"Separation of church and state" is paraphrased from Thomas Jefferson and used by others in expressing an understanding of the intent and function of the Establishment Clause and Free Exercise Clause of the First Amendment to the United States Constitution which reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
The phrase "separation between church & state" is generally traced to a January 1, 1802, letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper. Jefferson wrote,
Jefferson's metaphor of a wall of separation has been cited repeatedly by the U.S. Supreme Court. In Reynolds v. United States (1879) the Court wrote that Jefferson's comments "may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment." In Everson v. Board of Education (1947), Justice Hugo Black wrote: "In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state."
In contrast to separationism, the Supreme Court in Zorach v. Clauson (1952) upheld accommodationism, holding that the nation's "institutions presuppose a Supreme Being" and that government recognition of God does not constitute the establishment of a state church as the Constitution's authors intended to prohibit. As such, the Court has not always interpreted the constitutional principle as absolute, and the proper extent of separation between government and religion in the U.S. remains an ongoing subject of impassioned debate.
The phrase "separation between church & state" is generally traced to a January 1, 1802, letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper. Jefferson wrote,
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. 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."Some argue that Jefferson echoes the language of the founder of the first Baptist church in America, Roger Williams who, in 1644, wrote of
[A] hedge or wall of separation between the garden of the church and the wilderness of the world.However, when considered in context, the relationship appears questionable.
When they [the Church] have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick, etc., and made His Garden a wilderness as it is this day. And that therefore if He will ever please to restore His garden and Paradise again, it must of necessity be walled in peculiarly unto Himself from the world, and all that be saved out of the world are to be transplanted out of the wilderness of the World.Article Six of the United States Constitution also specifies that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
Jefferson's metaphor of a wall of separation has been cited repeatedly by the U.S. Supreme Court. In Reynolds v. United States (1879) the Court wrote that Jefferson's comments "may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment." In Everson v. Board of Education (1947), Justice Hugo Black wrote: "In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state."
In contrast to separationism, the Supreme Court in Zorach v. Clauson (1952) upheld accommodationism, holding that the nation's "institutions presuppose a Supreme Being" and that government recognition of God does not constitute the establishment of a state church as the Constitution's authors intended to prohibit. As such, the Court has not always interpreted the constitutional principle as absolute, and the proper extent of separation between government and religion in the U.S. remains an ongoing subject of impassioned debate.
Early history
Many early immigrant groups traveled to America to worship freely, particularly after the English Civil War and religious conflict in France and Germany. They included nonconformists like the Puritans, who were Protestant Christians fleeing religious persecution from the Anglican King of England. Despite a common background, the groups' views on religious toleration were mixed. While some such as Roger Williams of Rhode Island and William Penn of Pennsylvania ensured the protection of religious minorities within their colonies, others like the Plymouth Colony and Massachusetts Bay Colony had established churches. The Dutch colony of New Netherland established the Dutch Reformed Church
and outlawed all other worship, though enforcement was sparse.
Religious conformity was desired partly for financial reasons: the
established Church was responsible for poor relief, putting dissenting churches at a significant disadvantage.
Former state churches in British North America
Catholic colonies
- When New France was transferred to Great Britain in 1763, the Catholic Church remained under toleration, but Huguenots were allowed entrance where they had formerly been banned from settlement by French authorities.
- The Colony of Maryland was founded by a charter granted in 1632 to George Calvert, secretary of state to Charles I, and his son Cecil, both recent converts to Catholicism. Under their leadership many English Catholic gentry families settled in Maryland. However, the colonial government was officially neutral in religious affairs, granting toleration to all Christian groups and enjoining them to avoid actions which antagonized the others. On several occasions "low-church" dissenters led insurrections which temporarily overthrew the Calvert rule. In 1689, when William and Mary came to the English throne, they acceded to demands to revoke the original royal charter. In 1701 the Church of England was "established" in Maryland, and in the course of the eighteenth century Maryland Catholics were first barred from public office, and then disenfranchised. Not all of the laws passed against Catholic (notably laws restricting property rights and imposing penalties for sending children to be educated in foreign Catholic institutions) were enforced, and some Catholics even continued to hold public office.
- Spanish Florida was ceded to Great Britain in 1763. The British divided Florida into two colonies. Both East and West Florida had a policy of toleration for Catholic residents.
Protestant colonies
- Plymouth Colony was founded by Pilgrims, English Dissenters or Separatists, Calvinists.
- Massachusetts Bay Colony, New Haven Colony, and the New Hampshire were founded by Puritan, Calvinist, Protestants.
- New Netherland was founded by Dutch Reformed Calvinists.
- The colonies of New York, Virginia, North Carolina, South Carolina, and Georgia were officially Church of England.
Colonies with no established church
- The Province of Pennsylvania was founded by Quakers, but the colony never had an established church.
- West Jersey, also founded by Quakers, prohibited any establishment.
- Delaware Colony.
- The Colony of Rhode Island and Providence Plantations, founded by religious dissenters, is widely regarded as the first polity to grant religious freedom to all its citizens.
