Religion and Law

America is an ever changing society. Our people, our culture, and even our legal system have continued to develop and advance since the very early days. Perhaps those changes are even more evident in the relationship between religion and law that America now sees spread across the nation, than in any other aspect of our way of life. That relationship is, like society itself, one of constant change. We no longer live under religious rule as many in the original colonies did but all the same, religion continues to have a vast impact on many facets of the Criminal Justice system and as such, has dictated many of its own changes in the American way of life.

It has been four hundred years since our European ancestors first landed on these shores. Many came for riches and for a chance at glory and a new life. By far, however, the majority came for one simple reason; the ability to practice their religion without interference or fear. During the height of migration to the New World, the Inquisitions were waging in Europe, often scooping up anyone who disagreed with even the smallest part of the teachings of the Church or with the political powers of the time. During the reign of the Inquisitions, Cathars, Jews, Muslims, Greek Orthodox Christians, Protestants, Hindu's and the Knights Templar were targeted to one degree or another on religious grounds (Inquisition, 2006). Great thinkers and politicians such as Joan or Arc, Giordano Bruno, and Galileo Galilei were also targeted as the Inquisition became an effective way to silence the voices of those with power or influence (Inquisition, Spanish Inquisition, 2007). On top of the fears of the Inquisition, many religious sects had to contend with being targeted for a refusal to accept the Church of England, or the Anglican Church (Roth, 2005).

These religious and power struggles made living in Europe volatile. It is not hard to imagine, under such circumstances, that our ancestors fled to the New World to escape religious persecution. And many did so flee, settling on the east coast of America in colonies. These early colonies were often divided by religion as much as by the people who chose to inhabit them (Roth, 2005). The Puritans settled in Massachusetts and the New England colonies, opting to live under strict Mosaic code while the Quakers settled in the Northern colonies and opted for a more liberal, for their particular time, way of life (Roth, 2005). Virginia and the Southern colonies were inhabited by a mix of people who, unlike the Quakers and Puritans, did not immediately turn to a religious way of life, but lived instead by codes of law brought about by necessity (Roth, 2005). Each group had their own reasons for leaving Europe and each had their own way of doing things, as we will see.

The first of the religious groups to migrate to the New World, the Puritans, did so out of necessity. During the Reformation and the break by the Anglican Church from Catholicism, a Separatist movement of Puritanism, began to surface (Atkins, n.d). These Separatist's believed that "the Anglican church had not gone far enough, that, although the break with Catholicism in 1535 had moved some way toward the Puritan belief in and idea of religious authority grounded solely in Scripture, by substituting king for pope as the head of the church, England was only recapitulating an unnecessary, corrupt and even idolatrous order" (Gill as cited by Atkins, n.d.). Because of their unwillingness to compromise with the Anglican Church on what they viewed as vastly important theological issues, they fled for Holland in 1608 (Roth, 2005). These Puritans resided in Holland for 12 years before it became apparent to them that the "children" of the group were being "drawne away by the evill" Holland way of life (Bradford as cited by Atkins, n.d.). And so, in 1620, they set out, with the backing of the Virginia Company, aboard the Mayflower and bound for the New World (Atkins, n.d.).

The Separatists Puritans, commonly known as the Pilgrims, landed on Cape Cod in November of 1620 and quickly established what is known as the Mayflower Compact. This compact was a collective decision to establish the first colony under a civil body of government that all would obey (Atkins, n.d.). Over the years, this compact advanced to a very strict code of law based solely upon the Bible. The laws that were punishable under the Puritan way of life were those seen as sin; "idleness and missing church could often be met with harsh penalties (Roth as cited by Glenn, 2006). Also harshly punishable, up to an including death, were "acts that the bible condemned, such as adultery, witchcraft, and working on Sunday" (Roth as cited by Glenn, 2006). The Puritans were a no nonsense group who put their belief of God above all else with those refusing to adhere to such a way of life being either forced out of the Puritan colonies or put to death (Roth, 2005). The ultimate goal of the Puritan system of justice was to bring the offender back into the Church, but if all else failed, they were cast out (Roth, 2005).

Quakerism began as a Nonconformist movement; not a breakaway from Catholicism or Anglicanism, but rather a movement outside of those faiths (Quaker History, 2006). The Quakers, like the Puritans, fled Europe in search of religious freedom. Because of their unusual beliefs, they were often the target of religious persecution in England, with everything from their refusal "to support the established church" to holding meetings being charged as punishable crimes (Kion, n.d.). The Quakers were pacifists, and as such, were not well suited to meeting the persecution with a fight (Kion, n.d.).

