Separation of Church and State in the United States

The phrase separation of church and state is a common interpretation of the Establishment Clause of the First Amendment, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." The phrase itself does not appear in any founding American document, but it has been quoted in opinions by the United States Supreme Court. (The first such mention was in Reynolds v. United States, 98 U.S. 145 in 1878.)

In the 17th and 18th centuries, many Europeans immigrated to the land that would later become the United States. The primary reason for many was the desire to worship freely in their own fashion. These included a large number of nonconformists such as the Puritans and the Pilgrims, but included many other traditions, including Catholics and Quakers among others. With some exceptions such as Roger Williams of Rhode Island and William Penn, most of these groups did not necessarily believe in religious pluralism, but were looking for a place to found their own state based upon their on religious principles.

However, there were notable exceptions. In 1773, Isaac Backus, a prominent Baptist minister in New England, observed that when "church and state are separate, the effects are happy, and they do not at all interfere with each other: but where they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued."

George Washington wrote in 1790 to the country's first Jewish congregation, the Touro Synagogue in Newport, Rhode Island to state:

"All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support."[2]

A "wall of separation"

The phrase "[A] hedge or wall of separation between the garden of the church and the wilderness of the world" was first used by Baptist theologian Roger Williams, the founder of the colony of Rhode Island. It was popularized by Thomas Jefferson as a description of the Establishment Clause in an 1802 letter [3] to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut). His intention was to assure this religious minority that their rights would be protected from federal interference. The paragraph containing the phrase is:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

Jefferson's letter was in reply to a letter [4] that he had received from the Danbury Baptist Association dated 1801-10-07. In an 1808 letter to Virginia Baptists, Jefferson would use the same theme:

"We have solved, by fair experiment, the great and interesting question whether freedom of religion is compatible with order in government and obedience to the laws. And we have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries."

Bill of Rights

The first amendment to the US Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" these clauses are known as the "establishment clause" and the "free exercise clause" respectively. The intention was to provide a buffer between the Legislature and the most basic rights of the people. The prohibition on the establishment of religion did not originally apply to the states, but on the federal government. At the time of the passage of the Bill of Rights, many states already had established churches, into the early 19th century. All of the early official state churches were disestablished by the 1820s, including the Congregationalist establishment in Connecticut.

However, in 1854 the State supreme court of Maine could still declare that the local board of education had the right to expel a 15 year old girl for refusing to read aloud a portion of the King James translation of the Bible to her class; her family's religion required her to read only the Douai Bible, or Roman Catholic translation of the Bible. [5]

It is commonly accepted that, under the doctrine of Incorporation — based on the Due Process clause of the Fourteenth Amendment — the protections and restrictions of the Bill of Rights are applied to the states. (Clarence Thomas has occasionally made note of a view, held by a small number of constitutional scholars, that the states could still establish official religions today; under this view, the establishment clause cannot be incorporated under the Fourteenth Amendment, because under its arcane wording, it is a "hands-off" directive aimed solely at Congress. Others take the view that so long as religion is established by the government, "establishment of religion" is "establishment of religion" no matter whether Congress is directly involved.)

Prior to the inclusion of the Bill of Rights, the only mention of religious freedom in the Constitution was a clause forbidding any "religious test" for government employees. This has been called the "no religious test" clause, found at the end of Article VI, Section 3, which reads in part "but no religious test shall ever be required as a qualification to any office or trust under the United States."

The Treaty with Tripoli (1796) between the United States and the Barbary States, specifically stated that "the government of the United States of America is not in any sense founded on the Christian Religion". Many are of the view ^{[citation needed]} that this statement (known as Article 11), which was written in a document endorsed by then-president John Adams and passed unanimously by the Senate, taken in context with similar writings of the founding fathers, supports the idea of a neutral state.

Supreme Court decisions

The phrase "separation of church and state" became a definitive part of Establishment Clause jurisprudence in Everson v. Board of Education, 330 U.S. 1 (1947). Everson also was the first case to interpret the Clause as imposing a restraint on the states as well as the federal government, based upon the due process clause of the Fourteenth Amendment.

In 1962, the Supreme Court banned from public schools all public prayers and religious readings done for religious purposes. The Supreme Court continued to allow private prayer. As such, any teacher, faculty, or student can pray in school, in accordance with their own religion. However, they may not lead such prayers in class, or in other "official" school settings such as assemblies or programs. Even "non-sectarian" teacher-led prayers are not allowed, e.g. "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country," which was part of the prayer required by the New York State Board of Regents prior to the decision of the Warren Court in Engel v. Vitale.

