The Constitutional Principle: Separation of Church and State
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Removed From The Legislative Province

Neal Blanchett is an attorney in private practice in Minneapolis. He earned his B.A. from St. John's University in Collegeville, Minnesota, and his J.D. cum laude from the University of Minnesota Law School. He served four years in the United States Marine Corps and three years in the Army National Guard.

by Neal Blanchett, Esq.

Published by permission of the author.


Some commentators believe that majority rule should prevail to allow government endorsement of religion. Government should be able to endorse religion, they reason, because government endorsed religion at the time the Constitution was written, and some endorsements of religion enjoy popular support even today. This rule is impossible to implement because the outcomes ultimately depend on who is deciding how much endorsement is too much. The Framers leave us no guidance on this issue (unless we allow only those practices in place at the time of the Constitution, which would surely exclude the endorsements in the Pledge of Allegiance, on money, and in the Star Spangled Banner, none of which existed at the time.)

A better rule is that set forth by the Supreme Court during the 1940's, 1950's and early 1960's (a time many conservative commentators describe as our national golden age). That rule is that matters of religion (or "matters of conscience" in the words of Justice Jackson) are outside the province of the legislature, and therefore outside the powers of the majority.

The doctrine that matters of religion are removed from the government's powers places the first amendment on equal footing with the rest of the Bill of Rights. The Bill of Rights is a litany of limits on government power. There is no more support in the Constitution for splitting the power over religion, so that government has some, than there is for splitting the power over unreasonable searches and seizures, so that the government may conduct unreasonable searches that the Framers would have authorized, or the unreasonable searches that are popular. The government has neither power. Majority opinion has no impact on the Bill of Rights limits on government power.

Once people learn to view the religion clauses properly, as limits to government power, the answers to most of the religion cases become easier to predict and to understand. Viewed incorrectly, the decisions are often mischaracterized as "bans" i.e. the courts have "banned" school prayer, "banned" graduation prayer, "banned" nativity displays, or "banned" the Pledge of Allegiance. The courts have done no such thing, and they lack the power to do such things, just as the other branches of government lack these powers. Children, parents, teachers and staff may pray in schools, at graduations, before and during games, and may recite the Pledge of Allegiance or any other creed at any time that it does not disrupt instruction. Religious groups must be allowed to meet on public property under the same rules as other groups. No teacher or principal or policeman can take the Koran from a child's hands or put a hand over their praying lips (unless the child is disrupting education).

The entire spectrum agrees on these crucial points, from the culturally activist "conservative" organizations American Center for Law and Justice and the Heritage Foundation to the (truly) ultra-conservative Libertarian Party to "liberal" (but truly conservative on this issue) ACLU, American Atheists, and the Freedom From Religion Foundation. The only thing the decisions have banned is the government's power to endorse, sponsor and incorporate religious exercises into public functions.

For this reason, the decisions never threaten the free exercise of religion. Any individual may take virtually any action necessary to honor their deeply-held beliefs - the line is drawn at criminal acts, health violations, and public nuisances, but otherwise extends to protect nearly any act in the known universe. The Free Exercise Clause demands this protection for religious practices; there is absolutely no danger that any group or individual can legally prevent individuals from worshipping as they so choose.

Explaining the difference between limits on the government's power and limits on the individual deserves some more time, because, in the context of the Pledge of Allegiance decision, nearly the entire U.S. Congress, the President, the media and much of the public confused these two concepts. Government, often through the courts, limits individual freedom through criminal laws and civil laws and codes. Virtually nothing limits the government except the federal and state Constitutions. The Constitutions are the government's contract with the people. Only through the Constitution does the government have any power at all to constrain individual freedom. Americans agree to give up the personal freedoms, as their elected representatives choose to limit those freedoms. In exchange for this collective compliance, the government agrees to certain limits on its power. No matter how many people may want the government to act outside those limits, it simply cannot. It is constituted without the legal power to do so. Government can no more endorse religion than it could have designated Co-Presidents Gore and Bush.

The fact that religious practices continue to creep stealthily back into public functions, and have not yet been challenged, does not make government actions inserting them legal. Our courts work only by deciding matters brought before them. Every American has faced situations in life where they could have sued, but didn't - someone failed to keep a promise, or a product didn't perform as a salesman stated. Every American knows millions of criminal acts go unpunished every day - from speeding to drug sales to rape and robbery. In the case of government religious endorsements and other popular but illegal acts, the right people have to find out and bring it to the courts. For criminal and civil wrongs, this is either the police or the person harmed. But there is no governmental office to investigate unconstitutional government acts. In the balancing act between individual rights and government powers, protecting individual rights is left solely to individuals and the private groups they form. So it may be years or decades before a practice is discovered by someone who is sufficiently harmed to challenge it. The more popular an illegal act is, the less likely any specific instance of it will result in prosecution. So it is that we have hundreds or thousands of unconstitutional government laws and policies. No one credibly argues that tradition somehow transforms these laws from illegal to legal, or that laws illegal when enacted somehow become legal through sheer passage of time.

