Fighting the New Wars of Religion: The Need For a Tolerant First Amendment

Religious wars have broken out around the country about the legality of gay marriage, the consequences of gay ordination for property ownership, the funding of faith-based organizations and the placement of crosses and Ten Commandments (but not Seven Aphorisms) on public land. To resolve such impassioned disputes, Americans traditionally look to the Religion Clauses of the First Amendment, which state "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Unfortunately, the Court's modern decisions interpreting those clauses have shed more heat than light on the discussion and have provoked ongoing controversy instead of any settled resolution of the issues. With the Religion Clauses jurisprudence in a jumble and subject to varying degrees of political and popular support, it is no surprise that cases about public prayer and the Ten Commandments, property and religious freedom, continue to be filed, and that citizens dispute the appropriate role of religion in passing laws about gay marriage and funding faith-based organizations (FBOs). The environment now mistakenly favors religion instead of religious liberty and fosters wars of religion instead of of peaceful tolerance.

To reinvigorate the ideal of religious liberty, this Article advocates a return to the roots of the First Amendment in the principle of religious tolerance or toleration.