Church and State, Separation of

CHURCH AND STATE, SEPARATION OF

CHURCH AND STATE, SEPARATION OF. The First Amendment to the U.S. Constitution, drafted by James Madison, declares that Congress "shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof." Madison's friend and mentor Thomas Jefferson was proud of his role in drafting and winning assent to Virginia's religious liberty law (1786). In a letter of 1802, he referred to the need for a "high wall of separation" between church and state. Both men considered religious liberty not just a convenient political response to the actual diversity of denominations in the new Republic but as a natural right.

Jefferson's wall metaphor has often been used but it has never been adequate. Everyone stands on one side or the other of a real wall. Citizens of the states, by contrast, often belong to churches too and defy the metaphor by appearing on both sides. Controversy over how to interpret the First Amendment has therefore absorbed immense quantities of time, words, and ink, especially in the years since 1940, when for the first time its religious clauses were extended from the federal to state level.

In the early days of the Republic, despite the First Amendment, several states continued to have "official" established churches. The courts then interpreted the amendment to mean that while Congress could make no laws about religion, the states were free to do so. The actual diversity of religious groups in the states—promoted especially by the fervently democratic mood of the Second Great Awakening—nonetheless encouraged disestablishment. The last established church, Massachusetts Congregationalism, was separated from the state in 1833.

Even so, the idea that the United States was a Protestant country remained widespread. When Horace Mann laid the foundations for the public school system, again in Massachusetts, he took it for granted that the education would be religious and that students would study the King James Bible, which was common to most Protestant churches. Catholic immigration, accelerating after the Irish famine (1845–1850), made this curriculum controversial. The Catholic archbishop of New York, John Hughes, argued that the faith of young Catholics was jeopardized when they studied in public schools and set about creating a parallel parochial school system. At that point, however, the federal judiciary left it to the states to make their own arrangements and most states were emphatic about their Protestant identity and their love of the King James Bible. Only after passage of the Fourteenth Amendment in 1868 did the possibility arise that the Supreme Court could extend the Bill of Rights to the states.

The Court first took an interest in the religion clause of the First Amendment when it adjudicated Reynolds v. United States (1879). George Reynolds, a Mormon who was already married, had followed his church's injunction to take a second wife. Most Americans were bitterly critical of Mormon polygamy, and Reynolds was convicted under the bigamy statutes. On appeal, Reynolds claimed he was exercising his First Amendment right under the free exercise clause—but the Court was unimpressed. It answered that Reynolds was free to believe in polygamy but was not free to act on his belief. If he did so, it pointed out, he would in effect be violating the establishment clause by getting an exemption from the bigamy statutes because of his membership in a particular church.

In the twentieth century, cases testing the proper relationship between church and state became more common. Among the first was an Oregon case that the Supreme Court adjudicated in 1925, Pierce v. Society of Sisters. The re-formed Ku Klux Klan, powerful in Oregon, where its scapegoat was Catholics rather than African Americans, lobbied the state legislature to pass a law requiring all the state's children to attend public school. The legislation was aimed against Catholic private and parochial schools. Nuns belonging to the Society of Sisters, who ran such schools, sued the state and won their final appeal before the Supreme Court. The justices told Oregon that it was entitled to establish educational standards that all students in the state must fulfill, but that it had no right to forbid children from attending the religious schools their parents had chosen. Justice James Clark McReynolds wrote: "The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

Pierce was not a First Amendment case—it was argued under the due process clause of the Fourteenth Amendment. In 1940, however, the Supreme Court for the first time decided that it would review a First Amendment free-exercise case arising in one of the states (Reynolds had arisen in the western federal territories). Its 9–0 adjudication of Cantwell v. Connecticut (1940) was one of the very few occasions on which the Court has reached a unanimous verdict in a First Amendment case. It over-turned the breach-of-peace conviction of a Jehovah's Witness who had distributed anti-Catholic literature and played anti-Catholic gramophone records in a largely Catholic district. Justice Owen Josephus Roberts, writing for the Court, noted that Cantwell may have been provoking

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but "there is no showing that his deportment was noisy, truculent, overbearing, or offensive." His intention had been to interest passers by in his religious views and the First Amendment protected his right to do so.

Cantwell opened the door to Supreme Court adjudication of other First Amendment cases, and they became a regular fixture on its docket from then on. Pierce had established the right of religious schools to exist. Many subsequent cases thrashed out the question of whether the state, while permitting children to go to religious schools, was also allowed to contribute to the cost of their education. Religious parents, whose children went to these schools, had a powerful motive to say yes. In their view, after all, they were sparing the state an expense by not availing themselves of the public schools. Was it not discriminatory to make them pay for the public schools through their taxes, then pay again for their own children in the form of tuition fees? In Everson v. Board of Education (1947), the Court found, by the narrow vote of 5–4, that states could contribute financially to nonreligious elements of these children's education. In this instance, it could refund the cost of their bus travel to and from school.

