|The Constitutional Principle: Separation of Church and State|
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In email someone wrote: "There is an implied notion of freedom of religion in the constitution. This does not equate to freedom from religion."
Our reply was: "Actually it does."
The aspect of "freedom from religion" is recognized and has been recognized in varying degrees since the forming of this nation. Sometimes directly, sometimes indirectly in a variety of ways. Although there are many examples that could be offered from a legal perspective or historical perspective, the following provides a clear overview of the issue.
There can be no freedom OF religion WITHOUT freedom FROM government-promoted, government-sponsored, government-permitted, government-mandated and/or government-endorsed religion.
Let's begin with the following:
Webster's New Universal Unabridged Dictionary provides the following definition for freedom: Pay special attention to numbers 10 & 11
Source of Information:
freedom (fre'dam), n.
--Syn. I. FREEDOM, INDEPENDENCE, LIBERTY refer to an absence of undue restrictions ad an opportunity to exercise one's right and powers. FREEDOM emphasizes the opportunity given for the exercise one's rights, powers, desires, or the like: freedom of speech or conscience; freedom of movement. INDEPENDENCE Implies not only lack of restrictions but also the ability to stand alone, unsustained by anything else: Independence of thought promotes invention and discovery. LIBERTY, although most often interchanged with FREEDOM, is also used to imply undue exercise of freedom: He took liberties with the text. 3. franchise. 13. openness, ingenuousness. 16. license. 17. run. -Ant. 1-3. restraint. 8 6 8. oppression.
- state of being at liberty rather than in confinement or under physical restraint of: He won his freedom after a retrial.
- exemption from external control, interference, regulation, etc.
- power of determining one's or its own action: freedom of choice.
- Philos. the power to make one's own choices or decisions without constraint from within or without; autonomy; self-determination.
- civil liberty, as opposed to subjection to an arbitrary or despotic government.
- political or national independence.
- a particular immunity or privilege enjoyed, as by a city or corporation: freedom to levy taxes.
- personal liberty, as opposed to bondage or slavery: a former slave who bought his freedom.
- absence of or release from ties, obligations, etc.
- exemption or immunity: freedom from taxation.
- exemption from the presence of anything specified (usually fol. by from): freedom from fear.
- ease or facility of movement or action: to enjoy the freedom of living to the country.
- frankness of manner or speech.
- absence of ceremony or reserve.
- a liberty taken.
- the right of enjoying all the privileges or special rights of citizenship, membership, etc in a community or the like.
- the right of frequenting, enjoying, or using at will: to have the freedom of a friends library.
Webster's New Universal Unabridged Dictionary, Barnes & Nobles Books, (1994)p. 565
To Explore This a Bit More:
Exactly how could freedom of religion work without its opposite (freedom from religion) being present as well?
How could freedom of religion work if there was no freedom from religion, i.e. the government had every right to require you to be religious. In other words the immunity or exemptions aspect of freedom was denied or removed. Hint, hint, this is the from aspect of freedom.
How could freedom of religion work if the government retains the right to require you to be religious, require you to support a religion, be a member of a religion, attend a church, allow members of religions the right to come onto your property and preach to you even when you don't want them there, to enter your home and preach to you even when you don't want them there; while the government retains the right to deny your civil liberties, to discriminate against you, perhaps even to imprison you if you are not a member of a church, religion, support religion, etc.
The IDEA of "from" is contained in the very definition of freedom. It is the exemption or immunity aspect of freedom. Thus we have the right to be or have religion and with that right goes the right of exemption or immunity from religion.
Freedom cannot be freedom unless one has the right to do or not to do, to right to accept or the right to reject — in other words exemption and or immunity which is FROM.
From Article VI, Section III, of the Constitution of the United States:
. . . but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
That statement separated religion and government and granted religious freedom--both freedom of religion and freedom from religion. The statement made it possible for non-religious people to be members of the government and by extension made it legally right for a person to be non-religious, i.e. exercise freedom from religion and yet run for office, hold office, and be a member of government. Further it legally recognized the right to be non-religious, to be from religion.
The only absolute protection in the free exercise clause pertains to beliefs. You have a right to believe anything you want to believe. At the time of the framing of our constitution as well as today, there were restrictions placed on acts based on beliefs.