Against this backdrop, the right decision in the Pledge case is easy to see. What is difficult for many people is to reach the correct understanding of the Constitutional principles. To most, the Constitution and the Pledge are part of the same background. It is difficult for them to grasp that one could possibly contradict the other. Yet those who study and understand the Constitution believe the decision is legally sound. Below I have set out some common attacks on the Pledge decision, and defenses of the government's right to sponsor at least some religious exercise, with a response to each from the correct Constitutional perspective.

  1. The Framers were Christians, and never meant for the Pledge to exclude "god".
  2. Evidence about the Framers is disputed to this day. Some claim they were all Christian, others claim there were deists and even atheists among them. Regardless of their religious persuasion, it is of course possible to deeply believe a religion and yet not wish to impose it on others (the Catholic Church recently has done this, declaring it no longer a goal to convert Jews). It is even easier to deeply believe religion and simultaneously deeply believe that no one else, including the government, should impose it on others. It is still easier to believe that the Framers agreed on certain principles of political theory to bind future governments as they drafted the founding documents, but did not uphold every one of those principles when faced with political reality. Read all the Framer's quotes - although they often allege that religion is a good thing people ought to support, they do not say that government ought to endorse any religious belief over any other belief.

    This argument is pure speculation and could be used to support almost any government endorsement of religion. If we accept it, there is no way to prevent complete erosion of the first amendment's religion clauses. Religion will be up to majority rule, and it will (or already has) become a politically divisive issue.

  3. Doesn't the majority rule?
  4. The majority never rules on the Bill of Rights. This is a fundamental, bedrock principle of America. The Bill of Rights protects all Americans from the government's actions adverse to that individual, whether those government actions are popular or not. The Framers recognized there is a thin line between majority rule and tyranny by the majority; the Constitution sets this line. Constitutional rights are by definition not subject to majority rule, and those who argue otherwise are both un-American and wrong. They need to learn to love this American principle or leave for another country where everything is up to the majority.

  5. It's too late to change it now.
  6. Tradition is no defense. If it were, slavery and segregation would still be with us. Women were without the vote for 130 years and have had it for only 80 years. Besides, we know that tradition didn't save the original, secular Pledge, drafted in 1892. It has been without the words "under god" longer than it has included them, but tradition didn't stop a religious Congress from changing it then, and it shouldn't stop a rational court from restoring it now.

  7. The "establishment of religion" of two words in the Pledge is so de minimis that it does not violate the Constitution.
  8. The 9th Circuit's losing judge specifically adopted this rationale in his dissent. In legal terms, this reasoning transposes a tort model onto an ultra vires claim. Tort law is concerned with the depth of harm. Ultra vires means "outside the powers of that body." If any unit of government acts outside its powers, individuals are always entitled to a court order preventing the action in the future. Depth of harm is irrelevant. Congress and the President specifically acted to endorse monotheistic religion. This is outside the government's powers. The government does not magically gain powers it never had before just because it could exercise them without harming anyone. It either has a particular power or it does not. The effect of the dissent's de minimis reasoning is to amend the Constitution to expand government powers, any time the new powers can be used with only minimal harm. There is no precedent for transforming an illegal ultra vires act into a legal one based on the depth of harm. There is no Constitutional clause entitling the government to assume additional powers "so long as it uses them only to produce no more than de minimis harm." In ultra vires claims, the plaintiff may not be entitled to damages, and may not even have standing to challenge the act unless harmed. But neither of those issues is at stake here. All parties, even the dissent, agree that this plaintiff has standing, and none awarded damages.

    The dissent's claim could also be read that the 1954 Congressional Act did so little to assist religion that it cannot be a Constitutional violation. The reaction to the ruling proves that this is wrong. Religious fanatics, including the President and members of Congress, believe that keeping "god" in the Pledge is an essential brick in our national structure. If it were true that it were "de minimis" why such a government and media frenzy?

