When you hear the phrase "separation of church and state" a natural and common assumption is that our founding father's included this proclamation in the U.S. Constitution, however it may surprise some to learn the phrase does not actually appear in the constitution. In fact, "God" also does not appear in the Constitution and there are only two references to religion, one prohibits the use of a "religious test" and the other that allows officials to "affirm" rather than "swear" in taking the oath of office. The reality is, our founders went to great lengths to avoid religious references, even though many were devote men of faith themselves. The idea of a separation between the state and the church does go back to the writing of our constitution and hinges on two clauses from the First Amendment, the Establishment Clause and the Free Exercise Clause. Let's look at what the First Amendment actually says:
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.
The Establishment Clause is the first portion which states, "Congress shall make no law respecting an establishment of religion". At a minimum, the Establishment Clause was intended to prevent the federal government from declaring or financially supporting a national religion, which was common in many other countries at the time. What is less clear is whether or not the Establishment Clause was intended to also prohibit the federal government from supporting Christianity in general. Those who favor a narrow interpretation point to the fact that the first Congress opened with a prayer, while those favoring a more broad interpretation point to the writings of Thomas Jefferson and James Madison who were the earliest proponents for a "wall of separation" between church and state. It was Thomas Jefferson who first openly wrote and discussed a "wall of separation between church and state" when he issued a "condemnation of the alliance of church and state" in a letter to the Danbury Baptist Association in 1802. The Free Exercise Clause is more straight forward and refers to the idea that Congress shall make no law "Prohibiting the free exercise thereof". While the two clauses were obviously intended to serve a similar purpose, there are inherent differences about the two meanings which can lead to tension. For example, some might view providing a military chaplain to troops overseas as a violation of the Establishment Clause, while others might claim not providing a chaplain a violation of the Free Exercise Clause. This tension between the two clauses exists to this day, however there are several Supreme Court decisions that have helped define the separation of church and state.
Everson v. Board of Education (1947) - The Supreme Court did not begin their interpretation of the Establishment Clause until 1947 in their 5-4 Everson v. Board of Education ruling. At issue was a New Jersey law which allowed parents to be reimbursed for the costs of busing their children to public and parochial (mostly catholic) schools. The Supreme Court held 5-4 that the New Jersey law was not a violation of the First Amendment's Establishment Clause because the statute required the state to reimburse the parents. The reason this case is one of the most important regarding the separation of church and state, is because of the extensive discussion on the Establishment Clause. While the court was divided in their ruling, the justices unanimously agreed and laid forth the court's belief that the Establishment Clause goes much further than simply prohibiting the federal government from establishing a religion. In fact, Justice Black and referenced Thomas Jefferson's letter to the Danbury Baptist Association and the "wall of separation" as a fundamental aspect of the Establishment Clause and the constitution. Although the justices were split in their decision regarding the New Jersey law, they unanimously agreed the constitution outlined an inherent separation of church and state which cannot be abridged. The length and depth of their discussion of the Establishment Clause was a unique deviation the court had really never taken before. Also notable was that the justices also explained that if the state had tried to reimburse the parochial schools they would have unanimously found the law unconstitutional. This case is viewed as an early foundation for the legal theory of a barrier between the church and federal government.
~ Subsequent Supreme Court rulings have established that the wall of separation is flexible with the outcome often hinging on nuanced details of the specific case.
McCollum v. Board of Education (1948) - The high court proved that the details of each case and situation are critical when determining the constitutionality of a legal challenge based on the Establishment Clause. In a 8-1 decision the Supreme Court found unconstitutional the practice of inviting religious instructors into public school classrooms to provide optional instruction. The issue was not the teachings or religious instructors themselves, rather the court held the use of tax-supported property for religious instruction and the close relationship between school authorities and a religious council violated the Establishment Clause. The justices held that since students were legally required to attend school and the religious classes applied to their required curriculum, the Champagne Illinois system was "beyond question a utilization of the tax-established and tax-supported public school system to aid religious groups and to spread the faith".
Engel v. Vitale (1962) - This is perhaps one of the most famous cases pertaining to the separation of church and state, and is still debated to this day. At issue was a New York State requirement for public school classrooms to begin each day with the voluntary reading of a nondenominational prayer. In a 6-1 ruling the court held neither the "nondenominational" nor "voluntary" aspect of the prayer saves it from unconstitutionality. This was one of the first cases where the Establishment Clause was applied to remove religious activities from public schools and other government related forums.
While I have outlined some early critical Supreme Court cases and interpretations, it is important to note that the debate over a separation of church and state is not limited to the courtroom. There has always been a vigorous dialogue from politicians, citizens, and throughout the public sphere. Here is then Senator Kennedy giving a speech during his presidential campaign which addresses concerns with his Catholic faith, but he also provides his opinion on the theory of a separation between church and state.
JFK's speech was a landmark moment for presidential candidates, and illustrates the connection faith has always had with our elected officials. However, many viewed Kennedy's speech in a negative light and continue to argue against his articulated opinion on the separation of church and state.
While I have provided a recap on how Thomas Jefferson's "wall of separation" and the Establishment Clause were historically interpreted by the Supreme Court, I wanted to lastly provide two more recent cases which illustrate the ongoing discussion on how exactly this ideal should be applied to the country as a whole.
McCreary County v. ACLU (2005) - The ACLU sued three Kentucky counties in federal court for displaying the Ten Commandments in courthouses and public schools. The ACLU argued that the Ten Commandments on display violates the Establishment Clause of the First Amendment, while McCreary County argued the commandments display was part of a presentation on the "Foundations of American Law". The Supreme Court ruled 5-4 it was unconstitutional for the Kentucky counties to erect the Ten Commandments in courthouses and public schools because any observer would be under the assumption the government was endorsing religion. The court held that displaying the Ten Commandments in isolation, displaying them with other passages, and displaying them as part of the "Foundations of American Law" presentation were all unconstitutional. The court even explained that the courthouse exhibit was merely an effort where the county reached "for any way to keep a religious document on the walls of courthouses". The justices found that the erection of the Ten Commandments by the county in courthouses and public schools was a form of endorsement and therefore void and unconstitutional.
Van Orden v. Perry (2005) - In the very same term the Supreme Court struck down three Kentucky counties which erected the Ten Commandments in courthouses and public schools, a Ten Commandment monument donated and placed by a private organization on the grounds of the Texas capitol was allowed to stay. In a 5-4 ruling, the justices found that the private donation and erection of the stone Ten Commandment monument was not a violation of the Establishment Clause because it was a private gift and was erected privately with numerous other historical monuments. Unlike the Kentucky case, the court found that no observer would assume there was a government endorsement of religion. As I mentioned earlier, the "wall of separation" has been interpreted to be flexible and the outcome of a case will most likely hinge on the very specific details.
Hopefully these Supreme Court cases illustrate the history of the separation between church and state doctrine, while alos highlighting the debate that continues today. This topic evokes many passions and emotions, but it is important to look at it with the legal ramifications in mind. I would love to hear anyone's opinion on this topic in case you want to share!
Great videos and information.
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