Everson was important not only for the substance of its decision but also for its declaration of the general considerations that should govern such cases, all spelled out in Justice Hugo Black's majority decision. He wrote that the First Amendment, as applied to the states through the Fourteenth Amendment, showed that no government "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," and that it could not penalize anyone "for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance."

Numerous subsequent cases refined the constitutional position on schools and had the collective effect of making schools far less religious places than they had been throughout most of the nation's history. In McCollum v. Board of Education (1948), the Court ruled that religious teachers could not enter public schools during normal school hours even to give voluntary instruction in each of the religions practiced by the students. In three bitterly contested cases (Engel v. Vitale, 1962; Abington v. Schempp, 1963; and Murray v. Curlett, 1963), it went much further by ruling that public-school children could not recite a nondenominational prayer written by the New York Board of Regents, could not read the Bible or recite the Lord's Prayer, and could not have the Ten Commandments posted in their classrooms. This set of findings overturned laws in nearly every state and brought to a sudden end practices that had been hallowed by a century or more of continuous use. Critics, especially on the political right, demanded the impeachment of Chief Justice Earl Warren, who was already controversial for his judicial activism in other areas. A disgruntled Alabama congressman, mindful of the same chief justice's desegregation decision in Brown v. Board of Education of Topeka, Kansas (1954), declared: "First he put Negroes in the classroom—now he's taken God out!"

President John F. Kennedy, the first Catholic to occupy the White House, was in office at the time of these decisions. He had faced electoral opposition in 1960 from Protestant groups that believed his faith made him unfit for the presidency. Kennedy, determined to prove otherwise, had told a meeting of evangelical Protestant ministers in Houston just before the election that he, like all candidates, enjoyed freedom of conscience, that he believed in church-state separation, and that if ever an issue arose in which his religious conscience prevented him from doing his political duty, he would resign, as any president should. Once he was president, he refused to endorse draft constitutional amendments aimed at reversing the controversial school cases and urged citizens to obey the Court's rulings.

In considering these cases it is important to remember that religious groups were well represented among the litigants on both sides. Militant secularism, atheism, and agnosticism were always the preserve of a tiny minority. The American Civil Liberties Union, usually found on the "strict separation" side, counted many ministers, rabbis, and devout members of congregations among its supporters. In the tradition established by Roger Williams more than three centuries earlier and strongly upheld among most Baptist congregations, they feared that entanglement with the state would contaminate their faith. Defenders of school prayer and Bible reading, no less strongly supplied with outspoken clergymen, countered that such contamination was unlikely as long as the religious exercises were voluntary and nondenominational. The important point, in their view, was to underline the godly character of America in its great Cold War confrontation with the Soviet Union and "Godless Communism."

Lemon v. Kurtzman (1971) was among the most important of all the First Amendment school cases, in that it laid down a set of three requirements (the "Lemon test") for judging the constitutionality of laws relating to religious education. The Court has followed the test more or less closely ever since. First, a law must be neutral between religions and between religion and nonreligion. Second, the law's primary intent and impact must be secular; and third, it must not "excessively entangle" the state with religion. The Lemon test could not resolve all controversies, of course, since "excessive entanglement" was itself open to a wide variety of interpretations.

Public opinion polls showed that the majority of Americans disliked the degree of church–state separation the Court specified, and throughout the 1970s and 1980s state governments looked for ways to reintroduce prayer and religious activities into public schools. The Moral Majority and other evangelical lobbies in the 1980s argued that "secular humanism" was itself a religious position, that it had displaced Christianity in public life, especially in schools, and that it there by violated the establishment clause. The Court remained skeptical but it did concede, in Board of Education v. Mergens (1990), that voluntary religious groups should be allowed to meet on public school property in just the same way as any other student sports team, club, or society.

Religious schools flourished, meanwhile, as ever more parents abandoned the secularized public system. They were heartened by the Court's decision in Mueller v. Allen (1983), which upheld the constitutionality of a Minnesota law that gave a $700 state tax exemption to the parents of private school children, whether or not the schools were religious. By the narrowest majority, 5–4, the Court argued that the law, by favoring a broad category of Minnesota's citizens, whatever their beliefs, did not fall afoul of the Lemon test.

Numerous establishment clause cases also arose in nonschool contexts. Depending on the details, the Court sometimes appeared to decide similar cases in opposite ways—further evidence that this was a complex and controverted area of the law. For example, in Braunfeld v. Braun (1961), it investigated the dilemma of a furniture-store owner who was forced to close his store on Sundays in accord with Pennsylvania's Sunday closing law. He was an Orthodox Jew, however, and also closed the store on his Sabbath, Saturday, with the result that he lost two business days every week while his Christian competitors lost only one. Was not the Sunday closing law a violation of the establishment clause, based as it was on the Christian tradition of Sunday as Sabbath? The Court said no; it was a matter of national tradition, rather than religious establishment, and as such was defensible.

