The Constitutional Principle: Separation of Church and State
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Some Thoughts on Religion and Law

Written by Susan Batte

  1. The Constitution did not provide any mechanism for the establishment of religion or for the support of religion.
  2. Religious tests were the primary mechanism for perpetuating an established church within the political structure.
  3. The Constitution specifically prohibits religious tests or oaths for office.

THEREFORE, the Constitution created the concept of Separation of Church and State by providing nothing in the constitution that supports the idea that Government as Government is allowed to support any religion for any reason and by specifically prohibiting the primary political mechanism for supporting religion.

The 1st Amendment may only be interpreted, as being consistent with the Constitution and the views expressed in the Constitution concerning religion because:

  1. The 1st Amendment was drafted after the Constitution was ratified and was not designated as repealing any provision in the Constitution.
  2. The 1st Amendment does not provide any mechanism for establishing religion.
  3. The 1st Amendment does provide the mechanism to allow an individual as an individual and not as government to exercise the religion of his or her choice.

THEREFORE, the 1st Amendment cannot be interpreted to mean that some governmental entities may support religion in some ways (i.e., vouchers, welfare programs, etc.).

Once the 1st Amendment prohibited Congress from establishing religion by prohibiting it from making any law respecting an establishment of religion - Congress was thereby precluded from passing any kind of appropriation bill to fund any religious enterprise.

In order for the above to be true, the interpretation of "establishment" would have to be broad, and in fact the broad interpretation of "establishment" is supported. First, the O.E.D. (Oxford English Dictionary) sets out a 1561 definition of establishment as "a means of establishing; something that strengthens, supports or corroborates. Into the 1700s - 1800s, "establishment" could be defined as "the establishing by law (a church, religion, form of worship.) As an example, the O.E.D. sets out the following: 1886 Earl Selborne De Ch. Eng. I. iv. 77 All such relations of the Church to the State as those which are summed up in the term 'Establishment'.

Second, a broad interpretation of"establishment" is consistent with the indefinite article that proceeds it. "An"'establishment of religion' refers to all or any religious establishment --- not to one or some establishments. In the absence of definiteness, the inclusion of "of one Christian sect over another" after "Congress shall make no law respecting an establishment" would be necessary if, as Mr. Barton argues, the 1st Amendment was all about stamping out competing rivalries between Christian sects.

In addition, the operative word in the Establishment Clause is RESPECTING. Respecting an establishment of religion. Any religious institution, be it a 20 member country church or a huge multimillion member international religion, is an establishment of religion. The government is forbidden from making any laws, positive or negative that would pertain to an establishment of religion.

The narrow definition of establishment is that the 1st Amendment meant only to prevent a "State Church" from being officially sanctioned by the Government. (In this way, some people have tried to argue that supporting religious schools doesn't establish anything.) However, such a narrow reading of "Establishment" would need specific language added to the Amendment to support it since a plain language reading of the Constitution clearly shows no bias for (or against) Christianity as opposed to any other religion or even irreligion. And neither does the 1st Amendment.

I would be remiss if I did not point out that the 10th Amendment is not implicated in the matter of funding religious schools. The 14th amendment applies the establishment clause against states

Of free exercise cases involving a religious test there have been two notable cases to reach the Supreme Court: Torcaso v. Watkins (notary public refused to take religious oath for office) and McDaniel v. Paty (Disqualification for elected office sought for ordained Baptist minister). In both cases, the Court found a violation of the Free Exercise of Religion Clause.

In other cases, an individual has been forced to choose between receiving government benefits or religious conviction. Though these cases have not included a specific religious test, the Court has used a similar type of analysis as used in the two cases mentioned above. The Court usually has attempted to decide whether there is a sufficient compelling state interest or undue administrative burden to justify the infringement of an individual's liberty interest (free exercise of religion).

Goldman v. Weinberger (Air Force regulation forbidding the wearing of head coverings is upheld - Jewish officer is not allowed to wear yarmulke indoors. Compelling state interest is to allow the military wide discretion establishing regulations because discipline is essential to military life.)

Bowen v. Roy (Native American denied welfare benefits because he refused to have youngest child assigned a social security number - compelling state interest was to prevent welfare fraud).

O'Lone v. State of Shabazz (Muslim Prisoner not allowed to be excused to participate in religious ritual - compelling state interest - efficient administration of prison in that other prisoners may interpret prison's actions in releasing prisoners from detail as an endorsement of the Muslim religion.)

Lyng v. Northwest Indian Cemetery Association. (Forest service allowed to build road through sacred Indian ground used for religious ritual - Instead of using the compelling state interest test, the court implied since the native American were not coerced by the government into not practicing their religious as a result of the road being built, then their free exercise of religion had not been violated.

The argument that taxes for public schools is a religious test denying parents of school-age children from seeking education at a religious school. The compelling state interest in continuing to tax individuals is to continue to provide free public education to all children. Not just parents are taxed, but all individuals who own property or in some cases receiving a certain income and above, as well as business and corporations are required to pay the tax.

Until the government abandons its interest in providing for education, it would be difficult to prove that any taxes that were used for public education constitutes a religious test. In addition, you'll note in the above cases, that for the most part, the Court is willing to find that an individual's free exercise of religion is not violated if the individual can continue to practice their religion in light of the government-imposed rule, regulation or in this case tax.