The court noted that it "is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America." [6]

As authorized by state law, the "Almighty God" prayer had followed the teacher-led pledge of allegiance to the flag, which consisted of the following: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation, under God, indivisible, with liberty and justice for all." The pledge did not contain the words "Under God" until 1954, when Congress added them to the pledge. While the Court banned the "Almighty God" prayer, whose purported purpose was to "acknowledge the dependence of our people and our Government upon the moral directions of the Creator," it did not deliberate upon the "Under God" pledge.

Religious expression as part of school concerts or plays was debated before a 1980 court ruling, Florey v. Sioux Falls School District, which was upheld by the 8th U.S. Circuit Court of Appeals. The ruling allows religious songs to be performed at school concerts as long as secular songs are also included. So "Silent Night" might be followed by something like "Frosty the Snowman" or "Rudolph the Red-Nosed Reindeer." The public display of creches have also been outlawed, unless there are other, secular displays as well. The ruling is sometimes been referred to derisively as the "three reindeer" rule.

The Christian flag displayed alongside the flag of the USA next to the pulpit in a church in California. Note the eagle and cross finials on the flag poles.

Currently, the Supreme Court applies a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a neutral or non-religious purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).

In 2002, a United States Court of Appeals for the Ninth Circuit panel held that a California law requiring the voluntary recitation of the Pledge of Allegiance in public schools was unconstitutional. Reaction from the Senate was to unanimously pass a bill which reaffirmed their support for the words "under God", and the House also condemned the ruling by a 416-3 vote. [7] [8] The case was appealed to the Supreme Court, where hearings began in March 2004. Elk Grove Unified School District v. Newdow was overturned by the Supreme Court on Flag Day, June 14, 2004. The Justices, however, did not reach their decision based on the merits of the case (whether or not the phrase "under God" in a public school setting is unconstitutional). Rather, a five-justice majority held that Newdow, a non-custodial parent suing on behalf of his daughter, had no standing to bring the lawsuit in the first place, thus vacating the lower court ruling without resolving the constitutional question presented.

The display of the Ten Commandments as part of courthouse displays was considered in a group of cases decided in summer of 2005, including McCreary County v. ACLU of Kentucky and Van Orden v. Perry. While parties on both sides hoped for a reformulation or clarification of the Lemon test above, these decisions further clouded the picture. Both were decided with a 5-4 majorities, with the Court outlawing the display in the McCreary County case, while upholding the display in the Van Orden case. In that latter case, the Court found the display to have both religious and secular value which they did not find in the Kentucky case. The major, apparent difference between the two cases is that in McCreary County, the display was inside the Courthouse while in the Texas case, the display was on the Courthouse grounds. The contradiction perceived between the two rulings has increased the ambiguous status of such deplays.

Federal court decisions

Ten commandments monument at a Minnesota courthouse.

The two Supreme Court cases did not resolve the issue. On December 20, 2005, the United States Court of Appeals for the Sixth Circuit ruled in the case of ACLU v. Mercer County that the continued display of the Ten Commandments in a Kentucky courthouse would be permitted. [9] The opinion authored by Judge Richard Fred Suhrheinrich states that

"...the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow. Cf. Mercer County, Kentucky, 219 F. Supp. 2d at 789 ("Endorsement of religion is a normative concept; whereas acknowledgment of religion is not necessarily a value-laden concept."). Because nothing in the display, its history, or its implementation supports the notion that Mercer County has selectively endorsed the sectarian elements of the first four Commandments, we fail to see why the reasonable person would interpret the presence of the Ten Commandments as part of the larger "Foundations" display as a governmental endorsement of religion.

We will not presume endorsement from the mere display of the Ten Commandments. If the reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation’s cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff. See Washegesic ex rel. Pensinger v. Bloomingdale Pub. Sch., 33 F.3d 679, 684 (6th Cir. 1994) (Guy, J., concurring) (describing the "eggshell" plaintiff as unknown to the Establishment Clause). Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions."[10]

In its opinion, the court rejected one of the ACLU's fundamental claims in its suits against religious expression in public places, that "recognition [equals] endorsement," and further asserted that if that claim were accepted and followed thoroughly, it would require a massive revision of the entirety of the legal tradition of the United States.

While five members of the circuit filed a strongly worded dissent, the appeal by the ACLU for an en banc rehearing was declined by a majority ruling.

In ruling on the Mount Soledad Cross Controversy on May 3, 2006, a federal judge ruled that the Mount Soledad cross on public property must be removed within 90 days, or the city of San Diego would be fined $5,000 a day. The U.S. District Judge Gordon Thompson Jr. declared that "It is now time, and perhaps long overdue, for this Court to enforce its initial permanent injunction forbidding the presence of the Mount Soledad Cross on City property."