At the time of the American Revolution and the framing of the first state constitutions, all but four states had religious establishments of some kind. These states required that the public support religion. In some of these states people were given the option of designating which religion would receive their financial aid, while requiring that the person pay the religious taxes. This was deemed an establishment of religion. By the time of the ratification of the Bill of Rights in 1791, nine of the eleven states that ratified the Bill of Rights had ended required support of religion. (There can be no freedom of religion under an establishment of religion. The reason is that, so long as there is any required recognition, support, honoring, helping, endorsing, etc of religion, you are deprived of the from religion aspect of freedom. Without freedom from, there is no real freedom of.)
The concept of freedom contains at least two elements:
The right of choice, the choice of and the choice of not. In the case of religion this would be the freedom of religion and the freedom from religion. The right to be religious and the right to totally reject religion.
The concept/principle of freedom of and freedom from religion are both protected by the Constitution of the United States.
If Freedom of Religion Exists, So Does Freedom From Religion.
The writings of many of our forefathers suggest that freedom from religion was much intended as freedom of religion. Note these examples:
But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.
Thomas Jefferson, Notes On Virginia, (1785)
Toleration is not the opposite of intoleration, but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it. ...The former is church and state, and the latter is church and traffic.
Thomas Paine, Rights of Man,  p.95
Toleration therefore, places itself not between man and man, nor between church and church, nor between one denomination of religion and another, but between God and man; between the being who worships, and the being who is worshipped; and by the same act of assumed authority by which it tolerates man to pay his worship, it presumptuously and blasphemously sets up itself to tolerate the Almighty to receive it.
Thomas Paine, Rights of Man,  p.95
By the way, it was Article VI, Section III that directly embodied church state separation into the unamended constitution. It wasn't the establishment or free exercise amendments that accomplished this, for it was already accomplished by Article VI, Section III. All those clauses did was reinforce the embodiment of separation/religions freedom.
July 5, 1802
Disdain mean suspicion, but cherish manly jealousy ; be always jealous of your liberty, your rights. Nip the first bud of intrusion on your constitution. Be not devoted to men ; let measures be your object, and estimate men according to the measures they pursue. Never promote men who seek after a state-established religion ; it is spiritual tyranny--the worst of despotism. It is turnpiking the way to heaven by human law, in order to establish ministerial gates to collect toll. It converts religion into a principle of state policy, and the gospel into merchandise. Heaven forbids the bans of marriage between church and state ; their embraces therefore, must be unlawful. Guard against those men who make a great noise about religion, in choosing representatives. It is electioneering. If they knew the nature and worth of religion, they would not debauch it to such shameful purposes. If pure religion is the criterion to denominate candidates, those who make a noise about it must be rejected ; for their wrangle about it, proves that they are void of it. Let honesty, talents and quick dispatch, characterize the men of your choice. Such men will have a sympathy with their constituents, and will be willing to come to the light, that their deeds may be examined.
Source of Information:
Excerpt from July 4th Oration by John Leland, July 5, 1802. The Writings of John Leland, Edited by L.F. Greene, Arno Press & The New York Times N Y (1969) pp.260-270) Originally published as: The Writings Of The Late Elder John Leland Including Some Events In His Life, Written By Himself, With Additional Sketches &c. By Miss L.F. Greene, Lanesboro, Mass. New York Printed By G.W. Wood, 29 Gold Street, 1845
Study Guide for Separation of Church and State
A Study Guide for the Words/Concept: "Separation of Church and State"
Many scholars felt that Jefferson's Statute for Religious Freedom, guided through the Virginia legislature by James Madison in 1785-86 was the foundation for the religious clauses of the Amendments later passed by Congress in 1789.
. . . That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness; and is withdrawing from the ministry chose temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing ally citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; . . .
Jefferson's Bill for Religious Freedom (Passed December, 1785)
[For additional information, on Jefferson's Bill for Religious Freedom, click here]
Years later Jefferson wrote the following in his autobiography about the intent of that statute:
January 6, 1821
The bill for establishing religious freedom, the principles of which had, to a certain degree, been enacted before, I had drawn in all the latitude of reason and right. It still met with opposition; but, with some mutilations in the preamble, it was finally passed; and a singular proposition proved that its protection of opinion was meant to be universal. Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, "a departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.
