"A Wall of Separation between Church and State"

Since we seem to be on the subject of religion and its relationship to government, and since this subject will remain in the public discourse for the foreseeable future, we've decided it's a good idea to step back and do some homework.  So here's a post about the basic Constitutional questions of the separation of church and state. 

Let's start with the relevant part of the 1st Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]

It's a double-edeged sword: the federal government can't keep you from worshipping how you want, and the federal government can't pass any laws "respecting an establishment of religion."

This second bit, the so-called "establishment clause" is where the controversy lies.  In short, some tend to think that the establishment clause merely keeps the government from establishing a national religion.  Others, us included, think that it means that the government really can't have anything to do with religion. 

In order to decide this question, many people resort to trying to figure out the original intent of the framers of the Constitution.  We think that this approach is of limited value, because quite frankly, we don't care what a bunch of guys in wigs thought 200 years ago.  But since some people seem to be interested in this approach, we'll address it.

I. The founders didn't found the country on Judeo-Christian values

The "Judeo-Christian values" that the founders supposedly held is a widely repeated myth.  Here's Jerry Falwell, writing about Ronald Reagan:

He affirmed the Judeo-Christian values of our Founders.

Of course, no one bothers to define "Judeo-Christian values," but that doesn't matter.  What matters is that there doesn't seem to be any evidence that the framers set up American government with Judeo-Christian values in mind.  Many of them were not Christian at all, despite what you hear from the religious oppressors on the right today.  Thomas Jefferson, as you should know by now, was famous for his Deism (apparently, Thomas Paine, George Washington, and Benjamin Franklin, to name only a few, also espoused Deist beliefs).  He doesn't seem to have had much of a high opinion of Christianity, in fact, as he wrote to John Adams:

And the day will come when the mystical generation of Jesus, by the supreme being as his father in the womb of a virgin, will be classed with the fable of the generation of Minerva in the brain of Jupiter.

and in Notes on the State of Virginia:

There is not one redeeming feature in our superstition of Christianity. It has made one half the world fools, and the other half hypocrites.

Calling Christianity a "superstition" and a "fable" doesn't seem to be the opinion of a Christian. 

In case we're curious about Jefferson's actual opinion of church-state relations, let's look at the famous letter that contains the oft-quoted phrase "wall of separation between church and state."  Many accomodationists, inlcuding the Chief Justice of the US Supreme Court, William Rehnquist (in a famous dissent), have claimed that this quotation is taken out of context, and that it is a misleading metaphor.  Well, let's look at the context (the bit in brackets are words that he wrote, but that were later struck out):

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, 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. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.] 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.

So much for Jefferson.

James Madison, often called the "Father of the Constitution" because he was its primary author, was also a strong believer that government and church should be separate.  So strong was his belief that when Virginia was considering a bill "to levy a general assessment for the support of teachers of religions" (sound familiar?), Madison wrote a strong response to the notion in the form of the "Memorial and Remonstrance Against Religious Assessments."  He objected because

the Bill violates the equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If "all men are by nature equally free and independent," all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience."

and because

finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all our other rights.[...] Either[...] we must say, that the Will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul [sic] the freedom of the press, may abolish the Trial by Jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary Assembly or, we must say, that they have no authority to enact into the law the Bill under consideration.

As you can see, separating church and state (to be specific in this case: freedom of the citizenry from having their tax dollars used in government funding of religion; sound familiar?  Heather's post yesterday on the Silver Ring Thing might be a parallel) is a right that Madison seems to rank next to other rights that we take for granted like trial by jury, freedom of the press, etc.  And to put the nail in the coffin, you can chew on this quotation of Mr. Madison:

The tendency to unsurpastion on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded agst. by an entire abstinence of the Gov't from interfence in any way whatsoever [in religion], beyond the necessity of preserving public order, and protecting each sect agst. trespasses on its legal rights by others.

So, given that the author of the Declaration of Independence was strongly in favor of separation of church and state, and was a Deist; and given that the primary architect of the US Constitution was also strong in favor of separation; and given that at least three other important founders were Deists, can we please put to rest the myth that the founders founded the country on Judeo-Christian values?  Please, can we put it to rest?