Tabular summary
| Colony | Denomination | Disestablished1 |
|---|---|---|
| Connecticut | Congregational | 1818 |
| Georgia | Church of England | 17892 |
| Maryland | Catholic/Church of England | 1701/1776 |
| Massachusetts | Congregational | 1780 (in 1833 state funding suspended)3 |
| New Brunswick | Church of England |
|
| New Hampshire | Congregational | 17904 |
| Newfoundland | Church of England |
|
| North Carolina | Church of England | 17765 |
| Nova Scotia | Church of England | 1850 |
| Prince Edward Island | Church of England |
|
| South Carolina | Church of England | 1790 |
| Canada West | Church of England | 1854 |
| West Florida | Church of England | N/A6,7 |
| East Florida | Church of England | N/A6,7 |
| Virginia | Church of England | 17868 |
| West Indies | Church of England | 1868 |
Note 1:
In several colonies, the establishment ceased to exist in practice at the Revolution, about 1776; this is the date of permanent legal abolition.
Note 2:
in 1789 the Georgia Constitution was amended as follows:
"Article IV. Section 10. No person within this state shall, upon any
pretense, be deprived of the inestimable privilege of worshipping God in
any manner agreeable to his own conscience, nor be compelled to attend
any place of worship contrary to his own faith and judgment; nor shall
he ever be obliged to pay tithes, taxes, or any other rate, for the
building or repairing any place of worship, or for the maintenance of
any minister or ministry, contrary to what he believes to be right, or
hath voluntarily engaged to do. No one religious society shall ever be
established in this state, in preference to another; nor shall any
person be denied the enjoyment of any civil right merely on account of
his religious principles."
Note 3:
From 1780 Massachusetts had a system which required every man to belong
to a church, and permitted each church to tax its members, but forbade
any law requiring that it be of any particular denomination. This was
objected to, as in practice establishing the Congregational Church, the
majority denomination, and was abolished in 1833.
Note 4:
Until 1877 the New Hampshire Constitution required members of the State legislature to be of the Protestant religion.
Note 5:
The North Carolina Constitution of 1776 disestablished the Anglican
church, but until 1835 the NC Constitution allowed only Protestants to
hold public office. From 1835 to 1876 it allowed only Christians
(including Catholics) to hold public office. Article VI, Section 8 of
the current NC Constitution forbids only atheists from holding public
office.[12] Such clauses were held by the United States Supreme Court to be unenforceable in the 1961 case of Torcaso v. Watkins, when the court ruled unanimously that such clauses constituted a religious test incompatible with First and Fourteenth Amendment protections.
Note 6:
Religious tolerance for Catholics with an established Church of England
was policy in the former Spanish Colonies of East and West Florida while
under British rule.
Note 7:
In Treaty of Paris (1783), which ended the American Revolutionary War, the British ceded both East and West Florida back to Spain (see Spanish Florida).
Note 8:
Tithes for the support of the Anglican Church in Virginia were suspended in 1776, and never restored. 1786 is the date of the Virginia Statute of Religious Freedom, which prohibited any coercion to support any religious body.
Colonial views on establishment, accommodationism, and separationism
The Library of Congress states that:
Many states were as explicit about the need for a thriving religion as Congress was in its thanksgiving and fast day proclamations. The Massachusetts Constitution of 1780 declared, for example, that "the happiness of a people, and the good order and preservation of civil government, essentially depend on piety, religion and morality." The states were in a stronger position to act upon this conviction because they were considered to possess "general" powers as opposed to the limited, specifically enumerated powers of Congress. Congregationalists and Anglicans who, before 1776, had received public financial support, called their state benefactors "nursing fathers" (Isaiah 49:23).
The Flushing Remonstrance
shows support for separation of church and state as early as the
mid-17th century, stating their opposition to religious persecution of
any sort: "The law of love, peace and liberty in the states extending to
Jews, Turks and Egyptians, as they are considered sons of Adam, which
is the glory of the outward state of Holland, so love, peace and
liberty, extending to all in Christ Jesus, condemns hatred, war and
bondage." The document was signed December 27, 1657 by a group of
English citizens in America who were affronted by persecution of Quakers and the religious policies of the Governor of New Netherland, Peter Stuyvesant. Stuyvesant had formally banned all religions other than the Dutch Reformed Church from being practiced in the colony, in accordance with the laws of the Dutch Republic.
The signers indicated their "desire therefore in this case not to judge
lest we be judged, neither to condemn least we be condemned, but rather
let every man stand or fall to his own Master." Stuyvesant fined the petitioners and threw them in prison until they recanted. However, John Bowne allowed the Quakers to meet in his home. Bowne was arrested, jailed, and sent to the Netherlands for trial; the Dutch court exonerated Bowne.
New York Historical Society President and Columbia University Professor of History Kenneth T. Jackson
describes the Flushing Remonstrance as "the first thing that we have in
writing in the United States where a group of citizens attests on paper
and over their signature the right of the people to follow their own
conscience with regard to God - and the inability of government, or the
illegality of government, to interfere with that."
