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By Scott R. Grubman

With approximately seventy-five percent of Americans identifying themselves as Christian (down from eighty-six percent in 1990), it is safe to call America a “nation of Christians.”  But can America also be called a “Christian nation”?  In a 2007 interview, then Presidential candidate John McCain expressed his belief that “the Constitution established the United States of America as a Christian nation.”  McCain is by no means alone in his belief that the United States – a nation founded, in part, in order to escape the dominance of the Church of England – is a Christian nation.  Also in 2007, the First Amendment Center, an organization associated with Vanderbilt University, conducted a survey in which it asked respondents, among other things, whether they believed that America was established as a Christian nation.  Fifty-five percent of respondents said that they believed that the Constitution established a Christian nation and sixty-five percent of respondents either “strongly” or “mildly” agreed that the nation’s founders intended the United States to be a Christian nation.      

According to Michael Lind, a columnist for Slate.com, there are four main arguments utilized by the Christian right in support of the argument that the United States is a Christian nation.  The first argument is anthropological:  “The majority of Americans describe themselves as Christians” and, therefore, the United States is a Christian nation.  But as Lind points out, the fact that the majority of Americans describe themselves as Christians is irrelevant to the question of whether the American government as an entity is Christian.  The second argument identified by Lind is that the Constitution is somehow “Christian in character.”  As to this argument, not only is there a complete absence of any reference to Christianity in the Constitution as one would expect there to be had the founding fathers intended to create a Christian nation but, as Lind explains, there are several parts of the Constitution that seem contrary to the idea of the Constitution establishing a Christian nation, including Article VI which states that “no religious test shall ever be required as a qualification to any office or public trust in the United States,” and the First Amendment which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”   

The third argument identified by Lind is “that while the U.S. government itself may not be formally Christian, the Lockean natural rights theory on which American republicanism rests is supported, in its turn, by Christian theology.”  As to this argument, Lind notes that the ideas of natural rights and social contracts “were inspired by themes found in non-Christian Greek and Roman philosophy,” and that idea of the social contract stretches back to the fourth and fifth centuries B.C., well before the time of Jesus.  The last argument that Lind discusses is that  

American leaders from the founders to the present have seen a role for otherwise privatized and personal religion in turning out moral, law-abiding citizens.  

Although our nation’s leaders may have used, and still do use, their personal religious beliefs as a basis for their political positions and beliefs, this does not mean that America was intended to be, or is, a Christian nation.  Further, the argument that our founding fathers were all Christian is questionable, to say the least.  Thomas Jefferson, for instance, is thought by most modern day religious scholars and historians to have subscribed to the schools of Deism and Unitarianism as opposed to Christianity in particular.  Benjamin Franklin described himself as a Deist and expressly rejected Christian dogma, although he did briefly belong to a Presbyterian church.  In a letter written just one month before he died, Franklin expressed that although he respected the system of morals preached by Jesus, he had “some doubts as to his divinity.”  John Adams was raised a Congregationalist and eventually became a Unitarian.  Although Adams believed in a higher power, he did not believe in the divinity of Christ. The religious affiliations of other founding fathers, including George Washington and James Madison, are less clear, although many scholars and historians argue that they were all more properly classified as Deists than as Christians.  In fact, the only major founding fathers that can definitively be classified as Christian are John Jay and Alexander Hamilton.  

There are several pieces of evidence that lend support to the idea that America was not intended to be a Christian nation.  One of the main pieces of evidence used to support this idea is the Treaty of Tripoli.  The treaty was ratified by the United States Senate on June 7, 1797 and signed by President John Adams a few days later.  Article 11 of that treaty provides:   

As the Government of the United States of America is not, in any sense, founded on the Christian religion,–as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],–and as the said States never entered into any war or act of hostility against any Mohametan [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.  