Source of information:
Thomas Jefferson's Autobiography, January 6, 1821. The Life and Selected Writings of Thomas Jefferson, Edited by Adreinne Koch and William Peden. Random House, New York. (1993) pp 44-45.
There is freedom of religion only when there is the freedom to be or not to be religious, freedom to belong or reject, freedom to do or not do.
. . . The result is a tyranny of principles (including the emotivist's principle of deference to "objective expertise"), as well as a concomitant response in favor of a tyranny of individuals (anarchy). These twin aspects of emotivism are evident, for example, in the rise of efforts, under the rubrics of free speech and free exercise, to place formal Christian prayers sanctioned by school authority back into the public schools. The free exercise right is asserted here in terms of anarchical, radical individual rights: "my" individual rights, "my" absolute right to free exercise,without regard to the disestablishment principle or to competing interests of the community. Interestingly, where they are able, religious adherents (also or instead) argue the authoritarian side of emotivism: They reject any court's interpretations of the first amendment which recognize civil liberties contrary to their beliefs because these interpretations are based upon nothing more than the justices' personal opinions and subjective feelings.13 Their majority status and legislative influence are the hard facts which objectively, and thus conclusively, should decide the issue.
Source of Information:
Regulating Religion, The Courts and the Free Exercise Clause. Catharine Cookson, Oxford University Press, (2001) p IX (Preface)
William Lee Miller, who has made a special study of the role of religion in the nation's founding, summarized the conclusion of that study in these striking words:
Did "religious freedom" for Jefferson and Madison extend to atheists? Yes. To agnostics, unbelievers, and pagans? Yes. To heretics and blasphemers and the sacrilegious? Yes. To "the Jew and the Gentile, the Christian and the Mohametan, the Hindoo, and infidel of every denomination?" Yes. To Papists? Yes. To "irreligion"? Yes. To people who want freedom from religion? Yes. To people who want freedom against religion? Yes.(9)
Source of Information:
(9) William Lee Miller, "The Ghost of freedoms Past," in The Washington Post National Weekly Edition (13 October 1986), p. 23. ]
The following could be viewed as a very short summation of freedom of and freedom from religion:
Convinced that religious liberty must, most assuredly, be built into the structural frame of the new [state] government, Jefferson proposed this language [for the new Virginia constitution]: "All persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institution": freedom for religion, but also freedom from religion.
Source of Information:
Edwin S. Gaustad, Faith of Our Fathers: Religion and the New Nation, San Francisco: Harper & Row, 1987, p. 38. Jefferson proposed his language in 1776.
4. Because the Bill violates the equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached. If "all men are by nature equally free and independent," all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. Are the quakers and Menonists the only sects who think a compulsive support of their Religions unnecessary and unwarrantable? can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.
Source of Information:
Memorial and Remonstrance -1785, [ca. 20 June 1785]
4. "Equal title to the free exercise of Religion" implies the right to believe in no religion at all, as well as the right to believe and worship as one chooses.
Source of Information:
An explanation of Madison's MEMORIAL & REMONSTRANCE James Madison and Religion A New Hypothesis, by Ralph L. Ketcham. James Madison on Religious Liberty, Edited, with introductions and interpretations by Robert S. Alley. Prometheus Books, Buffalo N.Y. (1985) pp 186-87, 195.
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 [p*16] or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
- 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 organizations or groups, and vice versa.
Source of Information:
[Everson v. Board of Education of the Township of Ewing, 330 U.S. 1(1947)]
Numbers 3 & 4 especially express this concept of freedom of religion and freedom from religion.
If there is no "right" to be free from religion embodied anywhere in the Constitution than there is no "right" to religious freedom embodied in the Constitution either.
Freedom, religious or otherwise contains both sides of that coin, or it isn't freedom.
The only absolute with regards to free exercise is mental.
First. We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. (3) The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the [310 U.S. 296, 304] second cannot be. Conduct remains subject to regulation for the protection of society.
Cantwell V. State of Connecticut, 310 U.S. 296 (1940)
Even the founders of this nation wrote into their own state constitutions the same principle. Beliefs had absolute protections, actions on those beliefs were subject to limitations. To look at some state constitutions, please see the series on state constitutions beginning at Original and Early State Constitutions
Choice, choice to be religious or not to be religious, choice to believe or not to believe, choice to accept, be a part of embrace, profess, any religion you may want or no religion at all, and not be punished, given extra burden, discriminated against, denied, etc, by government based on that choice.
