Friday, September 30, 2011

The Division of Church and State

With the next General Election year fast upon us, there seems to a rumbling, or murmur, once again coming from our Nation’s Southern tier of States. I first became aware of this phenomenon in the 1970’s when Richard Nixon started talking about his “Southern Strategy”. Ever since, I have had the Southern Christian Movement on my political radar. They have had their good years and their lean years, and, from what I hear on the “street”, the coming year may be very, very kind to them. Personally, I wish them success and prosperity; just not when it comes to our Federal Government. Some of their notable members have been expressing a great desire to see the Federal Government become a “church state”. Senators, Congressmen, Governors, and State Legislators across the Bible belt are quietly trying to build a GOP Platform that heavily stresses the need for religion in government.
The following is an overview , basically from Thomas Jefferson, on the original intent, and therefore, definition of the “division of church and state”.

U.S. Constitution - Amendment 1

Amendment 1 - Freedom of Religion, Press, Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Jefferson's Wall of Separation Letter

Thomas Jefferson was a man of deep religious conviction — his conviction was that religion was a very personal matter, one which the government had no business getting involved in. He was vilified by his political opponents for his role in the passage of the 1786 Virginia Statute for Religious Freedom and for his criticism of such biblical events as the Great Flood and the theological age of the Earth. As president, he discontinued the practice started by his predecessors George Washington and John Adams of proclaiming days of fasting and thanksgiving. He was a staunch believer in the separation of church and state.

Jefferson wrote a letter to the Danbury Baptist Association in 1802 to answer a letter from them written in October 1801. A copy of the Danbury letter is available here. The Danbury Baptists were a religious minority in Connecticut, and they complained that in their state, the religious liberties they enjoyed were not seen as immutable rights, but as privileges granted by the legislature — as "favors granted." Jefferson's reply did not address their concerns about problems with state establishment of religion — only of establishment on the national level. The letter contains the phrase "wall of separation between church and state," which led to the short-hand for the Establishment Clause that we use today: "Separation of church and state."

The letter was the subject of intense scrutiny by Jefferson, and he consulted a couple of New England politicians to assure that his words would not offend while still conveying his message: it was not the place of the Congress or the Executive to do anything that might be misconstrued as the establishment of religion.

Note: The bracketed section in the second paragraph had been blocked off for deletion in the final draft of the letter sent to the Danbury Baptists, though it was not actually deleted in Jefferson's draft of the letter. It is included here for completeness. Reflecting upon his knowledge that the letter was far from a mere personal correspondence, Jefferson deleted the block, he noted in the margin, to avoid offending members of his party in the eastern states.

This is a transcript of the final letter as stored online at the Library of Congress, and reflects Jefferson's spelling and punctuation.

To messers Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.


performances of devotion, practiced indeed by the Executive of another nation as the legal head of its church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.] Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious as
The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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 prohibiting the free exercise thereof," thus building a wall of separation between Church& State. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from prescribing even those occasional sociation assurances of my high respect & esteem.(signed) Thomas Jefferson Jan.1.1802. source credit:

The Establishment Clause:
The First Amendment provides that “Congress shall make no law respecting an establishment of religion….”

The "Establishment Clause" was intended to prevent any governmental endorsement or support of religion. While one might intuitively read this to mean that the clause was meant to preclude endorsement or support of some particular religion, it is important to note that the clause also prohibits the endorsement of religion generally over non-religion. As the Court noted in 1947, “A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches.”

Everson v. Board of Education, 330 U.S. 1, 8 (1947). The Court went on to emphasize that “no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty,” and that the principles were as apt at the time of the Court’s decision as they had been when the First Amendment was originally passed in 1792. Everson at 11.

The Everson Court also provides a list of state actions which violate the Establishment Clause. Everson at 15-16. The Court does not present this list as comprehensive, but rather as a minimal list of activities prohibited by the First Amendment. These include:
-setting up a state church
-passing laws which specifically aid one religion or aid religions generally
-forcing or otherwise influencing individuals to attend or not attend church
-punishing people for ascribing to certain beliefs or disbeliefs or for attending or not attending church
-taxes levied to support religious institutions or activities
-governmental participation in religious organizations or participation by religious organizations in governmental activities

The Lemon Test:
The three-part test enunciated in Lemon v. Kurtzman which is used to asses whether a law violates the Establishment Clause.

[No, this has nothing to do with the purchase of a used car.]

The three-part Lemon Test asks:
(1) Does the law have a secular purpose? If not, it violates the Establishment Clause.
(2) Is the primary effect either to advance religion or to inhibit religion? If so, it violates the Establishment Clause.
(3) Does the law foster an excessive governmental entanglement with religion? If so, it violates the Establishment Clause.

Note here that these are not factors which are employed in some balancing test, but rather, these are all requirements which must be met for a law to pass review. There must be a secular purpose, the primary effect must not be the aid or inhibition of religion, and there must be no excessive entanglement. If any of these three requirements are not met, the law violates the Establishment Clause. See e.g. Windmar v. Vincent, 454 U.S. 263, 272 (1981).

[This posting lists five “Examples”. I chose the two that easily get to the point.]

EXAMPLE (1) Westernstate University wants to allow student groups to meet in university buildings when the buildings are not otherwise in use for classes (which would create a limited public forum – see Subject 2). The school officials are confident that an open-forum policy which includes nondiscrimination would meet the first prong of the Lemon Test and would also avoid excessive entanglement thereby preventing any issues relating to the third prong of the test. The school is concerned, however, that allowing religious groups to use the space would have the primary effect of advancing religion. Following Windmar v. Vincent at 273, however, it is clear that “by creating a forum, the University does not thereby endorse or promote any of the particular ideas aired there” and therefore the proposed state action would pass all three prongs of the Lemon Test."

EXAMPLE (2) Southernstate’s legislature recently passed a law requiring that a copy of the Ten Commandments must be posted on the walls of public classrooms statewide. No public funds will be diverted for this purpose as the materials will all be privately donated. Below the last commandment on each poster the following words will be printed: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” Despite this footnote and a legislative history which purported to enact the law for secular purposes, mere recitation of secular purpose is insufficient to prevent a first-prong Lemon Test failure and therefore an Establishment Clause violation. See Stone v. Graham, 449 U.S. 39 (1980).

©2003 - 2010 National Paralegal College

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Our Constitution has been reasonably kind to us over the years, and has withstood many challenges for the right, and left, extremes of our political ideology. Starting in January of 2012, our Constitution will once again be under attack by those who would spin and twist it to their way of thinking and to their benefit. To those who are on that side of the fence, I say, ”Don’t even try to go there.”

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