Wednesday, August 20, 2008

Some FAQs about Separation of Church and State

Q. Where is the "separation of church and state" in the Constitution?
The First Amendment's religion clauses state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The Establishment Clause forbids more than the establishment of a national religion; it also forbids laws or actions respecting an establishment of religion. As James Madison, Father of the Constitution, put it "The Constitution of the U.S. forbids everything like an establishment of a national religion." In a January 1, 1802 letter, President Thomas Jefferson wrote of the intended relationship between religion and government: "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibit the free exercise thereof, thus building a wall of separation between church and state."

The Establishment Clause sets up a line of demarcation between religion and government in our society, and the Supreme Court determines where the line is drawn to accommodate liberties in our ever-changing society. Although the exact language is absent, the Supreme Court has repeatedly determined that the Constitution does indeed call for separation between church and state.

Jefferson's "wall of separation between church and state" was first noted by the Supreme Court in an 1878 opinion by Chief Justice Morrison Waite. Justice Hugo Black later reaffirmed the wall's significance in the landmark case Everson v. Board of Education (1947). Black wrote "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.'" The wall forbids government to actually or effectively favor one religion over another, favor religion over non-religion and vice-versa. Requiring neutrality removes the authority of government from religious practice and protects each citizen's right to express his or her personal beliefs.

Q. What is a "law respecting an establishment of religion"?
The Supreme Court has used a variety of methods to decide if a government action amounts to religious establishment. Unconstitutional actions typically lack a secular purpose or have the principal effect of advancing or inhibiting religion. Religiously motivated actions violate the basic idea that government should concern itself only with civil matters and leave religion to the individual's conscience. Expressive actions, such as prayer at government-sponsored events or religious symbols on government property, are invalid if they effectively endorse or disapprove of religion. Justice Sandra Day O'Connor designed the "endorsement test" to thwart government actions that link one's religion to his or her standing in the political community. In her words, government endorsement of religion sends a "message to non-adherents that they are outsiders, not full members of the political community," and the "accompanying message to adherents that they are insiders, favored members of the political community."

Q. Doesn't the First Amendment only apply to the federal government?
Not anymore. When the Bill of Rights was ratified in 1791, it was clearly intended to apply only to the federal government. However, ratification of the Fourteenth Amendment in 1868 set the course for applying the Bill of Rights to the states. The amendment reads in part "... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law...." In 1940, in a case called Cantwell v. Connecticut, the Supreme Court ruled that the First Amendment's Free Exercise and Establishment Clauses must be applied to the states. Since that time, all government action "respecting an establishment of religion," whether at the federal, state or local level, is subject to review under the U.S. Constitution.

For more information, see

[Edited 6/14/11 to update links]

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