Instead, with leader William Penn, the Quakers settled in Pennsylvania and other Northern colonies and quickly established their own system of doing things. Unlike the Puritans, however, the Quakers were very liberal for the time, believing that religion was personal and that ministers were not needed and that religious freedom, so long as one did believe, was to be a way of life in Quaker colonies (Roth, 2005). The Quakers also believed that woman were equals and should be treated as such and that slavery and warfare should be abolished (Quaker History, 2006). Perhaps one of the most intriguing facets of Quaker belief, however, was the Quaker justice system. In a move familiar to what we see now, the Quakers believed that the only crimes punishable by death were murder and treason and that other crimes should be met with "fines, shaming or imprisonment" (Roth, 2005, p. 62).

Those hardy souls that settled in Virginia and the southern colonies in the beginning were quite unlike either the Quakers or the Puritans, having come to America not for religious ideals but in search of glory and riches. Laws were created out of necessity of the continuation of life, not for some higher religious purpose and were a result of the wide mix of people that inhabited said colonies (Roth, 2005). However, in 1611 that changed when Sir Thomas Dale took over leadership. Laws quickly changed from necessity to religious in nature, with things such as missing daily church services being named a "major transgression" (Glenn, 2006).

While Virginia and the southern colonies started off on different footing than the Quaker or Puritan settlers, by the time of the Witch Hunts in the colonies in the late 1600s, it had become apparent that each group of colonies was operating on their own set of religious laws that, quite often, clashed with the ideals of their neighbors. The Witch Hunts however, had only a momentarily stabilizing effect on the colonists.

It was only after the King of England decided that the colonists should take part in repaying the war debts that the religious differences began to be set aside for a common purpose; the colonists sorely resented the taxation being forced upon them by King and Parliament. That resentment led to the eventual war that won American independence from British rule in 1776 and to the creation of the Constitution of the United States. That Constitution included the Bill of Rights, the first ten amendments to the constitution that were ratified shortly after the Constitution was written (Roth, 2005).

The very first of those Amendments dealt with the basic issues of freedom, including the religious freedom issue. Those issues were of great strife on many levels, as the lives of the earliest colonials had shown. The early Quakers and Puritans did not get along and spent years fighting back and forth, with the Puritans beating and hanging Quakers and the Quakers infiltrating the Puritan colonies (Kion, n.d.). The fight for religious dominance continued throughout the years and culminated with calls for the newly establish nation to create- or steer clear from, depending on which side of the argument one took- a national religion as had been done in England.

In response to those calls, Thomas Jefferson, with the aid of James Madison, led the push to add the Freedom of Religion clause to the first amendment after having successfully passed a similar bill in Virginia in 1786 (Robinson, 2006). In 1778 the Constitutional Convention resolved three major religious controversies: the decision as to whether there should be a religious test or requirement for elected office, whether to allow the Quakers to affirm oaths of office and whether to refrain from recognizing Christianity as a state religion (Robinson, 2006). The Constitutional Convention decided there should be no religious test, that an affirmation was an acceptable answer to the swearing of an oath and that no religion should be set up as the national religion (Robinson, 2006). With a final push from Jefferson and Madison, the First Amendment as it stands today was written and ratified.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (Amendment I).

Unfortunately, however, the issue of religious freedom did not end with the creation of the First Amendment. The first big test of the new relationship between the laws of the nation and religion came mere years later when, after Jefferson was elected President, a group of Baptists, in 1802, requested he "declare a national day of fasting in order to help the country recover from a bitterly fought presidential campaign" (Robinson, 2006). President Jefferson declined, bringing the attention of the nation to what he called the "building of the wall of separation between Church and state" that the First Amendment had established (Robinson, 2006). The concept of separation of church and state quickly fueled old controversies and raised many issues new to the recently established nation.

It was not until the 1900s, however, that the issue really began to heat, with the nation's courts from highest to lowest, being called upon repeatedly to clarify or expand some issue of that separation at nearly every level of society. It took over a century and a half for the religion issue to finally reach the criminal justice system where it has since had great impact, with everything from the rights of prisoners to system reform itself falling in line to be heard by the courts on a First Amendment context.

Prior to the 1960s, the Courts operated on a hand off doctrine, believing that the federal government had no business inserting itself into the practices of state prisons, including on issues covered in the Constitution (Prisoner Rights, 2004). Prisoners were believed to be "slaves of the state" and rights were given little consideration. In 1963, however, the hands off doctrine was successfully challenged in Jones v. Cunnigham, with the Supreme Court ruling that "state inmates could employ a write of habeas corpus to challenge not only the legality of their imprisonment [but] the conditions of their confinement" (Prisoner Rights, 2004). Over the subsequent years, the rights of prisoners became a very serious issue and by 1985, forty-two states had been "encumbered by the courts in some way" (Prisoner Rights, 2004).

In the 1972 case of Cruz v. Beto, inmates of nontraditional faith were guaranteed the right, in accord with inmates who practiced traditional religions, to reasonably pursue their faith (Prisoner Rights, 2004). The case was only the first in a long line of cases dealing with freedom of religion topics.