Given the wide diversity of opinion on Christian theological matters in the newly independent American States, the Constitutional Convention believed a government sanctioned (established) religion would disrupt rather than bind the newly formed union together. George Washington wrote a letter in 1790 to the country's first Jewish congregation, the Touro Synagogue in Newport, Rhode Island to state:
Allowing rights and immunities of citizenship. It is now no more that toleration is spoken of, as if it were by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
There were also opponents to the support of any established church even at the state level. In 1773, Isaac Backus, a prominent Baptist minister in New England,
wrote against a state-sanctioned religion, saying: "Now who can hear
Christ declare, that his kingdom is, not of this world, and yet believe
that this blending of church and state together can be pleasing to him?"
He also observed that when "church and state are separate, the effects
are happy, and they do not at all interfere with each other: but where
they have been confounded together, no tongue nor pen can fully describe
the mischiefs that have ensued." Thomas Jefferson's influential Virginia Statute for Religious Freedom was enacted in 1786, five years before the Bill of Rights.
Most Anglican ministers, and many Anglicans, were Loyalists. The Anglican establishment, where it had existed, largely ceased to function during the American Revolution, though the new States did not formally abolish and replace it until some years after the Revolution.
Jefferson, Madison, and the "wall of separation"
The phrase "[A] hedge or wall of separation between the garden of the church and the wilderness of the world" was first used by Baptist theologian Roger Williams, the founder of the colony of Rhode Island, in his 1644 book The Bloody Tenent of Persecution. The phrase was later used by Thomas Jefferson as a description of the First Amendment and its restriction on the legislative branch of the federal government, in an 1802 letter to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):
Believing with you that religion is a matter which lies solely between man and his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and 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 and State. 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.
Jefferson's letter was in reply to a letter from the Danbury Baptist Association dated October 7, 1801. In an 1808 letter to Virginia Baptists, Jefferson used the same theme:
We have solved, by fair experiment, the great and interesting question whether freedom of religion is compatible with order in government and obedience to the laws. And we have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries.
Jefferson and James Madison's conceptions of separation
have long been debated. Jefferson refused to issue Proclamations of
Thanksgiving sent to him by Congress during his presidency, though he
did issue a Thanksgiving and Prayer proclamation as Governor of
Virginia. Madison issued four religious proclamations while President, but vetoed two bills on the grounds they violated the first amendment. On the other hand, both Jefferson and Madison attended religious services at the Capitol.
Years before the ratification of the Constitution, Madison contended
"Because if Religion be exempt from the authority of the Society at
large, still less can it be subject to that of the Legislative Body." After retiring from the presidency, Madison wrote of "total separation of the church from the state." "Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States," Madison wrote,
and he declared, "practical distinction between Religion and Civil
Government is essential to the purity of both, and as guaranteed by the
Constitution of the United States." In a letter to Edward Livingston
Madison further expanded, "We are teaching the world the great truth
that Govts. do better without Kings & Nobles than with them. The
merit will be doubled by the other lesson that Religion flourishes in
greater purity, without than with the aid of Govt." Madison's original draft of the Bill of Rights
had included provisions binding the States, as well as the Federal
Government, from an establishment of religion, but the House did not
pass them.
Jefferson's opponents said his position was the destruction and
the governmental rejection of Christianity, but this was a caricature. In setting up the University of Virginia,
Jefferson encouraged all the separate sects to have preachers of their
own, though there was a constitutional ban on the State supporting a
Professorship of Divinity, arising from his own Virginia Statute for Religious Freedom. Some have argued that this arrangement was "fully compatible with Jefferson's views on the separation of church and state;"
however, others point to Jefferson's support for a scheme in which
students at the university would attend religious worship each morning
as evidence that his views were not consistent with strict separation. Still other scholars, such as Mark David Hall,
attempt to sidestep the whole issue by arguing that American
jurisprudence focuses too narrowly on this one Jeffersonian letter while
failing to account for other relevant history.
Jefferson's letter entered American jurisprudence in the 1878 Mormon polygamy case Reynolds v. U.S., in which the court cited Jefferson and Madison, seeking a legal definition for the word religion. Writing for the majority, Justice Stephen Johnson Field
cited Jefferson's "Letter to the Danbury Baptists" to state that
"Congress was deprived of all legislative power over mere opinion, but
was left free to reach actions which were in violation of social duties
or subversive of good order."
Considering this, the court ruled that outlawing polygamy was constitutional.
Madison noted that Martin Luther's doctrine of the two kingdoms marked the beginning of the modern conception of separation of church and state.
Patrick Henry, Massachusetts, and Connecticut
Jefferson and Madison's approach was not the only one taken in the eighteenth century. Jefferson's Statute of Religious Freedom was drafted in opposition to a bill, chiefly supported by Patrick Henry,
which would permit any Virginian to belong to any denomination, but
which would require him to belong to some denomination and pay taxes to
support it. Similarly, the Constitution of Massachusetts
originally provided that "no subject shall be hurt, molested, or
restrained, in his person, liberty, or estate, for worshipping God in
the manner and season most agreeable to the dictates of his own
conscience... provided he doth not disturb the public peace, or obstruct
others in their religious worship" (Article II), but also that:
the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.
And the people of this commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend. (Article III)
Since, in practice, this meant that the decision of who was taxable for a particular religion rested in the hands of the selectmen,
usually Congregationalists, this system was open to abuse. It was
abolished in 1833. The intervening period is sometimes referred to as
an "establishment of religion" in Massachusetts.
