Separation of "Church and State"
Introduction (Part 2)
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'."
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.
2 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
|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. 3|
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; or|
||promote a secularly based life over a religiously-based life.|
There is some opposition, particularly among some fundamentalist Christians to
this interpretation of the First Amendment by the courts. They feel that the
Amendment should be interpreted literally to mean only 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
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 14th
Amendment to the Constitution, proposed by Congress on 1866-JUN-16, required
individual states to also follow the Bill of Rights. The 14th
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. 4
In 1988, 200 Americans of many religious backgrounds signed the Williamsburg
Charter reaffirming their belief in the importance of the First Amendment.
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, thus denigrating Agnostics, Atheists, Humanists, and other religious minorities in the state. 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.
The National Paralegal College (NPC) has a well written article on "Freedom of Religion and the Establishment Clause" at: http://nationalparalegal.edu
The Yahoo search engine has a entire directory on church-state issues at: http://dir.yahoo.com/
Other references are:
- "Everson v. Board of Education of Ewing Tp," (1947) at: http://caselaw.lp.findlaw.com/
- Lemon vs. Kurtzman, Supreme Court ruling (1971) at: http://cns-web.bu.edu/pub/dorman/lemon_v_kurtzman.html
- "Freedom of Religion," at: http://faculty.ncwc.edu/toconnor/410/410lec10.htm
- Barefoot Windwalker, "The Constitution for the United States: Its sources
and its application," Barefoot's World at: http://www.barefootsworld.net/
Copyright © 1995 to 2011 by Ontario Consultants
on Religious Tolerance
Last updated 2011-AUG-18
Author: B.A. Robinson