How Separate are Church and State?

One of the most recognizable theories from our country's founding documents is the idea of a separation of church and state.  The notion of a government that protects the liberties of all religions, while also maintaining a neutral position for the country as a whole is one of the most unique aspects of our democratic dialogues.  But where does this ideal originate from?  How accurate is this "separation" today?  Why is this important?  These are key questions often associated with a debate on the separation of church and state, but finding clear answers can prove far more complex than simply checking wikipedia.  

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!

 







Voting Rights - Round 2

In the wake of last month's Supreme Court decision to strike down a key provision of the 1965 Voting Rights Act, the Justice Department and the federal government are making known their revamped approach to combating discrimination and unlawful hinderances in the realm of election voting.  At the time of the high court's 5-4 ruling I wrote a post outlining what the Voting Rights Act of 1965 actually was, but now I want to provide a few updates on the current landscape.  

On June 25, the Supreme Court struck down section 4(b) as unconstitutional, instructing Congress to determine a new formula for pre-clearance.  As I discussed in my earlier post, section 4(b) of the Voting Rights Act is the provision of the law which determined what states and districts needed to obtain a clearance with the Justice Department before changing their election laws.  The clearance formula was defined as those districts which had voting tests in place in November 1964 and had less than 50% turnout in that years presidential election.  Although, if a district or state was able to prove there had been no cases of voter discrimination for ten years, they would be allowed to apply for pre-clearance removal.  It is important to note that while the Supreme Court threw out section 4(b), they upheld section 5, which declares states as determined by a Congressional formula must obtain clearance from the Justice Department when seeking to change any voting law or ordinance.  So while the high court removed a key part of the Voting Rights Act of 1965, they upheld the framework and left it up to Congress to develop a new way in determining which states will be subjected to pre-clearance.

The New Front:  While the country waits for Congress to determine a new formula to apply section 5 of the Voting Rights Act, the Justice Department is taking steps to continue the fight against voter discrimination.  While many might suggest voter discrimination and disenfranchisement is a thing of the past, the facts tell a different story.  In the past few years several states have passed sweeping new voter ID laws and state-wide redistricting, which many have argued unfairly affect minorities, the youth, and the poor.  Section 4(b) allowed the Justice Department to take a closer look and slow down many of these laws passing through the state legislatures, however, with the Supreme Court's ruling all of the previously covered districts were suddenly free from all of the law's requirements.  In fact, the state of Texas took only two hours after the Supreme Court ruling to announce they were implementing their new strict voter ID law and redistricting map.  The high court's ruling means the Justice Department would have to take new steps in order to apply section 5 and fight to protect the rights of at risk voters.  

Last Thursday, the Justice Department filed a "statement of interest" on a current suit in a federal court in San Antonio, asking the court to impose a ten year mandate of pre-clearance for any voting law change for the state of Texas.  The Justice Department claimed in their filing that in Texas, there is a history of "pervasive voting-related discrimination against racial minorities", and the state should be required to get clearance for any voting law changes.  The federal court in San Antonio will issue their ruling soon and we will have a better understanding of how the Justice Department can enforce the remaining sections of the Voting Rights Act.  Numerous other states have attempted to implement similar redistricting and voter ID laws, while the DOJ has vowed to take the fight to those individual states just as they have done in Texas.      

Immigration: The Front Lines

Another summer headline dominating the cable news cycle  has been the effort in Washington, D.C. to reform our nation's inept immigration system.  The topic of immigration has generally been a hot-button social issue, but there are enormous legal implications at play as well.  Our country is a nation of immigrants, yet the topic stokes understandable tensions, passions, and opinions.  I wanted to write a post focusing on the current legal aspect of the immigration reform battle taking place across the country.  

The U.S. constitution delegates exclusive authority to the federal government to control relations with foreign nations, therefore, the courts have consistently ruled the federal government has absolute power with regard to immigration policy and enforcement.  In the past several years, a constitutional battle has emerged between state laws aimed at implementing their own immigration policy versus the exclusive authority of the federal government to regulate immigration policy.  