Freedom of religion places the religious and non-religion on the same level playing field.
The day that this country ceases to be free for irreligion, it will cease to be free for religion-- except for the sect that can win political power. The same epithetical jurisprudence used by the Court today to beat down those who oppose pressuring children into some religion can devise as good epithets tomorrow against those who object to pressuring them into a favored religion. And, after all, if we concede to the State power and wisdom to single out "duly constituted religious" bodies as exclusive alternatives for compulsory secular instruction, it would be logical to also uphold the power and wisdom to choose the true faith among those "duly constituted." We start down a rough road when we begin to mix compulsory public education with compulsory godliness.
Jackson, J., Dissenting Opinion Zorach v. Clauson, 343 U.S. 306 (1952)
Under our system of religious freedom, people have gone to their religious sanctuaries not because they feared the law but because they loved their God. The choice of all has been as free as the choice of those who answered the call to worship moved only by the music of the old Sunday morning church bells. The spiritual mind of man has thus been free to believe, disbelieve, or doubt, without repression, great or small, by the heavy [343 U.S. 306, 320] hand of government. Statutes authorizing such repression have been stricken. Before today, our judicial opinions have refrained from drawing invidious distinctions between those who believe in no religion and those who do believe. The First Amendment has lost must if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under law.
Mr. Justice Black, dissenting. Zorach v. Clauson, 343 U.S. 306 (1952)
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, [393 U.S. 97, 104] and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.  As early as 1872, this Court said: "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679, 728. This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment's broad command. [ Footnote 12 ] Everson v. Board of Education, 330 U.S. 1, 18 (1947); McCollum v. Board of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306, 313 -314 (1952); Fowler v. Rhode Island, 345 U.S. 67 (1953); Torcaso v.Watkins, 367 U.S. 488, 495 (1961).
Epperson v. Arkansas, 393 U.S. 97 (1968)
Government must neither legislate to accord benefits that favor religion over nonreligion, nor sponsor a particular sect, nor try to encourage participation in or abnegation of religion. Mr. Justice Goldberg's concurring opinion in [397 U.S. 664 , 695] Abington which I joined set forth these principles: "The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief." 374 U.S., at 305 . The Court's holding in Torcaso v. Watkins, 367 U.S. 488, 495 , 1683-1684 (1961), is to the same effect: the State cannot "constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can (it) aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." In the vast majority of cases the inquiry, albeit an elusive one, can end at this point. Neutrality and voluntarism stand as barriers against the most egregious and hence divisive kinds of state involvement in religious matters.
In Torcaso v. Watkins, 367 U.S. 488 , we held that [397 U.S. 664 , 701] a State could not bar an atheist from public office in light of the freedom of belief and religion guaranteed by the First and Fourteenth Amendments. Neither the State nor the Federal Government, we said, "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." Id., at 495-1684.
That principle should govern this case.
We should adhere to what we said in Torcaso v. Watkins, 367 U.S., at 495 -1684, that neither a State nor the Federal Government "can constitutionally pass laws or impose requirements which aid all religion as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religious founded on different beliefs." (Emphasis added.) Unless we adhere to that principle, we do not give full support either to the Free Exercise Clause or to the Establishment Clause.
Walz v. Tax Commission of City of New York , 397 U.S. 664 (1970)
Mr. Justice Douglas, dissenting in No. 85. *
The law as written is a species of those which show an invidious discrimination in favor of religious persons and against others with like scruples. Mr. Justice Black once said: "The First Amendment has lost much if the religious follower and the atheist  are no longer to be [401 U.S. 437, 469] judicially regarded as entitled to equal justice under law." [ Footnote 7 ] Article VI of the Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Torcaso v. Watkins, 367 U.S. 488 , upheld the right of a nonbeliever to hold public office.
Gillette V. United States, 401 U.S. 437 (1971)
[There were opposing views, however, it should be noted that Rehnquist's grasp of history was flawed. ]
It seems indisputable from these glimpses of Madison's thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion. Thus the Court's opinion in Everson - while correct in bracketing Madison and Jefferson together in their exertions in their home State leading to the enactment of the [472 U.S. 38, 99] Virginia Statute of Religious Liberty - is totally incorrect in suggesting that Madison carried these views onto the floor of the United States House of Representatives when he proposed the language which would ultimately become the Bill of Rights.