The "current standards for inmate First Amendment cases" came about with a pair of cases in 1987; Turner v. Safley and O'Lone v. Estate of Shabazz that dealt with the reasonableness of prison official's actions on impinging on an inmate's constitutional rights (Hudson, 2007). The court identified four factors to determining the reasonableness of officials' actions:

• Whether there is a "valid, rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it. The Court noted that the "governmental objective must be a legitimate and neutral one." "Prison regulations restricting inmates' First Amendment rights [must be] operated in a neutral fashion, without regard to the content of the expression."
• Whether there are alternative means of exercising the right that remain open to prison inmates.
• Whether accommodating prisoners' constitutional rights will infringe on the rights of guards or other inmates and on the allocation of prison resources generally.
• Whether there are alternative methods of accommodating prisoners' rights at minimal cost to valid penological interests. The existence of easy alternatives can show that the regulation was an "exaggerated response" to prison concerns (Hudson, 2007).

Since the 1987 decisions, Congress has inserted itself into the matter twice, passing the Religious Freedom Restoration Act (RFRA) of 1993 and the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000. According to David L. Hudson Jr. (2004) "both statutes provide that government officials cannot impose a substantial burden on inmates' religious rights unless they show their regulation serves a compelling government interest in the least-restrictive way". The RFRA was subsequently struck down on a state level by the Supreme Court as being unconstitutional on the grounds that Congress "overstepped its authority in imposing such a law upon the states" (Hudson, 2007). The law, however, still holds on a federal level and many states have since passed their own RFRA laws (Hudson, 2007).

On another level of the intricate relationship between law and religion is the effects of that relationship on society and the freedoms of society. As religion continues to have its day in court, the effects and implications of those days are far reaching, having made an impression on everything from prayer in school to posting the Ten Commandments in courthouses. While prisoner rights are directly and obviously associated with the criminal justice system, these other court battles have likewise had a vast impact on the system, with everyone from local and state governments to school officials being taken to court for violating the First amendment rights of others.

When is it okay to post the Ten Amendments? Can a student be forced to recite the pledge? Is prayer at school ever okay? What about prayer at city council meetings? Each of these questions have been answered by the courts, and often the answers conflict with earlier or later answers to the same, or similar, questions. The end result is a state of confusion, with no one quite sure what is and is not acceptable in regards to religion in the eyes of the law. That confusion is one that will likely continue to be fought in courts across the nation in years to come and continue to affect change on all aspects of society, most especially on the government and those responsible the criminal justice system.

The relationship between the law and religion has been very long, indeed. What began as individual colonies living under their own religious law has changed greatly over the past four centuries, becoming first an amendment stating that everyone was free to believe as he or she wished with no government interference, to now having religious cases in the courts time and again. The criminal justice system, most especially the penal system, has been greatly affected by the relationship and will likely continue to be affected in the decades to come. Prisoner rights in regards to religion have been established and expanded regularly since the overturning of the "hands off doctrine" and faith based charities have begun to become increasingly popular in criminal justice circles. The relationship has been vast and has brokered change on nearly every level of society, changes which continue to be debated even today. In the end, however, it behooves of us to remember that, had our ancestors not set their course in search of religious freedom those many years ago, many of our greatest strengths, including the diversity of our rich nation, would likely never have appeared. Ours in a changing society, forever moving forward, and we owe a great many of those advancements to the ability of our ancestors to accept change and move past religious difference for the good of all.

References

Atkins, S. (n.d.). Pilgrims and Puritans. Retrieved January 15, 2007, from

http://xroads.virginia.edu/~CAP/puritan/purhist.html

Glenn, F. N. (2006, November 11). Religion in Colonial America. Retrieved

January 15, 2007, from http://progressiveu.org/114214-religion-in-colonial-america

Hudson, D. L., Jr. (2007, January 2). Religious liberty in public life:

Prisoners' rights. Retrieved January 15, 2007, from

http://www.firstamendmentcenter.org/rel_liberty/free_exercise/topic.aspx?topic=prisoner_rights

Inquisition. (2006). Retrieved January 15, 2007, from Wikimedia Inc. Web site:

http://en.wikipedia.org/wiki/Inquisition

Inquistion, Spanish Inquisition. (2007). Retrieved January 15, 2007, from

http://mb-soft.com/believe/txh/inquisit.htm

Kion, M. T. (n.d.). The Quakers: Religious freedom in the new world. Retrieved

January 15, 2007, from Suite101 Web site:

http://americanhistory.suite101.com/article.cfm/the_quakers

Quaker History. (2006). Retrieved January 15, 2007, from Wikimedia Inc. Web

site: http://en.wikipedia.org/wiki/Quaker_history

Robinson, B. A. (2006). The First Amendment to the Constitution of the United

States. Retrieved January 15, 2007, from

http://www.religioustolerance.org/amend_1.htm

Roth, M. P. (2005). Crime and punishment: A history of the criminal justice

system. United States: Thomson Wadsworth.