Religions Now 21st Century Exam 1

Separation of Church and State + Abortion

Bruce Lincoln’s definition of a religious maximalist

Someone who believes that religion should be a part of every part of someone’s life and every day. All aspects of human social existence and society should be built for religion.

Bruce Lincoln’s definition of a religious minimalist

People who believe religion should be restricted to certain concerns and restrict its influence within its own sphere. Society and religion should not be mixed.

Bruce Lincoln’s definition of religion and the 4 “domains” of that definition.

Religion: the view of religion as delimited, and therefore definable, is thus itself culturally bound, historically recent, and discursive loaded.

1. Discourse

   1. A discourse whose concerns itself transcend the human, temporal, and contingent and that claims for itself a similarly transcendent status. Religion is not only based on the discourse itself but also in its claim to be authority and true.

2. Practices

   1. A set of practices whose goal is to produce a proper world and/or proper human subjects, as defined by religious discourse to which these practices are connected to.

3. Community

   1. A community whose members construct their identity with reference to a religious discourse and its attendant practices.

4. Institution

   1. An institution that regulates religious discourse, practices, community, reproducing them over time and modifying them as necessary, while asserting their external validity and transcendent value.

"wall of separation"

Created by Thomas Jefferson– church and state should remain exclusively independent from one another and have no influence on each other. The government should not favor any religion nor to antireligion.

First Amendment (establishment clause and free exercise clause)

Freedom of religion and speech. The government cannot make any law respecting an establishment of religion or law prohibiting the free exercise of religion.

Compelling state interest

Legal standard the government must meet to justify restricting rights protected by the First Amendment. It means the government must show that limiting speech, religion, or expression is necessary to achieve an essential and overriding goal, like protecting national security or public safety. Even then, the restriction must be narrowly tailored so it doesn’t burden more rights than absolutely necessary.

Least restrictive method

A requirement that if the government limits First Amendment rights, it must do so in the way that interferes the least with those rights. In other words, the government must choose the narrowest, most precise way to achieve its goal without unnecessarily restricting freedom. 

Substantial burden

Means a law is unconstitutional if it places a significant obstacle in the path of a person seeking a pre-viability abortion. Examples include requirements that are so restrictive, costly, or time-consuming that they effectively prevent access. 

Reynolds v. United States

Case where a Mormon man had multiple wives which is illegal in the U.S.. Allowed in Mormon religion. Court ruled that it was not imposing on his free exercise if it was harming the social order. 

Employment Division v. Smith

Native American man took peyote (illegal in U.S. but used in Native religions) and was fired from his job. Tried to apply for unemployment but was denied. Court ruled in favor of Employment Division stating that states are not required to make religious exemptions for generally applicable and neutral laws even if it places a burden on religious practices.

Religious Freedom Restoration Act (RFRA)

Passed in 1993 and prevented the government from substantially burdening a persons right to practice their religion even if the burden results from a generally applicable rule. Overturned in 1997 by Supreme Court who insisted that it only applies at a federal level. 29 states now have their own versions of RFRA.

Fulton v. City of Philadelphia

Catholic foster care agency was excluded from foster care services because they refused to certify same-sex couples. Court ruled in favor of Catholic Social Services.

Dobbs v Jackson Women’s Health

Overturning of Roe v Wade. Constitution does not protect a right to abortion. Leaves it up to state to determine legality of abortion and place restrictions.

Planned Parenthood of Eastern Pennsylvania v Casey

New standard for determining validity of abortion. “Undue burden.” A woman still has the right to an abortion but states compelling interest in protecting unborn baby means it can ban abortion except for when mothers life is at risk.

Reliance (as a legal term/doctrine)

Depending on previous cases to make a decision about another one. In the U.S., if there are no cases like one then judges will look at English common law.

Roe v Wade

Constitutional right to privacy which includes the right to an abortion. States cannot get in between a doctor and patient.

Stare decisis

The legal principle that courts should follow precedent of past decisions on cases to ensure legal consistency and predictability.

The Johnson Amendment

U.S. tax code says that nonprofit tax-exempt institutions cannot endorse or oppose any political candidate. Religious institutions cannot be involved in political activity or else they will be forced to pay taxes.

According to Diana Greene Foster, at least 2 of the common consequences for women who are turned away from abortion services and carry their fetus to term.

Hemorrhage, eclampsia, and chronic pain. More reliance on government funded programs and aid. More likely to fall below the poverty line.

At least 2 religiously based reasons for opposition to abortion.

• Causes severe psychological harm to the woman

• Life begins at conception and it is wrong to kill a fetus once it is conceived

• Ensoulment of fetus

• Human life is sacred because it is created by God

At least 2 religiously based reasons for supporting abortion and reproductive rights.

Judiasm–protection of mother’s life. The life and goodwill of the mother is more important than that of the fetus Free will and moral agency– people are given free will from God and should be allowed to exercise their free will.

John Locke’s argument about the relationship between church and state.

