Posted by: rudyruddell | April 12, 2012

The History of the Separation of Church and State in the United States

The History of the Separation of Church and State in the United States

This report gives an account of how governmental involvement in religion developed over time and how it ultimately was shown to be a failure in modern times. As a result of this failure, the United States was formed as a secular nation that was the first to erect a wall separating church and state.

First, I demonstrate how religion and government developed together, intricately entangled, seemingly without much possibility for separation. Then, I showed how Christianity and Islam developed and used government, combined with the idea of Hell, to spread their culture to other lands. After that, I illustrate how, when coupled with government, saving souls from Hell led to wars such as the Crusades and the Century of Religious Wars.  Subsequently, I give an account of how people gradually became fed up with the religious wars and thought of new ways to govern without religion, as embodied in the Enlightenment. Then, the essay details how the founding fathers of the United States were the first to use the ideas of the Enlightenment to start a new nation governed by the people, based on liberty, human rights, and religious freedom.  Then, I explain how the series of Supreme Court rulings interpreted the Establishment Clause as an “impenetrable wall of separation between church and state” and how later Supreme Court decisions defined the wall as more blurred. Lastly, I examine the more recent legal action on using the word God in government.

At First, Religion Was Localized and Intertwined With Government

Since the beginning of recorded history, monarchs used religion to help rule over their subjects. In early human history, religion was important in helping people to understand the world. Religion seemed to act like an enzyme that hastened the spread of ideas and culture and kings took advantage of this phenomenon.

At first, religions were localized. The Sumerians of 4000 B.C. and the Egyptians of 3000 B.C. worshiped their gods to ensure their local rivers flooded on time for the watering of their crops. Their religion was tied to their local river. The rulers were considered either an actual god or the spokesperson for a god. Religion was the glue that held these ancient cultures together.

 Religions Became Transferable & Saving Souls from Hell Facilitated its Spread

The ancient Jews worshiped their local war god YAHWEH, located locally in Mount Sinai and who helped them conquer their enemies. http://books.google.com/books?id=zhc7UkW8eHcC&pg=PA138&lpg=PA138&dq=yahweh+local+god+of+mount+sinai&source=bl&ots=udI8ZwKft7&sig=wLpIusGi1e8rMVk-s-IljWKPtlc&hl=en&sa=X&ei=ag99T9KfBuiKiAK56ZjeDQ&ved=0CB8Q6AEwAA#v=onepage&q=yahweh%20local%20god%20of%20mount%20sinai&f=false In spite of this, Judaism evolved into a monotheist religion after being exposed to the first monotheistic religion of Zoroastrianism. Without a river or mountain to which to be tied, religion could be spread to other locations. In about 30 A.D., a Jew named Jesus of Nazareth, in preaching to his fellow Jews, developed the idea of Hell, which had previously been used by the Greeks, Egyptians, and Mesopotamians. Paul of Tarsus then spread the idea of heaven, Hell and salvation to non-Jews throughout the Hellenistic world. The idea of saving people from Hell eventually resulted in bloody wars, because extreme action could be justified if someone was being saved from eternal torture. Having the belief that people could be saved from Hell, Christians and Muslims had a responsibility to save other people from Hell and to prevent unbelievers from spreading their unbelieving ideas.

For about three centuries, the Christian religion spread in the Eastern Mediterranean region along with many different ideas about who Jesus was. Some said he was God, some said he was God’s son, and some said he was both. There was little agreement about the nature of Jesus. The Christians were persecuted by the Romans until the Romans realized that the more they persecuted the Christians, the faster the religion grew.

One Roman emperor named Constantine converted to Christianity in the early 300’s. He solved some of the doctrinal disagreements by calling the Council of Nicaea in 325 A.D. Constantine banished the dissenters, which marked the beginning of the Catholic policy of persecuting heretics, the people who disagreed with their orthodox religious doctrine. It was evident that Constantine was using Christianity as a tool to rule because he never gave up his title of Sun God to the pagans, in spite of Christianity demanding 100% loyalty.