The Duke of York had required that every community in his new lands of New York and New Jersey support some church, but this was more often Dutch Reformed, Quaker, or Presbyterian, than Anglican.
Some chose to support more than one church. He also ordained that the
tax-payers were free, having paid his local tax, to choose their own
church. The terms for the surrender of New Amsterdam
had provided that the Dutch would have liberty of conscience, and the
Duke, as an openly divine-right Catholic, was no friend of Anglicanism.
The first Anglican minister in New Jersey arrived in 1698, though
Anglicanism was more popular in New York.
Connecticut
had a real establishment of religion. Its citizens did not adopt a
constitution at the Revolution, but rather amended their Charter to
remove all references to the British Government. As a result, the
Congregational Church continued to be established, and Yale College,
at that time a Congregational institution, received grants from the
State until Connecticut adopted a constitution in 1818 partly because of
this issue.
Test acts
The
absence of an establishment of religion did not necessarily imply that
all men were free to hold office. Most colonies had a Test Act,
and several states retained them for a short time. This stood in
contrast to the Federal Constitution, which explicitly prohibits the
employment of any religious test for Federal office, and which through
the Fourteenth Amendment later extended this prohibition to the States.
For example, the New Jersey Constitution of 1776
provides liberty of conscience in much the same language as
Massachusetts (similarly forbidding payment of "taxes, tithes or other
payments" contrary to conscience). It then provides:
That there shall be no establishment of any one religious sect in this Province, in preference to another; and that no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government, as hereby established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.
This would permit a Test Act, but did not require one.
The original charter of the Province of East Jersey had restricted membership in the Assembly to Christians; the Duke of York was fervently Catholic, and the proprietors of Perth Amboy, New Jersey were Scottish Catholic peers. The Province of West Jersey
had declared, in 1681, that there should be no religious test for
office. An oath had also been imposed on the militia during the French and Indian War
requiring them to abjure the pretensions of the Pope, which may or may
not have been applied during the Revolution. That law was replaced by
1799.
The Pennsylvania Constitution of 1776 provided:
And each member, before he takes his seat, shall make and subscribe the following declaration, viz:
I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration.
And no further or other religious test shall ever hereafter be required of any civil officer or magistrate in this State.
Again, it provided in general that all tax-paying freemen and their sons shall be able to vote, and that no "man, who acknowledges the being of a God,
be justly deprived or abridged of any civil right as a citizen, on
account of his religious sentiments or peculiar mode of religious
worship."
The U.S. Constitution
Article 6
Article Six of the United States Constitution provides that "no religious Test
shall ever be required as a Qualification to any Office or public Trust
under the United States". Prior to the adoption of the Bill of Rights, this was the only mention of religion in the Constitution.
The First Amendment
The
first amendment to the US Constitution states "Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof." The two parts, known as the "establishment clause"
and the "free exercise clause" respectively, form the textual basis for
the Supreme Court's interpretations of the "separation of church and
state" doctrine.
Three central concepts were derived from the 1st Amendment which became
America's doctrine for church-state separation: no coercion in
religious matters, no expectation to support a religion against one's
will, and religious liberty encompasses all religions. In sum, citizens
are free to embrace or reject a faith, any support for religion -
financial or physical - must be voluntary, and all religions are equal
in the eyes of the law with no special preference or favoritism.
The First Congress' deliberations show that its understanding of
the separation of church and state differed sharply from that of their
contemporaries in Europe. As the 19th-century historian Philip Schaff observed:
The American separation of church and state rests upon respect for the church; the [European anticlerical] separation, on indifference and hatred of the church, and of religion itself... The constitution did not create a nation, nor its religion and institutions. It found them already existing, and was framed for the purpose of protecting them under a republican form of government, in a rule of the people, by the people, and for the people.
An August 15, 1789, entry in Madison's papers indicates he intended
for the establishment clause to prevent the government imposition of
religious beliefs on individuals. The entry says: "Mr. Madison said he
apprehended the meaning of the words to be, that Congress should not
establish a religion, and enforce the legal observation of it by law,
nor compel men to worship God in any manner contrary to their
conscience. ..."
Some legal scholars, such as John Baker of LSU,
theorize that Madison's initial proposed language—that Congress should
make no law regarding the establishment of a "national religion"—was
rejected by the House, in favor of the more general "religion" in an
effort to appease the Anti-Federalists. To both the Anti-Federalists and the Federalists, the very word "national" was a cause for alarm because of the experience under the British crown. During the debate over the establishment clause, Rep. Elbridge Gerry
of Massachusetts took issue with Madison's language regarding whether
the government was a national government, or a federal government]] (in
which the states retained their individual sovereignty), which Baker
suggests compelled Madison to withdraw his language from the debate.
Following the argument between Madison and Gerry, Rep. Samuel Livermore
of New Hampshire proposed language stating that, "Congress shall make
no laws touching religion or the rights of conscience." This raised an
uproar from members, such as Rep. Benjamin Huntingdon of Connecticut and
Rep. Peter Sylvester of New York, who worried the language could be
used to harm religious practice.
