https://apologeticspress.org/APContent.aspx?category=7&article=2327
Deconstructing the Establishment Clause
[Editor’s Note: The following article was written by A.P.
auxiliary staff writer, Kevin Cain, who holds degrees from
Freed-Hardeman University (B.S., M.Min.) and the Doctor of Jurisprudence
from South Texas College of Law. A former Briefing Attorney of The
First Court of Appeals, his current practice focuses on litigation at
the trial and appellate levels in both State and Federal Courts.]
One wonders whether the Founding Fathers ever envisioned the
intense...at times, malevolent...discourse these simple, instructive
words would evoke throughout the land for over 200 years. Should “In God
We Trust” be removed from our currency? Should the opening of Court not
begin with an incantation to God to “save the United States and this
Honorable Court”? Indeed, should reference to an awareness of God be
stricken from the federal Constitutional oath of office? Or from the
revered Declaration of Independence? Where does the injunction of the
First Amendment lead us? (Doe v. Tangipahoa..., 2009).
I was in my car listening to a talk radio program where the subject of
the day was the “separation of church and State.” The callers’ opinions
were all across the board from the far left to the far right and
everything in between. One gentleman finally called in and had the nerve
to assert that the First Amendment nowhere contains the phrase
“separation of church and State.” And then the fireworks began. Caller
after caller (including the host) blasted this neophyte for claiming the
First Amendment did not contain this purported phrase.
In reality, the First Amendment has two religious clauses. It states, “Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof” (
Bill of Rights,
1789, emp. added). The first clause is known as the Establishment
Clause, and the second is known as the Free Exercise Clause. Not only is
the phrase “separation of church and State” conspicuously absent from
this short sentence we call the First Amendment, but it is not anywhere
to be found in the entire
Constitution of the United States (nor in any law passed by Congress).
THE ORIGIN OF “SEPARATION OF CHURCH AND STATE”
Why is it, then, that so many people mistakenly, yet sincerely, believe
that this phrase is somewhere found within the First Amendment? More
importantly, why do so many believe that this phrase means that the
government can have no involvement in religion or recognition of God in
any form whatsoever? The origin of this phrase can be traced back to an
1802 letter penned by Thomas Jefferson to the Danbury Baptist
Association. The Danbury Baptist Association of Connecticut wrote a
letter to President Thomas Jefferson expressing concern over their lack
of state constitutional protection of religious liberty and against a
government establishment of religion. Specifically, the Danbury Baptists
stated in their letter to President Jefferson, “Our Sentiments are
uniformly on the side of Religious Liberty—That Religion is at all times
and places a matter between God and individuals—That no man ought to
suffer in name, person, or effects on account of his religious
Opinions—That the legitimate Power of civil government extends no
further than to punish the man who works ill to his neighbor” (“Danbury
Baptist...,” 1801). The Danbury Baptists were concerned that a religious
majority might establish a state religion at the expense of the
liberties of religious minorities.
Thomas Jefferson responded by letter dated January 1, 1802. He agreed
with the Danbury Baptists’ views on religious liberty and the separation
of civil government from involvement with religious doctrine and
practice. 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’s Letter...,” 1802, emp. added). Jefferson’s statement
regarding “a wall of separation between Church & State” was a mere
recognition that the government would not endorse or back a single
religious group to the detriment of other Christian sects. However, the
use of that phrase today bears no relation to what President Jefferson
meant when he penned those words in 1802.
THE HISTORICAL CONTEXT OF “SEPARATION OF CHURCH AND STATE”
Many take the view that the Framers of the First Amendment intended for
the government to be completely detached from any religious activity
and neutral in all religious matters. In other words, they equate the
phrase “separation of church and State” with absolute refusal by the
government not only to engage in any religious activity, but also to
passively allow any religious activity in the public sphere. This
interpretation is far removed from the context or meaning of the phrase
coined by Jefferson in 1802, much less the First Amendment.
To understand what the First Amendment does and does not mean, it would
be helpful to look to the writings and religious/political sentiments
expressed by the author and primary proponent of the First Amendment.
James Madison submitted the original draft of the First Amendment to
Congress, and Thomas Jefferson was one of the key supporters of the
First Amendment.
