Separation of church and state
The term "separation of church and state" typically refers to a widely repeated liberal falsehood about the Establishment Clause of the First Amendment of the United States Constitution, which actually states:
|“||Congress shall make no law respecting an establishment of religion....||”|
That is, the term "separation of church and state" appears nowhere in the First Amendment, unlike rights explicitly protected therein, such as free exercise of religion, freedom of speech, freedom of the press, and freedom of expressive association. Though absent from the Constitution, "separation of church and state" is seen as being derived from it, and which is interpreted by many liberal law professors and some misguided judges to exclude religion from government by declaring that church and state must be kept separate to an extreme degree. Puritan Roger Williams, founder of Rhode Island did use the phrase, in seeking protection from state interference in religion, and in opposition to the church acting as the state in punishing dissenters. Later, in 1802 President Thomas Jefferson would use the phrase, "wall of separation between Church and State", with like intent, but apparently with some political motivation. Besides Jefferson's misinterpreted letter, the founding fathers never discussed or advocated for a "separation of church and state."
A phrase close to "separation of church and state", but used for malevolent purposes and expanded to name education, does appear in Article 52 of the constitution of the Soviet Union (1977): "In the USSR, the church is separated from the state, and the school from the church."
Conservatives have criticized the liberal 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 somewhat of an "accommodation" of religion, by stressing the importance of the Free Exercise Clause.
Since no-one can possibly speak with more authority on this subject than George Washington himself, here is what he said  in the Farewell Address to the Congress and to the people of America; and his guidance deserves to be put in front of all the others‘ opinions:
„Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens. The mere Politican, equally with the pious man ought to respect & to cherish them. A volume could not trace all their connections with private & public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the Oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure--reason & experience both forbid us to expect that National morality can prevail in exclusion of religious principle. 'Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of Free Government. Who that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric.“
In contrast to official pervasive acknowledgment of God (mentioned in all 50 state constitutions) and the place the Bible historically had in government, jurisprudence  and in over 300 years of American education and the status therein of Christian faith in 1962 when Engel v. Vitale case was decided, (when an estimated 75 percent of the school systems in the South had religious services and Bible readings), are some see court decisions in the last 60 years which some see resulting in Christian faith being functionally supplanted by secularist ideology and the religion of non-theistic Secular Humanism.
Donald Closson comments that,
|“||Some administrators, reacting to the heated debate surrounding public expressions of faith, have sought to create a neutral environment by excluding any reference to religious ideas or even ideas that might have a religious origin. The result has often been to create an environment hostile to belief, precisely what the Supreme Court has argued against in its cases which restricted practices of worship in the schools such as school-led prayer and Scripture reading.||”|
Rulings such as Marsh v. Chamber (1983), which affirm prayer in legislative and judicial settings, based upon established positive practice as well as the age of hearers, stands somewhat in contrast with the modern Court's rulings on state-sponsored prayer in schools, though they both have substantial historicity.
The liberal interpretation depends upon a traditional, formal definition of religion, especially when it pertains to pray or the use of the Bible, versus a less substantial ideology such as Secular Humanism that seeks "separation of church from state", as well as the presumption that the state can be almost absolutely separate from the former and its distinctive morality, and that the overall history of church/state relations for almost 150 years did not manifest the Founder's interpretation of the First Amendment, but was in violation of it.
- 1 Origins
- 2 Interpretations
- 2.1 Jefferson and Adams
- 2.2 Northwest Ordinance - importance of religion in education
- 2.3 "Not in any sense founded on the Christian Religion"
- 2.4 Separating the Church from the State's influence
- 2.5 Separating the State from sanctioning religion
- 2.6 A Limit on federal power, not states
- 2.7 Power of Supreme Court contested
- 2.8 Modern separation as an evolved concept
- 2.9 State-sanctioned secularism as religion
- 2.10 Baer v. Kolmorgen
- 3 Major U.S. Supreme court establishment cases
- 4 Other cases
- 5 Atheist, lawsuits and restrictions to religious freedom
- 6 See also
- 7 Further reading
- 8 References
- 9 External links
Roger Williams, the Puritan founder of Rhode Island, had been expelled from both England and Massachusetts for his religious beliefs. Williams' ideas on liberty grew out of his Puritanism; the key to his thought is his idea of divine sovereignty, which he believed to be checked in some measure by every restriction laid on the church by the State. He sought what he termed a "wall of separation" between church and state to protect the church and divine sovereignty. He was nearly unique in his approach.
John Locke, the English political philosopher who influenced the Founding Fathers, was influenced by the same Puritan milieu which shaped Williams,[Citation Needed] but he shifted the argument to a humanistic base; instead of being concerned about the State not giving proper allegiance to God, he was concerned that the State would not allow people full freedom in the exercise of certain 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.
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 Anglican church and 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.
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 signatory to 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, thus reaffirming the position taken by the colonial Presbyterian Church in 1729 in adopting the Westminster Confession of Faith with a declaratory statement rejecting any State control over the synods as well as any power of 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.