None of the other Members of Congress who spoke during the August 15th debate expressed the slightest indication that they thought the language before them from the Select Committee, or the evil to be aimed at, would require that the Government be absolutely neutral as between religion and irreligion. The evil to be aimed at, so far as those who spoke were concerned, appears to have been the establishment of a national church, and perhaps the preference of one religious sect over another; but it was definitely not concerned about whether the Government might aid all religions evenhandedly. If one were to follow the advice of Justice Brennan, concurring in Abington School District v. Schempp, supra, at 236, and construe the Amendment in the light of what particular [472 U.S. 38, 100] "practices . . . challenged threaten those consequences which the Framers deeply feared; whether, in short, they tend to promote that type of interdependence between religion and state which the First Amendment was designed to prevent," one would have to say that the First Amendment Establishment Clause should be read no more broadly than to prevent the establishment of a national religion or the governmental preference of one religious sect over another.
The actions of the First Congress, which reenacted the Northwest Ordinance for the governance of the Northwest Territory in 1789, confirm the view that Congress did not mean that the Government should be neutral between religion and irreligion. The House of Representatives took up the Northwest Ordinance on the same day as Madison introduced his proposed amendments which became the Bill of Rights; while at that time the Federal Government was of course not bound by draft amendments to the Constitution which had not yet been proposed by Congress, say nothing of ratified by the States, it seems highly unlikely that the House of Representatives would simultaneously consider proposed amendments to the Constitution and enact an important piece of territorial legislation which conflicted with the intent of those proposals. The Northwest Ordinance, 1 Stat. 50, reenacted the Northwest Ordinance of 1787 and provided that "[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Id., at 52, n. (a). Land grants for schools in the Northwest Territory were not limited to public schools. It was not until 1845 that Congress limited land grants in the new States and Territories to nonsectarian schools. 5 Stat. 788; C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 163 (1964).
It would seem from this evidence that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word "establishment" as "the act of establishing, founding, ratifying or ordaining," such as in "[t]he episcopal form of religion, so called, in England." 1 N. Webster, American Dictionary of the English Language (1st ed. 1828). The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the "wall of separation" that was constitutionalized in Everson.
The Framers intended the Establishment Clause to prohibit the designation of any church as a "national" one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others. Given the "incorporation" of the Establishment Clause as against the States via the Fourteenth Amendment in Everson, States are prohibited as well from establishing a religion or discriminating between sects. As its history abundantly shows, however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means.
Justice Rehnquist, dissenting. Wallace v. Jaffree, 472 U.S. 38 (1985)
Some have challenged this precedent by reading the Establishment Clause to permit "nonpreferential" state promotion of religion. The challengers argue that, as originally understood by the Framers, "[t]he Establishment Clause did not require government neutrality between religion and irreligion, nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion." Wallace, supra, at 106 (Rehnquist, J., dissenting); see also R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1988). While a case has been made for this position, it is not so convincing as to warrant reconsideration of our settled law; indeed, I find in the history of the Clause's textual development a more powerful argument supporting the Court's jurisprudence following Everson.
Justice Blackmun, with whom Justice Stevens and Justice O'Connor join, concurring.
Lee v. Weisman, 505 U.S. 577 (1992)
The First Amendment's Establishment Clause prohibits Congress (and, by incorporation, the States) from making any law respecting an establishment of religion. It has been held to prohibit not only the institution of an official church, but any government act favoring religion, a particular religion, or for that matter irreligion. Thus it bars the use of public funds for religious aid.
