in regard to even the most “private” of decisions regarding, say, marriage and child-rearing.

The good news regarding Madison’s false notion of human nature and our relationship with the divine is that it never was a dominant voice in American politics. The First Amendment Madison himself helped draft never intended to impose such a vision on the nation. Even in Virginia his position was only one of several competing for public acceptance—and arguably not the most popular or successful. Unfortunately, as pointed out by Murray, Madison’s argument was taken up by a series of nativist leaders as a means of maintaining a kind of vague Protestantism in American public life during eras of Catholic immigration. More unfortunately, this argument was soon picked up on by true secularists seeking to strip the public square of all truly religious expression in favor of a civil religion aimed at transforming the very nature of our nation and people. A return to sanity in our public life would require recognition of the mistake at the heart of Madison’s religious creed (that religious life can be a private life) and the destructive pride at the heart of any full civil religion.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.



[1] Everson v. Board of Education, 330 U.S. 1 (1947); McCollum v. Board of Education, 333 U.S. 203 (1948). The quotation is from Justice Frankfurter’s majority opinion in the McCollum case, at 215.

2 Responses to ““The Supreme Court’s Civil Religion versus Religion,” By Bruce Frohnen”

  1. gabe

    Nice – again!!!!

    Well, first they (we?) came for the Catholics AND then they came for us. Does not seem to be anyone left to support us (the first to employ the tactic against those nasty Papists).
    It would be funny, if it were not so very, very tragic.

    Keep ’em coming, Bruce and thanks for the reference to Madison’s “Remonstrances.”


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