Separation of Church and State – In the Constitution

Separation of Church and State – In the Constitution
An honored principle of American law is the “separation of church and state.” Americans differ sharply as to what the country’s founding fathers intended when this principle was incorporated into American law and what the principle should mean in practice today. These disputes stem from differing views about fundamental truth and the importance of belief.

The words “separation of church and state” are not expressly in the U.S. Constitution. Instead, there are just three references to the relationship between religion and government in the Constitution. The first, in Article VI, section 3, says that no religious test shall ever be required as a qualification to hold public office. The second two constitutional references to religion are found in the First Amendment. The first, known as the Establishment Clause, provides that the government shall make no law respecting the establishment of religion. The second, known as the Free Exercise Clause, provides that the government shall make no law prohibiting the free exercise of religion.
Separation of Church and State – An Interpretation of the First Amendment
The well-known phrase, “wall of separation between church and state,” is actually a reference to a phrase used by President Thomas Jefferson to describe the function of the First Amendment in a letter in 1802. The phrase did not become part of U.S. jurisprudence until more than 75 years later when the U.S. Supreme Court stated that it was an “almost” authoritative explanation of the First Amendment (but then nevertheless interfered with a Mormon’s free exercise of his religion since it included polygamy). Since 1947, the courts have frequently used the phrase in deciding First Amendment cases.

At minimum, the separation of church and state means that the U.S. is not a theocracy, as is the case in some Middle Eastern countries. Americans do not believe that the country’s leader rules by divine right or has divine powers. It also means that the church and the government are separate institutions and neither directs the internal affairs of the other. The government is not involved in choosing church leaders and these leaders do not serve in government in their role as church leaders (although they may be elected or appointed to government positions in their capacity as ordinary citizens), as is true in England. In addition, in 1947 with the case of Everson v. Board of Education, the U.S. Supreme Court began to hold that the separation of church and state means that there should be virtually no contact between religious ideas and government activity.
Separation of Church and State – The Controversy Today
While the Supreme Court’s current position on the separation of church and state protects those of minority faiths or no faith, it often leaves those of majority faiths feeling that their free exercise of religion is being infringed. It is also deeply troubling to those who believe that faith is necessary, or at least conducive, to moral and lawful living. The Court’s position has also become increasingly controversial as the role of government has expanded through the years. Because the government is involved in many aspects of community life today, from maintaining the public school system to administering many social benefits, preserving a strict wall between state and any religious idea pushes religion to the margins of public life. Many Americans believe this is a result the Country’s founding fathers never intended.
Separation of Church and State – Differing Interpretations
There are two main schools of thought as to how the courts should interpret the minimal references to religion in the Constitution and applythem today.

• Original understanding or intent. Some Americans believe the courts should make every attempt to discern what the original drafters of the Constitution and First Amendment intended at the time of drafting and apply this intent to today’s circumstances. They argue that this is the law of the land enacted by the people through legal procedure and can be altered only by Constitutional amendment. This view tends to favor a greater level of government accommodation toward religion since it is undisputed that government at the time the Constitution and First Amendment were adopted both recognized and respected religious belief and made many allowances for the religious nature of Americans, including public prayer and Bible reading.
• Moral understanding or intent. Others argue that the Constitution reflects certain principles of general morality which courts must translate as best as possible into current reality, adapting as necessary.

Separation of Church and State – What Is the Goal?
Americans also differ as to what the goal of the First Amendment really is. Is it to ensure complete noninvolvement of the state in church affairs and vice versa? Is it to ensure neutrality of the government toward those of various religious beliefs or no belief at all, thus ensuring equal rights for all? Or is the primary goal of the First Amendment to secure religious liberty, ensuring that all Americans have free choice in what they believe and the freedom to express or not express those beliefs?

Separation of Church and State -- The Cases
The following principles have emerged from the cases in which the Court has hashed out the parameters of the separation between church and state for past 60 years:

• The government must remain neutral, neither favoring or opposing religion or non-religion. For example, the government must be content-neutral when issuing permits for groups to use public property for meetings, neither favoring non-religious groups over religious groups nor favoring one denomination over another. Public schools must be neutral when allowing extracurricular groups to use the school property for meetings and may not favor non-religious groups over religious groups or vice versa.
• The government may not sponsor, endorse or appear to sponsor or endorse religion. For example, the public school system cannot write or require the recitation of prayers. Religious messages and symbols may only be displayed on public property where it is clear that they are not a government endorsement of a particular religion because they have a secular purpose or are clearly private speech by individuals or non-government groups.
• The government may not encourage religious practice in a way that is coercive as could be the case where a religious observance is declared to be voluntary but circumstances make an individual’s non-participation undesirable or unlikely, such as prayer at a public school graduation ceremony.
• The government may not interfere with a person’s religious ideas, but it may interfere with his actions. For example, the government may prohibit drug use although an individual maintains drug use is necessary to his religious practice.
• The government should attempt to accommodate religious belief, such as releasing children from public school for off-campus religious instruction, but is not required to change widespread government procedure which applies neutrally to the general public to accommodate individual religious belief. For example, the Court held that the government need not change the Social Security system to accommodate an individual’s religious objection to being assigned a Social Security number.
• The government does not violate the Constitution when it enacts broadly applicable benefit programs for a valid secular purpose although religious groups may ultimately benefit from the program. For example, the Court has upheld school voucher programs where enacted to provide educational assistance in a failing public school system although many parents chose to use the vouchers to send their children to religious schools.

Separation of Church and State – The Common Misunderstanding
Today many Americans misunderstand the words “separation of church and state,” assuming that the law requires that public life must have nothing whatsoever to do with religion. They mistakenly believe that they should not discuss their own religious beliefs in public forums or even acknowledge their own religious traditions or heritage. This is an overreaction as well as a misinterpretation of the law for two reasons.

• The concept of “separation of church and state” applies to the actions of the government only. It does not apply to private groups or individuals. Individuals and non-government groups are free to practice their religion, have religious discussions and display religious symbols at any time, even when on public property. In fact, these are constitutionally protected rights. For example, school children may openly participate in prayer and religious study groups during non-instructional time in the public schools. They may reference their personal beliefs in school assignments. Citizens may pray on the courthouse steps or display Bible verses on placards.
• The government is required to remain neutral toward religion, nothostile toward religion. The Supreme Court has emphatically stated that the government, including the public school system, should not “show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.” In addition, the government must remain neutral as between religions. Government officials, including teachers, must be careful to avoid violating the law by denying religion the same respect accorded other philosophical viewpoints or private activities or allowing one religion preference over another, for example, allowing Jewish symbols to be displayed while denying Christians and Muslims the right to display objects relating to their faith.