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Appointments to the U.S. Supreme Court

The concept of the
separation of church & state

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The concept of separation of church and state:

This is a second major difference between strict constructionist and liberal justices in the U.S. Supreme Court and other courts.

The authors of the U.S. Constitution were very concerned that religion had been shown to be a profoundly destructive force. They were very aware that wars, fueled by religious hatred, had decimated many countries within Europe. They decided that a church/state separation was their best assurance that the U.S. would remain relatively free of inter-religious and intra-religious strife.

In 1789, the first of the Bill of Rights was written in the form of the First Amendment to the Federal Constitution. It was ratified by the States in 1791. It reads:

"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."

Interpretations of the First Amendment differ:

bulletStrict constructionists generally interpret the First Amendment as prohibiting governments from selecting one faith group or religion and making it the official state religion. England recognizes the Church of England in this way; Russia recognizes the Russian Orthodox Church. This viewpoint would give states and the federal government the freedom to pass laws requiring school prayer, allowing the Ten Commandments to be posted in courthouses, and generally involving the state in religious matters.
 
bulletJurists who interpret laws as living documents generally interpret the First Amendment as erecting a wall of separation between church and state. This prohibits federal, state and local governments, and their schools and other agencies, from involving themselves in religious matters. As Thomas Jefferson, as president, wrote to the Danbury Baptist Association of Connecticut on 1802-JAN-1:

"...I contemplate with solemn 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..."

Justices using this viewpoint interpret the First Amendment as prohibiting school prayer, religious displays in courthouses, etc.

An excellent example of the division within the U.S. Supreme Court occurred during 2005-JUN when the justices considered two displays of the Ten Commandments in Kentucky and Texas.

bulletFour (Chief Justice Rehnquist, and Justices Kennedy, Scalia and Thomas) determined that both displays were constitutional.
bulletFour other justices (Ginsburg, O'Connor, Souter and Stevens) ruled that they were both unconstitutional.
bulletJustice Breyer provided the swing vote in this case. He decided that the Texas monument was constitutional and the Kentucky display was unconstitutional.

Chief Justice Rehnquist and Justice O'Connor were subsequently replaced by Chief Justice John Roberts and Justice Samuel Alito -- both strict constructionists. We can expect that the new justices, and Justices Scalia, and Thomas -- four justices in total -- will consistently vote as a block to declare almost any display of the Ten Commandments to be constitutional. Unless all of the remaining justices vote to overrule the strict constructionists, almost anything will be acceptable in terms of the eradication of the principle of separation of church and state. Only the selection of an official religion or official denomination for the country would probably be considered by the new court to be unconstitutional.

More information on the separation of church and state.

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Copyright © 2003-2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUL-16
Author: B.A. Robinson

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