And if this were not enough to prove that no aid in religious school aid is dead under the plurality's First Amendment, the point is nailed down in the plurality's attack on the legitimacy of considering a school's pervasively sectarian character when judging whether aid to the school is likely to aid its religious mission. Ante, at 27-31. The relevance of this consideration is simply a matter of common sense: where religious indoctrination pervades school activities of children and adolescents, it takes great care to be able to aid the school without supporting the doctrinal effort. This is obvious. The plurality nonetheless condemns any enquiry into the pervasiveness of doctrinal content as a remnant of anti-Catholic bigotry (as if evangelical Protestant schools and Orthodox Jewish yeshivas were never pervasively sectarian  ), and it equates a refusal to aid religious schools with hostility to religion (as if aid to religious teaching were not opposed in this very case by at least one religious respondent  and numerous religious amici curiae  in a tradition claiming descent from Roger Williams). My concern with these arguments goes not so much to their details  as it does to the fact that the plurality's choice to employ imputations of bigotry and irreligion as terms in the Court's debate makes one point clear: that in rejecting the principle of no aid to a school's religious mission the plurality is attacking the most fundamental assumption underlying the Establishment Clause, that government can in fact operate with neutrality in its relation to religion. I believe that it can, and so respectfully dissent.
Indeed, one group of amici curiae, which consists of "religious and educational leaders from a broad range of both Eastern and Western religious traditions, and Methodist, Jewish and Seventh-day Adventist individuals" including "church administrators, administrators of religious elementary and secondary school systems; elementary and secondary school teachers at religious schools; and pastors and laity who serve on church school boards," identifies its members as having "broad experience teaching in and administering pervasively sectarian schools." Brief for Interfaith Religious Liberty Foundation et al. as Amici Curiae 1.
One of the respondents describes herself as a "life-long, committed member of the Roman Catholic Church" who "objects to the government providing benefits to her parish school" because "[s]he has seen the chilling effect such entangling government aid has on the religious mission of schools run by her church." Brief for Respondents 1. She has been a member of the church for about 36 years, and six of her children attended different Jefferson Parish Catholic run schools. Id., at 1, n. 1.
E.g., Brief for Baptist Joint Committee on Public Affairs as Amicus Curiae; Brief for Interfaith Religious Liberty Foundation et al. as Amici Curiae; Brief for National Committee for Public Education et al. as Amici Curiae.
I do not think it worthwhile to comment at length, for example, on the plurality's clear misunderstanding of our access-to-public-forum cases, such as Lamb's Chapel and Widmar v. Vincent, 454 U. S. 263 (1981), as "decisions that have prohibited governments from discriminating in the distribution of public benefits based on religious status or sincerity," ante, at 30, when they were decided on completely different and narrowly limited free-speech grounds. Nor would it be worthwhile here to engage in extended discussion of why the goal of preventing courts from having to "trol[l] through a person's or institution's religious beliefs," ante, at 30, calls for less aid and commingling of government with religion, not for tolerance of their effects.
Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.
Mitchell, v. Helms [June 28, 2000]
Can the principle of separation of church and state be found in the Constitution?
One might consider the following:
Directly in the unamended constitution, Article VI, Section III "but no religious test shall ever be required as a qualification to any office or public trust under the United States."
"The remaining part of the clause declares, that 'no religious test shall ever be required, as a qualification to any office or public trust, under the United States.' This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any test or affirmation. It had a higher object; to cut off for ever every pretense of any alliance between church and state in the national government. The framers of the constitution were fully sensible of the dangers from this source, marked out in history of other ages and countries; and not wholly unknown to our own. They knew, that bigotry was unceasingly vigilant in its own stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of civil power to exterminate those, who doubted its dogmas, or resisted its infallibility."
Source of Information:
Commentaries on the Constitution of the United States, by Supreme Court Justice Joseph Story, Vol III, (1833) pp 705)
Then, indirectly the entire document (unamended constitution) as a whole.
The following is excerpted from "Some Thoughts on Religion and Law", written by Susan Batte, Esq.
- The Constitution did not provide any mechanism for the establishment of religion or for the support of religion.
- .Religious tests were the primary mechanism for perpetuating an established church within the political structure.
- 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:
- The 1st Amendment was drafted after the Constitution was ratified and was not designated as repealing any provision in the Constitution.
- The 1st Amendment does not provide any mechanism for establishing religion.
- 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 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 Oxford English Dictionary 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 First 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 First 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 First Amendment.
I would be remiss if I did not point out that the Tenth Amendment is not implicated in the matter of funding religious schools. The Fourteenth amendment applies the establishment clause against states.
For a succinct,well stated summary of this issue, we refer you to Annie Laurie Gaylor's letter to Senator Joseph Lieberman: The Constitution Guarantees Freedom From Religion
See a related story in the New York Times: Lieberman Seeks Greater Role for Religion in Public Life