It is clear from Madison’s own writings that he was concerned with the
union of church and State as was prevalent in Europe at that time. The
First Amendment was designed to prevent the government from joining
forces with a particular religious organization as a government-endorsed
religion. This can be seen in the original proposed draft of the First
Amendment submitted by Madison. “The civil rights of none shall be
abridged on account of religious belief or worship, nor shall any
national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed” (
Wallace v. Jaffree,
1985, emp. added). “[Madison’s] original language ‘nor shall any
national religion be established’ obviously does not conform to the
‘wall of separation’ between church and State idea which latter-day
commentators have ascribed to him” (
Wallace v. Jaffree, 1985).
Ironically, when the original draft of the First Amendment was later
revised and debated in the House on August 15, 1789, Representative
Peter Sylvester of New York expressed his dislike for the revised
version, because it might have a tendency “to abolish religion
altogether” (
Wallace v. Jaffree, 1985). However, Madison stated
during this debate that “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, or that one sect might obtain a
pre-eminence, or two combined together, and establish a religion to
which they would compel others to conform” (
Annals of Congress, 1789, 1:758). While the Supreme Court has never adopted this interpretation of the Establishment Clause, this is
the exact meaning articulated by its own author, James Madison. After reviewing this same historical context of the Establishment Clause, Chief Justice Rehnquist concluded:
It seems indisputable from these glimpses of Madison’s thinking, as
reflected by actions on the floor of the House in 1789, that he saw the
Amendment as designed to prohibit the establishment of a national
religion, and perhaps to prevent discrimination among sects. He did not
see it as requiring neutrality on the part of government between
religion and irreligion (Wallace v. Jaffree, 1985).
Moreover, James Madison was a religious man who strongly believed that
all public officials and governmental leaders should publicly profess
their belief in Christianity:
I have sometimes thought there could not be a stronger testimony in
favor of religion or against temporal enjoyments, even the most rational
and manly, than for men who occupy the most honorable and gainful
departments and [who] are rising in reputation and wealth, publicly to
declare their unsatisfactoriness by becoming fervent advocates in the cause of Christ; and I wish you may give in your evidence in this way (“Madison Letter...,” 1773, emp. added).
Madison was also one of the drafters who passed the Virginia
Constitution, which carries the phrase, “It is the mutual duty of all to
practice Christian forbearance, love, and charity toward each other” (
The Proceedings of...,
1776, p. 103). Simply put, Madison was a strong believer that
governmental leaders, legislators, and even legislation should recognize
and espouse submission to Christ.
In his first inaugural address, James Madison recognized that the
destiny and prosperity of a nation are directly linked to the blessings
and guidance given by God.
In these my confidence will under every difficulty be best placed,
next to that which we have all been encouraged to feel in the
guardianship and guidance of that Almighty Being whose power regulates
the destiny of nations, whose blessings have been so conspicuously
dispensed to this rising Republic, and to whom we are bound to address
our devout gratitude for the past, as well as our fervent supplications
and best hopes for the future (Madison, 1809).
In other words, Madison subscribed to the position that religion should
have a place in the role of government. Moreover, Madison expressed a
clear belief that the fate of a government was intertwined with its
dependence upon and relationship with God.
Thomas Jefferson was also outspoken and clear in his opposition to a
church-sponsored religion that superimposed its will on the people.
Jefferson stated that he was unequivocally opposed to the government
endorsing a state or national religion, much like the system that so
many of our Founding Fathers left behind in England. “I am for freedom
of religion, and against all maneuvers to bring about a legal ascendency
of one sect over another” (Jefferson, 1799). Jefferson was especially
opposed to Roman Catholicism and any manifestation of entanglement of
church and State where the church assumes the role of civil government.
“But a short time elapsed after the death of the great reformer of the
Jewish religion [i.e., Jesus—KC], before his
principles were departed from by those who professed to be his special
servants [i.e., Roman Catholicism, for which Jefferson had little
tolerance], and perverted into an engine for enslaving mankind, and
aggrandizing their oppressors in Church and State” (Jefferson, 1810).
Jefferson was not an enemy of religion; rather, he embraced and
promoted religion. In his first inaugural address, Jefferson, like
Madison, linked national prosperity to a national dependence on God and
religion:
Let us, then, ...enlightened by a benign religion, professed, indeed,
and practiced in various forms, yet all of them inculcating honesty,
truth, temperance, gratitude, and the love of man; acknowledging and
adoring an overruling Providence, which by all its dispensations proves
that it delights in the happiness of man here and his greater happiness
hereafter—with all these blessings, what more is necessary to make us a
happy and a prosperous people? (Jefferson, 1801).
