Separation of church and state

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Separation of church and state is an interpretation of the Establishment clause of the United States Constitution. The section in question is the First Amendment, which 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.". [1] This phrase has been interpreted by some judges to exclude religion from government by declaring that church and state must be kept separate.[2] Some Conservatives have criticized this interpretation as being without justification in the text or meaning of the First Amendment. In recent years the Supreme Court has shifted from a high wall of "separation" to more "accommodation" by stressing the importance of the Free Exercise clause.

Contents

Origins

Roger Williams, the Puritan founder of Rhode Island had been ousted from both England and Massachusetts for his religious beliefs. Williams' ideas on liberty grew out of his Puritanism, and the key to his thought is his allegiance to divine sovereignty which he believed to be qualified in some measure by every form of church order. He sought what he termed a "wall of separation" between church and state to protect the church and divine sovereignty. John Locke, the English political philosopher who influenced the Founding Fathers, drew upon the same Puritan milieu which shaped Williams, but he shifted the argument from a theocentric to an anthropocentric base - from concern for a state which would not restrict God to a concern for one which would allow men full freedom in the exercise of inalienable rights. The writings of both Jefferson and Madison reflect the Lockean orientation. Among dissenters supporting religious freedom were Baptists John Leland and Isaac Backus. Backus appealed to Enlightenment figures in his political pamphlets supporting separation, but the Revolutionary Era was generally unaware of Williams and of his theological defense of religious freedom.[3]

By the 1770s the Baptists in colonial America took the lead in calling for the separation of church and state, especially in Virginia where the Anglican Church was supported by tax revenues and had a role in local government. They fought in the period 1775-1810 for the disestablishment of the state church and the privilege of freedom of religion for all citizens. Three doctrines served as the foundation for the Baptist position: the nature of salvation, the nature of the church, and a belief in the necessity for the separation of civil and ecclesiastical authority. Baptists did not achieve separation of church and state alone (for the active aid of Thomas Jefferson and James Madison was also a considerable factor), but did serve as a constant reminder of the necessity of securing what they believed to be the inalienable rights of men.[4]

No other American clergyman was more conspicuous or influential in public affairs in the Revolutionary years and immediately thereafter than John Witherspoon. President of the College of New Jersey (now Princeton), Witherspoon also served in the New Jersey Legislature and the Continental Congress, and was a signer of the Declaration of Independence. In his lectures to students, Witherspoon showed himself "in all essentials an exponent of John Locke's views on government and toleration." When the American Presbyterian Church was organized in 1786, Witherspoon drafted the preface to the new "Form of Government". In it he asserted the universal inalienable right of private judgment in religion and repudiated special aid to churches by civil power. In so doing he was reaffirming the position taken by the colonial Presbyterian Church in 1729 in adopting the Westminster Confession of Faith with a declaratory statement rejecting any control by civil magistrates over the synods and any power in the civil government "to persecute any for their religion." The primary concern of Witherspoon and the Presbyterian Church was clearly religious liberty; separation of church and state was valued as a means to that end.[5]

No religious test

The Founding Fathers had also included another provision for separating the undue influence of religion from both the federal and the state governments. Article VI of the Constitution, provides:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Interpretations

Hamburger (2002) argues that the separation of church and state has no historical foundation in the First Amendment. He argues "separation of church and state" is a catch phrase used by forces hostile to certain religions trying to limit their influence. He notes that 18th century Americans almost never invoked this principle. Although Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later. Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Congregational clergy of New England who supported the Federalist Party. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century Ku Klux Klan) adopted the principle of separation to restrict the role of Catholics in public life.

Gradually, nativist Protestants were joined by secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of people called for separation. They especially feared ecclesiastical authority, particularly that of the Catholic Church and its Pope. They felt religious liberty required a separation of church from state. American religious liberty was thus redefined and even transformed.

Jefferson and Adams

Jefferson, who strongly believed that politically powerful churches in Europe were a great evil, reintroduced the phrase "a wall of separation" as President in 1802 in an informal letter to the Baptists of Danbury, Connecticut.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign 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 & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[6]

Jefferson's terminology helped define the language of the debate, but did not constitute a precedent in law. However the Supreme Court adopted this metaphor and interpretation in the 1947 case, Everson v. Board of Education. The leader of the new interpretation was Justice Hugo Black.[7]

Jefferson and Madison insisted that political freedom was not possible apart from religious freedom, and they insisted on the disestablishment of the Anglican, Presbyterian, and Congregational churches in the new states. That view, however, and the Jeffersonian notion that an impenetrable wall of separation must exist between church and state has been called into question or attacked by such Supreme Court decisions as Sherbert v. Verner (1963), Employment Division of Oregon v. Smith (1990), and Boerne v. P. F. Flores (1993), which question the acceptance of religious pluralism, one of the great achievements of the American "experiment." [8]

Not in any sense founded on the Christian Religion

The Treaty of Tripoli, drafted during Washington's presidency, ratified by unanimous vote of the Senate in 1797 and signed by President John Adams as the law of the land, states:

"As the government of the United States of America is not in any sense founded on the Christian Religion, as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen (Muslims), -and as the said States never have entered into any war or act of hostility against any Mehomitan nation (Islamic), it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries"[9]

Conservatives agree regarding the federal government. They argue however that there is great latitude for the states in the matter of religion.