In a Judiciary Committee report published by the House of Representatives in 1854 titled "Chaplains in Congress and in the Army and Navy" it was noted that:
- Had the people during the Revolution, had a suspicion of any attempt to war against Christianity, that Revolution would have been strangled in its cradle. At the time of the adoption of the constitution and the amendments, the universal sentiment was that Christianity should be encouraged - not any one sect. Any attempt to level and discard all religion, would have been viewed with universal indignation.
The Gospels strongly imply an affirmation of separation of church and state:
|“||And they sent to him some of the Pharisees and some of the Herodians, to trap him in his talk. And they came and said to him, “Teacher, we know that you are true and do not care about anyone's opinion. For you are not swayed by appearances, but truly teach the way of God. Is it lawful to pay taxes to Caesar, or not? Should we pay them, or should we not?” But, knowing their hypocrisy, he said to them, “Why put me to the test? Bring me a denarius and let me look at it.” And they brought one. And he said to them, “Whose likeness and inscription is this?” They said to him, “Caesar's.” Jesus said to them, “Render to Caesar the things that are Caesar's, and to God the things that are God's.” And they marveled at him.||”|
In making a clear distinction between Caesar, representing the government, and God, Jesus's statement of "render to Caesar the things that are Caesar's" relies on the premise that the church and state are separate entities. In the circumstance that a religious entity controls the state and mandates apostate worship (a future occurrence in the enactment of the mark of the beast), it would be impossible to simultaneously obey God and government.
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, which was that one could not be disqualified from office on the basis of one's religious beliefs. Article VI of the Constitution states:
|“||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.||”|
Jefferson and Adams
Jefferson, who strongly believed that politically powerful churches in Europe were a great evil, and was strongly opposed to government compulsion in religious matters, reintroduced the phrase "a wall of separation" as President in 1802 in letter to the Baptists of Danbury, Connecticut.
Like most states at that time, Connecticut had its own state church (Congregationalism) which they were forced to support. The Danbury Baptists therefore wrote to Anti-Federalist President Thomas Jefferson in October 7, 1801. In Jefferson's response to the Danbury Baptists on January 1, 1802, he stated,
|“||...Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and 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 and State...I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association assurances of my high respect and esteem.||”|
In a letter to Samuel Miller, Jefferson also wrote, "Certainly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General Government. It must then rest with the States, as far is it can be in any human authority."
In 1998, the FBI’s crime lab examined Jefferson's letter, uncovering words deleted by the president (nearly 30 percent of the draft) prior to publication. This, along with other evidence, indicates that Jefferson’s pledge to separate church and state was at least partly political motivated.
James H. Hutson, head of the library’s manuscripts collection, stated, "It will be of considerable interest in assessing the credibility of the Danbury Baptist letter as a tool of constitutional interpretation to know, as we now do, that it was written as a partisan counterpunch, aimed by Jefferson below the belt of enemies who were tormenting him more than a decade after the First Amendment was composed."
Jefferson's letter and the FBI's restoration work are among the items in an exhibit at the Library of Congress called, "Religion and the Founding of the American Republic." The exhibit also notes that Jefferson began to attend worship services held at the House of Representatives two days after writing the letter, and that he permitted regular worship services to be held there, a practice that continued until after the Civil War, with preachers from every Protestant denomination appearing there. The Library of Congress exhibit records that
As early as January 1806 a female evangelist, Dorothy Ripley, delivered a camp meeting-style exhortation in the House to Jefferson, Vice President Aaron Burr, and a "crowded audience."...In attending church services on public property, Jefferson and Madison consciously and deliberately were offering symbolic support to religion as a prop for republican government.
David Barton, Founder and President of WallBuilders, states that Jefferson voted that the Capitol building would also serve as a church building, praised the use of a local courthouse as a meeting place for Christian services, urged local governments to make land available specifically for Christian purposes, set aside government lands for the sole use of religious groups, assured a Christian religious school that it would receive “the patronage of the government”, proposed that the Great Seal of the United States depict a story from the Bible and include the word “God” in its motto, and agreed to provide money for a church building and support of clergy. And that like support of religion by the federal government militates against the extreme separatist position.
In contrast, separatists place weight upon statements by Jefferson that stress the importance of government not supporting religion, and his refusal as President to issue proclamations of Thanksgiving and prayer, as his Federalist predecessors George Washington and John Adams did. In the light of the conflict, some see Jefferson as allowing some government promotion of religion by the government "for the health of the republic (the political purpose of religion) versus promoting it for the salvation of people's souls."
While Jefferson's terminology helped define the language of the debate, it 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.
Jefferson and Madison insisted that a necessary condition for political freedom was 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." 
Northwest Ordinance - importance of religion in education
Under the Articles of Confederation government, which preceded the ratification of the Constitution and the Bill of Rights, Congress passed the Northwest Ordinance of 1787, a law designed to set up the modern state of Ohio. Article 3 reads as follows:
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
Article 1 of the Ordinance reads:
No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.
