Separation of church and state in the United States

The separation of church and state is a legal and political principle derived from various documents of several of the Founders of the United States. The First Amendment to the United States Constitution reads "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." The modern concept is often credited to the writings of English philosopher John Locke, but the phrase "separation of church and state" is generally traced to an 1802 letter by Thomas Jefferson to the Danbury Baptists, where Jefferson spoke of the combined effect of the Establishment Clause and the Free Exercise Clause of the First Amendment. His purpose in this letter was to assuage the fears of the Danbury, Connecticut Baptists, and so he told them that this wall had been erected to protect them. The metaphor was intended, as The U.S. Supreme Court has interpreted it, to mean that religion and government must stay separate for the benefit of both, including the idea that the government must not impose religion on Americans nor create any law requiring it. It has since been in several opinions handed down by the United States Supreme Court,^[1] though the Court has not always fully embraced the principle.^{[2][3][4][5][6]}

Contents 1 Early history 1.1 Former state churches in British North America 1.1.1 Protestant colonies 1.1.2 Catholic colonies 1.1.3 Colonies with no established church 1.1.4 Tabular Summary 1.2 Colonial support for separation 1.3 Jefferson, Madison, and the "wall of separation" 1.4 Patrick Henry, Massachusetts, and Connecticut 1.5 Test acts 2 Article 6 of the United States Constitution 3 Bill of Rights 4 The Treaty of Tripoli 5 The 14th Amendment 6 Supreme Court since 1947 7 Interpretive controversies 7.1 Politics and religion in the United States 8 See also 9 References 10 Bibliography 11 External links 11.1 American court battles over separation 11.2 Other

[edit] Early history

Many early immigrant groups traveled to America to worship freely, particularly after the English Civil War and religious conflict in France and Germany.^[7] They included nonconformists like the Puritans, as well as Catholics. Despite a common background, the groups' views on religious toleration were mixed. While some such as Roger Williams of Rhode Island and William Penn ensured the protection of religious minorities within their colonies, others like the Plymouth Colony and Massachusetts Bay Colony had established churches. The Dutch colony of New Netherland established the Dutch Reformed Church and outlawed all other worship, though enforcement was sparse. Religious conformity was desired partly for financial reasons: the established Church was responsible for poverty relief, so dissenting churches would have a significant edge.

[edit] Former state churches in British North America

[edit] Protestant colonies

• The colonies of Plymouth, Massachusetts Bay, New Haven, and New Hampshire were founded by Puritan, Calvinist, Protestants.
• New Netherland was founded by Dutch Reformed Calvinists.
• The colonies of New York, Virginia, North Carolina, South Carolina, and Georgia were officially Church of England.

[edit] Catholic colonies

• When New France was transferred to Great Britain in 1763, the Roman Catholic Church remained under toleration, but Huguenots were allowed entrance where they had formerly been banned from settlement by Parisian authorities.
• The Colony of Maryland was founded by a charter granted in 1632 to George Calvert, secretary of state to Charles I, and his son Cecil, both recent converts to Roman Catholicism. Under their leadership many English Catholic gentry families settled in Maryland. However, the colonial government was officially neutral in religious affairs, granting toleration to all Christian groups and enjoining them to avoid actions which antagonized the others. On several occasions low-church dissenters led insurrections which temporarily overthrew the Calvert rule. In 1689, when William and Mary came to the English throne, they acceded to demands to revoke the original royal charter. In 1701 the Church of England was proclaimed, and in the course of the eighteenth century Maryland Catholics were first barred from public office, then disenfranchised, although not all of the laws passed against them (notably laws restricting property rights and imposing penalties for sending children to be educated in foreign Catholic institutions) were enforced, and some Catholics even continued to hold public office.
• Spanish Florida was ceded to Great Britain in 1763, the British divided Florida into two colonies. Both East and West Florida continued a policy of toleration for the Catholic Residents.

[edit] Colonies with no established church

• The Province of Pennsylvania was founded by Quakers, but the colony never had an established church.
• West Jersey, also founded by Quakers, prohibited any establishment.
• Delaware Colony had no established church.
• The Colony of Rhode Island and Providence Plantations, founded by religious dissenters forced to flee the Massachusetts Bay colony, is widely regarded as the first polity to grant religious freedom to all its citizens.