Separating the Church from the State's Influence

Like many political doctrines, the separation of church & state is a double-edged sword. If religion cannot influence government, nor can government influence religion. Accordingly, churches and religious organizations are kept from government intrusion with the highest deference to ecclesiastical matters. For example, Title VII contains a built-in exception for religious organizations.[10] The provision has been construed to allow churches to handle their ministerial matters without government intrusion in any way.[11] In this sense, separation of church & state is good for the church, as it ensures religious autonomy.

A Limit on Federal Power, not states

Preacher Pat Robertson has argued that the Establishment Clause was intended merely to prevent the Federal government from imposing a state religion, as two of the original 13 states already had their own official religion.[12]

An established religion was a religion where the state paid the clergy and where there were civil liabilities to those who did not belong to that religion; where such things as marriages could only be performed with the blessing of a particular church; where, unless a person was a member thereof, he or she was denied the right to hold public office, etc. That's an established religion. All the people of the framers knew it was to take one sect and prefer it above another.
There were certain states at that time that had established religions. Massachusetts was a case in point. They had a state religion. And they didn't want this enormously powerful Congress to superimpose a religious system on their state system. To guarantee the states retained critical rights, the tenth amendment said, "All the power that is not expressly delegated to the federal government is reserved for the states." The intent? The people, i.e. the states, have delegated power. They gave up some powers, but they did not give up all powers because they are sovereign states.
"But the courts have successfully, in the district court level, in the circuit court level, in the Supreme Court level, restricted the right of religious people to involve themselves in their faith. And in so doing, they have violated the time-honored customs of this country clearly intended by the framers of the Constitution."

See also

Further reading

  • Gaustad, Edwin S. "Thomas Jefferson, Religious Freedom, and the Supreme Court." Church History 1998 67(4): 682-694. in JSTOR
  • Goldberg, George. Church, State and the Constitution. (1987), conservative attack on Supreme Court decisions; argues in

favor of prayer in the public schools

  • Hamburger, Philip. Separation of church and state (2002) 514 pages
  • Hammond, Phillip E. "American Church/State Jurisprudence from the Warren Court to the Rehnquist Court," Journal for the Scientific Study of Religion, Vol. 40, No. 3 (Sep., 2001), pp. 455-464 in JSTOR
  • Healey, Robert M. "Thomas Jefferson's 'Wall': Absolute or Serpentine?" Journal of Church and State 1988 30(3): 441-462, history of usage by Supreme Court
  • Hutson, James H. at al. "Thomas Jefferson's Letter to the Danbury Baptists: A Controversy Rejoined." William and Mary Quarterly 1999 56(4): 775-824. a debate among leading historians; in JSTOR
  • Ivers, Gregg. To Build a Wall: American Jews and the Separation of Church and State. (1995). 272 pp. shows strong Jewish support for a high wall
  • Kleeberg Irene Cumming. Separation of Church and State (1986), introduction at high school level.
  • Levy Leonard W. The Establishment Clause. (1986) by leading historian
  • McWhirter, Darien A. The Separation of Church and State (1994) 189pp; summary of the issues online edition
  • Reichley A. James. Religion in American Public Life. (1985), history of the relationship between religion and politics
  • Segers, Mary C. and Jelen, Ted G. eds. A Wall of Separation?: Debating the Public Role of Religion. (1998). 191 pp.
  • Sorauf, Frank J. The Wall of Separation: The Constitutional

Politics of Church and State. (1976). 394 pp. by leading political scientist

References

  1. ↑ 1st Amendment of the US Constitution
  2. ↑ See, e.g. Lemon v. Kurtzman.
  3. ↑ Leroy Moore, , Jr. Religious Liberty: Roger Williams and the Revolutionary Era. Church History 1965 34(1): 57-76. 0009-6407
  4. ↑ Jesse C. Green, Jr. "The Early Virginia Argument for Separation of Church and State" Baptist History and Heritage 1976 11(1): 16-26. 0005-5719
  5. ↑ John Hastings Nichols, "John Witherspoon on Church and State" Journal of Presbyterian History 1964 42(3): 166-174. 0022-3883
  6. ↑ http://www.loc.gov/loc/lcib/9806/danpre.html
  7. ↑ Barbara A. Perry, "Justice Hugo Black and the 'Wall of Separation between Church and State'" Journal of Church and State 1989 31(1): 55-72.
  8. ↑ Edwin S. Gaustad, "Thomas Jefferson, Religious Freedom, and the Supreme Court." Church History 1998 67(4): 682-694. in JSTOR
  9. ↑ Treaty of Tripoli, Article 11. Ratified in 1796 and again in 1797.
  10. ↑ 42 U.S.C. 2000(e)-(1).
  11. ↑ McClure v. Salvation Army.
  12. ↑ From Pat Robertson "Restore States Rights and Public Morality" (1986)
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