Later, under the Edict of Thessalonica in 380 A.D., the Catholic Church was established as the official religion of Rome. Christianity helped Rome return to its glory days as an empire, using Christianity as the uniting aspect of its culture. The Romans stopped persecuting Christians and began to persecute heretics and burn the writings of heretics. In a nutshell, the doctrine was based on the idea: “We are going to heaven, you are going to Hell, and you are causing others to go to Hell; therefore, God has given us the job of preventing you from spreading your heresy.” The Roman Catholic Church spread their orthodox version of Christianity westward around the Mediterranean and into Europe.

Meanwhile, in the late 600’s Mohammad founded Islam. This also threatened Hell to nonbelievers. Muslims expanded throughout the Mediterranean through conquest. By 750 A.D., Islam had overtaken Spain, thereby creating an empire far exceeding the Roman Byzantine Empire. First, the Muslims captured Jerusalem. Then, they overtook Alexandria, followed by Antioch. By 850 A.D., the Muslims had besieged Rome itself.

Up until the tenth century, government and Christianity mixed freely. The Catholic Kings appointed popes, and kings were considered to be anointed by God. Catholic positions, such as bishop and cardinal positions were purchased from the kings. Although people acknowledged the rights of kings to rule over the churches before the 10th century, during the tenth and eleventh centuries, more and more people sought the removal of the power of kings over the church. The conflict came to a head in the Investiture Conflict when Pope Gregory VII declared that King Henry IV did not have the power to appoint the archbishop of Milan. The conflict was not resolved until 1122’s Concordat of Worms, which was after Gregory died. The compromise allowed the king to be involved with the selection of Catholic officers, but not the sole selector, like before. Thus, the Government’s hold on religion began to slip. This was a first schism between the Catholic Church and government on the road that led to the eventual separation of Catholic Church and state. (Lynn Hunt, et. al, Making of the West, Volume I)

When Coupled with Government, These Ideas Lead to Wars

When coupled with government, saving souls from Hell led to wars such as The Crusades and the Century of Religious Wars. Although governments such as that of the Romans had the additional motivation of power and money to spread their religion, the religious incentive of saving souls from Hell bolstered the support from the clergy and their followers.

For many centuries, the two intolerant religions, Catholicism and Islam, coexisted, but starting in 1095, after Catholicism spread into Non-Spanish Europe and Islam had taken over Spain and Israel, the European nations decided it was their duty to take back Israel by killing Muslims. These wars were called The Crusades and they lasted through the thirteenth century.

By 1492, the Spanish had eradicated Islam from Spain and their religious fervor helped propel them to ultimately spread Christianity into the New World. At that point almost all of Europe was headed by a Catholic monarch. The Spanish Catholic monarchy wanted to expand their holdings, and religion gave them their justification for horrendous acts such as the cutting off of hands of Indians who did not collect their quota of gold for Columbus. Although religion did not justify that act specifically, it gave the Spanish mission into the New World a veil of righteousness to their pursuit of gold.

Meanwhile dissent against Catholicism was hatching in Christian humanism. The most prominent representative of Christian humanism was Desiderious Erasmus (1466-1536). Erasmus wrote that Christianity should be about forgiveness and brotherly love, not the rituals and corruption of the Catholic Church. It has been said that “Erasmus laid the egg that Luther hatched.” (Hunt p. 428).

In 1518 A.D., Martin Luther published his “95 Theses” which expressed his protestation of the corruption that engulfed the Catholic Church’s policies. The Catholic Church excommunicated him so he started Lutheranism. Luther demonstrated, with the help of the printing press, that it was possible to disagree with the Catholic Church and live to tell about it. Luther “opened a can of worms” that resulted in a chain of events that ultimately helped lead to separation of church and state. Once it was discovered that people did not need popes, it was only another small step to conclude that people did not need kings either.