[edit] Tabular Summary

Colony	Denomination	Disestablished1
Connecticut	Congregational	1818
Georgia	Church of England	17892
Maryland	Church of England	1776
Massachusetts	Congregational	1780 (in 1833 state funding suspended)3
New Brunswick	Church of England
New Hampshire	Congregational	17904
Newfoundland	Church of England
North Carolina	Church of England	17765
Nova Scotia	Church of England	1850
Prince Edward Island	Church of England
South Carolina	Church of England	1790
Canada West	Church of England	1854
West Florida	Church of England	N/A6,8
East Florida	Church of England	N/A7,8
Virginia	Church of England	17869
West Indies	Church of England	1868

^Note 1: In several colonies, the establishment ceased to exist in practice at the Revolution, about 1776;^[8] this is the date of permanent legal abolition.

^Note 2: in 1789 the Georgia Constitution was amended as follows: "Article IV. Section 10. No person within this state shall, upon any pretense, be deprived of the inestimable privilege of worshipping God in any manner agreeable to his own conscience, nor be compelled to attend any place of worship contrary to his own faith and judgment; nor shall he ever be obliged to pay tithes, taxes, or any other rate, for the building or repairing any place of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or hath voluntarily engaged. To do. No one religious society shall ever be established in this state, in preference to another; nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles."

^Note 3: From 1780 Massachusetts had a system which required every man to belong to a church, and permitted each church to tax its members, but forbade any law requiring that it be of any particular denomination. This was objected to, as in practice establishing the Congregational Church, the majority denomination, and was abolished in 1833.

^Note 4: Until 1877 the New Hampshire Constitution required members of the State legislature to be of the Protestant religion.

^Note 5: The North Carolina Constitution of 1776 disestablished the Anglican church, but until 1835 the NC Constitution allowed only Protestants to hold public office. From 1835-1876 it allowed only Christians (including Catholics) to hold public office. Article VI, Section 8 of the current NC Constitution forbids only atheists from holding public office.^[9] Such clauses were held by the United States Supreme Court to be unenforceable in the 1961 case of Torcaso v. Watkins, when the court ruled unanimously that such clauses constituted a religious test incompatible with First and Fourteenth Amendment protections.

^Note 6: Religious Tolerance for Catholics with an Established Church of England was policy in the former Spanish Colonies of East and West Florida while under British rule.

^Note 7: Religious tolerance for Catholics with an established Church of England was policy in the former Spanish Colonies of East and West Florida while under British rule.

^Note 8: In Treaty of Paris (1783), which ended the American Revolutionary War, the British ceded both East and West Florida back to Spain (see Spanish Florida).

^Note 9: Tithes for the support of the Anglican Church in Virginia were suspended in 1776, and never restored. 1786 is the date of the Virginia Statute of Religious Freedom, which prohibited any coercion to support any religious body.

[edit] Colonial support for separation

The Flushing Remonstrance shows support for separation of church and state as early as the mid-17th century. The document was signed December 27, 1657 by a group of English citizens in America who were affronted by persecution of Quakers and the religious policies of the Governor of New Netherland, Peter Stuyvesant. Stuyvesant had formally banned all religions other than the Dutch Reformed Church from being practiced in the colony, in accordance with the laws of the Dutch Republic. The signers indicated their "desire therefore in this case not to judge lest we be judged, neither to condemn least we be condemned, but rather let every man stand or fall to his own Master."^[10] Stuyvesant fined the petitioners and threw them in prison until they recanted. However, John Bowne allowed the Quakers to meet in his home. Bowne was arrested, jailed, and sent to the Netherlands for trial; the Dutch court exonerated Bowne.