S.B. 1070:  While the tension between state and federal authority in the realm of immigration has long been an area of contention in our country, the effort by Arizona to pass S.B. 1070, a strict law which made it a state crime not to carry immigration papers among other measures, reignited the discussion of immigration reform across the country.   Currently, federal law requires all aliens over the age of 14 who remain in the United States for more than 30 days to register with the federal government and to carry their registration documents on them at all times; failure to do so is federal misdemeanor crime.  The Arizona law additionally made the failure to carry documents a state crime, while also allowing law enforcement officials to determine a person's immigration status during a lawful stop, detention, or arrest.  The Arizona law also allowed for the police to arrest an individual based on "reasonable suspicion" the person may be in the country illegally and had committed a crime that was punishable with deportation.  The law also made it a crime for illegal immigrants to work or apply for jobs in the state and allowed the police to check an individual's immigration status with any legal contact, which could be as simple as walking past someone on the sidewalk.  The provisions of the Arizona law sparked numerous protests across Arizona and throughout the country, with the primary concern being how a police officer would determine "reasonable suspicion" of someone being of illegal immigration status without resorting to racial profiling or other discriminatory tactics.

The Supreme Court ruled in 2012 to strike down 3 of the 4 provisions of the Arizona law, citing the federal government's absolute authority over immigration policy across the country.  The court also used the Arizona ruling as a direct warning to other states attempting to enact strict illegal immigration laws, saying their attempts will meet the same fate of the Arizona law.  The Justices also rejected Arizona's claim that their law was an attempt to help the federal government.  The provision the court allowed to stand, the section allowing police officers to check a person's immigration status during a lawful stop or detention, was only upheld because it had not yet gone into effect and therefore the court could not rule on something that was not yet in existence.  However, the majority had a stark warning for that provision as well, indicating a likely court challenge will come before them again with possibly similar outcomes. 

The Court's Warning:  When the Supreme Court struck down most of the Arizona law, they issued a direct warning to other states attempting to impose similar immigration laws: their laws will be voided as well.  Several states apparently did not heed the high court's warning and a string of judicial defeats have proven the Supreme Court right.  The single and primary reason state immigration laws are found to be invalid is because according to the U.S. Constitution, the federal government has the exclusive authority and jurisdiction as it pertains to immigration policy.  Arguments that the federal government is not doing its job or the laws are too weak may have merit, but legally the states cannot assume a power that has already been enumerated to the federal government and they will lose this legal battle every single time.

Monday, July 22:  The Fifth U.S. Circuit  Court of Appeals in New Orleans struck down an ordinance of a Dallas, Texas suburb that sought to bar landlords from renting to immigrants living in the U.S. without documentation.  Farmers Branch, Texas passed the ordinance in 2006, citing an unwelcome influx of undocumented immigrants, but court fees and legal battles since then have cost upward of $6 million dollars with some residents wondering if the fight is worth it.  The ruling by the court of appeals struck down the Texas suburb's ordinance, with the judges citing the Supreme Court's rationale that the law would infringe on the federal government's exclusive authority to dictate immigration policy.  The appeals court additionally raised concern as to how the ordinance would be enforced and upheld. 

Tuesday, July 23:  The Fourth U.S. District Court of Appeals in Virginia struck down a South Carolina law that would have made it a crime for illegal immigrants to "shelter" themselves from detection and a crime for anyone participating in the sheltering.  The Fourth U.S. District Court of Appeals ruled the South Carolina law was pre-empted by federal law and was therefore unconstitutional.  The court also expressed concern as to how the law would have been enforced and carried out. 

Friday, July 26:  The Third U.S. Circuit Court of Appeals in Philadelphia struck down a small Pennsylvania town's ordinance that would have denied permits to businesses that hire people in the country illegally and fined landlords who rent to them.  Like the previous cases, the Third U.S. Circuit of Appeals found the Pennsylvania town's law was pre-empted by federal immigration law and raised issue with how the ordinance would have been enforced.

There is a clear pattern at work in all of these cases and the Supreme Court gave warning to the states when they ruled on S.B. 1070.  Federal authority with regard to immigration policy will always usurp state attempts to regulate immigration.  I fully understand the concerns with those who believe states should have the right to govern themselves, however, we are a nation of laws and according the the Constitution the federal government's authority as it pertains to immigration is exclusive.  States are free to continue writing their own immigration laws, but they will undoubtedly meet the same fate as the cases above.  As always, if you have any comments or opinions please feel free to share!