In addition to Luther, several others took the opportunity to disagree with the Catholics. Henry VIII started the Church of England (Anglican) in 1534, Calvin started Calvinism or Puritanism in 1536, and Anabaptists took over the German City of Munster in 1534. While these new denominations of Christianity may have improved on the Catholic doctrine by freeing people from the sometimes whimsical tyranny of dictators, they were no less tolerant than the Catholic Church. Violence soon erupted after Luther’s 1518 “95 Theses” was published. The Peasants’ War of 1525 started it off. Then, wars erupted between the Catholics and protestant nations and lasted for 88 years (1562-1648).  First, there were the French Wars of Religion (1562-1598), in which the Catholics tried to extinguish the “heresy” of Calvinism by fighting the French Huguenot Calvinists. (Hunt, p. 452)

Then, the Thirty Years’ War of 1618-1648 erupted. In this war, the Lutherans and the Calvinists each fought the Catholics.  Each European nation established its own denomination and persecuted those who disagreed. The Latin countries of Spain, France and Italy were purely Catholic while England was Anglican. The French Calvinist Huguenots ended up as refugees at Geneva Switzerland. Also, the area including Germany and Austria was considered to be the Holy Roman Empire, having been dislocated from Rome.

England had its share of religious wars during this period too. The series of two English Civil Wars in the 1640’s pit the Puritans, who advocated for Parliamentary rule, against the King, who represented the Church of England. For a while, England was ruled by a Puritan, Cromwell. In 1689, after the Glorious Revolution of 1688, the English Parliament passed the Bill of Rights, which established Parliament’s superiority over the King of England. The bill also protected the rights of English citizens. England was therefore the first European nation to demote the king. The Glorious Revolution was a religious war designed to prevent Catholicism from retaking England. England’s two house parliament as well as their rebellion against monarchy served as a model for the future secular government of the United States.

People Became Fed Up With the Religious Wars: The Enlightenment Was Born

            Simultaneous with the Protestant reformation, the renaissance (14th to 17th centuries) was incubating the eggs of the Enlightenment of 1650–1800.The renaissance was all about men reading the classic Greek and Latin books, which allowed the rediscovery of the Greek scientific accomplishments that were destroyed by Catholic censure of heresy.

The end of the wars of religion in 1650 ushered in the age of Enlightenment, which was a time of developing ways of governing without mixing government and religion. Men of the Enlightenment advocated for science and reason rather than religion and superstition. The Enlightenment was started by philosophers BaruchSpinoza (1632–1677), JohnLocke (1632–1704), PierreBayle (1647–1706), mathematician IsaacNewton (1643–1727) and historian Voltaire (1694–1778). Reason began to gain ground on superstition and dogma. Newton’s discovery of natural laws of the universe helped man realize that a god was not necessary to explain the universe. The Age of Enlightenment reflected a disdain for the pointless wars of religion.

Among the authors of the Enlightenment was John Locke, who was considered to be the father of liberalism. Locke recognized the fruitlessness and divisiveness of establishing righteous dogma. He formulated the idea of religious tolerance, an idea which materialized first in the Netherlands and then in the 13 Colonies. Locke also developed Thomas Hobbes term, “social contract,” which specified that government could only rule until the people no longer wanted it and government had no business in determining an individual’s decisions of conscience. In addition Locke originated the idea of “the pursuit of life, liberty, or possessions,” which eventually became the “life, liberty, and the pursuit of happiness” of the Declaration of Independence.

Enlightenment ideas like “social contract” helped free England from monarchy and establish Parliament as the voice of a group of people in England. Also, Calvinist/Puritan beliefs that all people were ministers, since all people had access to the bible, helped free people from religious authorities like popes or kings. It was this doctrine that helped Puritans of the Massachusetts colony to establish the democracy, republicanism, and self-government that presaged the future government of the United States.

The Founding Fathers Used the Ideas of the Enlightenment

The founding fathers of the United States were the first to use the ideas of the Enlightenment to start a new nation based on government by the people, liberty, human rights, and religious freedom. The founding fathers wrote the founding documents based on power that came from the people, not from God. Christianity, however was a dominant force in the United States and was constantly trying to exert its influence, thereby setting up the tension between religious freedom and separation of church and state. The founding documents of America were an an attempt at relieving and managing these tensions.