  9. It's a picayune issue. We should stop wasting time on it and focus on the real problems in our nation, including real instances of religious discrimination.
  10. Adding "god" in the pledge happened through an act of Congress, supported almost unanimously and lobbied by special-interest groups with millions of members and supporters. It was signed into law and backed by President Eisenhower. The recent Pledge decision was denounced by 99 Senators and 416 Congressmen, who voted to spend your tax dollars to overturn it. Congress dropped important work on the federal budget, the economy, and national security to take action against the decision. It prompted the President to state that he strongly believes the opposite of our Constitution - he believes our government powers arise from god, while the Constitution states that government's powers arise from the consent of the governed. 48 state Attorneys General have formally opposed it. It created a media firestorm. It produced public denunciations of long-tenured federal judges from Senators, Congressmen, and the President, amazingly enough from both political parties. It has become a political club in the confirmation process for federal judges. It resulted in death threats against the plaintiff and media scrutiny of his eight-year-old daughter's beliefs. Millions of people tuned in for interviews of the plaintiff. Characterizing it as "picayune" denies reality.

  11. The numerous mentions of "god" in the Declaration of Independence, in court, at inaugurations, on money, in the Star-Spangled Banner, and so on can't be unconstitutional, can they?
  12. Each of these cases is different. The Declaration of Independence is a historic document. It exists as it is and cannot be changed. Similarly, the Star-Spangled Banner is what it is and cannot be changed. The Congress probably could act to adopt versions of both that omit references to a god, but adopting them as originally drafted is a separate question from adding to the Pledge. Mentions of god and use of the bible in court and ceremonies usually date back to tradition. They are often challenged and removed legislatively - many states now have an alternative oath in court, and typically office-holders have the ability to omit supernatural references from the oath of office. Adding "god" to money was a separate legislative act. Adding "god" to the Pledge was a distinct act in unique circumstances, which can be challenged on its facts without conclusively deciding any of these other unique issues. Those will have to await separate challenges. Put figuratively, thousands of other speeders on a highway are no defense for the one who gets caught.

  13. How can one person prevent our kids from reciting the Pledge, just because it hurts his feelings?
  14. This argument overstates the effect of the ruling in a false effort to discredit it. No one will prevent kids from reciting the Pledge with "god" in it, or any other creed, religious or not. The ruling only prevents the government from sponsoring recitations of the Pledge with "god" in it. Clearly government could lead and sponsor recitation of the Pledge without "god" in it, so long as students could opt out - the Supreme Court held this in 1943. I am not aware of a constitutional argument that could be used against the Pledge if it were restored to its original form. Every part of the political spectrum agrees that the government cannot prevent individual religious exercises - characterizing the decision as "banning" the Pledge is not only outside the mainstream, it's off the map. People who make this argument disagree with every interpretation of the school prayer cases, including those from the most conservative scholars and groups.

  15. But aren't we really one nation under god?
  16. The United States cannot be both "one nation" and "under god". If we are to be one nation, we must have a shared core belief. But those whose core belief is that we are "under god" don't have the same core belief as the rest of the nation. A core belief that we are "under god" divides our nation into believers and non-believers. If our national identity includes belief in a god, then those who do not believe do not share in that identity. Those who believe we are "under god" cannot be a part of the same nation as the rest of us, because they don't share the same core beliefs. They choose to separate themselves as non-Americans, or they prefer that America not be one nation. Belief in a god divides us into many nations; belief in the Constitution unites us. We can only be one nation if our core beliefs are those we actually share, not those of splinter groups with theocratic agendas.

  17. We need children to affirm belief in god to give them a moral foundation, and the government is empowered to promote morality.
  18. Even if this were true (which it is not) it contradicts the Constitution, which specifically provides that the one thing government cannot legislate is religion. The Constitution demands that if government is to promote morality, it must do so by non-religious means. In this respect the Constitution limits the means by which the government may promote a permissible end.

    Judging by the complaints of many cultural conservatives, adding god to the Pledge in 1954 started an American moral decline. The "Greatest Generation" that won World War II never recited "god" in the Pledge. We know that scandal and immorality affects the religious. Some studies show that moral indicators like divorce and crime are actually higher in more religious areas of our country. We also know that many people without religion, or without belief in god also display good moral behavior. We know that relying solely on religion to promote morality is the method theocracies like the Taliban use to enforce their version of morality.