This law provides further proof that the "separation of Church and State" promoted by liberals and atheists today does not match the view of the Founding Fathers.
"Not in any sense founded on the Christian Religion"
In countering the evidence that the Founders overall showed official favor to Christianity, part of the Treaty of Tripoli is invoked by those who seek to minimize any such sanction. One version of Article 11 of this Treaty, drafted during Washington's presidency and ratified by unanimous vote of the Senate in 1797 and signed by President John Adams, 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"||”|
Critics of the extreme separation concept that uses this treaty argue that Article 11 was only one part of a larger treaty, in which it was essential that a distinction be made between the United States and the "Christian powers" and their state churches which had persecuted Muslim nations, as well as the American colonists; also by noting that the statement at issue pertained to the nature of the government and not the nation, which was characterized as being Christian. as attested to by many of the Founders. The significance of differences between the English and Arabic versions of the Treaty are also debated. It is also argued that, in distinction to Congress, there is great latitude for the states in the matter of religion.
In addition, numerous other documents and statements are invoked in countering the use of the Tripoli declaration to assert that America was not overall a Christian nation, or that the Christian faith was not distinctly favored by the Founders.
It must be noted that the Treaty of Tripoli was a temporary document, is no longer in effect, and has no bearing on the Constitution itself as the Constitution is the "Supreme Law of the Land", meaning that no other law, treaty or judicial ruling can supersede it.
Separating the Church from the State's influence
Like many political doctrines, the separation of church and 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. The provision has been construed to allow churches to handle their ministerial matters without government intrusion in any way. In this sense, separation of church and state is good for the church, as it ensures religious autonomy.
Separating the State from sanctioning religion
The view that the Establishment Clause must zealously guard against even an appearance of sanctioning any expression of a formal religion is manifest in many cases in the latter half of the 20th century. In Brandon v. Board of Education of Guilderland Central School District (1981), the Second Circuit Court of Appeals stated, "Our nation's elementary and secondary schools play a unique role in transmitting basic and fundamental values to our youth. To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit." Misconceptions over the appropriate roles of church and state learned during one's school years may never be corrected. As Alexander Pope noted, "Tis Education forms the common mind,/Just as the twig is bent, the tree's inclin'd." (Epistle to Lord Cobham).
However, while outlawing voluntary prayer during school hours in fear that this might be seen as state-sanctioned, the court went on to express official support for prayer, stating, "Introspective activity that seeks to strengthen the moral fibre of our nation's young adults deserves our support, but only in our role as private citizens. We hope that the "Students for Voluntary Prayer" can conduct their prayer meetings and religious discussions at another place and at different times."
A Limit on federal power, not states
The first clause of the first amendments states "Congress shall make no law.."; demonstrating that it is a restriction on laws that the Congress of the United States can pass. Nowhere does the constitution restrict State and Local Legislatures from passing any laws respecting an establishment of religion.
The 1940 decision of the Court to make the First Amendment applicable to the states is also objected to by some, arguing that when the First Amendment was ratified in 1791, its jurisdiction was limited to the Federal Government, a rule that lasted for 150 years. Additionally, since the first amendment itself has no restrictions on the activities other two branches of government, the scope of this restriction can only apply to the State Legislatures. However liberal activist judges have expanded this restriction to every aspect of all levels of government activities and organizations, even though there the Constitution sole restriction is with the legislative body.
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.
|“|| 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.
Current judicial precedent agrees with Robertson as concerns the First Amendment, but holds that the Fourteenth Amendment extended its scope from Congress to the state legislatures, since freedom of religion can be classified as one of the "privileges and immunities of citizens of the United States" mentioned therein.
Power of Supreme Court contested
The concept of a supreme judiciary as the final arbiter in judicial matters, and which must be obeyed, is not unique to the United States, as such was instituted in ancient Israel, (Dt. 17:8-13) in its manifestly God-ordained theocracy. However, while the United States Supreme Court may interpret the constitutionality of laws or statutes, it is argued that the Constitution does not give the Court power to judge laws passed by Congress. The Court, under Chief Justice John Marshall in 1803, assigned itself that power, referred to as Judicial Review, in Marbury vs. Madison, based upon its interpretation of the Constitution. It is understood by most that according to Article III, Section 2, Paragraph 2 of the Constitution, Congress may declare that the Supreme Court is no longer authorized to hear challenges to the constitutionality of a particular law.
Alexander Hamilton, in the Federalist papers (#78) referred to the Supreme Court as the "least dangerous" branch of the government because it possessed neither the "power of the purse" (to fund itself) nor that of "the sword" (the executive power and the police and army).
However, leaving the interpretation of the Constitution to elected officials is also an issue.