The Declaration of Independence (1776)

In the Declaration of Independence of 1776, Jefferson wrote, “We hold these truths to be self-evident endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” These are not ideas from the bible. The term “inalienable rights” originated from Hugo Grotius (1583-1645) who “systematized the notion of ‘natural law’ — laws of nature that give legitimacy to government and stand above the actions of any particular religious group.” Grotius argued that natural law stood beyond the reach of either secular or divine authority; it would be valid even if God did not exist (though Grotius himself believed in God). By this account, natural law — not scripture, religious authority, or tradition — should govern politics.” (Hunt, p. 474) Having such natural rights therefore precludes any one from violating said rights, based on scripture, religion, or tradition. Jefferson and his fellow founding fathers were well aware of the recent century’s natural rights violations in the form of religious wars that plagued his European ancestors and the persecution that Catholic and Anglican monarchs had imposed on their subjects. To quote James Madison, “The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries.”   -1803 letter objecting use of government land for churches. Thomas Paine wrote “The Age of Reason” in which he bemoaned the divisiveness of religion and decried the need for reason and rationality rather than the oppressive dogma of religion, especially Christianity.

In the Colonies, many of the immigrants had escaped to the New World because of natural rights violation of religious persecution. For example, the Puritans fled persecution of England’s established church, the Church of England. Established churches are official churches that are supported by tax dollars. In spite of the colonists’ bad experiences with established churches, many of the colonies had “established” a religion as their colonial religion. Most of the colonies established the Church of England/Episcopalian as their established religion but Massachusetts and Connecticut established the Congregational (Puritan) church as their official denomination. However, there were some exceptions. Rhode Island was founded by Roger Williams, who attempted to find a home for those persecuted by the Puritan Massachusetts Bay Colony. Rhode Island was tolerant of other religions and so was William Penn’s Quaker based Pennsylvania

Although some colonies were tolerant, the U.S. was, in many ways, the product of the harms of mixing church and state. Many immigrants fled European mixture of government and religion. Even in the Colonies, intolerance continued, as evidenced by the Salem Witch Trials, in which twenty people were executed because judges deemed them to be witches.

Witch-hunting was started by Pope Innocent VIII via his 1484 book, Malleus Maleficarum. Witch-hunting accelerated after the Reformation, though, as governments used Pope Innocent’s method to try and execute between 50,000 and 80,000 people, 80% of which were women. http://law2.umkc.edu/faculty/projects/ftrials/salem/witchhistory.html

When our founding fathers tried to piece together a nation out of a diverse stew of mixed religions and national origins, one fact of history must have been fresh on their minds. Monarchies that operated under the authority of the church and God lead to oppression, persecution of dissenters, and war with other nations. Having eliminated the necessity of a monarchy by making the bible the ultimate authority instead of a king, some states had established churches. The colonies did not want a king telling them what religion to establish, but they did not seem to mind establishing religion based on the will of the majority.

The Articles of Confederation (1781)

            Under the Articles of Confederation of 1781, the states all had their own policies on religion and did not want any outsider, like a monarchy or federal government, to interfere with their policies on religion. The first paragraph of the Articles state:

“The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.”

As shown above, The Articles of Confederation did not establish a new nation; it established a confederation based on a commitment to friendship and protection from monarchies. It does not mention God, except to end it with “The Year of Our Lord” which was a traditional way to state dates at that time. The Articles only mention of religion was to assert their agreement to fight against anyone who assaults them based on religion.

Once the Articles of Confederation failed and the new Constitution was submitted to the states for approval, the center of debate was states’ rights and worries about the return of monarchism. They cried for freedom of religion. The states with established religions wanted to keep their established religions and did not want a federal government telling them how to run government. When the Constitution was presented to the states for ratification, some states complained because it did not mention God. However, in light of the failure of the Articles, the states evidently thought that giving up their established religions was a price worth paying in order to solve the problems of a weak confederation of states.