In his second inaugural address, Jefferson made similar statements, but with a clearer endorsement of the God of the Bible:
I shall need, too, the favor of that Being in whose hands we are, who
led our forefathers, as Israel of old, from their native land, and
planted them in a country flowing with all the necessaries and comforts
of life; who has covered our infancy with his providence, and our riper
years with his wisdom and power; and to whose goodness I ask you to join
with me in supplications, that he will so enlighten the minds of your
servants, guide their councils, and prosper their measures, that
whatsoever they do, shall result in your good, and shall secure to you
the peace, friendship, and approbation of all nations (Jefferson, 1805).
Simply put, Jefferson publically called upon the God of the Israelites
and the God of the Bible, and likewise called upon the citizenry of this
country to pray to that same God. This is clearly not the wall of
separation that so many have misconstrued from Jefferson’s letter to the
Danbury Baptists. Jefferson did not state we should all go home and
privately pray to the supreme being of our choice. Rather, Jefferson
used the office of the President of these United States to direct this
nation to call upon the God of the Bible in prayer to beseech the
blessings and guidance of the one true God. Whatever that “wall of
separation” may be, it is certainly not what so many scholars and
citizens presume it to mean today.
Interestingly, at about this same time in history when the First
Amendment was ratified (December 15, 1791), the United States government
was engaged in numerous acts that many would presume to be
unconstitutional today under a contemporary interpretation of the First
Amendment. However, these governmental actions simply demonstrate that
Congress did not intend for the First Amendment to be a literal wall of
separation between church and State.
The
Northwest Ordinance, passed by Congress in 1789, provided
that “[r]eligion, morality, and knowledge, being necessary to good
government and the happiness of mankind, schools and the means of
education shall forever be encouraged” (1789, 1:52). Like Madison and
Jefferson in their inaugural addresses, Congress also drew a direct link
between religion and government and recognizing that government and
proper education cannot stand without religion and morality.
On the day after the House of Representatives voted to adopt the final
version of the First Amendment Establishment Clause, Representative
Elias Boudinot proposed a resolution asking the President to issue a
Thanksgiving Day Proclamation to “recommend to the people of the United
States a day of public thanksgiving and prayer, to be observed by
acknowledging with grateful hearts the many and signal favors of
Almighty God” (
Annals of Congress, 1789, 1:949). This resolution was passed on September 25, 1789. Within two weeks, George Washington responded:
Now, therefore, I do recommend and assign Thursday, the 26th day of
November next, to be devoted by the people of these States to the
service of that great and glorious Being who is the beneficent author of
all the good that was, that is, or that will be; that we may then all
unite in rendering unto Him our sincere and humble thanks for His kind
care and protection of the people of this country previous to their
becoming a nation; for the signal and manifold mercies and the favorable
interpositions of His providence in the course and conclusion of the
late war; for the great degree of tranquility, union, and plenty which
we have since enjoyed; for the peaceable and rational manner in which we
have been enabled to establish constitutions of government for our
safety and happiness, and particularly the national one now lately
instituted; for the civil and religious liberty with which we are
blessed, and the means we have of acquiring and diffusing useful
knowledge; and, in general, for all the great and various favors which
He has been pleased to confer upon us (Washington, 1789).
Likewise, in President Washington’s farewell address in 1796, he declared:
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.
In vain would that man claim the tribute of patriotism, who should
labor to subvert these great pillars of human happiness.... The mere
politician, equally with the pious man, ought to respect and to cherish
them (1796, emp. added).
President Washington made clear that a government cannot exist without
“religion and morality.” These events and actions of the government,
near the time the Establishment Clause was enacted, demonstrate that
the First Amendment was not designed to extract all religion from the government.
To the contrary, the political leaders of the day, the Framers,
congressmen, and even the Presidents surrounding the time the
Establishment Clause was passed, were clear advocates for governmental
endorsement of religion in general, and Christianity in particular.
