Separation of church and state

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Separation of church and state is an interpretation of the Establishment Clause, found in the First Amendment of the United States Constitution. It reads:


“ Congress shall make no law respecting an establishment of religion.[1] ”

This phrase has been interpreted by some misguided 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.

Origins

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.

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.[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 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.[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 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.[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, 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. ”

Interpretations

Hamburger (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. 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.

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 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." [8]

"Not in any sense founded on the Christian Religion"

Article 11 of the Treaty of Tripoli, drafted during Washington's presidency, 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"[9] ”

Critics of the separation concept respond to the implications of this statement by arguing 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.[10][11] as attested to by many of the Founders.[12] The significance of differences between the English and Arabic versions of the Treaty are also debated.[13] 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 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.[14]

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.[15] The provision has been construed to allow churches to handle their ministerial matters without government intrusion in any way.[16] In this sense, separation of church and 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.[17]


“ 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.

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
  • 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
  • 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

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. Some other treaties with Muslim powers did mention God.
  10. ↑ David Barton, Treaty of Tripoli
  11. ↑ Tempest in a Treaty: Does the Treaty of Tripoli Support a Secular America?
  12. ↑ American History Quotes About God and the Bible
  13. ↑ Tektonics.org, On Article 11 of the Treaty of Tripoli
  14. ↑ http://www.theroadtoemmaus.org/RdLb/21PbAr/Hst/US/USXn-Congress.htm
  15. ↑ 42 U.S.C. 2000(e)-(1).
  16. ↑ McClure v. Salvation Army.
  17. ↑ From Pat Robertson "Restore States Rights and Public Morality" (1986)
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