New York Historical Society President and Columbia University Professor of History Kenneth T. Jackson describes the Flushing Remonstrance as "the first thing that we have in writing in the United States where a group of citizens attests on paper and over their signature the right of the people to follow their own conscience with regard to God - and the inability of government, or the illegality of government, to interfere with that."^[11]

Given the wide diversity of opinion on Christian theological matters in the newly independent American States, the Constitutional Convention believed a government sanctioned (established) religion would disrupt rather than bind the newly formed union together. George Washington wrote in 1790 to the country's first Jewish congregation, the Touro Synagogue in Newport, Rhode Island to state:

All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it were by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.^[12]

There were also opponents to the support of any established church even at the state level. In 1773, Isaac Backus, a prominent Baptist minister in New England, observed that when "church and state are separate, the effects are happy, and they do not at all interfere with each other: but where they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued." Thomas Jefferson's influential Virginia Statute for Religious Freedom was enacted in 1786, five years before the Bill of Rights.

Most Anglican ministers, and many Anglicans, were Loyalists. The Anglican establishment, where it had existed, largely ceased to function during the American Revolution, though the new States did not formally abolish and replace it until some years after the Revolution.

[edit] Jefferson, Madison, and the "wall of separation"

The phrase "[A] hedge or wall of separation between the garden of the church and the wilderness of the world" was first used by Baptist theologian Roger Williams, the founder of the colony of Rhode Island, in his 1644 book The Bloody Tenent of Persecution.^[13][14] The phrase was later used by Thomas Jefferson as a description of the First Amendment and its restriction on the legislative branch of the federal government, in an 1802 letter^[15] to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut), assuring that their rights as a religious minority would be protected from federal interference. As 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 legitimate 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. 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.

Jefferson's letter was in reply to a letter^[16] that he had received from the Danbury Baptist Association dated October 7, 1801. In an 1808 letter to Virginia Baptists, Jefferson would use the same theme:

We have solved, by fair experiment, the great and interesting question whether freedom of religion is compatible with order in government and obedience to the laws. And we have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries.

Jefferson and James Madison's conceptions of separation have long been debated. Jefferson refused to issue Proclamations of Thanksgiving sent to him by Congress during his presidency, though he did issue a Thanksgiving and Prayer proclamation as Governor of Virginia.^[17][18] Madison issued four religious proclamations while President,^[19] but vetoed two bills on the grounds they violated the first amendment.^[20] On the other hand, both Jefferson and Madison attended religious services at the Capitol.^[21] Years before the ratification of the Constitution, Madison contended "Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body."^[22] After retiring from the presidency, Madison wrote of "total separation of the church from the state."^[23] "Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States," Madison wrote,^[24] and he declared, "practical distinction between Religion and Civil Government is essential to the purity of both, and as guaranteed by the Constitution of the United States."^[25] In a letter to Edward Livingston Madison further expanded, "We are teaching the world the great truth that Govts. do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt." ^[26] Madison's original draft of the Bill of Rights had included provisions binding the States, as well as the Federal Government, from an establishment of religion, but the House did not pass them.^{[citation needed]}

Jefferson's opponents said his position was the destruction and the governmental rejection of Christianity, but this was a caricature.^[27] In setting up the University of Virginia, Jefferson encouraged all the separate sects to have preachers of their own, though there was a constitutional ban on the State supporting a Professorship of Divinity, arising from his own Virginia Statute for Religious Freedom.^[28] Some have argued that this arrangement was "fully compatible with Jefferson's views on the separation of church and state;"^[29] however, others point to Jefferson’s support for a scheme in which students at the University would attend religious worship each morning as evidence that his views were not consistent with strict separation.^[30]

Jefferson's letter entered American jurisprudence in the 1878 Mormon polygamy case Reynolds v. U.S., in which the court cited Jefferson and Madison, seeking a legal definition for the word religion. Writing for the majority, Justice Stephen Johnson Field cited Jefferson's Letter to the Danbury Baptists to state that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."^[31] Considering this, the court ruled that outlawing polygamy was constitutional.

