Separation of Church and State - Essay Example

Despite the proclaimed "wall of separation" that Thomas Jefferson attempted to erect in his letter to the Danbury Baptists, the role of religion in government has been a perennially irksome question to those who seek to maintain a balance between the principles of political liberalism and the tenets of faith. (Owen 493) Though the language of the First Amendment seems clear enough on the issue of establishment and Free Exercise, the notion of "strict separation" is cloudier. The history of the debate about the role of religion often seeks to attribute particular intentions to the founding framers based on their political and religious belief and imposing those beliefs on the language of the constitution. This strategy is applied by those who are as eager to separate church and state, as those who seek to integrate them more tightly. One of the other primary issues that is raised in this debate is the rather practical one as to whether or not church and state are really separated at all. It is suggested that the notions of political liberalism, democracy, and the founding principles of modern states are based implicitly on moral codes and mores derived from religious institutions. Thus, religion and government are not inseparable a priori. The second type of argument given in this vein offers that the increase in the number and percentage of religious practices which exist here in the United States, mandates a level of management if not expressly establishment from Federal, State and local governments. The number of individuals who claim a religious affiliation that is neither Christian, Jewish, nor non-affiliated has risen from 7% to 20% in the past 30 years (Walker 1). While it might be the case that such diversity is to be lauded, the legal intricacies that must be navigated to ensure that these various religious practices have the "free exercise" guaranteed to them by the Constitution while simultaneously maintaining supposed "neutrality" on the relative merits of any individual religion (or non-religion for that matter) has become fraught with inconsistencies and difficulties. In this paper I will briefly highlight and discuss some of these difficulties, ideological and practical, philosophical and historical, that have made this issue such an integral part of the national debate for decades. Thomas Jefferson, a founding father and author of the Statute of Virginia for Religious Freedom, was indeed so partial to this document, that the drafting of this document along with his drafting of the Declaration of Independence and the founding of the University of Virginia, were the only three accomplishments he wished to have listed on his epitaph (Owen 496). The document itself is divided into three sections; the first section lays out the incoherence and troubles that compulsory adherence, or support of a religion would create. While Jefferson and other founding fathers were perhaps committed to disestablishment and free exercise, very few of them were "neutral" on the topic of religion altogether. Even from the text of this legal statute, religiosity, if not explicitly religion is evident in the nature and language of the text as can be seen from the beginning of the statute: "Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens [sic], or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion" (Nancy 13). Thomas Jefferson was undeniably "a believer," with all of the connotations and implications that that phrase implies. Thus, when we consider what modern or contemporary concepts are part and parcel of the phrase "separation of church and state" our language today differs in a much more secular direction than Jefferson's "wall" might initially have entailed. Another formative document that reveals the early history and potential mindset of some of the founding framers' view of Church and its role in the state derive from an early Treaty signed with the Barbary peoples in Tripoli. Negotiated by Joel Barlow, an aspiring literary figure, he was a member of the Hartford Wits, a group that advocated for a strong central government in the style of a republic and criticized Jeffersonian democratic principles. Though later, Barlow himself would become a proponent of such principles, one common belief that he shared with Jefferson was the marginalizing of official support or hostility toward any particular religion or perhaps religion in general (Boston). This is likely no more explicit than in Article 11 of the Treaty with Tripoli signed and unanimously approved by the Senate in 1797. Article 11 states: 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 tranquility, 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. Though controversy surrounds the translation from the original text of the document into English, it was one of the few resolutions to have been unanimously approved and its contents published in various newspapers at the time seemed to have met with little controversy. In this case we can see the rather stark and explicit nature of the language in this text, and in fact the comparative absence of religiosity in this text as compared with Jefferson's statute. This not to say the relative lack of criticism regarding this treaty and the unanimity of its passage are not necessarily indicative of a widespread approval of this particular article or its contents. There many political and economic reasons to resolve hostilities with the Barbary pirates quite independent of any religious proclamations that this article is making. But those who would look to this document as a kind of proof that many of the founding framers' were comfortable with the notion that the United States was not a Christian nation must at the end of the day be bolstered by its unequivocal phraseology and its unanimous approval. The United States Supreme Court has been integral in establishing and formulating the "wall" between Church and State. A number of landmark court cases have significantly altered and defined the territory that this debate has covered. Engle v. Vitale (1962) dealt with the banning of prayer in public schools and Everson v. Board of Education (1947), which incorporated the Establishment Clause via the 14th Amendment into state law. Two other cases that will be discussed more fully here include the recent decision in Van Orden v. Perry (2005), regarding the placement of a statue depicting the Ten Commandments next to the Texas State Capitol and the decision in Lemon v. Kurtzman (1971), which established the famous Lemon Test for legislation concerning religion. In Van Orden v. Perry, the Texas State Capitol had a rather a 3' by 6' monument to the Ten Commandments with the words, "I am the Lord, thy God," written at the top. In a heavily split 5-4 decision the Court decided that the monument was constitutional. More notable is that a similar case in Kentucky produced the reverse decision, 5-4 that the display of the Ten Commandments was unconstitutional. In both of these cases the salient issue is whether or not the representation of the Ten Commandments represented an active attempt to establish or compel a religious practice, or betrayed a religious preference on behalf of the government of the respective states in question. (Chemerinsky 2) Justice Breyer was the "swing voter" in these cases, affirming the constitutionality of the monument in Texas and denying it in Kentucky. Breyer's articulation of this difference, offers an interesting look into the nature of our "separation" here in the United States. Breyer determined that the nature of the monument though it had an undeniably