II. Legal considerations

The first modern case dealing with the establishment cluase was Everson v. Board of Education, in 1947.  The case dealt with whether or not a New Jersey township, according to state statute, could reimburse money to parents for transportation of their kids to and from parochial schools.  The decision was accomodationist, and the Court ruled 5-4 that it could.  However, all 9 justices agreed on the basic meaning of the establishment clause, that it mandated a fairly strict separation of church and state.  Here is a famous excerpt from Justice Hugo Black's majority opinion:

The 'establishment of religion' clause of the First Amendment means at least this: 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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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.

Remember, this is guy who is taking the accomodationist position, who wants the government to reimburse parents for travel expenses to and from parochial schools.  He ends his opinion thusly:

This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious rather than a public school if the school meets the secular educational requirements which the state has power to impose. It appears that these parochial schools meet New Jersey's requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.

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. New Jersey has not breached it here.

The dissent, by Justice Rutledge, goes further:

Not simply an established church, but any law respecting an establishment of religion is forbidden. The Amendment was broadly but not loosely phrased. It is the compact and exact summation of its author's views formed during his long struggle for religious freedom.[...]

The Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.

It seems to me that this is an instructive case, being that it is the first of its kind and that it came in 1947.  Which is to say, not long after the New Deal provisions had been enacted.  New Deal provisions had not been ruled unconstitutional since 1937 (when some republicans on the court changed their mind about the Social Security Act and the National Labor Relations Act).  Which is to say, the Supreme Court didn't have a problem with spending government money on the various programs of the New Deal.  It did, however, have a problem with the idea of spending government money on religious institutions.

The bit that I highlighted above seems to me to be the crux of the matter: "Not simply an established church, but any law respecting an establishment of religion is forbidden. The Amendment was broadly but not loosely phrased."  The amendment doesn't say, "Congress shall establish no church."  Nor does it say, "Congress shall make no law establishing religion."  It says, "Congress shall make no law respecting the establishment of religion."  A close reading of the amendment's language makes clear that it was written with a broad, rather than a narrow, reading in mind.

III. Other considerations

Now, if you are still of the mind that the amendment was meant only to prohibit the establishment of a national religion, consider a few options.  Let's take a few sample bills and decide if they're constitutional, according to that standard; let's call it the "no national religion" standard.  Remember, this is a thought experiment, and it doesn't matter whether Congress would pass such a law, only whether it would be constitutional to do so:

Bill 1: Christianity is the official religion of the US. 

Clearly unconstitutional.

Bill 2: Congress recognizes all religions, but we like Christianity the best.

Probably unconstitutional

Bill 3: Congress recognizes all religions, but the Baptists can use the Senate chamber on Tuesdays and Thursdays, and every third Wednesday.  Also, they can have 50% of the taxes collected in the US. 

Maybe unconstitutional, maybe not.  One could argue that this constitutes a de facto establishment of a religion.  But one could also argue that as long as Congress makes it clear that that's not what it's doing, it's ok. 

Bill 4: Congress recognizes all religions, but we hereby order that all rooms in any government building contain a copy of the 10 Commandments.  And that the restrooms have 10 Commandments toilet paper. 

It seems to me that you'd have to say that such a bill is constitutional under the "no national religion" standard.  But it gets worse.

Bill 5: Congress recognizes all religions, but we hereby order that all rooms in any government building contain a portrait of President Bush, and a portrait of the Ayatollah Khomenei. 