Modern separation as an evolved concept
Hamburger in his work The Separation of Church and State (2002), argues that the separation of church and state has no historical foundation in the First Amendment, the term being a catchphrase used by forces hostile to certain religions trying to limit their influence. He notes that 18th century Americans almost never invoked this principle. In addition, there was a distinction between "separation" and "disestablishment" - a distinction all the more significant because the Constitution's Religion Clauses do not mandate the separate of church and state, but they forbid the "establishment" of religion and guaranteed its "free exercise." 
Although Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation only became an explicit part of American constitutional law much later. Hamburger makes the case that separation became a constitutional freedom largely through fear and prejudice; for example, Jefferson supported separation out of hostility to the Congregational clergy of New England who supported the Federalist Party, and nativist Protestants (ranging from Know Nothings in the 19th century to the Ku Klux Klan in the 20th) adopted the principle of separation to restrict the role of Catholics in public life, for example by denying Catholic parochial schools State funding (see Blaine Amendments).
Gradually, nativist Protestants were joined in this stance by secularists, who feared that if religious organizations received any State support, it would start a slippery slope to theocracy. Eventually, a wide range of people called for separation, including anti-clericalists who feared ecclesiastical authority, particularly that of the Catholic Church, and hence felt religious liberty required a separation of church from state. American religious liberty was thus redefined and even transformed.
State-sanctioned secularism as religion
It is perceived by some that outlawing formal religion results in replacing it with a functional ideological equivalent. Secularity as a condition of a non-ecclesiastical state may be distinguished with secularism as an ideology, with key Supreme court decisions being used to infer state favor toward the nonreligious, resulting in a "religion-free education" which "indoctrinates" the young into viewing secularism as the only frame of reference.
Enacting laws themselves is seen as an imposition of morality, and Paul G. Kussrow and Loren Vannest ask, Is a religiously neutral public school education an oxymoron?, and see notable Supreme court Establishment Clause decisions (such as Engel v. Vitale, 1962) as in essence creating "a legal fiction--a myth of religious neutrality." They argue that "Philosophy and religion blur when dealing with these basics, such as truth, while pointing to the ultimate questions and answers in life," and that, "Any discussion of a secular-religious distinction is self-refuting. For someone's values are always being advocated even in so called "neutral" settings."
Removing formal God (and morality) based religion from the public schools is seen to have the effect of supplanting it with Secular Humanism. This in turn promotes pantheism, the worship of nature with its evolutionary hypothesis, and the rejection of moral absolutes (especially those of the Bible), resulting in a dangerous ever-morphing morality and decline of beneficial traditional morality.
In support of this understanding, declarations by humanists such as John J. Dunphy, are often invoked:
I am convinced that the battle for humankind's future must be waged and won in the public school classroom by teachers who correctly perceive their role as the proselytizers of a new faith...These teachers must embody the same selfless dedication as the most rabid fundamentalist preachers, for they will be ministers of another sort, utilizing a classroom instead of a pulpit to convey humanist values in whatever subject they teach,...The classroom must and will become an arena of conflict between the old and the new—the rotting corpse of Christianity, together with all its adjacent evils and misery, and the new faith of humanism...
Kussrow and Vannest argue that "since atheism is a religion under the establishment clause, (Malnak v. Yogi, l977), given the above facts, secular humanism must be considered a religion for the purposes of the First Amendment (Gove v. Mead School District, l985)", noting that "the American Humanist Association even has a religious tax exemption status approved by the Federal government." In United States v. Kauten (2d Cir. 1943), conscientious objector status was granted to Mathias Kauten, not due to his belief in God, but on the basis of his “religious conscience.”
Other evidence indicates that U.S. courts have moved from a generally substantive definition of religion, in which the religion affirms a transcendent deity, to a functional definition of religion, which Secular Humanism has been defined by some courts to be. In the Torcaso v. Watkins case in 1961, the Supreme Court ruled in favor of a Maryland notary public who was disqualified from office because he would not declare a belief in God. The Court argued that theistic religions could not be favored by the Court over non-theistic religions.
In the light of such, James Davison Hunter argues that,
To be legally consistent the courts will either have to articulate a constitutional double standard or apply the functional definition of religion to the no establishment clause just as they have to the free exercise [clause]. The latter would mean that secularistic faiths and ideologies would be rigorously prohibited from receiving even indirect support from the state, which needless to say would have enormous implications for public education.
Baer v. Kolmorgen
In 1958, in the case of Baer v. Kolmorgen, the New York State Supreme court held in part the following:
Much has been written in recent years concerning Thomas Jefferson's reference in 1802 to "a wall of separation between church and State." It is upon that "wall" that plaintiffs seek to build their case. Jefferson's figure of speech has received so much attention that one would almost think at times that it is to be found somewhere in our Constitution. Courts and authors have devoted numerous pages to its interpretation. This court has no intention of engaging in a dispute among historians as to the meaning of a metaphor. The only language which we are called upon to interpret and apply is the plain language quoted above from the Federal and State Constitutions.