[edit] Patrick Henry, Massachusetts, and Connecticut

Jefferson and Madison's approach was not the only one taken in the eighteenth century. Jefferson's Statute of Religious Freedom was drafted in opposition to a bill, chiefly supported by Patrick Henry, which would permit any Virginian to belong to any denomination, but which would require him to belong to some denomination and pay taxes to support it. Similarly, the Constitution of Massachusetts originally provided that "no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience... provided he doth not disturb the public peace, or obstruct others in their religious worship," (Article II) but also that:

the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

And the people of this commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend. (Article III)

Since, in practice, this meant that the decision of who was taxable for a particular religion rested in the hands of the selectmen, usually Congregationalists, this system was open to abuse. It was abolished in 1833. The intervening period is sometimes referred to as an "establishment of religion" in Massachusetts.

The Duke of York had required that every community in his new lands of New York and New Jersey support some church, but this was more often Dutch Reformed, Quaker or Presbyterian, than Anglican. Some chose to support more than one church. He also ordained that the tax-payers were free, having paid his local tax, to choose their own church. The terms for the surrender of New Amsterdam had provided that the Dutch would have liberty of conscience, and the Duke, as an openly divine-right Catholic, was no friend of Anglicanism. The first Anglican minister in New Jersey arrived in 1698, though Anglicanism was more popular in New York.^[32]

Connecticut had a real establishment of religion. Its citizens did not adopt a constitution at the Revolution, but rather amended their Charter to remove all references to the British Government. As a result, the Congregational Church continued to be established, and Yale College, a Congregational institution, received grants from the State until Connecticut adopted a constitution in 1818 partly because of this issue.

[edit] Test acts

The absence of an establishment of religion did not necessarily imply that all men were free to hold office. Most colonies had a Test Act, and several states retained them for a short time. This stood in contrast to the Federal Constitution, which explicitly prohibits the employment of any religious test for Federal office, and which through the Fourteenth Amendment later extended this prohibition to the States.

For example, the New Jersey Constitution of 1776 provides liberty of conscience in much the same language as Massachusetts (similarly forbidding payment of "taxes, tithes or other payments" contrary to conscience). It then provides:

That there shall be no establishment of any one religious sect in this Province, in preference to another; and that no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government, as hereby established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.^[33]

This would permit a Test Act, but did not require one.

The original charter of the Province of East Jersey had restricted membership in the Assembly to Christians; the Duke of York was fervently Catholic, and the proprietors of Perth Amboy, New Jersey were Scottish Catholic peers. The Province of West Jersey had declared, in 1681, that there should be no religious test for office. An oath had also been imposed on the militia during the French and Indian War requiring them to abjure the pretensions of the Pope, which may or may not have been applied during the Revolution. That law was replaced by 1799.

The Pennsylvania Constitution of 1776 provided:

And each member, before he takes his seat, shall make and subscribe the following declaration, viz:

I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration.

And no further or other religious test shall ever hereafter be required of any civil officer or magistrate in this State.

Again, it provided in general that all tax-paying freemen and their sons shall be able to vote, and that no
" man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship."

[edit] Article 6 of the United States Constitution

Article Six of the United States Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States". Prior to the inclusion of the Bill of Rights, this was the only mention of religious freedom in the Constitution.

[edit] Bill of Rights

The first amendment to the US Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" The two parts, known as the "establishment clause" and the "free exercise clause" respectively, form the textual basis for the Supreme Court's interpretations of the "separation of church and state" doctrine.

The First Congress' deliberations show that its understanding of the separation of church and state differed sharply from that of their contemporaries in Europe. As 19th century Union Theological Seminary historian Philip Schaff observed:

“The American separation of church and state rests upon respect for the church; the [European anticlerical] separation, on indifference and hatred of the church, and of religion itself…. The constitution did not create a nation, nor its religion and institutions. It found them already existing, and was framed for the purpose of protecting them under a republican form of government, in a rule of the people, by the people, and for the people.”^[34]

An August 15, 1789 entry in Madison’s papers indicates he intended for the establishment clause to prevent the government imposition of religious beliefs on individuals. The entry says: “Mr. Madison said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience....”^[35]

Some legal scholars, such as John Baker of LSU, theorize that Madison’s initial proposed language—that Congress should make no law regarding the establishment of a “national religion”—was rejected by the House, in favor of the more general “religion” in an effort to appease the Anti-Federalists. To both the Anti-Federalists and the Federalists, the very word "national" was a cause for alarm because of the experience under the British crown.^[36] During the debate over the establishment clause, Rep. Elbridge Gerry of Massachusetts took issue with Madison’s language regarding whether the government was a national or federal government (in which the states retained their individual sovereignty), which Baker suggests compelled Madison to withdraw his language from the debate.