Contrast the language and endorsement of religion from Washington,
Madison, and Jefferson (and nearly every President that followed) with
the state of the First Amendment today. Presidents Washington, Madison,
and Jefferson used the federal office of the President to persuade the
people to submit to the moral guidelines of the Bible and pray to the
God of the Bible. Compare that with the United States Supreme Court
which held in 1985 that a public school could not allow a moment of
silence for students to pray to the supreme being of their choice (
Wallace v. Jaffree,
1985). What has happened in our national history that we have devolved
from a point in time where our highest ranking national leader could
actively promote prayer and submission to the God of the Bible, but
today schools cannot passively even allow a moment of silence at the
start of the day? As Justice Rehnquist stated in his dissent in
Wallace v. Jaffree:
“It is impossible to build sound constitutional doctrine upon a
mistaken understanding of constitutional history, but unfortunately the
Establishment Clause has been expressly freighted with Jefferson’s
misleading metaphor for nearly 40 years” (1985).
MAKING A LANDFILL OUT OF A MOLE-HILL
From this simple phrase, “separation of church and State,” much has
been presumed and contorted to satisfy the trends and leanings of our
culture. When a straightforward application of the First Amendment does
not reach the desired result, obscure and complicated tests are
fashioned to bewilder and lead to a conclusion that unassuming and
sober-minded people would never reach. A multi-pronged and amorphous
test can allow anyone to reach whatever conclusion they desire. This
dilemma is especially true when looking at the judicial application of
the Establishment Clause in the last 50 years.
Over the years, the United States Supreme Court has fashioned several
tests when scrutinizing the Establishment Clause of the First Amendment.
There is much debate about whether all these tests are still viable,
whether one test overrules another, or whether the tests are merely
fact-specific as to their application. One thing is clear:
these tests do not reflect the sentiment of the Founding Fathers and the states that drafted, supported, and passed this amendment into law.
It is no surprise that media sources, entertainers, academia, and the
government have veered further to the left, and grown more liberal and
tolerant in the arena of morality. Unfortunately, courts have likewise
followed the same path, reflecting the same liberal trends we see in
every other facet of contemporary culture. While many who misinterpret
the First Amendment clamor for
freedom of religion, they have actually traveled down a path toward
freedom from religion, which eventually results in
hostility toward
religion. Likewise, courts’ interpretations of the Establishment Clause
have moved in a direction that is more offensive and antagonistic
toward religion (or, at a minimum, allows others to superimpose
irreligion over religion).
This simple language known as the Establishment Clause has spawned a
flurry of judicially created tests and paradigms that further confuse
and muddy the waters of the religious/political landscape. Rather than
providing a reasoned interpretation leading to predictable results,
these tests serve as the springboard to allow courts to manipulate the
outcome of a case when applying the Establishment Clause—an amendment
whose meaning was once clear and obvious. However, when a test only
serves to further confuse and create more questions than it answers, its
usefulness is short-lived, and its purpose is suspect at best.
THE LEMON TEST
The first Establishment Clause test created by the United States
Supreme Court is a three-part analysis often referred to as the
Lemon test. The
Lemon test derives its name from the 1971 case styled
Lemon v. Kurtzman,
in which the Court ruled that a state program providing aid to
religious elementary and secondary schools violated the Establishment
Clause (
Lemon v. Kurtzman, 1971). Under the
Lemon test, a court must (1) determine whether the law or government action in question has a bona fide
secular
purpose; (2) determine whether the state action has the primary effect
of advancing or inhibiting religion; and (3) consider whether the action
excessively entangles religion and government. These criteria are
sometimes referred to respectively as the (1) “effects” prong, (2) the
“purpose” prong, and (3) the “entanglement” prong. There is a lack of
consensus as to how this test is to be applied. Are courts required to
satisfy all three prongs, or do they merely balance these factors? Are
all elements needed, or are only some needed, and if so, which elements
are required and which are discretionary? Moreover, there is a question
as to whether the
Lemon test is still good law today, or has it
been effectively overruled by the many other tests subsequently created
by the United States Supreme Court.
LEMON WITH A TWIST
In 1997, the United States Supreme Court appeared to modify the
Lemon test in
Agostini v. Felton. The Court combined the last two elements of the
Lemon test, using only the purpose prong and a modified version of the effects prong (
Agostini v. Felton, 1997). The
Agostini Court
delineated three principal criteria to determine whether government
action has the primary effect of advancing religion: (1) government
indoctrination, (2) defining the recipients of government benefits based
on religion, and (3) excessive entanglement between government and
religion (1997). In other words, we started with a three-pronged test
which has now been modified into a two-pronged test by integrating two
of the original prongs and adding a new three-part inquiry to help
explain the new prong. Anyone confused yet? But the tests do not stop
here.