Major U.S. Supreme court establishment cases
What constitutes government establishment of religion, as forbidden by the First Amendment has been a difficult and somewhat inconsistent matter, especially in the modern era. In Walz v. Tax Commissioner (1970), the Court noted that for "the men who wrote the Religion Clauses of the First Amendment, the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity. It would later state that the "Court has long held that the First Amendment reaches more than classic, 18th century establishments."
- In Lemon v. Kurtzman (1971), the Court rejected state statutes which provided state aid to church-related elementary and secondary schools, judging "the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion." In so doing, it conceded that "total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable." It then proposed that the constitutionality of such religious programs could be met if they met all of three conditions:
- It has a secular purpose
- It has a primary effect that neither advances nor inhibits religion
- It does not excessively entangle government with religion
However, the Court appears not to have always bound itself to all 3 prongs of this test in future Establishment cases, with the second aspect being more stressed.
- In Everson v. Board of Education (1947), the Supreme court ruled that it was not unconstitutional for tax money to fund a bus fare program to get students to and from religious schools, which met the secular educational requirements which the state has power to impose. It noted that "parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal.."
However, the case was also notable for its statement by Chief Justice Black, who, writing the majority opinion, invoked the metaphor which Thomas Jefferson used in writing to the Danbury Baptists, declaring,
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.
Justice Black also stated,
“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....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.’”
- The next year (1948), in McCollum v. Board of Education, the Court disallowed a public school program under which religious instruction was provided during the last period of the school day instead of secular subjects.
- The most significant challenge to the predominate historical understanding of the Establishment Clause occurred in 1962, almost 170 years after the adoption of the First Amendment (Dec. 15, 1701). In Engel v. Vitale the Supreme Court dealt with a required practice of a local New York school which began each school day by reading aloud the following prayer in the presence of the teacher: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country.'
Many other schools also did likewise, as such had been a historical practice since the beginning of schooling in America. However, the Court outlawed any government sanctioned prayer in schools, declared that "it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.
Justice Black stated that "The Establishment Clause . . . is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not." Justice Stewart was alone in dissenting, contending that, "to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.
- In 1963, in Abington School District v. Schempp, the Supreme Court outlawed public school requirements that each school day begin with selections readings from the Bible.
In this case the State argued that the object of the programs was the promotion of secular purposes, such as the expounding of moral values, the contradiction of the materialistic trends of the times, and the promotion of traditional institutions. The State also rightly contended that by forbidding Bible reading a religion of secularism would supplant it. However, the Court rejected all these contentions, stating that it was not preferring those who believe in no religion over those who do believe.
- In Epperson v. Arkansas (1968), the Court rejected an Arkansas state statute which made it unlawful for any teacher in any state-supported educational institution "to teach the theory or doctrine that mankind ascended or descended from a lower order of animals," or "to adopt or use in any such institution a textbook that teaches" the evolutionary theory.
- A notable exception to the trend of outlawing government sanction of religion occurred in Marsh v. Chambers (1983). In this case a clergyman who opened each session of the Nebraska state legislature with a prayer was paid by public funds. Atheist Senator Earnest Chambers found this intolerable and went to court to outlaw the practice. The District Court judged it was wrong to use public money to pay the preacher's salary, while the Appellate Court saw the prayer being offered as not permissible.
However, the Supreme Court ruled 6-3 that the practice of beginning the legislative session with a prayer by a publicly funded chaplain was indeed constitutional. The Court's basis was the almost 200 year historicity of the use of chaplains in government, "ever since the First Congress drafted the First Amendment", a practice without adverse effect. In addition, it was stated that "because of the principles upon which the nation has developed, religion has become part of the fabric of society. The offering of the prayer is a tolerable acknowledgment of beliefs widely held among the people of this country."
The age of the participants was also a deciding factor, as it judged that state legislators, being adults, are presumably not readily susceptible to 'religious indoctrination' or 'peer pressure'. Justice Brennan dissented, objecting that the all three aspects of the Lemon v. Kurtzman test had been violated.
- In Wallace v. Jaffree (1985), the Court disallowed an Alabama statute authorizing a 1-minute period of silence in all public schools for meditation or prayer. This was rejected on the basis that the purpose of the legislation was to restore prayer to schools. Justice Rehnquist dissented, rejecting the interpretation that the First Amendment required strict neutrality between religion and irreligion, and instead confined the scope to a prohibition on establishing a national church, or otherwise favoring one particular religious group over another. Some other justices indicated that other state statutes which had simply authorized moments of silence would be constitutional.
- In 1987, the Court decided in Edwards v. Aguillard, that a Louisiana statute mandating balanced treatment of creation-science and evolution-science in the public schools was unconstitutional, as the Legislators viewpoint that a supernatural created humankind was one that was religious, and thus it sought to discredit evolution "by counterbalancing its teaching at every turn with the teaching of creation science.
- In Lee v. Weisman (1992), the Court decided that school-sponsored, state-directed religious prayer (invocation), even if nonsectarian, at a high school commencement also violated the Establishment Clause.