Following the argument between Madison and Gerry, Rep. Samuel Livermore of New Hampshire proposed language stating that, “Congress shall make no laws touching religion or the rights of conscience.” This raised an uproar from members, such as Rep. Benjamin Huntingdon of Connecticut and Rep. Peter Sylvester of New York, who worried the language could be used to harm religious practice.

Others, such as Rep. Roger Sherman of Connecticut, believed the clause was unnecessary because the original Constitution only gave Congress stated powers, which did not include establishing a national religion. Anti-Federalists such as Rep. Thomas Tucker of South Carolina moved to strike the establishment clause completely because it could preempt the religious clauses in the state constitutions. However, the Anti-Federalists were unsuccessful in persuading the House of Representatives to drop the clause from the first amendment.

The Senate went through several more narrowly targeted versions before reaching the contemporary language. One version read, “Congress shall make no law establishing one religious sect or society in preference to others, nor shall freedom of conscience be infringed,” while another read, “Congress shall make no law establishing one particular religious denomination in preference to others.” Ultimately, the Senate rejected the more narrowly targeted language.

At the time of the passage of the Bill of Rights, many states acted in ways that would now be held unconstitutional. All of the early official state churches were disestablished by 1833 (Massachusetts), including the Congregationalist establishment in Connecticut. It is commonly accepted that, under the doctrine of Incorporation - which uses the Due Process clause of the Fourteenth Amendment to hold the Bill of Rights applicable to the states - these state churches could not be reestablished today.

[edit] The Treaty of Tripoli

In 1797, the United States Senate ratified a treaty with Tripoli that stated in Article 11:

... the Government of the United States of America is not, in any sense, founded on the Christian religion; ...^[37]

Supporters of the separation of church and state believe this article confirms that the government of the United States was specifically intended to be religiously neutral, and that Article VI, clause 2 of the United States Constitution renders it "the supreme Law of the Land". This is disputed by supporters of the "Christian Nation" movement. ^[38]

[edit] The 14th Amendment

The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments, intended to secure rights for former slaves. It includes the due process and equal protection clauses among others. The amendment introduces the concept of incorporation of all relevant federal rights against the states. While it has not been fully implemented, the doctrine of incorporation has been used to ensure, through the Due Process Clause and Privileges and Immunities Clause, the application of most of the rights enumerated in the Bill of Rights to the states.

The incorporation of the First Amendment establishment clause in the landmark case of Everson v. Board of Education has impacted the subsequent interpretation of the separation of church and state in regard to the state governments.^[39] Although upholding the state law in that case, which provided for public busing to private religious schools, the Supreme Court held that the First Amendment establishment clause was fully applicable to the state governments. A more recent case involving the application of this principle against the states was Board of Education of Kiryas Joel Village School District v. Grumet (1994).

[edit] Supreme Court since 1947

The phrase "separation of church and state" became a definitive part of Establishment Clause jurisprudence in Reynolds v. U.S. 98 U.S. 145 (1878), where the court examined Jefferson's involvement with the amendment and concluded that his interpretation was "almost an authoritative declaration" of its meaning.

Continuing to interpret the due process clause of the Fourteenth Amendment as applying the Bill of Rights to the states, Everson v. Board of Education 330 U.S. 1 (1947) held that the Establishment Clause applied to the case (a case which dealt with a state law that allowed the use of government funds for transportation to religious schools). The actual ruling (with four dissents) upheld the state law allowing the funding, but the basic principle had been set.

In 1962, the Supreme Court extended this analysis to the issue of prayer and religious readings in public schools. In Engel v. Vitale 370 U.S. 421 (1962), the Court determined it unconstitutional by a vote of 6-1 for state officials to compose an official school prayer and require its recitation in public schools, even when it is non-denominational and students may excuse themselves from participation. As such, any teacher, faculty, or student can pray in school, in accordance with their own religion. However, they may not lead such prayers in class, or in other "official" school settings such as assemblies or programs, including even "non-sectarian" teacher-led prayers, e.g. "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country," which was part of the prayer required by the New York State Board of Regents prior to the Court's decision. As the Court stated:

The petitioners contend, among other things, that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention, since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, 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.