Two years later the Court appeared to reverse itself but denied that it had done so. In Sherbert v. Verner (1963), it examined the plight of a woman who belonged to the Seventh Day Adventists, a Christian group that (as with Judaism) takes Saturday as Sabbath. She was out of work, refused for religious reasons to take a job that compelled her to work on Saturdays, and found, when she applied for unemployment compensation, that she was denied it because she had declined to accept "suitable" job offers. This time the Supreme Court found in her favor, arguing that the state would only have been entitled to withhold her unemployment pay if it had had a "compelling" interest in doing so.

A related pair of cases, several years later, added a few more twists and turns to the labyrinth. The first was Yoder v. Wisconsin (1972). The state had passed a law requiring all children to attend schools until they reached the age of sixteen. Amish people in the state wanted to withdraw their children after eighth grade (age fourteen). They feared that the education their children received after that point was likely to draw them away from the Amish community, with its simple, unmechanized farming practices. Their claim for exemption from the state law, in other words, was based on the right to protect their religious free exercise. The Court found in their favor, even though, in doing so, it appeared to grant this one group special treatment because of its religion, which some commentators saw as a violation of the establishment clause.

In the second case, Employment Division v. Smith (1990), an Oregon citizen was fired from his job at a drug-rehabilitation clinic after eating peyote, the hallucinogenic fungus used by the Native American church of which he was a member. The drug was illegal in Oregon and the state government had not exempted religious users. When he was denied unemployment pay, Smith sued the state for violating his free-exercise rights. The logic of the Sherbert and Yoder decisions suggested that he would be upheld, but the Court used the Reynolds and Braunfeld precedents instead, declaring that Smith was entitled to hold his religious beliefs but that they did not excuse him from obeying generally applicable state laws.

Scholars and justices alike were uneasily aware by 2000 that whatever decision the Court made in a church–state case, it would have a line of precedents at hand to decide one way or the other. Take for example the case of the Christmas crèche owned by the city of Pawtucket, Rhode Island, and placed in the city's public square every December, which the Court might easily have condemned as a violation of the establishment clause. The ACLU and an alliance of ministers sued for its removal in 1980 and won. The city's indignant mayor, Dennis Lynch, appealed all the way to the Supreme Court and finally achieved a reversal of the decision. The Court ruled in Lynch v. Donnelly (1984)—at 5–4 another close decision—that the crèche was permissible because it was accompanied by a Santa, various elves, and a brace of plastic reindeer, whose collective effect was to make the display acceptably "traditional" rather than unacceptably "religious."

The sixty-year constitutional struggle over the First Amendment from 1940 to 2000 was largely symbolic; no one seriously believed that any one church was going to be established by law or that any of the citizens' religions were going to be proscribed. No one suffered serious harm from the Court's verdicts. While these cases were argued with so much anguish, few commentators, ironically, paused to observe the fate of twentieth-century Europe's still common established churches. Their lesson was that in the twentieth century establishment was synonymous with religious weakness and indifference, rather than with the tyranny and intolerance it was alleged to imply. While America's disestablished churches drew in nearly half the nation's population every week, the established Church of England, nemesis of the revolutionary generation, could scarcely attract 3 percent of the British people. American experience showed that disestablishment and religious vitality went hand in hand.

BIBLIOGRAPHY

Alley, Robert S, ed. The Supreme Court on Church and State. New York: Oxford University Press, 1990.

Eastland, Terry, ed. Religious Liberty in the Supreme Court: The Cases that Define the Debate over Church and State. Washington, D.C.: Ethics and Public Policy Center, 1993.

Frankel, Marvin. Faith and Freedom: Religious Liberty in America. New York: Hill and Wang, 1994.

Hunter, James D. Articles of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public Philosophy. Washington, D.C.: Brookings Institution, 1990.

Kramnick, Isaac, and R. Laurence Moore. The Godless Constitution: The Case against Religious Correctness. New York: Norton, 1996.

Levy, Leonard. The Establishment Clause: Religion and the First Amendment. 2d rev. ed. Chapel Hill: University of North Carolina Press, 1994.

Menendez, Albert. The December Wars: Religious Symbols and Ceremonies in the Public Square. Buffalo, N.Y.: Prometheus, 1993.

Noonan, John T., Jr. The Believer and the Powers that Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government. New York: Macmillan, 1987.

Reichley, James. Religion in American Public Life. Washington, D.C.: Brookings Institution, 1985.

Patrick N. Allitt

See also Church of England in the Colonies ; Civil Religion ; First Amendment ; Religious Liberty ; Reynolds v. United States .