- In 1981, in Widmar v. Vincent the Court ruled that religious groups were to have the same equal access to a public college's facilities as other noncurriculum related student groups, as this would further a secular purpose, would not constitute an impermissible benefit to religion. Later, in Westside Community Board of Educational v. Mergens (1990), these principles were also applied to public secondary schools as well, as it judged students were able to understand the school was accommodating, not affirming (as it effectively did for secularism), religious belief. Likewise, in Rosenberger v. University of Virginia (1995), the Court judged that student religious organizations were not to be excluded by public colleges from receiving benefits otherwise provided to a full range of student civic-type groups.
- In related equal access rulings, in Lamb's Chapel v. Center Moriches School District (1993), the Court determined that public schools may not exclude, on First Amendment grounds, religious groups from being given permission for after-hours use of school property which were otherwise available for non-religious social, civic, and recreational purposes. This was also seen to apply to Town Halls, etc. In 1995 the Court similarly ruled in Capitol Square Review Bd. v. Pinette, that the government cannot deny access for non-government funded religious displays or gatherings in a traditional public forum on government property which was used for citizen speeches and unattended displays.
- In the 1995 decision in Rosenberger v. Rector and Visitors of the University of Virginia, the Court required the University of Virginia to fund a Christian student newspaper as it also funded secular student newspapers, with liberal justices Souter, Stevens, Ginsburg and Breyer dissenting.
- In Good News Club v. Milford Central School (2001), the Court majority ruled that a public school district violated the free speech rights of an Evangelical Christian group by preventing them from using school facilities after classes were over.
Pledge of Allegiance
For more information, see the Pledge of Allegiance
On June 14, 1954 President Eisenhower signed legislation by a Joint Resolution of Congress which added the phrase, "under God" to the Pledge of Allegiance. The impetus for this addition was the very real threat of atheistic Communism. A short senate report found that "one of the greatest differences between between the free world and and Communists [is] a belief in God". However, it was based upon the substantive Christian historicity of the United States. Eisenhower was motivated to sign the bill, and had recently heard the relatively liberal Supreme Court chief justice Earl Warren declare,
Whether we look to the first Charter of Virginia ... or to the Charter of New England ... or to the Charter of Massachusetts Bay ... or to the Fundamental Orders of Connecticut ... the same objective is present ... a Christian land governed by Christian principles.
In a recent ruling concerning the phrase, the usually liberal California Ninth Circuit Court of Appeals, ruled 2-1 that the use of the phrase "under God" in the Pledge of Allegiance was constitutional, reversing its 2002 decision. The Court stated (in part) that,
The phrase “under God” is a recognition of our Founder's political philosophy that a power greater than the government gives the people their inalienable rights. Thus, the Pledge is an endorsement of our form of government, not of religion or any particular sect...The Framers referred to the source of the people's rights as the ‘Creator,’ the ‘Supreme Judge,’ and ‘Nature’s God.’ The Declaration of Independence, 1 U.S.C. § XLIII (1776). The name given to this unknowable, varied source was not crucial, but the source was a necessary prerequisite to the concept of limited government that formed the basis of our nation's founding.” 
The Court noted in reference to the latter that in an “Address to the States, by the United States in Congress Assembled", drafted by a committee consisting of James Madison, Alexander Hamilton, and later Chief Justice Oliver Ellsworth after the Revolutionary War, they expressed that the Revolutionary War was won for the rights of human nature, rights that had an “Author”:
|“||Let it be remembered, finally, that it has ever been the pride and boast of America that the rights for which she contended were the rights of human nature. By the blessings of the Author of these rights on the means exerted for their deference, they have prevailed against all opposition, and form the basis of thirteen independent States.||”|
Despite the court's attempt to disassociate the use of "God" with affirmation of religion, the court recognized the Founders own recognition that religion was necessary for a limited democratic form of government.
In a separate case, the court ruled 3-0 that "In God We Trust" does not constitute an illegal endorsement of religion inscribed on national currency.
Secular humanism is a religion
Atheism is a religion (see: Atheism is a religion). Secular humanism rejects the supernatural and is a type of atheism.
In the 1961 U.S Supreme Court case of Torcaso v. Watkins Justice Hugo Black commented in a footnote, "Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism, and others."
John Calvert, a lawyer and intelligent design proponent declared:
|“||The Seventh Judicial Circuit of the Court of Appeals of the United States held that atheism is a religion. Therefore, it cannot be promoted by a public school. Currently, public schools are often unwittingly promoting atheism through a dogmatic and uncritical teaching of materialistic theories of origins.||”|
On March 15, 2010, as a result of a lawsuit brought by a group of atheists and agnostics called the Freedom From Religion Foundation, a U.S. District Judge in Wisconsin ruled that the annual National Day of Prayer is unconstitutional. The judge partly based her decision on the belief that atheists feel marginalized by the law.
The White House stated that regardless of the ruling, the president still "intends to recognize a National Day of Prayer."