The Constitution (1787): No Religious Test

            In addition to the Establishment Clause, the No Religious Test Clause of the United States Constitution of 1787 is found in Article VI, paragraph 3, and states that:

“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.”

Thus, the government cannot require an elected official to have any particular religious beliefs. This clause was designed to prevent the religious test acts that England held and still follows to this day. The Supreme Court has interpreted the U.S. No Religious Test Clause to mean that no federal employee can be subject to a religious test either. In spite of this clause, no U.S. President has claimed to be an atheist, although Thomas Jefferson, Abraham Lincoln, Howard Taft, and Barack Obama have been accused of being atheist. All four of these presidents accused of being atheist defended against such claims. Thus, all though there is no explicit religious test in the U.S., the electorate does require a president to believe in God. There have been deists such as Thomas Jefferson and Unitarians like William Howard Taft who do not believe in the divinity of Christ, but those presidents whose religious beliefs were questioned, often made remarks that seemed evasive so as to not admit nonbelief. For example, when Andrew Johnson was accused of being an infidel, he replied, “As for my religion, it is the doctrine of the Bible, as taught and practiced by Jesus Christ.” This could either mean he was Christian or, like Thomas Jefferson, followed Christ’s lessons about love and forgiveness, but not believe in miracles. Thomas Jefferson once cut out all of the miracles out of the Gospel and made what came to be known as Jeffersonian Bible. http://en.wikipedia.org/wiki/Religious_affiliations_of_Presidents_of_the_United_States

The Bill of Rights (1789): The Establishment Clause

            Christianity, however, was a dominant force in the United States and was constantly trying to exert its influence, thereby setting up the tension between religious freedom and church/state separation. The Supreme Court liberally interpreted the Establishment clause to help manage the constant barrage of religious forces impinging on public policy. When our founding fathers wrote the Establishment Clause of the First Amendment prohibiting “any laws respecting the establishment of religion,” they were specifically referring to making any particular denomination as the official church and thereby authorizing the use of tax dollars for the support of the church. Moreover, the Establishment clause only addressed acts of the legislature without constraining the executive branch, the judicial branch, or state/local governments. The Supreme Court later used historical context to interpret the Establishment Clause as establishing a “wall of separation between church and state.”

The separation of church and state facilitates freedom of religion, rather than suppressing it. After all, America is all about liberty. As evidence of the Establishment Clause having the purpose of enabling religious freedom, Thomas Jefferson’s Virginia Statute for Religious Freedom was designed to promote religious freedom, but its content included the right not to be required to attend a particular church or pay for church with tax money, which were both aspects of an “established church.” Thus, while it does not appear that The Establishment Clause protects individual rights, it actually does: It protects against requiring attending a particular church and against being required to pay tax to support a particular church.

To discern the true intent of James Madison and his fellow constitution framers, one must look to the basic motivations of the American people: The people wanted freedom from tyranny. The colonists hated big government and big religion because either of them could infringe on their liberties. They wanted to avoid, at all costs, the control from others who do not represent their interests. Therefore, the primary goal was not avoidance of established churches, but, rather, the perpetuation of freedom of religion. By outlawing established churches, no one would be forced to financially support a church they did not accept. By outlawing established churches, they demonstrated that they did not want any church to grow powerful enough to threaten liberty.

The Treaty of Tripoli (1796)

            Thus, the question I ask about each of the following Supreme Court decisions regarding church/state separation is whether freedom of religion is promoted or suppressed, not just whether the wall of separation was maintained, since separating government and religion itself can promote freedom of religion. The Establishment Clause does not appear to mean that there should be a wall of separation between church and state.  A strict interpretation of this clause would allow prayers by principals of schools and the 10 commandments displayed by municipalities. However, the Supreme Court took the historical context into consideration, including the 1796 Treaty of Tripoli, ratified by both houses of Congress. In it, the Treaty said,

“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, Mussulmen (Muslims)”

Jefferson’s Letter to Danbury Baptists (1801)

            So far we have not read the words “separation of church and state” in any government document. The term originated from Roger Williams’s 1644 quote, “[A] hedge or wall of separation between the garden of the church and the wilderness of the world.” Thomas Jefferson later wrote in an 1801 letter to Danbury Baptist Church:

“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.”