    One wonders when religious conservatives who make this argument will begin dealing with reality. The reality is that the United States will never adopt a national religion, despite their stated belief and goal that it should. They have failed to win challenges in the courts, so now they attempt back-door strategies like this "end justifies the means" argument. One of our Framers core principles is that morality and civil society did not require adherence to any particular religious belief. Religious fanatics insistence that our nation will fail unless we turn our backs on this core belief and adopt a national religion is, at its core, anti-American. The Framers rejected it 200 years ago, but some people still don't understand it. This belief is especially pernicious not just because it's wrong, but because it threatens a bedrock American principle. Making this argument requires advancing a premise that America was founded on the wrong principles. The 9th Circuit court found that America was founded on the right principles, and upheld those principles despite popular attempts to overturn them. In a sense, what we are seeing is a struggle over whether the Constitution is valid or not. Religionist argue that where it logically leads to a conclusion counter to their religious beliefs, it must be ignored. They would rewrite the First Amendment to their liking. The 9th Circuit court refused to do that.

  19. No one has to recite the Pledge - doesn't that make it Constitutional?
  20. No. Many unconstitutional actions happen without the government forcing individuals to comply with any specific behavior. The important focus is on the government's rules, not enforcement or compliance. A government declaration that Christianity or Islam is the national religion is clearly unconstitutional, even if no one is forced to go to church or pray. The issue is whether the government is endorsing religion, not on whether individuals are following along. The Constitution prohibits government from endorsing any religious belief; government may not do so, even if no one follows along.

  21. The mention of "god" means whatever people want it to mean; it's nonsectarian and doesn't establish any religion.
  22. The history of the 1954 Act makes it clear that this is false. Congress and the President added "under god" for the express purpose of declaring that our national government and institutions adhered to a belief in a supernatural deity, and not just any deity, but the biblical deity of the Judeo-Christian bible. Individuals may interpret it in any way they want, but the important factor in analyzing Constitutional questions is the government's act. That act was for the explicit purpose of favoring religion over non-religion, and declaring a national belief in one particular god concept, at the exclusion of all others.

    Non-sectarianism is a false doctrine. It is impossible to define and has no place in Constitutional law - even if it mattered, the Constitution does not permit laws "effecting an establishment of non-sectarian religion." First, there is no legal definition. "Sectarian" means "the activities of the adherents of one faith as opposed to adherents of another." (Black's Law Dictionary). Therefore, anything that distinguishes any two faiths is sectarian. Since there is no universal faith, no religious belief is non-sectarian. Even the belief that there is a supernatural force or power is not universal (atheists, agnostics, and rationalists don't believe it), and is therefore not non-sectarian.

    Instead the word is used sometimes by the courts to mean something like "held by the most popular religions in the U.S." Under this concept, your religious freedom depends on who decides the list of popular religions. If your faith is included, then the government can endorse practices you believe in. If your faith is excluded, then the government can endorse practices that violate, contradict, or penalize your faith. Communist regimes used this tactic - faith in Marxism was favored, while other faiths were penalized.

    The term "non-sectarian could also define any tenet held by more than one faith. So, does something become non-sectarian when it is held by more than one faith? Who defines what is a "faith?" Are the teachings of Islam non-sectarian because Islam features Shiite and Sunni denominations? Is Judaism non-sectarian by virtue of including Orthodox and Reform branches? Is doctrine exclusive to Baptists non-sectarian if it is held by both Southern Baptists and other Baptists? This dangerous "non-sectarian" rule would produce a free-for-all in which any two or more religions could determine for themselves what is "non-sectarian" and proceed to impose those practices upon others. This seems to have happened in 1954, when the Knights of Columbus joined with other Christian groups to impose "under god" on the rest of America.

    Obviously the government cannot decide what is sectarian and what is not without engaging in theology. Some religions believe in Jesus Christ, some do not. Some believe the story of Abraham, some do not. Some believe in one supernatural deity, some believe in many, some believe in none. Which of these beliefs is "non-sectarian"? Belief in one deity distinguishes adherents of some faiths from others, such as Buddhism, Hinduism, and Taoism. The government cannot decide what is sectarian and what is not in any principled manner.

Conclusion

Perhaps cultural conservatives were right - the 1950's and early 1960's were a golden period in our history. It was during this time that the U.S. Supreme Court drafted the decisions striking down government's endorsement of some religions at the expense of others. Unfortunately, some people are still trying to use government power to divide people by religion - you either hold the favored religious beliefs or not. The 9th Circuit took an important step to ending that division, preventing daily government-sponsored indoctrination of schoolchildren in the divisive belief that our nation is "under god". The many myths used to attack the decision misinterpret the Constitution and ignore settled American law. The 9th Circuit's decision is correct, both legally and practically, and should be followed by the rest of the nation.

© 2002, Neal Blanchett, Esq.