Conservative legal experts disagreed with the ruling. Mathew Staver, president of Liberty Counsel and dean of the Liberty University School of Law in Lynchburg, Virginia stated that "If the National Day of Prayer is unconstitutional, then the Constitution itself if unconstitutional.” Rep. Louie Gohmert (R-Texas), himself a former judge, told CNSNews.com that "it was obvious" the federal judge "had not received a very good education" in American history. The ruling may be seen as another example of secular values displacing religious ones, and morally functioning as a religion itself, leading to moral decline.
Atheist, lawsuits and restrictions to religious freedom
See also: Atheist lawsuits and restrictions to religious freedom and Atheists and conflict resolution
Atheist organizations in the Western World are litigious. Often they use ligitation to restrict the degree of religious freedom in a society.
The Freedom From Atheism Foundation has a webpage on their website entitled "Ongoing Lawsuits". The American Atheists has a webpage on their website entitled "Legal sucesses". The Center for Inquiry engaged in lawsuits related to faith based initiatives concerning prison ministry.
In June 2014, given the focus of atheist organizations on lawsuits, Sikivu Hutchinson wrote in the Washington Post that atheist organizations generally focus on church/state separation and creationism issues and not the concerns the less affluent African-American population faces. Hutchinson also mentioned that church organizations do offer significant help to poor African-Americans. See also: Atheism and charity and Western atheism and race
- Barry McGowan, How to Separate Church & State: A Manual from the Trenches Hufton Mueller, LLC, 2012 ISBN 978-0-615-63802-7
- Dreisbach, Daniel L. Thomas Jefferson and the wall of separation between Church and State (2002) Conservative examination of the issue Review
- 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
- Guinness, Os. American Hour: A time of reckoning and and the once and future role of faith (1993) 468 pages
- 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
- Jeynes, William. American educational history: school, society, and the common good. (2007) 469 pages. On how and why the American education system developed the way that it did.
- 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
- Monsma. Stephen V. and Soper, Christopher J. The Challenge of Pluralism: Church and State in Five Democracies (2008) 265 pages
- Reichley A. James. Religion in American Public Life. (1985), history of the relationship between religion and politics
- Religion and the Founding of the American Republic, Library of Congress Exhibition
- 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
- Stokes Anson Phelps, and Pfeffer Leo. Church and State in the United States.(1964), famous classic.
- online books on Separation
- Mark Weldon Whitten, Ph.D., The Myth of “The Myth of Church–State Separation, (April 1996);online article
- ↑ 1st Amendment of the US Constitution
- ↑ See, e.g., Lemon v. Kurtzman.
- ↑ Segers and Jelen, Wall of Separation?, pp74-75
- ↑ http://www.lawandliberty.org/chur_sta.htm
- ↑ http://www.loc.gov/exhibits/religion/rel04.html
- ↑ Dinan, Stephen; Swoyer, Alex (January 2, 2020). Founding fathers never discussed wall of separation between church and state. The Washington Times. Retrieved January 4, 2020.
- ↑ http://www.departments.bucknell.edu/russian/const/77cons02.html#chap06
- ↑ http://www.leaderu.com/focus/secularization.html
- ↑ http://www.christiananswers.net/q-wall/wal-g004.html
- ↑ http://gwpapers.virginia.edu/documents/farewell/intro.html The Papers of George Washington, Documents, The Farewell Address, page 20
- ↑ http://patriotpost.us/reference/50-state-constitutions-on-god/
- ↑ The Bible and Government
- ↑ Education in the United_States
- ↑ CAUSE AND EFFECTS: THE BIBLE AND EDUCATION
- ↑ Colliers 1961 Yearbook p. 224
- ↑ Paul G. Kussrow and Loren Vannest, Can Public Schools Be Religiously Neutral? Leadership U.
- ↑ Student Rights, Probe Ministries
- ↑ Leroy Moore, , Jr. Religious Liberty: Roger Williams and the Revolutionary Era. Church History 1965 34(1): 57-76. 0009-6407
- ↑ 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
- ↑ John Hastings Nichols, "John Witherspoon on Church and State" Journal of Presbyterian History 1964 42(3): 166-174. 0022-3883
- ↑ Reports of Committees - 16th Congress, 1st Session - 49th Congress, 1st Session, 1854, H. Rep. 124, 33rd Congress, 1st Session
- ↑ Mark 12:13–17
- ↑ http://www.loc.gov/loc/lcib/9806/danpre.html
- ↑ Letter to Samuel Miller, Jan. 23, 1808
- ↑ http://candst.tripod.com/tnppage/qjeffson.htm
- ↑ http://www.loc.gov/loc/lcib/9806/danbury.html
- ↑ Religion and the Founding of the American Republic, part 4
- ↑ FBI works sheds new light on famous Jefferson pledge, Carl Hartman Associated Press, Rocky Mountain News (Denver, CO), June 7, 1998
- ↑ http://www.leaderu.com/common/founderspubrelig.html
- ↑ http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/Dreisbach104.htm
- ↑ 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.
