Caring Firebrand Atheist Activism Indianapolis, Indiana 2018

Separation of church and state in the United States

“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 Constitution of the United States 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, “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.” Jefferson was echoing the language of the founder of the first Baptist church in America, Roger Williams who had written in 1644, “[A] hedge or wall of separation between the garden of the church and 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 of the United States in Zorach v. Clauson 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.

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 a 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 that he had received 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 of 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 everyone 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.

Challenges: Jefferson and James Madison’s conceptions of separation?

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. The 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.

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.[37] 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 19th century Union Theological Seminary 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.[40] 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 or 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.

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).

The “Separation” principle and the Supreme Court

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 prescribes 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.”

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 principal 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.

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.

https://en.wikipedia.org/wiki/Separation_of_church_and_state_in_the_United_States

“Here is some relevant CFI (the Center for Inquiry) News”

Privileging Religion By Any Means

Amid the great tragedies and scandals of recent weeks, the Trump administration and its allies in Congress have gone under the radar to launch a flurry of new attacks on secular government by defending religiously-based discrimination, taking cynical advantage of disasters, and undermining children’s education. Here are some of the issues CFI has been working on in February: Religious Right Watchdogs at the DOJ: Earlier this month, Attorney General Jeff Sessions established a new policy requiring each U.S. Attorney’s office to assign a staffer to monitor all cases involving “religious liberty,” which is code for those instances when a religious individual or organization wants the freedom to discriminate against anyone who does not conform to their beliefs. Career attorneys are instructed to bring these cases to political appointees so they can advance their agenda of privileging religious belief over equality and rule of law. If a business refuses service to LGBTQ Americans, if women seeking contraceptive services are turned away, or a transgender person is denied the use of a public bathroom, the Justice Department will defend those responsible for the discrimination in the name of religious liberty. “All Americans, including those of all faiths and those of no faith, should be able to rely on fair treatment from the Department of Justice,” said CFI Legal Director Nick Little in our statement. “By this policy, Jeff Sessions has handed the keys to his Department to the religious Right.” Passing the Collection Plate to FEMA: To aid in rebuilding after hurricanes and wildfires caused incredible damage in several states, the Federal Emergency Management Agency (FEMA) provides grants to private facilities that perform essential social services for the general public, such as community centers, homeless shelters, and senior citizen centers. But in its Bipartisan Budget Agreement, the U.S. Senate has declared “houses of worship” to be eligible for FEMA grants as well, allowing churches to use taxpayer dollars to improve their facilities. “Houses of worship are already eligible to get government grants to cover damages incurred when serving their community,” CFI Director of Government Affairs Jason Lemieux pointed out. “If churches want protection against damage from natural disasters, that’s what insurance is for.” Jason was cited in Emma Green’s article on this issue for The Atlantic. Public Funds for Private Indoctrination: Also stuffed into the Senate’s budget bill was a provision that would siphon taxpayer money away from public schools receiving disaster relief and into a school voucher scheme, diverting $2.7 billion in badly needed public funds toward private schools, the vast majority of which are religious. Jason Lemieux called out the Senate for “[using] disaster relief as a cover to divert taxpayer money to vouchers for religious schools that can discriminate against LGBTQ, disabled, and nonreligious children.” Days later, the White House followed suit. In its 2019 budget request, the Trump administration seeks to allot $1 billion in taxpayer funds for voucher programs—four times the amount requested in the previous year. CFI spoke out against the funding of schools that are free to discriminate. “This administration is falling over itself to please the religious Right,” said CFI’s president and CEO, Robyn Blumner, “and this time it is to encourage parents to remove their children from pluralistic and secular public schools to enroll them instead in schools designed to indoctrinate children into religious beliefs.”

Issue #100 — February 21, 2018 Cause & Effect is the biweekly newsletter of the Center for Inquiry

http://www.centerforinquiry.net/news/cause_effect_100/

Religion Freedom Rights vs. Child Rights?

https://damienmarieathope.com/2018/01/international-day-of-protest-against-hereditary-religion-religion-freedom-rights-vs-child-rights/

How to best Help change the current value of Religion Freedom Rights over Child Rights?

https://damienmarieathope.com/2018/01/international-day-of-protest-against-hereditary-religion-how-to-best-help-change-the-current-value-of-religion-freedom-rights-over-child-rights/

Religion harm and a way to stop it’s Rights Violations?

https://damienmarieathope.com/2018/01/international-day-of-protest-against-hereditary-religion-religion-harm-and-a-way-to-stop-its-rights-violations/