Many scholars and historians argue that the unanimous ratification of the treaty by the United States Senate, including Article 11, is the strongest indication that the founding fathers did not intend for America to be a Christian nation.  It was, after all, entered into and signed by none other than John Adams, one of the leading founding fathers, and ratified by a Senate comprised of several other instrumental figures from the time of the founding.  Further, because it was unanimously ratified, the Treaty of Tripoli represents perhaps the most accurate statement of what the government as a whole perceived itself to be.   Another major piece of evidence cited by scholars as suggesting that America was not intended to be a Christian nation is an 1843 letter written by the tenth president, John Tyler.  In his letter, President Tyler wrote:   

The United States have adventured upon a great and noble experiment, which is believed to have been hazarded in the absence of all previous precedent – that of total separation of Church and State.  No religious establishment by law exists among us.  The conscience is left free from all restraint and each is permitted to worship his Maker after his own judgment …  

While this letter may only represent the beliefs of one—albeit a very influential—man, it is another piece of evidence that seems to many scholars and historians to conflict with the idea of America as a Christian nation. To be sure, it would be difficult to argue that America was not built upon certain “religious” principles such as the belief in a deity.  It is also undisputed that, for all of American history including the present day, the vast majority of Americans have identified themselves as Christians.  It is questionable, however, whether the founding fathers intended that America be established as a “Christian nation.” One thing is for sure — whether America is a “Christian nation” or merely a “nation of Christians” is a question that will be debated for centuries to come.   

Further Reading:  

Michael Lind, America Is Not a Christian Nation (April 14, 2009), available at http://www.salon.com/news/opinion/feature/2009/04/14/christian_nation.

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By Scott R. Grubman

November 2, 2010 was an election day to remember for many reasons, although perhaps a day most Democrats would love to forget.  Throughout the country, voters went to the polls not only to vote for the politician of their choice (or, perhaps more likely, against the incumbent), but to decide some of the most important social issues of our time.  Voters in Arizona, for instance, approved a ballot initiative to amend the state constitution to ban affirmative action programs in state government agencies.  Arizona voters were joined by Oklahoma voters in prohibiting mandatory participation in the new federal health care system, often referred to as “Obamacare.”  Voters in California rejected a ballot initiative which would have decriminalized possession of small amounts of marijuana, while Arizona voters approved legalization of marijuana for medicinal purposes.  And voters in Arkansas, South Carolina and Tennessee all voted to add the right to hunt and fish to their respective state constitutions. 

But Obamacare was not the only thing that Oklahoma voters spoke up against in 2010.  They also overwhelming approved a state constitutional amendment prohibiting state courts from considering Sharia law (or the sacred law of Islam)—as well as international law—when making rulings.  The ballot measure passed by an overwhelming 70 percent.  Apart from the legal objections to the amendment, which will be discussed more below, the amendment’s passing raises an obvious question—was it really necessary for voters to prohibit Oklahoma courts from considering Sharia law?  A quick search of Westlaw (the online legal research service) returns not one result for a case in which an Oklahoma court considered Sharia law in reaching its decision.  Of course, as comedian Stephen Colbert facetiously opined on his November 3 show, “just because something doesn’t exist, doesn’t mean you shouldn’t ban it.” (In that same segment Mr. Colbert called for ballot initiatives to ban cat airline pilots, baby hurling, and man-futon marriages).  Further, as the Los Angeles Times and other publications have reported, out of a total population of over 3.6 million, there are only approximately 15,000 Muslims living in the state of Oklahoma, equivalent to approximately 0.4 percent.  

None of this, however, stopped the Oklahoma legislature from placing the measure on the November 2 ballot, nor did it stop 70 percent of Oklahomans from casting an affirmative vote.  The bill’s primary author, former Oklahoma State Representative Rex Duncan (a Republican lawyer from Sand Springs, Oklahoma, who did not seek reelection in 2010) was not discouraged by the fact that Sharia law had never been considered by an Oklahoma court.  Mr. Duncan pointed to the United Kingdom and was quoted by the Edmond Sun as saying that Sharia law “is a cancer upon the survivability of the UK.”  He called the bill “a pre-emptive strike against Sharia law coming to Oklahoma.”  One of the bill’s co-authors, State Senator Anthony Sykes (another Republican attorney from Moore, Oklahoma), was similarly quoted as saying that “Sharia law coming to the U.S. is a scary concept.  Hopefully the passage of this constitutional amendment will prevent it in Oklahoma.”