- ↑ Edwin S. Gaustad, "Thomas Jefferson, Religious Freedom, and the Supreme Court." Church History 1998 67(4): 682-694. in JSTOR
- ↑ http://www.earlyamerica.com/earlyamerica/milestones/ordinance/text.html
- ↑ http://www.earlyamerica.com/earlyamerica/milestones/ordinance/text.html
- ↑ Treaty of Tripoli, Article 11. Ratified in 1796 and again in 1797. Some other treaties with Muslim powers did mention God.
- ↑ David Barton, Treaty of Tripoli
- ↑ Tempest in a Treaty: Does the Treaty of Tripoli Support a Secular America?
- ↑ American History Quotes About God and the Bible
- ↑ Tektonics.org, On Article 11 of the Treaty of Tripoli
- ↑ http://avalon.law.yale.edu/subject_menus/barmenu.asp
- ↑ http://avalon.law.yale.edu/18th_century/bar1796e.asp
- ↑ http://www.theroadtoemmaus.org/RdLb/21PbAr/Hst/US/USXn-Congress.htm
- ↑ http://www.contenderministries.org/law/linkpages/09052003hr1547text.php
- ↑ 42 U.S.C. 2000(e)-(1).
- ↑ McClure v. Salvation Army.
- ↑ http://openjurist.org/635/f2d/971
- ↑ http://www.covenantnews.com/davidnew060919.htm
- ↑ From Pat Robertson "Restore States Rights and Public Morality" (1986)
- ↑ http://www.pregnantpause.org/court/uncon.htm
- ↑ http://www.law.umkc.edu/faculty/projects/FTRIALS/conlaw/judicialrev.htm
- ↑ http://www.constitution.org/fed/federa78.htm
- ↑ http://www.krusch.com/real/suprememyth.html
- ↑ http://www.strictconstruction.org/fast-and-loose-with-the-constitution/
- ↑ http://writ.news.findlaw.com/books/reviews/20020920_hamilton.html
- ↑ (liberal) Warren A. Nord, Religion and American Education: Rethinking a National Dilemma
- ↑ AmericanThinker.com, What Libertarians Misunderstand'', October 10, 2010
- ↑ http://www.leaderu.com/humanities/neutral.html
- ↑ A Religion for a New Age,The Humanist magazine’s January–February 1983
- ↑ Paul G. Kussrow and Loren Vannest, Can Public Schools Be Religiously Neutral?
- ↑ Paul G. Kussrow and Loren Vannest, Can Public Schools Be Religiously Neutral?
- ↑ Is the religion of Secular Humanism being taught in public school classrooms?, o case, ... www.christiananswers.net
- ↑ BAER v. KOLMORGEN
- ↑ Board of Educ. of Kiryas Joel Village v. Grumet, 114 S. Ct. 2481, 2494 (1994)
- ↑ http://supreme.lp.findlaw.com/constitution/amendment01/02.html#fsupp.3
- ↑ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=403&invol=602
- ↑ Everson v. Board of Education, 330 U.S at 15-16 (1947)
- ↑ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=330&invol=1#63
- ↑ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=333&invol=203
- ↑ http://religiousfreedom.lib.virginia.edu/court/mars_v_cham.html
- ↑ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=463&invol=783
- ↑ http://supreme.lp.findlaw.com/constitution/amendment01/03.html
- ↑ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10270
- ↑ http://writ.news.findlaw.com/dorf/20010711.html
- ↑ http://laws.findlaw.com/us/000/99-2036.html
- ↑ Newdow vs Rio Linda Union School District
- ↑ http://www.ca9.uscourts.gov/datastore/opinions/2010/03/11/05-17257.pdf pp. 52, 37
- ↑ TownHall.com, Liberal Ninth Circuit Praises Limited Government
- ↑ Torcaso v. Watkins
- ↑ Spiritual Warfare; Atheism is a Religion Part 1 by Darrin Morehouse
- ↑ CBS news, April 16, 2010
- ↑ CNSNews.com, Legal Experts Blast Judge’s Decision, Friday, April 16, 2010
- ↑ Ongoing Lawsuits - Legal - Freedom From Religion Foundation
- ↑ Legal sucesses - American Atheists
- ↑ Postal, Leslie (April 20, 2011). Bill asks voters to OK taxpayer funding of religious institutions. Orlando Sentinel.
- ↑ Mazzei, Patricia (April 27, 2011). Blaine amendment repeal passes Florida house. Tampa Bay Times.
- ↑ Center for Inquiry will not appeal adverse decision in Florida lawsuit. CFI (February 8, 2016).
- ↑ Bettis, Kara (February 23, 2016). Atheists drop suit to block Christian prison ministry funding. New Boston Post. Retrieved on May 16, 2016.
- ↑ 88.0 88.1 Atheism has a big race problem that no one’s talking about by Dr. Sikivu Hutchinson, Washington Post June 16, 2014
- Should Something Separate Church and State?, by Joe Wolverton, II, J.D., of The New American