The court noted that it "is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America."^[40]

Currently, the Supreme Court applies a three-pronged test to determine whether legislation comports with the Establishment Clause, known as the "Lemon Test". First, the legislature must have adopted the law with a neutral or non-religious purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion.^[41]

In 2002, a three judge panel on the Ninth Circuit Court of Appeals sparked a substantial controversy in holding that a California law^{[citation needed]}prescribing the recitation of the Pledge of Allegiance in public schools was unconstitutional, due to the inclusion of the phrase "under God." In reaction to the case, Elk Grove Unified School District v. Newdow, both houses of Congress passed measures reaffirming their support for the pledge, and condemning the panel's ruling.^[42] The case was appealed to the Supreme Court, where hearings began in March 2004. It was ultimately overturned by the Supreme Court in June 2004, but on procedural grounds not related to the substantive constitutional issue. Rather, a five-justice majority held that Newdow, a non-custodial parent suing on behalf of his daughter, had no standing to bring the lawsuit in the first place. Many commentators viewed this as a "punt," to avoid resolving the issue in the midst of a presidential campaign.

When the Louisiana state legislature passed a law requiring public school biology teachers to give Creationism and Evolution equal time in the classroom, the Supreme Court ruled that the law was unconstitutional because it was intended to advance a particular religion, and did not serve the secular purpose of improved scientific education.^[43] (See also: Creation and evolution in public education)

The display of the Ten Commandments as part of courthouse displays was considered in a group of cases decided in summer of 2005, including McCreary County v. ACLU of Kentucky and Van Orden v. Perry. While parties on both sides hoped for a reformulation or clarification of the Lemon test, the two rulings ended with narrow 5-4 and opposing decisions, with Justice Stephen Breyer the swing vote.

On December 20, 2005, the United States Court of Appeals for the Sixth Circuit ruled in the case of ACLU v. Mercer County that the continued display of the Ten Commandments as part of a larger display on American legal traditions in a Kentucky courthouse was allowed, because the purpose of the display (educating the public on American legal traditions) was secular in nature.^[44] In ruling on the Mount Soledad cross controversy on May 3, 2006, however, a federal judge ruled that the cross on public property on Mount Soledad must be removed.^[45]

[edit] Interpretive controversies

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Some scholars and organizations disagree with the notion of "separation of church and state", or the way the Supreme Court has interpreted the constitutional limitation on religious establishment.^[46] Such critics generally argue that the phrase misrepresents the textual requirements of the Constitution, while noting that many aspects of church and state were intermingled at the time the Constitution was ratified. These critics argue that a complete separation of church and state could not have been intended by the constitutional framers. Some of the intermingling between church and state include religious references in official contexts, and such other founding documents as the United States Declaration of Independence, which references the idea of a "Creator" and "Nature's God", though these references did not ultimately appear in the Constitution nor do they mention any particular religious view of a "creator" or "Nature's God."

These critics of the modern separation of church and state also note the official establishment of religion in several of the states at the time of ratification, to suggest that the modern incorporation of the Establishment Clause as to state governments goes against the original constitutional intent.^{[citation needed]} The issue is complex, however, as the incorporation ultimately bases on the passage of the 14th Amendment in 1868, at which point the first amendment's application to the state government was recognized. Many of these constitutional debates relate to the competing interpretive theories of originalism versus modern, progressivist theories such as the doctrine of the Living Constitution.