Interpretive controversies

Some — especially certain devout Christians — disagree with the notion of "separation of church and state", or the way the United States Supreme Court has interpreted the Establishment Clause. For instance, some groups hold that the First Amendment requires "institutional separation" of churches and the government not an absolute bar to religiousity. [11]

The Founding Fathers did not prohibit religious references in official contexts. The United States Declaration of Independence contains four references to God in Deist language (although the word only appears once, in the phrase "Nature and Nature's God"). While the Declaration is a rebuke to the notion of a Divine Right of Kings, and while it can be argued that references to God were unavoidable because it is responding to a religious concept, its particular wording seemingly goes further than the minimum required for this, expressing implicit faith in and reliance upon a deity for the justification of the rebellion of the colonies. In contrast, the Constitution — which is the legal framework of the United States — does not refer to any deity (other than referring to its passage by the Constitutional Convention as occurring in the "Year of our Lord 1787").

The "religious test" clause has been interpreted to cover both elected officials and appointed ones, career civil servants as well as political appointees. Religious beliefs or the lack of them have therefore not been permissible tests or qualifications with regard to federal employees since the ratification of the Constitution. Seven states, however, have language included in their Bill of Rights, Declaration of Rights, or in the body of their constitutions that require state office-holders to have particular religious beliefs. These states are Texas, Massachusetts, Maryland, North Carolina, Pennsylvania, South Carolina, and Tennessee.[12] The required beliefs include belief in a Supreme Being, and belief in a future state of rewards and punishments. (Tennessee constitution Article IX, Section 2 is one such example.) Some of these same states specify that the oath of office include the words "so help me God." In some cases these beliefs (or oaths) were historically required of jurors and witnesses in court. At one time, such restrictions were allowed under the doctrine of states' rights; today they are deemed to be in violation of the federal First Amendment, as applied to the states via the 14th amendment, and hence unconstitutional and unenforceable.

While sometimes questioned as possible violations of separation, the appointment of official chaplains for government functions, voluntary prayer meetings at the Department of Justice outside of duty hours, voluntary prayer at meals in U.S. armed forces, inclusion of the (optional) phrase "so help me God" in the oaths for many elected offices, FBI agents, etc., have been held not to violate the First Amendment, since they fall within the realm of free exercise of religion.

Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the fact that Christmas is a federal holiday, etc., have also been questioned, but have been considered examples of the governmental prerogative in deciding practical and beneficial arrangements for the society. The annual holiday of Thanksgiving, and the national motto "In God We Trust", are violations if strict separation is implied.

Quotes

• "The general principles on which the fathers achieved independence were....the general principles of Christianity in which all the sects were united. And the General Principles of English and American liberty. I will avow that I then believed, and now believe, that those general principles of Christianity are as eternal and immutable as the existence and attributes of God; and that those principles of liberty are as unalterable as human nature." - John Adams
• "Erecting the 'wall of separation between church and state'...is absolutely essential in a free society." - Thomas Jefferson
• "Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us." - James Madison
• "Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?" - James Madison
• "The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State." - James Madison
• "Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions. Keep the church and state forever separate." - Ulysses S. Grant
• "As the Government of the United States of America is not, in any sense, founded on the Christian religion..." - Opening statement of Article XI of The Treaty of Tripoli, approved by President John Adams and ratified unanimously by the Senate.
• "Religion is a subject on which I have ever been most scrupulously reserved, I have considered it as a matter between every man and his Maker, in which no other, and far less the public, had a right to intermeddle." - Thomas Jefferson
• "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg." - Thomas Jefferson
• "The sanctions of religion compose the foundations of good government; and the ethics, doctrines, and examples furnished by Christianity exhibit the best models for the laws of opinion." - DeWitt Clinton

See also

• Separation of church and state
• United States church-state separation case law
• United States religious history
• Christian amendment
• Mount Soledad Cross Controversy

Further reading

• Marci A. Hamilton, God vs. the Gavel : Religion and the Rule of Law, Cambridge University Press, 2005, ISBN 0-521-85304-4

External links

• Christian Science Monitor analysis of George Washington's letter and its implications
• Culture Battles Daily news.
• TheocracyWatch.org is a project of the Center for Religion, Ethics and Social Policy (CRESP) at Cornell University.
• "The Intellectual Origins of the Establishment Clause" by Noah Feldman, Asst. Professor of Law, New York University, 2002.

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