Supreme Court Decisions

Reynolds v. United States (1878)

The U.S. Supreme Court did repeatedly used Jefferson’s “wall of separation” phrase in their interpretation of the Constitution even though it was not from an official government document. Nor was “wall of separation” approved by the legislature like the Treaty of Tripoli in which Jefferson said the U.S. was not a Christian nation. The Supreme Court first used “the wall of separation” to justify a ruling in a Mormon polygamy case, Reynolds vs. United States of 1878.  The court wrote that Jefferson’s phrase, separation of church and state “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.”  In this case, a Mormon man asserted that he was innocent because his religion required him to be a polygamist. From the freedom of religion viewpoint, the Supreme Court had to rule against the Mormons, or else they would be favoring Mormonism over any other religion that claimed theocratic justification for crime. For example, if this Mormon were acquitted, then a religion advocating child human sacrifice would have to be allowed.  http://www.federalistblog.us/2010/11/_defending_jeffersons_wall_of_separation_metaphor/

 

Everson v. Board of Education (1947)

In Everson versus BoardofEducation (1947), it was declared that the government could not pay for busing children to Catholic schools. Justice HugoBlack wrote: “In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

The 14th Amendment made the federal law apply to the states too. Taxpayer subsidization of Catholic schools would provide an advantage to the Catholic religion, thereby inhibiting freedom of religion.

McCollum v. Board of Education (1945) and Zorach v. Clausen (1952)

In McCollum v. Board of Education (1945), the Supreme Court ruled that schools cannot hold religious instruction in taxpayer owned buildings during school hours. There is a PBS documentary called “The Lord is not on Trial here,” which chronicles Mrs. McCollum’s famous lawsuit. Her son experienced significant persecution in school for his refusal to attend the religious classes and more ridicule when his mother brought the issue to court. McCollum did not resolve the issue of religious classes in public schools. According to the Supreme Court ruling of Zorach v. Clausen (1952), students can be released, with parental permission during school hours to religious studies classes if transportation was provided by the church. Those who chose not to go to the religious studies stay on campus in the classrooms. The dissenting opinions of the judges expressed that the ruling did not adequately distinguish the McCollum case from the Zorach case. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0306_ZS.html

Engel v. Vitale (1962)

In Engel v. Vitale (1962), the Supreme Court ruled that school officials could not compose prayers and require their recitation in schools. The key factor here was the extent of the governmental officials’ involvement. It did not matter that the prayer did not mention Jesus or that students could excuse themselves from the prayer; what was unconstitutional was that officials were furthering their religious beliefs, which gave their denomination an advantage vs. other denominations, on taxpayer dollar. If they had invited Muslims and others into the school to pray, then the school would have had a stronger case than they did.

This ruling did not make student initiated prayer illegal. Again, the judges used “separation of church and state.” as justification. Furthermore, the court wrote, “coming as this does from an acknowledged leader of the advocates of the measure, it (separation of church and state) may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.”

Abington School District vs. Schempp (1963)

In Abington School District vs. Schempp in 1963, the Supreme Court ruled it

unconstitutional for schools to hold bible readings in public schools, even if a student could excuse him/herself from the readings, since avoiding the readings could adversely affect one’s relationships with the teachers and students. In this case, Justice Clark affirmed that government should remain neutral on religion when he wrote:

“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.'” Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”

Thus, the Supreme Court here states that no laws can be made that gives any special advantages to religious people over non-religious. In other words, laws cannot be made that discriminate against atheists. This means that any government agency that displays a nativity scene must allow atheists to set up a display also; otherwise, the Christians are given the advantage over non-theists. This reinforces the idea of freedom of religion rather than suppress it. When government remains neutral on religion other religions are not given advantages that could suppress other belief systems.