religious message, by emphasizing the existence and law of a deity, its presence near the Texas Capitol and the manner in which it came to be was not an explicitly religious or non-religious message. He determined this to be so because the monument was among more than a dozen other monuments to Texas' history all of which had a primarily or implicitly secular message. Furthermore, the monument was donated to the state legislature, by the Fraternal Order of the Eagles, which is primarily a secular and private institution. Thus the Establishment Principle was not broken, according to Justice Breyer on the grounds that the monument was not actively erected to establish or coerce a religious preference. This view is known as the Accommodationist stance (Chemerinsky 3). This viewpoint suggests that the intent of the Establishment clause is to bar the Federal and by extension state governments from actively promoting, compelling or demanding some type of religious affiliation. Thus, the presence of a statue among a dozen others with no explicit tie to a religious organization is seen as not violating the Establishment principle, though as Justice Breyer stated in his concurring opinion that is was a "borderline" case. So borderline, in fact, that a similar statue in a different state was found to be unconstitutional by the same justice on the same day. The strategy that the justices adopted to determine the nature of these monuments was one created some years ago in the 1971 case Lemon v. Kurtzman. The case dealt with a state law in Pennsylvania which allowed for the public reimbursement of private schools for teacher salaries, books, etc. The lawsuit which generated this decision claimed that since the overwhelming majority of the private schools in Pennsylvania were Catholic parochial schools, that this law in essence gave preference and helped to establish Catholicism in the state. The Court agreed that such a law was in fact in violation of the Constitution and that the states could not abrogate the Federal establishment clause. The Lemon case also established a three-pronged test for determining whether or not a piece of legislation violated the Constitution. The three-prongs state that the government's action (state or federal) 1) must have a secular legislative purpose, 2) must not have the primary effect of either advancing or inhibiting religion, and 3) must not result in an "excessive government entanglement" with religion (Fox). The role of the Lemon test has been criticized and some strict interpretationists of the Constitution claim that it goes a bit far afield of the rather sparse language regarding religion; however, the Lemon test has been the standard that the Supreme Court has adopted in many cases throughout the past 30 years. One of the issues that the Lemon test raises is the notion of "excessive entanglement" with religion. One particular problem is that with the rise of religious pluralism in the United States, the interface among various religions in public institutions, such as schools, requires significantly more attention than at any other time in the history of the country. In this vein, the increasing preponderance laws that allow for some religious accommodations have increased the possibility of introducing legal pitfalls and excessive entanglement that the Lemon test has sought to exorcise. Part of the goal of the First Amendment is to allow mechanisms to be put in place which protects the minority from the tyranny of majority mandate. While, democracy at its heart depends on the adherence to the will of the majority of its constituents, provisions must be made, or so the founding framers' held, into order to countermand the possibly oppressive rule of a mob. This counter-majoritarian mandate of the First Amendment allows, in some cases, accommodations for minority groups, wherein those accommodations may or may not be explicitly created for majority groups (Walker 409). Specifically, these include the setting aside of private space for example for particular minority religions to use at specific times of the day. These measures are often portrayed as a necessary accommodation to allow for the "free exercise" of religious practices mandated by the Constitution. However, it is a valid and important question to ask, up to what point do these accommodations cross the line from a good faith attempt on behalf of the government to promote diversity and when do these allowances become inappropriately preferential of one religion over another. One way to attempt to sort out these issues is to assess which types of accommodations are mandatory, permissible or impermissible. To give an example of a mandatory accommodation, in Sherbert v. Verner the Court found that a Seventh - day Adventist who was denied unemployment benefits on the basis of her unwillingness to work on the day of her Sabbath. The court found that though unemployment-benefits are a "privilege" to deny that privilege simply because she was unwilling to break a fundamental tenet of her religious belief was unconstitutional and that given no compelling state interest to deny her those benefits was indeed misguided (Walker 412). In terms of permissible accommodation, one long-standing accommodation that has been extended to many religious organizations and institutions is the tax-exempt status that such institutions benefit from. Though nothing explicitly or even implicitly suggests that taxation exemplifies hostility towards or restricts the free exercise of religion, such a accommodation has been given to many such institutions sacred and secular alike (Walker 414-415). In the case of impermissible exemptions the Court struck down a Connecticut Law, which required that a company allow any employee to be relieved of their duty on the day on which they have designated as their Sabbath day, regardless of the burden that may impose on the company, or fellow employees. While the law, according to the Court, did not give preference to any one religious tradition, it gave preference and aided in the establishment of "religion in general" to non-religion, thus such a law was unconstitutional by the tenets of the establishment clause (Walker 416). While religious pluralism and democracy do not seem a priori incompatible with one another, the desire to maintain the balance between the right of religious expression in the public sphere and the needs of the state to maintain order and to promote the interests of the state has remained and will remain a divisive and controversial issue as long as their exists religion and/or government. Bibliography Boston, Rob. "Joel Barlow and the Treaty with Tripoli." Church & State (1997): 11-14. Chemerinsky, Erwin. "The Wren Cross Controversy: Religion and the Public University." William & Mary Law Review (2008): 2193-2215. Crnic, Alex. "New Religions in "New Europe"." Journal of Church and State (2007): 518-551. Fox, Jonathan. "Do Democracies Have Separation of Religion and State" Canadian Journal of Political Science (2007): 1-25. Holcomb, David J. "Financing Faith and Learning: Assessing the Constitutional Implications of Integrating Faith and Learning at the Church-Related College." Journal of Church and State (2006): 831-850. Nancy, Jean-Luc. "Church, State, Resistance." Journal of Law and Society (2007): 3-13. Owen, J. Judd. "The Struggle between "Religion and Nonreligion": Jefferson, Backus, and the Dissonance of America's Founding Principles." American Political Science Review (2007): 493-503. Walker, Brent J. "A Primer on Governmental Accommodation of Religion." Journal of Church and State (2007): 409-421. Read More