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Separation of "Church and State"

Introduction (Part 2)

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This topic is continued from an earlier essay

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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'." 1

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

bullet The Lemon test: This was defined in a Supreme Court ruling in 1971. 2 To be constitutional, a law must:

bullethave a secular purpose, and 

bulletbe neutral towards religion - neither hindering nor advancing it, and

bulletnot result in excessive entanglements between the government and religion.

bulletThe 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.

bullet 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:

bullet promote one religion or faith group over any other;

bullet promote a religiously based life over a secularly-based life; or

bullet 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 example, courts have found that:

bulletParents cannot deny their children badly needed medical attention and rely solely on prayer.

bulletThe Amish can be compelled to wear slow vehicle reflectors on the backs of their buggies

bulletA 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

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, 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.

Related essays in this website:

bulletThe Bible and public prayer
bulletPrayer in the public schools
bulletRecent U.S. court rulings on separation of church and state
bulletThe Istook Constitutional Amendment: 1995-1996
bulletThe Istook Constitutional Amendment: 1997-1999
bulletOrganizations dealing with separation issues

The National Paralegal College (NPC) has a well written article on "Freedom of Religion and the Establishment Clause" at: http://nationalparalegal.edu

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. "Everson v. Board of Education of Ewing Tp," (1947) at: http://caselaw.lp.findlaw.com/
  2. Lemon vs. Kurtzman, Supreme Court ruling (1971) at: http://cns-web.bu.edu/pub/dorman/lemon_v_kurtzman.html 
  3. "Freedom of Religion," at: http://faculty.ncwc.edu/toconnor/410/410lec10.htm 
  4. 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

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