Epperson v. Arkansas (1968)

In Epperson v. Arkansas of 1968 the Supreme Court struck down an Arkansas law that prohibited the teaching of evolution in schools. The court ruled that the sole reason Arkansas wanted to ban evolution was that it contradicted their Adam and Eve account of creation in the book of Genesis, which is a book followed by a “specific religious group.” This gives the impression that Arkansas favors a particular church.

Recently, creationists reintroduced their doctrine into schools under the guise of “Intelligent Design.” In 2005, the lower federal courts ruled in Kitzmiller v. Dover Area School District that requiring a school to teach intelligent design in science classes was unconstitutional. The court ruled that the only explanation for intelligent design was religion. Thus, teaching intelligent design in science class violates the rights of parents to have their children free from religious proselytizing in public schools. http://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_School_District

The Supreme Court Begins Viewing the Wall of Separation as “Blurred”

Lemon vs. Kurtzman (1971) and the Lemon Test

The Supreme Court expressed its first major reservation about the complete separation of government and religion in 1971’s Lemon vs. Kurtzman, in which the court ruled that Pennsylvania cannot get governmental reimbursement for salaries of teachers of secular subjects in religious schools. The court wrote,

“Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”

This contrasts with the aforementioned 1878 and 1962 Supreme Court rulings in which the “wall of separation is “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment,” in Reynolds v. United States described above. To “un-blur the barrier,” previously referred to as a distinct ‘wall,’ the justices of the Lemon case authored the Lemon test:

Three … tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=us&vol=472&invol=38

This three point test helps protect freedom of religion in the following ways. The disagreements among Christian denominations alone resulted in decades of war. There are over 30,000 Christian denominations and none of them agree on all doctrinal points. With all this disagreement, any statute that is religious in nature would be bound to violate the religious freedom of at least one of the 30,000+ Christian denominations, let alone the non-Christian religions.

 “Second, its principal or primary effect must be one that neither advances nor inhibits religion;” A law that advances religion may not advance all religions. For example, taxpayer subsidization of Catholic school busing advances religion, but it does not advance all religions equally.

 Finally, the statute must not foster an excessive government entanglement with religion.” In the case of Lemon versus Kurtzman, the Catholic Church was getting more than its share of government benefits, thus causing an entanglement that appeared like governmental favoritism of the Catholic Church.

Marsh vs. Chambers (1983)

Not all rulings favored separation of church and state. In 1983, the Supreme Court ruled in Marsh vs. Chambers that government officials can lead Christian prayers in government meetings because it is a long held tradition, as long as they do not use the prayer time to proselytize or disparage other faiths. The justices did not explicitly use the Lemon Test to determine constitutionality and gave no reason for not doing so. With regard to the first test, it could be argued, albeit weakly, that the invocation serves a “secular purpose” of setting the tone of reverence in the legislative session.

Relating to the second Lemon Test, the majority opinion stated: “To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.” Thus, the Court made an indirect comment on the applicability of the second Lemon Test about not “advancing religion” when it said it does not “step toward establishment.”  It does not advance religion any further than it was in 1789 when prayer was held in congress ; it keeps the status quo. Regarding the third “excessive entanglement” test, it could be argued that there was not “excessive entanglement” since there the first Congress that passed the Establishment Clause also held invocation.

Edwards vs. Aguillard (1987)

            In Edwards vs. Aguillard of 1987, the Supreme Court used the Lemon Test again to rule that teaching creationism in public schools was unconstitutional.

“1. The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose. Pp. 482 U. S. 585-594.

(a) The Act does not further its stated secular purpose of ‘protecting academic freedom.’

(b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind.” http://supreme.justia.com/cases/federal/us/482/578/case.html

When creationists changed the name of creationism to intelligent design the Court deemed that unconstitutional too, in Kitzmiller vs. Dover Area School District in 2005. The court ruled that teaching creationism under any name was promoting a particular religious view, not science. These two cases put an end to the legal controversy started by the 1925 Scopes trial, in which a teacher was tried for teaching evolution in a public school. The teacher was convicted, but released, based on a technicality.