Now, here's the rub.  I don't think very many people would be happy about this, but if you buy into the "no national religion" standard, you'd have to admit that this is constitutional.  And Bill 5 is not idle speculation.  There was a similar thought experiment done in the case involving Alabama Chief Justice Roy Moore and the Ten Commandments display several months back.  The 11th Circuit Court of Appeals, in Atlanta, found that "Roy's Rock" was unconstitutional, and in the court's opinion (pdf) they recount a curious episode:

The breadth of the Chief Justice’s position is illustrated by his counsel’s concession at oral argument that if w e adopted his position, the Chief Justice would be free to adorn the walls of the Alabama Supreme Court’s courtroom with sectarian religious murals and have decidedly religious quotations painted above the bench. Every government building could be topped with a cross, or a menorah, or a statue of Buddha, depending upon the views of the officials with authority over the premises. A crèche could occupy the place of honor in the lobby or rotunda of every municipal, county, state, and federal building. Proselytizing religious messages could be played over the public address system in every government building at the whim of the official in charge of the premises.

So, if you are one who buys into the "no national religion" standard, this is the logical consequence of your belief.  Is that really what you want?

And if you want to talk about the intention of the founders, surely, this is not what they meant. 

Given these thought experiments, I have a hard time concluding anything but that the religious oppressors on the right want something that would amount to a rewriting of the Constitution, something that it fundamentally at odds with American government and the American way of life.  And while I respect all religious viewpoints, I have a hard time being friendly those that seek to impose their own religious views on my government, my tax dollars, and my life.

-- Michael

Comments

[dolphin]

What is the establishment of religion if not the use of the government to push forward a particular religion? The problem with seperating "seperation of church and state" and the establishment clause is that it leaves only semantics. In action, the establishment clause cannot be followed without instituting a policy of seperation of church and state. I would far rather see our nation be called "a christian nation" and have religion left out of politics than to have religion dominate our politics while we claim no established relgion. The establishment clause when interpretted without the concept of the seperation of church and state becomes no more than bickering over words and is not worth the ink used to write it.

[drm]

So one justice, Hugo Black, in what year??? 1947, pens the phrase a "'a wall of separation between Church and State." and suddenly it is as it has been the first sentence in the Bill of Rights. Last time I checked the Constitution was around for about 160 years without any justice identifying this mystical "wall of separation".

Unfortunately Black's activisms and these words,

"But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion" don't hold up to 220 years of public activity. I guess acording to Rutledge the following activities are prohibited by the Constitution:

1. Inscription on our money
2. All federal college assistance that flows to religious schools (I guess all those vets who used the GI bill to go to Notre Dame were in violation of the Constitution)
3. All patients treated at all the religious hospitals whose services were paid for by any level of government
4. Government funded chaplans, priests, rabbis, etc. in the military
5. Government funded chaplan of Congress
6. Pledge of Allegience

Just to name a few. According to Rutledge, all these activities are forbidden.. Good look with that view

You did say 1 thing that I agree. The debate is over the phrase, "...respecting an establishment of religion" and just what qualifies as establishment mean. You may believe in Black's mythical pronouncement but I tend to acknowledge all the above activites I listed have been taking place in this country and no court has ever ruled them unconstitutional so I think your view of establishment is WAY TO RESTRICTIVE.

Ok, how about these activities:

1. A public library makes available its meeting rooms for anyone except for any group with religious affiliations.
2. A public school allows after school clubs to use class rooms but prohibits a Christian Athletes club, or a Youth Jewish club to use the facilities.
3. Or how about a City allows individuals or groups to purchase space to erect a "holiday" display on the grounds of City Hall every December. This City prohibits all relgious displays.
4. A University has a non-discrimination code and claims that a Student Christian organization must accept non-Christians as board members of the club.
5. A University collects student fees and distributes to student organizations except that religious organizations do not get any funding.

All 5 cases are real cases and all have been found to be unconstitutional by the courts. So much for Rutlage and Black's mythical wall

[here's what's left]

So one justice, Hugo Black, in what year??? 1947, pens the phrase a "'a wall of separation between Church and State." and suddenly it is as it has been the first sentence in the Bill of Rights. Last time I checked the Constitution was around for about 160 years without any justice identifying this mystical "wall of separation".

d, your refusal to acknowledge reality astonishes me. did you actually read the post? i don't think you did. if you had, you would realize that "wall of separation" is jefferson's phrase. go back, read the context. see if there's any question about what he means.

my point in mentioning justice black is that in that case he was actually taking the accomodationist position. and all nine justices, republican and democratic appointees, in the very first supreme court case about the establishment clause, agreed on what the first amendment meant.