Argued that church and state must remain separate because civil government exists only to protect life, liberty, health, and property, not to save souls. True faith requires inward conviction, which cannot be compelled by force, so the magistrate has no authority in matters of religion. Churches are voluntary societies whose power extends only to spiritual discipline, not civil punishments. Therefore, toleration of different religions is necessary for peace and genuine faith.

Competing ideas re: the ideal relationship between religion and state as represented by Enlightenment types, Pro-separationist Evangelicals, proponents of Puritan-style Establishment, and proponents of Civic Republicanism/Mild Establishment

Enlightenment thinkers like John Locke are more likely to want a separation for church and state. Pro-separationist Evangelicals support a separation from church and state because they believe that the state will interfere with their practices if they allow for there to be a relationship between the two. A Puritan-style establishment would want a connection between church and state and for them to be intertwined in every aspect of life so that everyone has to follow the same morality and rules. Civic-Republicanism/Mild establishment wants there to be no specific connections between one church and state but rather for there to be a government responsibility of morality and establishing morality and virtue.

How Sehat’s distinction between “ceremonial,” “moral” and “institutional establishment" of religion supports his argument that robust religious freedom in the early United States was a “myth”

Institutional establishment = government $ supports house of worship. Ceremonial establishment = religious symbols/acts in state-sponsored events (e.g. official fast days). Moral establishment = religiously derived forms of morality enforced by law (e.g. blasphemy laws). These things have always been implemented into the U.S. which is why the argument of the U.S. being about religious freedom in the beginning is a myth. 

Justice Thomas Alito’s arguments for overturning Roe v Wade

Argued that Roe v. Wade was very wrong because the Constitution does not support abortion being a fundamental right. The court should not rely on the doctrine of due process.

Problems with/critiques of John Locke’s argument about the relationship between church and state.

Argue that his call for tolerance excluded groups like atheists and Catholics. More about social stability than genuine liberty. Framework assumed Protestant Christian norms, making it less inclusive than it appeared. Relies too heavily on individual conscience.

Put the following events/people in chronological order:

Dobbs v Jackson Women’s Health

Roe v Wade

Planned Parenthood of Eastern Pennsylvania v Casey

Protestant Reformation

Ratification of the U.S. Constitution 

John Locke

Passage of MOST of the laws criminalizing abortion in the United States

Passage of the 14th Amendment

Reynolds v United States

Protestant Reformation(1517)

John Locke (1689)

Ratification of the U.S. Constitution (1787)

Passage of the 14th Amendment (1868)

Reynolds v United States (1879)

Passage of MOST of the laws criminalizing abortion in the United States (1890s)

Roe v Wade (1973)

Planned Parenthood of Eastern Pennsylvania v Casey (1992)

Dobbs v Jackson Women’s Health (2022)

How the Protestant Reformation affected western ideas about church and state

The Protestants didn’t like how the Catholic Church was implemented into every aspect of society and had too much power so they were very adamant about religious freedom and the separation of church and state. The Catholic Church had a lot of power over the government in Europe and so they wanted that power to be separate in the U.S. so that people could be able to practice their religion without being impacted by the law. However, many laws were written in that benefited Protestants only in specific such as the NJ law that anyone of Protestant faith could be a member of public office or hold chair and that no person of Protestant faith should be denied life liberty and freedom.

How the Supreme Court’s approach to free-exercise cases has changed over the course of the 19th, 20th, and early 21st centuries

In the 19th century, the Supreme Court protected religious belief but not necessarily religious conduct, as seen in Reynolds v. United States (1879), which upheld a ban on polygamy. In the mid-20th century, the Court broadened protections, applying strict scrutiny in cases like Sherbert v. Verner (1963), requiring a compelling state interest to restrict free exercise. However, this shifted with Employment Division v. Smith (1990), where the Court ruled that neutral, generally applicable laws that incidentally burden religion did not violate the Free Exercise Clause. In the early 21st century, the Court has trended back toward stronger protection of religious practices, as in Hosanna-Tabor (2012), Burwell v. Hobby Lobby (2014), and Fulton v. Philadelphia (2021). 

How the states of Virginia and Massachusetts represented very different approaches to the separation of religion and state in the early U.S.

Virginia fully separated church and state, guaranteeing religious freedom and ending government support for churches with the Virginia Statute for Religious Freedom. Massachusetts, however, kept a religious establishment longer, using taxes to support Protestant churches into the 19th century.

New Jersey state law regarding abortion (current)

New Jersey is one of the states with the least amount of restrictions on abortion (aka no restriction). Very protective of abortion rights.

Texas state law regarding abortion (current)

Texas is one of the states with the most restrictive abortion laws. They have a complete ban on abortion. Up to 5 weeks and after that only if you have severe health problems or there is a fetal abnormality

What it means to say that “life begins at conception.”

“Life begins at conception” means that when the sperm fertilizes the egg it produces a new kind of cell (zygote). People argue that means it’s a person with full protection of the law and any attempt to prevent it from living is murder.