Others, such as Rep. Roger Sherman of Connecticut, believed the clause was unnecessary because the original Constitution only gave Congress stated powers, which did not include establishing a national religion.
Anti-Federalists such as Rep. Thomas Tucker
of South Carolina moved to strike the establishment clause completely
because it could preempt the religious clauses in the state
constitutions. However, the Anti-Federalists were unsuccessful in
persuading the House of Representatives to drop the clause from the
first amendment.
The Senate went through several more narrowly targeted versions
before reaching the contemporary language. One version read, "Congress
shall make no law establishing one religious sect or society in
preference to others, nor shall freedom of conscience be infringed,"
while another read, "Congress shall make no law establishing one
particular religious denomination in preference to others." Ultimately,
the Senate rejected the more narrowly targeted language.
At the time of the passage of the Bill of Rights,
many states acted in ways that would now be held unconstitutional. All
of the early official state churches were disestablished by 1833
(Massachusetts), including the Congregationalist establishment in Connecticut. It is commonly accepted that, under the doctrine of Incorporation—which uses the Due Process clause of the Fourteenth Amendment to hold the Bill of Rights applicable to the states—these state churches could not be reestablished today.
Yet the provisions of state constitutions protected religious
liberty, particularly the so-called freedom of conscience. During the
nineteenth century (and before the incorporation of the First Amendment
of the U.S. Constitution through the Fourteenth Amendment), litigants
turned to these provisions to challenge Sunday laws (blue laws), bible-reading in schools, and other ostensibly religious regulations.
David Sehat, professor of American Intellectual and Cultural History at Georgia State University, writes that:
But when the First Amendment was ratified in 1791, it did not apply to the states and would not until well into the 20th century. As a result, the First Amendment did not prevent states from paying churches out of the public treasury, as Maryland, Massachusetts, New Hampshire, Vermont, Connecticut and South Carolina did when that amendment was written. And those states that did not fund churches still favored Christianity. Blasphemy was forbidden in Delaware in 1826, and officeholders in Pennsylvania had to swear that they believed in “the being of a God and a future state of rewards and punishments.” American federalism gave states enormous power to regulate the health, welfare and morals of their citizens. Because many thought religion was the foundation of American society, they used their power to imprint their moral ideals on state constitutions and judicial opinions for much of American history.
The 14th Amendment
The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments, intended to secure rights for former slaves. It includes the due process and equal protection clauses among others. The amendment introduces the concept of incorporation
of all relevant federal rights against the states. While it has not
been fully implemented, the doctrine of incorporation has been used to
ensure, through the Due Process Clause and Privileges and Immunities Clause, the application of most of the rights enumerated in the Bill of Rights to the states.
The incorporation of the First Amendment establishment clause in the landmark case of Everson v. Board of Education has affected the subsequent interpretation of the separation of church and state in regard to the state governments.
Although upholding the state law in that case, which provided for
public busing to private religious schools, the Supreme Court held that
the First Amendment establishment clause was fully applicable to the
state governments. A more recent case involving the application of this
principle against the states was Board of Education of Kiryas Joel Village School District v. Grumet (1994).
Supreme Court cases
Jefferson's concept of "separation of church and state" first became a part of Establishment Clause jurisprudence in Reynolds v. U.S., 98 U.S. 145 (1878).
In that case, the court examined the history of religious liberty in
the US, determining that while the constitution guarantees religious
freedom, "The word 'religion' is not defined in the Constitution. We
must go elsewhere, therefore, to ascertain its meaning, and nowhere more
appropriately, we think, than to the history of the times in the midst
of which the provision was adopted." The court found that the leaders in
advocating and formulating the constitutional guarantee of religious
liberty were James Madison and Thomas Jefferson. Quoting the
"separation" paragraph from Jefferson's letter to the Danbury Baptists,
the court concluded that, "coming as this does from an acknowledged
leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus
secured."
The centrality of the "separation" concept to the Religion Clauses of the Constitution was made explicit in Everson v. Board of Education,
330 U.S. 1 (1947), a case dealing with a New Jersey law that allowed
government funds to pay for transportation of students to both public
and Catholic schools. This was the first case in which the court applied
the Establishment Clause to the laws of a state, having interpreted the due process clause of the Fourteenth Amendment as applying the Bill of Rights
to the states as well as the federal legislature. Citing Jefferson, the
court concluded that "The First Amendment has erected a wall between
church and state. That wall must be kept high and impregnable. We could
not approve the slightest breach."
While the decision (with four dissents) ultimately upheld the
state law allowing the funding of transportation of students to
religious schools, the majority opinion (by Justice Hugo Black) and the dissenting opinions (by Justice Wiley Blount Rutledge and Justice Robert H. Jackson)
each explicitly stated that the Constitution has erected a "wall
between church and state" or a "separation of Church from State": their
disagreement was limited to whether this case of state funding of
transportation to religious schools breached that wall. Rutledge, on
behalf of the four dissenting justices, took the position that the
majority had indeed permitted a violation of the wall of separation in
this case: "Neither so high nor so impregnable today as yesterday is the
wall raised between church and state by Virginia's great statute of
religious freedom and the First Amendment, now made applicable to all
the states by the Fourteenth." Writing separately, Justice Jackson
argued that "[T]here are no good grounds upon which to support the
present legislation. In fact, the undertones of the opinion, advocating
complete and uncompromising separation of Church from State, seem
utterly discordant with its conclusion yielding support to their
commingling in educational matters."
