Separation of Church and State

Introduction

Sponsored link.

Problems with the term "church and state:"

Although this term is in near universal use throughout North America, it can be confusing. The principle actually involves separation of religion, not just churches, from the government.

The principal religion in western hemisphere has been Christianity since the 16th century; it continues to be the choice of about 75% of the U.S. and Canadian adult populations. But, "religion" in the U.S. involves much more than Christian Churches; it includes:

	Churches, circles, groves, gurdwaras, mosques, synagogues, temples, etc., and the organizations of which they are a part.
	Solitary practitioners of an organized religion.
	People who consider themselves religious, but are not affiliated with any specific group.
	Humanists, secularists, Agnostics, Atheists, etc. all of whom have specific religious beliefs. Although some would consider them non-religious, if you ask an Agnostic what their religion is, they will probably reply "Agnostic."

Many lawsuits about the entanglement of religion and government have involved conflicts between Christian churches or denominations and  state laws and regulations. But there have been some major cases involving other religions:

	The U.S. Supreme Court ruled against a Florida municipality and decided that followers of the Santeria religion could engage in animal sacrifices, as long as the killing was humanely done.
	A Supreme Court case which involved Native American Spiritual practices triggered a whole series of federal religious freedom laws which reduced the power of governments to interfere in religious matters.
	A 2005-MAY decision of the Supreme Court guaranteed the freedom of prison inmates to practice their religion. Brian Fahling, senior trial attorney for the American Family Association Center for Law and Policy -- a conservative Christian group -- commented: "It is a sign of the times, I suppose that it took a Witch and a Satanist to secure the rights of inmates to worship."

The term "separation of religion and state" would be a much less confusing term. It would be more accurate. It might not be as troublesome to Christians as "church and state" which can imply that there is some sort of a vendetta oppressing Christianity. However, "separation of church and state" is firmly imbedded in the culture, and so we will generally use it here.

Historical integration of church and state:

For the past 2 millennia, in most countries, church and state had been either linked or actually merged:

	England has recognized the Church of England as their official religion for centuries. The queen is the head of the church. Changes in church policies must be approved by the House of Lords.
	The 19th Century Russian government had an alliance with the Russian Orthodox Church; after the revolution, Atheism became the new official "religion." They have since made strides to again give the Russian Orthodox Church special status.
	The German government collects religious taxes from the public, and transfers them to the main Protestant and Catholic churches. The government also substantially finances these churches out of state funds.

The American colonies had largely followed that principle as well. There were many examples of religious discrimination written into the constitutions of various states during the years following the revolutionary war. Typical laws:

	Established a loyalty oath for legislators and government employees, requiring them to believe in the Trinity, and/or the divine inspiration of the Bible.
	Prohibited clergy from holding office.
	Required legislators to be Protestant Christians.
	Permitted the state to support the Christian religion from general tax revenue.
	Granted religious and other human rights only to Christians, or only to theists.
	Specified "The Protestant Religion" (whatever that meant) to be the established religion of the state.
	Required citizens to observe the weekly Sabbath or Lord's day.

Religious freedom in Virginia:

In 1779, Thomas Jefferson was concerned about the power of the Church of England within Virginia. He felt a guarantee of religious freedom was the best guarantee that America would avoid the religious intolerance and religiously inspired bloodshed that had marked much of the history of Europe. He wrote an Act for Establishing Religious Freedom; after a long battle, it became law in Virginia on 1786-JAN-16. The First Amendment of the U.S. Constitution was based in part on that act.

"Wall of Separation" between Church and State

Thomas Jefferson, as president, wrote a letter to the Danbury Baptist Association of Connecticut on 1802-JAN-1. It contains the first known reference to the "wall of separation". The essay states in part:

"...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..."

During the 1810's, President James Madison wrote an essay titled "Monopolies" which also refers to the importance of church-state separation. He stated in part:

"Strongly guarded as is the separation between religion and Government in the Constitution of the United States, the danger of encroachment by Ecclesiastical Bodies may be illustrated by precedents already furnished in their short history."

The US Supreme Court has interpreted the First Amendment as if it requires this "wall of separation" between church and state. It not only prohibits any government from adopting a particular denomination or religion as official, but requires government to avoid excessive involvement in religion.

Church/state separation in the U.S. Constitution:

The framers of the U.S. Constitution were concerned that European history might repeat itself in the new world. They wanted to avoid the continual wars motivated by religious hatred that 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 strife. Many commentators feel that over two centuries of relative religious peace in the U.S. have shown that they were right.

In 1789, the first of ten amendments were written to the Federal Constitution; they have since been known as the Bill of Rights. The First Amendment 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."

This was ratified by the States in 1791.

The establishment clause of the First Amendment:

The first phrase in the First Amendment states: "Congress shall make no law respecting an establishment of religion..." is called the establishment clause.

The courts have the responsibility to interpret the U.S. Constitution in specific instances. In their ruling in 1947 of Everson v. Board of Education of Ewing Twp", the U.S. Supreme Court ruled:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State'." ₁₂

Three tests have been derived from various court decisions to decide the constitutionality of laws that have a religious component:

	The Lemon test: This was defined in a Supreme Court ruling in 1971. 10 To be constitutional, a law must: have a secular purpose, and  be neutral towards religion - neither hindering nor advancing it, and not result in excessive entanglements between the government and religion.
	The Endorsement Test: Justice O'Connor created this criterion: a law is unconstitutional if it favors one religion over another in a way that makes some people feel like outsiders and others feel like insiders.
	The Coercion Test: Justice Kennedy proposed this criteria: a law is constitutional even if it recognizes or accommodates a religion, as long as its demonstration of support does not appear to coerce individuals to support or participate in a religion. 11

A simple set of criteria is that the government (and by extension public schools) may not:

	promote one religion or faith group over any other
	promote a religiously based life over a secularly based life
	promote a secularly based life over a religiously based life.