Muneer Awad

As one might guess, it did not take long for the first legal challenge to the Sharia law ban to be filed—two days to be exact.  On November 4, Muneer Awad, executive director of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR) filed a complaint in the United States District Court for the Western District of Oklahoma.  In his complaint, Awad seeks a temporary restraining order and preliminary injunction enjoining the Oklahoma State Board of Elections from certifying the election results for the Sharia law ballot proposition.  The complaint alleges that the ballot measure “is a gross transgression of the Establishment Clause”—so gross, Awad claims, that “little precedent deals with violations similar in magnitude.”  Awad further asserts that the measure violates the First Amendment’s Free Exercise Clause. 

Specifically, Mr. Awad contends that the Sharia law ban violates the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”) “because it has a purpose and effect that is sectarian and because it necessitates excessive religious entanglement.”  Either of these things would be sufficient to find an Establishment Clause violation.  In Lemon v. Kurtzman, a case decided in 1971 that has become the central case in Establishment Clause jurisprudence, the Supreme Court set forth a three-pronged test for determining whether a government action violates the Establishment Clause.  Under this test, government action does not violate the Establishment Clause if it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster and excessive entanglement with religion.  In the case of the Sharia law ban, it is difficult, to say the least, to find a secular purpose, or to argue that the ban does not have the principal or primary effect of inhibiting religion.  Similarly, it is likely that enforcement of the ban would require an excessive entanglement with religion. Accordingly, it is extremely likely that the ban will be found to violate the Establishment Clause.

Finally, it is also likely that the Sharia law ban violates the First Amendment’s Free Exercise Clause.  In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (2003), the Supreme Court held that:

At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.

The Court went on to hold that

[a]lthough a law targeting religious beliefs as such is never permissible, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.

It is clear in this case that the Sharia law ban is not facially neutral, discriminates against a specific religious group, and prohibits conduct undertaken for religious reasons.  Accordingly, in order to save the ban from a constitutional attack, its supporters would have to show that it is supported by a compelling interest and is narrowly tailored.  Given the facts cited above—specifically that Muslims make up .4 percent of the total population of Oklahoma and no Oklahoma court has ever cited Sharia law in deciding a case—it is exceedingly unlikely that any court would buy into an argument that the Sharia ban is supported by a compelling interest.

On November 9, U.S. District Judge Vicki Miles-LaGrange issued the temporary restraining order after she found that Mr. Awad had standing to bring the suit (because an invasion of his First Amendment rights was “both particularized and imminent”) and that he had made a preliminary showing that the new law would violate his First Amendment rights.  Judge Miles-LaGrange then scheduling a hearing for November 22, when she will decide whether to issue a preliminary injunction.  It is important to note that issuance of a temporary restraining order does not necessarily mean that the Court is going to find in Awad’s favor, although it is certainly a very good indication that it will.  Instead, issuance of the temporary restraining order means that Judge Miles-LaGrange determined that Awad demonstrated a “substantial likelihood of success on the merits.”  With or without the constitutional amendment, it is exceedingly unlikely that Sharia law will ever find its way into an Oklahoma legal decision.   

The case brought by Mr. Awad is Awad v. Ziriax, No. 10-1186, W.D. Okla. (Nov. 4, 2010).

Update:  

On November 29, 2010, Judge Miles-LaGrange issued a permanent injunction blocking the certification of the Sharia law ballot measure.  In her order, Judge Miles-LaGrange stated that the case goes “to the very foundation of our country, our Constitution, and particularly the Bill of Rights.  Throughout the course of our country’s history, the will of the ‘majority’ has on occasion conflicted with the constitutional rights of individuals.”  This injunction means that until Judge Miles-LaGrange hears the merits of Mr. Awad’s lawsuit and issues a final ruling on the constitutionality of the measure (which may take months to occur), the state Board of Elections is enjoined from certifying the election results, therefore preventing the measure from taking effect.   

***The opinions expressed in this article are those of the author, Scott R. Grubman, only and do not necessarily reflect the opinions of the Department of Justice.