Separation of Church and State

Author:Jesse H. Choper

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The first provision of the BILL OF RIGHTS?known as the establishment clause?states that "Congress shall make no law respecting an ESTABLISHMENT OF RELIGION. ?" This constitutional mandate seeks to assure the separation of church and state in a nation characterized by religious pluralism.

Justice WILEY B. RUTLEDGE observed in EVERSON V. BOARD OF EDUCATION (1947) that "no provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the FIRST AMENDMENT." Justice HUGO L. BLACK recounted in Everson that in the old world, "with the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Baptists, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews." And, he added, "these practices of the old world were transplanted to and began to thrive in the soil of the new America." For example, in Massachusetts, Quakers, Baptists, and other religious minorities suffered harshly and were taxed for the established Congregational Church. In 1776, the Maryland "Declaration of Rights" stated that "only persons professing the Christian religion" were entitled to religious freedom, and not until 1826 were Jews permitted to hold public office. The South Carolina Constitution of 1778 stated that "the Christian Protestant religion shall be deemed ? the established religion of this state."

The specific historical record, rather than disclosing a coherent "intent of the Framers," suggests that those who influenced the framing of the First Amendment were animated by several distinct and sometimes conflicting goals. Thus, THOMAS JEFFERSON believed that the integrity of government could be preserved only by erecting "a wall of separation" between church and state. A sharp division of authority was essential, in his view, to insulate the democratic process from ecclesiastical depradations and excursions. JAMES MADISON shared this view, but also perceived church-state separation as benefiting religious institutions. Even more strongly, ROGER WILLIAMS, one of the earliest colonial proponents of religious freedom, posited an evangelical theory of separation, believing it vital to protect the sanctity of the church's "garden" from the "wilderness" of the state. Finally, there is evidence that one purpose of the establishment clause was to protect the existing state-established churches from the newly ordained national government. (Indeed, although disestablishment was then well under way, the epoch of state-sponsored churches did not close until 1833 when Massachusetts separated church and state.)

Even if the Framers' intent were unanimous and unambiguous, it still could not provide ready answers for many contemporary problems. First, a number of present-day church-state issues were not foreseen by the founders. For example, public education was virtually unknown in the eighteenth century; the Framers could have no position on the matter of RELIGION IN PUBLIC SCHOOLS?one of the most frequently adjudicated modern establishment clause questions. Second, implementing the Framers' precise thinking, even if discernible, might jeopardize values now considered secured by the establishment clause. As Justice WILLIAM J. BRENNAN speculated in ABINGTON TOWNSHIP SCHOOL DISTRICT V. SCHEMPP (1963), perhaps because the nation has become more religiously heterogeneous, "practices which may have been objectionable to no one

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in the time of Jefferson and Madison may today be highly offensive to ? the deeply devout and the non-believers alike."

The varied ideologies that prompted the founders do, however, disclose a dominant theme: according constitutional status to RELIGIOUS LIBERTY and the integrity of individual conscience. Moreover, one of the main practices seen by many Framers as anathema to religious freedom was forcing the people to support religion through compulsory taxation. Jefferson viewed this as "sinful and tyrannical," and Madison found it abhorrent to compel "a citizen to contribute three pence only of his property" to a religious cause. The founders recognized that although government subsidy of religion may not directly influence people's beliefs, it coerces citizens either to contribute to their own religions or, worse, to support sectarian doctrines antithetical to their convictions.

By its terms, the ESTABLISHMENT CLAUSE applies only to the federal government (" Congress shall make no law.?"), but in Everson (1947) the Court ruled that the FOURTEENTH AMENDMENT made the clause applicable to the states. Before then, only two Supreme Court decisions had produced any significant consideration of the establishment clause. Bradfield v. Roberts (1899) had upheld federal appropriations to a Roman Catholic hospital for care of indigent patients. Quick Bear v. Leupp (1908) had sustained federal disbursement of funds, held in trust for the Sioux Indians, to Roman Catholic schools designated by the Sioux for payment of tuition. Neither opinion, however, attempted any comprehensive definition of the nonestablishment precept, an effort first undertaken in Everson where the Court stated:

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 nonattendance. 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 form 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 organization 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."

Since then, there has been little agreement among the Justices, lower courts, and scholars as to what constitutes impermissible "aid" to, or "support" of, religion.

Beginning in the early 1960s and culminating in LEMON V. KURTZMAN (1971), the Court developed a three-part test for reviewing establishment clause challenges: "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." The Lemon test, despite its consistent invocation by the Court, has not been a model of coherence. Indeed, in an unusually candid OBITER DICTUM in COMMITTEE FOR PUBLIC EDUCATION V. REGAN (1980) the Court conceded that its approach "sacrifices clarity and predictability for flexibility," a state of affairs that "promises to be the case until the continuing interaction between the courts and the states ? produces a single, more encompassing construction of the Establishment Clause." A better approach would read the establishment clause to forbid government action when its purpose is religious and it is likely to impair religious freedom by coercing, compromising, or influencing religious beliefs.

One of the nation's most politically divisive issues has been the proper place of religion in public schools. Decisions in the early 1960s, holding that prayer and Bible reading violate the establishment clause, precipitated serious efforts to reverse the Court by constitutional amendment. Later legislative proposals have sought to strip the federal courts of JURISDICTION over cases challenging voluntary school prayer.

The first cases concerning religion in public schools involved RELEASED TIME. In MCCOLLUM V. BOARD OF EDUCATION (1948) the Court invalidated an Illinois program of voluntary religious instruction in public school classrooms during school hours by privately employed teachers. Students whose parents signed "request cards" attended weekly classes in religion; others pursued secular studies elsewhere in the school during this period. The Court's opinion emphasized use of "the state's tax-supported public school buildings" and "the state's compulsory public school machinery." Four years later, in ZORACH V. CLAUSEN (1952), the Court upheld a New York City "off-premises" released time program. Released students attended classes at their respective religious centers; neither public funds nor public classrooms directly supported religion. In a much quoted and controversial passage, the Court observed: "We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary.? When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions."

Neither McCollum nor Zorach propounded any specific

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STANDARD OF REVIEW. A decade later, in ENGEL V. VITALE (1962), the Court invalidated a New York law providing for recitation of a state-composed prayer at the beginning of each public school day. Although the prayer was denominationally "neutral," and students could remain silent or leave the room, the Court declared that this "breaches the constitutional wall of separation between Church and State," because "it is no part of the business of government to compose official prayers."


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