There is some opposition, particularly among Fundamentalist Christians to this interpretation of the First Amendment by the courts. They feel that the Amendment should be interpreted literally to mean that the government may not raise any one denomination or religion to the status of an official or established religion of the country. They feel that the First Amendment contains no wording that prohibits the government from engaging in certain religious activities, like requiring prayer as part of the schedule at public schools, requiring schools, courts and government offices to post the Ten Commandments, allowing public schools to have organized prayers as an integral part of public school sports events, praying before board of education or municipal government meetings, etc.

The free exercise clause of the First Amendment:

The following phrase "Congress shall make no law...prohibiting the free exercise thereof... is called the free exercise clause; it guarantees freedom of religion. This passage does not promise absolute freedom of religion. For example, courts have found that:

	Parents cannot deny their children badly needed medical attention and rely solely on prayer.
	The Amish can be compelled to wear slow vehicle reflectors on the backs of their buggies
	A congregation cannot generate annoyingly excessive noise during a service.

The limits of this clause are continually being tested in the courts on a case-by-case basis.

Extension of the First Amendment to the individual states:

Initially, this amendment restricted only the powers of Congress regarding religion. However, the 14^th Amendment to the Constitution, proposed by Congress on 1866-JUN-16, required individual states to also follow the Bill of Rights. The 14^th Amendment states that:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The 14th Amendment was proclaimed adopted on 1868-JUL-21. Since that date, the First Amendment, and other amendments guaranteeing rights to citizens, apply equally to all levels of government. ₁₃

Recent developments:

In 1988, 200 Americans of many religious backgrounds signed the Williamsburg Charter reaffirming their belief in the importance of the First Amendment. 

In 1995, President Clinton delivered a speech on religious freedom which described the benefits derived from that amendment.

In 1993, Congress passed the Religious Freedom Restoration Act which gave special religious privileges to individuals and groups and limited the application of laws that intruded on personal or corporate religion. It was declared unconstitutional by the US Supreme Court in 1997-JUN. As the former Supreme Court Justice Hugo Black said: "'No law' [regarding the establishment of religion] means 'NO LAW.'" The wall of separation was again restored.

Today, only the states of Texas and one of the Carolinas have constitutions requiring a religious test for holders of public office. And although these laws are still on the books, they have been nullified by Federal legislation.

Many, perhaps most, countries around the world do not have a wall of separation between church and state. The result is often enormous abuses, largely directed against their own citizens who follow minority religions. We have listed a small sampling of such abuses.

Related essays:

	The Bible and public prayer
	Prayer in the public schools
	Recent U.S. court rulings on separation of church and state
	The Istook Constitutional Amendment: 1995-1996
	The Istook Constitutional Amendment: 1997-1999
	Organizations dealing with separation issues

Book and Media References

The Yahoo search engine has a entire directory on church-state issues at: http://dir.yahoo.com/

Other references are:

1. E.S. Gaustad, "Faith of Our Fathers: Religion and the New Nation", Harper & Row, New York, NY, (1987)
2. James Davidson and Os Guiness, editors, "Articles of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public Philosophy". Hunter, Washington DC (1990).
3. A.A. Lipscomb & A.E. Bergh, editors, "The Writings of Thomas Jefferson", Washington, (1907), Vol. 16, P. 281
4. Kristen J. Amundson, "Religion in the Public Schools", American Assn. School Administrators, 1986-JUN, ISBN: 087652109X
5. Richard McMillan, "Religion in the Public Schools : An Introduction" , Mercer University Press, 1984-SEP, ISBN: 0865540934
6. Deborah Mayo-Jefferies, "Religious Freedom in the Education Process: A Research Guide to Religion in Education (1950-1992)", William S Hein & Co., 1994-JUN, ISBN: 0899418716
7. J.W. Whitehead, "The rights of Religious Persons in Public Education", Crossway, Wheaton, IL, (1994)
8. Mary Leonard, "Religion and Politics: Christian soldiers march onward - and wayward", Boston Globe, Boston Ma, 1997-MAR-9
9. Coalition to Preserve Religious Liberty, 200 Maryland Ave., N.E., Washington, D.C. 20002, (202) 544-4226
10. Lemon vs. Kurtzman, Supreme Court ruling (1971) at: http://cns-web.bu.edu/pub/dorman/lemon_v_kurtzman.html 
11. "Freedom of Religion," at: http://faculty.ncwc.edu/toconnor/410/410lec10.htm 
12. "Everson v. Board of Education of Ewing Tp," (1947) at: http://caselaw.lp.findlaw.com/
13. Barefoot Windwalker, "The Constitution for the United States: Its sources and its application," Barefoot's World at: http://www.barefootsworld.net/

Copyright © 1995 to 2007 by Ontario Consultants on Religious Tolerance
Last updated 2007-DEC-14
Author: B.A. Robinson

Web ReligiousTolerance.org