County of Allegheny vs. ACLU (1989)

In the County of Allegheny vs. ACLU of 1989, The Supreme Court ruled that displaying a Christian nativity scene or a Jewish menorah at a government building violates the Establishment Clause because their display’s primary purpose was to advance particular religions, thus failing the second Lemon test item (“second, its principal or primary effect must be one that neither advances nor inhibits religion;”). This case coined the term, “endorsement test,” in which government activity implies government preference of one or more religions over others.

Lee vs. Weisman (1992)

            In Lee vs. Weisman of 1992, the Court decided it unconstitutional to hold public prayers at graduations, even though graduation ceremonies are voluntary, due to the “indirect coercion” that results from setting up religious obstacles that would prevent a student from attending a prized ceremony like graduation. This case established the “coercion test,” states that religious practices such as prayer may not be carried out at graduation ceremonies if it obliges the objectors to participate, if non-participation would attract undue attention on the objector.

Santé Fe Independent School District v. Doe (2000)

            In Santé Fe Independent School District v. Doe (2000), the Supreme Court ruled that students cannot lead prayers at school events such as graduations and football games. Although students can form religious clubs and pray on campus, they may not use school resources to publicize their religious activity because it uses taxpayer dollars for advancing a particular religion. Such activity gives the appearance of school support for Christianity.

 

Using the Word God in Government

In 1945-1991, the United States became involved in the Cold War against the Soviet Union. The Soviets were atheist and one way the U.S. countered that atheism was to display their religiousness. In 1954 “Under God” was added to the Pledge of Allegiance and in 1956, “In God we trust” was declared to be the nation’s motto and it was added to the paper currency in 1957. Starting with the 1968 Epperson case, the Supreme Courts view seem to change from one advocating an absolute separation of church and state to one of not supporting a specific religion, thus allowing the display of the word God on our paper currency (In God we trust” has been on coins since 1864).

A medical doctor turned lawyer named Michael Newdow brought the issue of separation of church and state to court several times, but none of the cases actually made it to the Supreme Court.  In 2004, on behalf of his daughter, he sued to remove “under God” from the pledge of allegiance, but he lost the case because he lacked standing, since he was not his daughter’s legal guardian. The Supreme Court evaded the decision as to whether “Under God” advances religion or not.

In 2007, he sued again to remove “under God” from the pledge and to remove “In God we trust” from the currency, but the Ninth District Federal Court dismissed the case based on a previous lower court ruling, Aronnow vs. United States, in which it was ruled that the plaintiff had no standing as a tax payer. Even though the plaintiff had no standing, the court wrote,

“It is quite obvious that the national motto and the slogan on coinage and currency ‘In God We Trust’ have nothing whatsoever to do with the establishmentofreligion. Its use is of patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.” This court also avoided a decision based on standing and did not put it to the Lemon Test. Thus, it appears that God can be mixed with government, but not in school and not with a specific religion, like Christianity, to the exclusion of other religions.

The United States Supreme Court’s interpretation of the Establishment Clause has thus evolved from a strict interpretation of Thomas Jefferson’s “wall of separation” as “an authoritative declaration of the scope and effect of the [First] Amendment,” to a position today that more accepting of a ceremonial religious tradition in government, but intolerant of Christianity being taught in our schools and governmental endorsement of specific religions such as Christianity.  The American experiment in secularism has been the product of the tension between freedom of speech and freedom of religion. As the dominant religion of our nation, Christians have striven, without much resistance, to speak freely and they have the right to do so, but the question has always been about the degree to which they can use government to facilitate communication of their message. Secularists support theists’ freedom of speech and religion, but they do not support government helping them advance their religion to the detriment of others. That is what the Establishment Clause was designed to prevent. Both of these forces have one thing in common and that is the desire for liberty. As long as our common belief in the freedom to believe and think is preserved, then we can move toward a mutually acceptable solution and the spirit of America will prosper.

Bibliography

The Brief  American Pageant, Volume 1, Kennedy

United States History, Independence to 1914, Holt, Rinehart and Winston (2006)

The Making of the West Voume 1 (2009), Lynn Hunt

 

 


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