do you actually have an argument here? i'm not convinced you're not just dissembling because you know you don't have one. it seems to me that your argument is "well, i have a different view of the establishment clause."

in a way, this is very frustrating. i did a lot of research in this post, pulled together various historical documents, made some specific legal points. but you don't really address any of them, and you get the facts that you do reference wrong. you don't want to deal with what i actually wrote, because you're afraid that you don't have any arguments against them, and you don't want to have to ackowledge that you might be wrong on factual and historical grounds.

given your reading of the establishment clause, you would accept the constitutionality of my Bill 5, which I'll quote to you to save you the trouble of having to read what I wrote orginally:

"Bill 5: Congress recognizes all religions, but we hereby order that all rooms in any government building contain a portrait of President Bush, and a portrait of the Ayatollah Khomenei."

[Heather]

Last time I checked the Constitution was around for about 160 years without any justice identifying this mystical "wall of separation".

The wall of separation is now "mystical"?

When was the last time you checked, d? Because you might want to check again. The Constitution was actually around for 14 (not 160) years before one of its authors penned the phrase "wall of separation between church and state." That was Jefferson, d. Thomas Jefferson. You know of him, I assume? And he wrote that phrase with specific reference to the first amendment. I think someone decided to tell everyone his opinion without reading the post first. tsk tsk.

[drm]

"d, your refusal to acknowledge reality astonishes me. did you actually read the post? i don't think you did. if you had, you would realize that "wall of separation" is jefferson's phrase. go back, read the context. see if there's any question about what he means. "

Oh, so know it is ok to determine the intent behind the framers?? Since when?? I thought the LEFT believes the Constitution is a LIVING document and original intent IS BAD.. You both sound awfully pro Constructionist to me. Your affirmation of original intent would meld quite nicely with Pres. Bush's views.

And Heather, please point to me the text in the Constitution that mentions this separation?? Oh yeah, IT IS NOT IN THE CONSTITUTION.

Here's my point. The meaning of the establishment clause is debated in the courts everyday. Your narrow reading of this WALL is not supported by Supreme Court rulings or by government actions over the centuries.

My point is that this bogus "wall" would then mean the ending of many of the items I listed:

- GI Bill used for religious institutions
- In God We Trust on our currency
- Federal dollars to religious hospitals
- Government paid chaplins in the armed services (if this is not gov't sponsored religious activities I don't know what is)

to name a few. I want you to explain to me how your view of this "wall" allows for such items? My point is that supreme court rulings, federal law and historical practices dispells this myth of Hugo Black's "Wall" ruling.

Here's your problem. You claim the Constitution spells out this wall (which it clearly does not, and if you disagree please quote the text from the Constitution that mentions this wall) and yet law after law after government program after government program breaks down this wall. If the wall exists how do all these programs/laws still exist?

[Heather]

And Heather, please point to me the text in the Constitution that mentions this separation?? Oh yeah, IT IS NOT IN THE CONSTITUTION.

I never said it was in the fucking constitution so stop acting like you're refuting me on something.

As for determining the intents of the framers--Michael only brought up Jefferson in the first place because, "In order to decide this question, many people resort to trying to figure out the original intent of the framers of the Constitution. We think that this approach is of limited value, because quite frankly, we don't care what a bunch of guys in wigs thought 200 years ago. But since some people seem to be interested in this approach, we'll address it."

That's a quote from the post, d. Remember the post? See, the format of this site is that we put up posts, and then people read the posts and respond to what's actually in the posts instead of just vomiting their opinion into the comments section.

The reason we both talked about Jefferson's "wall" in our comments is not because we give a crap about Jefferson but because you claimed that the "wall" was a 1947 invention of Justice Black. The irony here is that you are accusing us of focusing on the intents of the framers when the ONLY reason we kept talking about that topic was because you had made such an absurdly inaccurate statement.

You would have been able to sound like you actually knew what you were talking about if you had read the post, but since clearly you didn't, we were setting you straight. You're welcome.

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