In 1962, the Supreme Court addressed the issue of officially sponsored prayer or religious recitations in public schools. In Engel v. Vitale,
370 U.S. 421 (1962), the Court, by a vote of 6-1, determined it
unconstitutional for state officials to compose an official school
prayer and require its recitation in public schools, even when the
prayer is non-denominational and students may excuse themselves from
participation. (The prayer required by the New York State Board of Regents
prior to the Court's decision consisted of: "Almighty God, we
acknowledge our dependence upon Thee, and we beg Thy blessings upon us,
our parents, our teachers, and our country. Amen.") As the Court stated:
The petitioners contend, among other things, that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention, since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.
The court noted that it "is a matter of history that this very
practice of establishing governmentally composed prayers for religious
services was one of the reasons which caused many of our early colonists
to leave England and seek religious freedom in America." The lone dissenter, Justice Potter Stewart,
objected to the court's embrace of the "wall of separation" metaphor:
"I think that the Court's task, in this as in all areas of
constitutional adjudication, is not responsibly aided by the uncritical
invocation of metaphors like the "wall of separation," a phrase nowhere
to be found in the Constitution."
In Epperson v. Arkansas,
393 U.S. 97 (1968), the Supreme Court considered an Arkansas law that
made it a crime "to teach the theory or doctrine that mankind ascended
or descended from a lower order of animals," or "to adopt or use in any
such institution a textbook that teaches" this theory in any school or
university that received public funds. The court's opinion, written by
Justice Abe Fortas,
ruled that the Arkansas law violated "the constitutional prohibition of
state laws respecting an establishment of religion or prohibiting the
free exercise thereof. The overriding fact is that Arkansas' law selects
from the body of knowledge a particular segment which it proscribes for
the sole reason that it is deemed to conflict with a particular
religious doctrine; that is, with a particular interpretation of the
Book of Genesis by a particular religious group." The court held that
the Establishment Clause prohibits the state from advancing any
religion, and that "[T]he state has no legitimate interest in protecting
any or all religions from views distasteful to them."
Justice Sandra Day O'Connor
Those who would
renegotiate the boundaries between church and state must therefore
answer a difficult question: Why would we trade a system that has served
us so well for one that has served others so poorly?'
— Justice Sandra Day O'Connor in her opinion on the 2005 Ten Commandments ruling.
In Lemon v. Kurtzman,
403 U.S. 602 (1971), the court determined that a Pennsylvania state
policy of reimbursing the salaries and related costs of teachers of
secular subjects in private religious schools violated the Establishment
Clause. The court's decision argued that the separation of church and
state could never be absolute: "Our prior holdings do not call for total
separation between church and state; total separation is not possible
in an absolute sense. Some relationship between government and religious
organizations is inevitable," the court wrote. "Judicial caveats
against entanglement must recognize that the line of separation, far
from being a 'wall', is a blurred, indistinct, and variable barrier
depending on all the circumstances of a particular relationship."
Subsequent to this decision, the Supreme Court has applied a
three-pronged test to determine whether government action comports with
the Establishment Clause, known as the "Lemon Test".
First, the law or policy must have been adopted with a neutral or
non-religious purpose. Second, the principle or primary effect must be
one that neither advances nor inhibits religion. Third, the statute or
policy must not result in an "excessive entanglement" of government with
religion. (The decision in Lemon v. Kurtzman
hinged upon the conclusion that the government benefits were flowing
disproportionately to Catholic schools, and that Catholic schools were
an integral component of the Catholic Church's religious mission, thus
the policy involved the state in an "excessive entanglement" with
religion.) Failure to meet any of these criteria is a proof that the
statute or policy in question violates the Establishment Clause.
In 2002, a three judge panel on the Ninth Circuit Court of Appeals
held that classroom recitation of the Pledge of Allegiance in a
California public school was unconstitutional, even when students were
not compelled to recite it, due to the inclusion of the phrase "under
God." In reaction to the case, Elk Grove Unified School District v. Newdow, both houses of Congress passed measures reaffirming their support for the pledge, and condemning the panel's ruling.
The case was appealed to the Supreme Court, where the case was
ultimately overturned in June 2004, solely on procedural grounds not
related to the substantive constitutional issue. Rather, a five-justice
majority held that Newdow, a non-custodial parent suing on behalf of his
daughter, lacked standing to sue.
When the Louisiana state legislature passed a law requiring public school biology teachers to give Creationism and Evolution
equal time in the classroom, the Supreme Court ruled that the law was
unconstitutional because it was intended to advance a particular
religion, and did not serve the secular purpose of improved scientific
education.
The display of the Ten Commandments as part of courthouse
displays was considered in a group of cases decided in summer of 2005,
including McCreary County v. ACLU of Kentucky and Van Orden v. Perry.
While parties on both sides hoped for a reformulation or clarification
of the Lemon test, the two rulings ended with narrow 5–4 and opposing
decisions,[vague] with Justice Stephen Breyer the swing vote.
