The Constitutional Principle: Separation of Church and State
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The Constitution and Separation of Church and State

Some historical references to the constitutional principle of separation of Church and state

Researched and edited by Jim Allison


PART X

May 20, 1940

Cantwell v. State of Connecticut, 310 U.S. 296 (1940) Argued March 29, 1940. Decided May 20, 1940.

By demurrers to the information, by requests for rulings of law at the trial, and by their assignments of error in the State Supreme Court, the appellants pressed the contention that the statute under which the third count was drawn was offensive to the due process clause of the Fourteenth Amendment because, on its face and as construed and applied, it denied them freedom of speech and prohibited their free exercise of religion. In like manner [310 U.S. 296, 301] they made the point that they could not be found guilty on the fifth count, without violation of the Amendment.

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. (4) The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a state may not, be statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. (5) It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the Act in question is not such a regulation.

It will be noted, However, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish. [310 U.S. 296, 311]

Footnotes:

[Footnote 3] Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150.
[Footnote 4] Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299.
[Footnote 5] Compare Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 630.

Source on Information:

Excerpts from Cantwell v. State of Connecticut, 310 U.s. 296 (1940) the first U S Supreme Court case to apply any of the religious clauses of the 1st Amendment to the states.



FEBRUARY 10, 1947
Everson v. Board of Education of the Township of Ewing - No. 52- Supreme Court of the United States, 330 U.S. 1, (November 20, 1946--- February 10, 1947)
"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 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. 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." Reynolds v. United States, supra, at 164."



Commentary:

Jim Allison comments:

"If one looks back at the laws (both written and oral) and the Constitutions (both written and oral) that existed throughout the colonies/states of this new nation, and throughout the nations and states of the world in that time period (1776--1791), there is a clear pattern that all these laws/constitutions mentioned religion a great deal, required certain practices, payments, obediences, religious tests or oaths, etc.

The Federal Constitution (in its unamended form) of this nation mentioned religion only once and that once was a direct negative placed upon the government and religion. That negative took the form of banning religious tests. Passing a religious test to be a member of the civil government was one of the most direct ways in which the union of church and state was maintained. All members of the civil government or royal government in those states or countries, etc swore to uphold, defend, support, and protect the established faith. That was the purpose and function of religious tests for office holders, etc.

Our national Constitution, in its unamended state, broke that union and created separation by banning any and all such tests on the federal level."

Susan Batte adds:


"Taken as a whole I think this gives a very good historical overview showing that the concept of separation of church and state was embodied in the original unamended constitution and has been present and recognized as being present throughout the time period under questions.

Some of these historical comments might even define the meanings and applications of that separation, something we want to do some additional articles on later on."