The "religious test" clause has been interpreted to cover both elected officials and appointed ones, career civil servants as well as political appointees. Religious beliefs or the lack of them have therefore not been permissible tests or qualifications with regard to federal employees since the ratification of the Constitution. Seven states, however, have language included in their Bill of Rights, Declaration of Rights, or in the body of their constitutions that require state office-holders to have particular religious beliefs. These states are Texas, Massachusetts, Maryland, North Carolina, Pennsylvania, South Carolina, and Tennessee.^[47]

The required beliefs of these clauses include belief in a Supreme Being and belief in a future state of rewards and punishments. (Tennessee Constitution Article IX, Section 2 is one such example.) Some of these same states specify that the oath of office include the words "so help me God." In some cases these beliefs (or oaths) were historically required of jurors and witnesses in court. At one time, such restrictions were allowed under the doctrine of states' rights; today they are deemed to be in violation of the federal First Amendment, as applied to the states via the 14th amendment, and hence unconstitutional and unenforceable.

While sometimes questioned as possible violations of separation, the appointment of official chaplains for government functions, voluntary prayer meetings at the Department of Justice outside of duty hours, voluntary prayer at meals in U.S. armed forces, inclusion of the (optional) phrase "so help me God" in the oaths for many elected offices, FBI agents, etc., have been held not to violate the First Amendment, since they fall within the realm of free exercise of religion.

Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the fact that Christmas is a federal holiday, etc., have also been questioned, but have been considered examples of the governmental prerogative in deciding practical and beneficial arrangements for the society. The national motto "In God We Trust" is a violation if strict separation is applied.

Jeffries and Ryan (2001) argue that the modern concept of separation of church and state dates from the mid-twentieth century rulings of the Supreme Court. The central point, they argue, was a constitutional ban against aid to religious schools, followed by a later ban on religious observance in public education. Jeffries and Ryan argue that these two propositions - that public aid should not go to religious schools and that public schools should not be religious - make up the separationist position of the modern Establishment Clause.

Jeffries and Ryan argue that no-aid position drew support from a coalition of separationist opinion. Most important was "the pervasive secularism that came to dominate American public life," which sought to confine religion to a private sphere. Further, the ban against government aid to religious schools was supported before 1970 by most Protestants, who opposed aid to religious schools, which were mostly Catholic at the time. After 1980, however, anti-Catholic sentiment has diminished among mainline Protestants, and the crucial coalition of public secularists and Protestant churches has collapsed. While mainline Protestant denominations are more inclined towards strict separation of church and state, much evangelical opinion has now largely deserted that position. As a consequence, strict separationism is opposed today by members of many Protestant faiths, even perhaps eclipsing the opposition of Roman Catholics.

Critics of the modern concept of the "separation of church and state" argue that it is untethered to anything in the text of the constitution and is contrary to the conception of the phrase as the Founding Fathers understood it. Philip Hamburger, Columbia Law school professor and prominent critic of the modern understanding of the concept, maintains that the modern concept, which deviates from the constitutional establishment clause jurisprudence, is rooted in American anti-Catholicism and Nativism.^{[citation needed]} Briefs before the Supreme Court, including by the U.S. government, have argued that some state constitutional amendments relating to the modern conception of separation of church and state (Blaine Amendments) were motivated by and intended to enact anti-Catholicism.^[48]

J. Brent Walker, Executive Director of the Baptist Joint Committee, responded to Hamburger's claims noting; "The fact that the separation of church and state has been supported by some who exhibited an anti-Catholic animus or a secularist bent does not impugn the validity of the principle. Champions of religious liberty have argued for the separation of church and state for reasons having nothing to do with anti-Catholicism or desire for a secular culture. Of course, separationists have opposed the Catholic Church when it has sought to tap into the public till to support its parochial schools or to argue for on-campus released time in the public schools. But that principled debate on the issues does not support a charge of religious bigotry"^[49]

Steven Waldman notes that; "The evangelicals provided the political muscle for the efforts of Madison and Jefferson, not merely because they wanted to block official churches but because they wanted to keep the spiritual and secular worlds apart." “Religious freedom resulted from an alliance of unlikely partners,” writes the historian Frank Lambert in his book The Founding Fathers and the Place of Religion in America. “New Light evangelicals such as Isaac Bachus and John Leland joined forces with Deists and skeptics such as James Madison and Thomas Jefferson to fight for a complete separation of church and state.”^[50]