On December 20, 2005, the United States Court of Appeals for the Sixth Circuit ruled in the case of ACLU v. Mercer County that the continued display of the Ten Commandments as part of a larger display on American legal traditions in a Kentucky
courthouse was allowed, because the purpose of the display (educating
the public on American legal traditions) was secular in nature. In ruling on the Mount Soledad cross controversy on May 3, 2006, however, a federal judge ruled that the cross on public property on Mount Soledad must be removed.
In what will be the case is Town of Greece v. Galloway,
12-696, the Supreme Court agreed to hear a case regarding whether
prayers at town meetings, which are allowed, must allow various faiths
to lead prayer, or whether the prayers can be predominately Christian.
On May 5, 2014, the U.S. Supreme Court ruled 5-4 in favor of the Town
of Greece by holding that the U.S. Constitution not only allows for
prayer at government meetings, but also for sectarian prayers like
predominately Christian prayers.
Madalyn Murray O'Hair's 1963 lawsuit led to an end of mandatory prayer in public schools after the Supreme Court declared it unconstitutional.
The Supreme Court in The American Legion v. American Humanist Association 2019 reversed the Fourth Circuit's ruling in a 7-2 decision, determining that since the government-maintained Peace Cross in Bladensburg, Maryland had stood for decades without controversy, it did not violate the Establishment Clause and could remain standing.
Early treaties and court decisions
The Treaty of Paris
In 1783, the United States signed a treaty with Great Britain that was promulgated "in the name of the Most Holy and Undivided Trinity".
It credited "'Divine Providence' with having disposed the two parties
to 'forget all past misunderstandings,' and is dated 'in the year of our
Lord' 1783."
The Treaty of Tripoli
In 1797, the United States Senate ratified a treaty with Tripoli that stated in Article 11:
As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
Historian Anson Phelps Stokes' noted that "those who wished to deny
that the United States as a government has any special regard for the
Christian religion...[have ] almost invariably failed to call attention
to the fact that the treaty was superseded, less than a decade later, by
another 'Treaty of Peace and Amity,' signed in Tripoli June 4, 1805, in
which the clause in question...is omitted."
Church of the Holy Trinity v. United States
In the 1892 case Church of the Holy Trinity v. United States, Supreme Court Justice David Brewer
wrote for a unanimous Court that "no purpose of action against religion
can be imputed to any legislation, state or national, because this is a
religious people. ... [T]his is a Christian nation." Legal historian Paul Finkelman writes that:
Brewer, the son of a Congregationalist missionary to Asia Minor, quoted several colonial charters, state constitutions, and court decisions that referred to the importance of Christian belief in the affairs of the American people; cited the practice of various legislative bodies of beginning their sessions with prayer, and noted the large number of churches and Christian charitable organizations that exist in every community in the country as evidence that this is a Christian nation. In doing so, Brewer expressed the prevailing nineteenth-century Protestant view that America is a Christian nation.
Interpretive controversies
Some scholars and organizations disagree with the notion of
"separation of church and state", or the way the Supreme Court has
interpreted the constitutional limitation on religious establishment.
Such critics generally argue that the phrase misrepresents the textual
requirements of the Constitution, while noting that many aspects of
church and state were intermingled at the time the Constitution was
ratified. These critics argue that the prevalent degree of separation of
church and state could not have been intended by the constitutional
framers. Some of the intermingling between church and state include
religious references in official contexts, and such other founding
documents as the United States Declaration of Independence,
which references the idea of a "Creator" and "Nature's God", though
these references did not ultimately appear in the Constitution nor do
they mention any particular religious view of a "Creator" or "Nature's
God."
The issue is complex, however, as the incorporation ultimately
bases on the passage of the 14th Amendment in 1868, at which point the
first amendment's application to the state government was recognized. Many of these constitutional debates relate to the competing interpretive theories of originalism versus modern, progressivist theories such as the doctrine of the Living Constitution. Other debates center on the principle of the law of the land in America being defined not just by the Constitution's Supremacy Clause, but also by legal precedence, making an accurate reading of the Constitution subject to the mores and values of a given era, and rendering the concept of historical revisionism irrelevant when discussing the Constitution.
Ten commandments monument at a Minnesota courthouse.
The "religious test" clause has been interpreted to cover both elected officials and appointed ones, career civil servants as well as political
appointees. Religious beliefs or the lack of them have therefore not
been permissible tests or qualifications with regard to federal
employees since the ratification of the Constitution. Seven states,
however, have language included in their Bill of Rights or Declaration
of Rights, or in the body of their constitutions that require state
office-holders to have particular religious beliefs, though some of
these have been successfully challenged in court. These states are
Texas, Massachusetts, Maryland, North Carolina, Pennsylvania, South
Carolina, and Tennessee.
The required beliefs of these clauses include belief in a Supreme
Being and belief in a future state of rewards and punishments. (Tennessee Constitution
Article IX, Section 2 is one such example.) Some of these same states
specify that the oath of office include the words "so help me God." In
some cases these beliefs (or oaths) were historically required of jurors
and witnesses in court. At one time, such restrictions were allowed
under the doctrine of states' rights;
today they are deemed to be in violation of the federal First
Amendment, as applied to the states via the 14th amendment, and hence
unconstitutional and unenforceable.
Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the fact that Christmas
is a federal holiday, etc., have also been questioned, but have been
considered examples of the governmental prerogative in deciding
practical and beneficial arrangements for the society. The national
motto "In God We Trust" has been challenged as a violation, but the Supreme Court has ruled that ceremonial deism is not religious in nature. A circuit court ruling affirmed Ohio's right to use as its motto a passage from the Bible, "With God, all things are possible", because it displayed no preference for a particular religion.
Jeffries and Ryan (2001) argue that the modern concept of
separation of church and state dates from the mid-twentieth century
rulings of the Supreme Court. The central point, they argue, was a
constitutional ban against aid to religious schools, followed by a later
ban on religious observance in public education. Jeffries and Ryan
argue that these two propositions—that public aid should not go to
religious schools and that public schools should not be religious—make
up the separationist position of the modern Establishment Clause.
Jeffries and Ryan argue that no-aid position drew support from a
coalition of separationist opinion. Most important was "the pervasive
secularism that came to dominate American public life," which sought to
confine religion to a private sphere. Further, the ban against
government aid to religious schools was supported before 1970 by most
Protestants (and most Jews), who opposed aid to religious schools, which
were mostly Catholic at the time. After 1980, however, anti-Catholic
sentiment has diminished among mainline Protestants, and the crucial
coalition of public secularists and Protestant churches has collapsed.
While mainline Protestant denominations are more inclined towards strict
separation of church and state, much evangelical opinion has now
largely deserted that position. As a consequence, strict separationism
is opposed today by members of many Protestant faiths, even perhaps
eclipsing the opposition of Roman Catholics.
Critics of the modern concept of the "separation of church and
state" argue that it is untethered to anything in the text of the
constitution and is contrary to the conception of the phrase as the
Founding Fathers understood it. Philip Hamburger, Columbia Law
school professor and prominent critic of the modern understanding of
the concept, maintains that the modern concept, which deviates from the
constitutional establishment clause jurisprudence, is rooted in American
anti-Catholicism and Nativism.
Briefs before the Supreme Court, including by the U.S. government, have
argued that some state constitutional amendments relating to the modern
conception of separation of church and state (Blaine Amendments) were motivated by and intended to enact anti-Catholicism.
J. Brent Walker,
Executive Director of the Baptist Joint Committee, responded to
Hamburger's claims noting; "The fact that the separation of church and
state has been supported by some who exhibited an anti-Catholic animus
or a secularist bent does not impugn the validity of the principle.
Champions of religious liberty have argued for the separation of church
and state for reasons having nothing to do with anti-Catholicism or
desire for a secular culture. Of course, separationists have opposed the
Catholic Church when it has sought to tap into the public till to
support its parochial schools or to argue for on-campus released time in
the public schools. But that principled debate on the issues does not
support a charge of religious bigotry."
Steven Waldman notes that; "The evangelicals provided the
political muscle for the efforts of Madison and Jefferson, not merely
because they wanted to block official churches but because they wanted
to keep the spiritual and secular worlds apart." Frank Lambert wrote
"Religious freedom resulted from an alliance of unlikely partners. New
Light evangelicals such as Isaac Bachus and John Leland
joined forces with Deists and skeptics such as James Madison and Thomas
Jefferson to fight for a complete separation of church and state."
On the other hand, Charles C. Haynes noted in The Washington Post that:
For James Madison, Thomas Jefferson and other early supporters of church-state separation, authentic religious liberty requires that government remain neutral toward religion while simultaneously upholding the right of religious people and institutions to participate fully in the public square of America. Ignoring the role of religion ... is hardly “neutral.” On the contrary, such exclusion sends a message of government hostility to the religious. The First Amendment does not guarantee atheists or anyone else “freedom from religion.” Frequent exposure to religious symbols and messages is inevitable in our religiously diverse society. The First Amendment does, however, guarantee “freedom from government-imposed religion” – a core condition of liberty of conscience.
Politics and religion in the United States
Robert N. Bellah
has written that although the separation of church and state is
grounded firmly in the constitution of the United States, this does not
mean that there is no religious dimension in the political society of
the United States. He used the term "Civil Religion"
to describe the specific relation between politics and religion in the
United States. His 1967 article analyzes the inaugural speech of John F. Kennedy:
"Considering the separation of church and state, how is a president
justified in using the word 'God' at all? The answer is that the
separation of church and state has not denied the political realm a
religious dimension."
Robert S. Wood
has argued that the United States is a model for the world in terms of
how a separation of church and state—no state-run or state-established
church—is good for both the church and the state, allowing a variety of
religions to flourish.
Speaking at the Toronto-based Center for New Religions, Wood said that
the freedom of conscience and assembly allowed under such a system has
led to a "remarkable religiosity" in the United States that isn't
present in other industrialized nations.
Wood believes that the U.S. operates on "a sort of civic religion,"
which includes a generally shared belief in a creator who "expects
better of us." Beyond that, individuals are free to decide how they want
to believe and fill in their own creeds and express their conscience.
He calls this approach the "genius of religious sentiment in the United
States."