[edit] Politics and religion in the United States

Robert N. Bellah has argued in his writings that although the separation of church and state is grounded firmly in the constitution of the United States, this does not mean that there is no religious dimension in the political society of the United States. He used the term Civil Religion to describe the specific relation between politics and religion in the United States. His 1967 article analyzes the inaugural speech of John F. Kennedy: "Considering the separation of church and state, how is a president justified in using the word 'God' at all? The answer is that the separation of church and state has not denied the political realm a religious dimension."^[51]

[edit] See also

• American Center for Law & Justice
• Americans United for Separation of Church and State
• American Humanist Association
• Anti-clericalism
• The Becket Fund for Religious Liberty
• Ceremonial deism
• Christian amendment
• Christian Left
• Christian Right
• Freedom From Religion Foundation
• Freedom of religion in the United States
• Interfaith Alliance
• Mount Soledad cross controversy
• Public menorah
• Separation of church and state
• State religion
• United States religious history

[edit] References

[edit] Bibliography

• Philip Hamburger, Separation of church and state Harvard University Press, 2002. ISBN 0674007344 OCLC: 48958015
• Marci A. Hamilton, God vs. the Gavel: Religion and the Rule of Law, Cambridge University Press, 2005, ISBN 0-521-85304-4
• Mark DeWolfe Howe. The Garden and the Wilderness: Religion and Government in American Constitutional History(U. of Chicago Press, 1965)
• Daniel L. Dreisbach. Thomas Jefferson and the Wall of Separation Between Church and State(New York University Press, 2003)
• Daniel L. Dreisbach and Mark David Hall. The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding (Indianapolis: Liberty Fund Press, 2009)
• Daniel L. Dreisbach, Mark David Hall, and Jeffry Morrison. The Forgotten Founders on Religion and Public Life (Notre Dame: University of Notre Dame Press, 2009)
• John C. Jeffries, Jr. and James E. Ryan, "A Political History of the Establishment Clause," 100 Michigan Law Rev. (2001) online version
• Mark David Hall, “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases,” 85 Oregon Law Review (2006), 563-614. [5]
• Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness (Norton, 1996)
• Philip B. Kurland, ed., Church and State: The Supreme Court and the First Amendment (U. of Chicago Press, 1975)
• Adam M. Samaha; "Separation of Church and State." Constitutional Commentary. 19#3 2002. pp 713+. online version
• Anson P. Stokes and Leo Pfeffer, Church and Stare in the United States (reprint, 1964)

[edit] External links

[edit] American court battles over separation

• 1947, first case concerning separation of church and state; supporting bussing for children to private religious schools and declaring that states were required to provide the same guarantees of religious freedom as the federal government
• 1948, banning religious instruction in public schools
• 1952, allowing religious instruction off school property during regular school hours
• 1962, banning teacher-led prayer from public schools
• 1963, banning Bible-reading and the recital of the Lord's Prayer in public schools
• 1973, allowing state funding for textbooks and teachers' salaries in religious schools; creating the Lemon test
• 1987, declared the Creation Act invalid, which had mandated the teaching of Creation if Evolution was taught
• 1989, banning religious displays depicting only one religion
• 1992, banning prayers given by clergy as a part of an official public school graduation ceremony.

[edit] Other

• "Rights of the People - The Roots of Religious Liberty". U.S. Department of State, International Information Programs. http://usinfo.state.gov/products/pubs/rightsof/roots.htm. Retrieved 2007-04-07. 
• "Rights of the People - Religious liberty in the Modern era". U.S. Department of State, International Information Programs. http://usinfo.state.gov/products/pubs/rightsof/modern.htm. Retrieved 2007-04-07. 
• Christian Science Monitor analysis of George Washington's letter and its implications
• "The Intellectual Origins of the Establishment Clause" by Noah Feldman, Asst. Professor of Law, New York University, 2002.
• Robert Struble, Jr., Treatise on Twelve Lights: To Restore America the Beautiful under God and the Written Constitution, 2007-08 edition.
• Baptist Joint Committee for Religious Liberty
• Separation of Church and State
• Unique Presidential speech: President Ronald Reagan uses report of Navy Chaplain, Rabbi Arnold E. Resnicoff, for keynote address, rejecting argument that military chaplains violate separation of church and state, Text version; Video version

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