THE COERCION TEST
The “coercion test” owes its genesis to Justice Anthony Kennedy’s dissent in
County of Allegheny v. ACLU.
Under the coercion test, the government violates the Establishment
Clause if it (1) provides direct aid to religion in a way that would
tend to establish a state church, or (2) coerces people to support or
participate in religion against their will (
County of Allegheny v. ACLU,
1989). What would or would not coerce a person is the subject of great
debate among scholars and judges, and is clearly a highly subjective
standard. However, the coercion test is more strictly applied when
involving grades K through 12. In
Lee v. Weisman, the Supreme
Court observed that “there are heightened concerns with protecting
freedom of conscience from subtle coercive pressure in the elementary
and secondary public schools” (1992). However,
Lee v. Weisman
also illustrates the subjectivity and lack of predictability when
applying the coercion test. In that case, Justice Kennedy wrote the
majority opinion, and Justice Scalia wrote a dissent. Both justices are
professed devout Catholics and former altar boys. Both applied the same
coercion test and came to opposite results: Justice Kennedy found that
the prayer at issue in that case violated the Establishment Clause,
while Justice Scalia found that the same prayer did not violate the
Establishment Clause (1992). Given this lack of clarity, it seems only
judicially natural that another ambiguous test should be crafted to
further confuse and bewilder the legal landscape regarding the
Establishment Clause.
THE ENDORSEMENT TEST
Under Justice Sandra Day O’Connor’s “endorsement test,” government
action violates the Establishment Clause if it amounts to an
“endorsement of religion” (
Lynch v. Donnelly, 1984). Under the
endorsement test, government action or legislation is invalid if it
creates a perception in the mind of a “reasonable observer” that the
government is either endorsing or disapproving of religion. Justice
O’Connor wrote: “The Establishment Clause prohibits government from
making adherence to a religion relevant in any way to a person’s
standing in the political community” (1984). A person is coerced under
the coercion test “when the government conveys ‘a message to
non-adherents that they are outsiders, not full members of the political
community, and an accompanying message to adherents that they are
insiders, favored members of the political community’” (1984). The
endorsement test is often applied when the government is actively
expressing itself, such as graduation prayers, religious signs on
government property, and religion in school curriculum. As expected,
there is considerable disagreement as to what constitutes a “reasonable
observer” under the endorsement test. Apparently, the reasonable
observer is whatever the judge decides this hypothetical person to be.
As such, the reasonable observer will vary from judge to judge. However,
does the reasonable observer vary based on the jurisdiction? For
example, the “reasonable observer” in Muscle Shoals, Alabama will be
quite different from the “reasonable observer” in San Francisco,
California. Moreover, on what basis is the decision made that the
observer in Muscle Shoals is unreasonable, other than the superimposed,
yet subjective, opinion of a judge who unilaterally decides that to be
the case? With more questions and more unresolved issues, surely another
test or two is called for.
NEUTRALITY
The concept of neutrality in Establishment Clause decisions requires
that the government neither be an ally nor an adversary of religion.
This analysis (not so much a formal test as a relaxed analysis) is often
applied in cases involving funding or some form of aid given to
religious organizations or schools (
Zelman v. Simmons-Harris, 2002;
Mitchell v. Helms, 2000).
The focus in this approach is an inquiry into the individual’s or
institution’s control over the funds and equal treatment between
religious and non-religious groups.
THE FABRIC OF AMERICA TEST
This test, if it can, in fact, be called a “test,” originates from the case of
Marsh v. Chambers.
After observing the extensive history of government-paid chaplains and
legislative prayer, the United States Supreme Court concluded: “In light
of the unambiguous and unbroken history of more than 200 years, there
can be no doubt that the practice of opening legislative sessions with
prayer has become part of the fabric of our society” (
Marsh v. Chambers,
1983). It is disputed as to whether this is actually a test or, rather,
a mere anomaly in Supreme Court jurisprudence, or a unique application
of one of the other Establishment Clause tests. Nevertheless, the United
States Supreme Court held that prayer to open the Nebraska Legislative
Session was not unconstitutional because of its long history. As such,
the Court ruled that this practice was a part of the fabric of America
and, hence, did not violate the Establishment Clause (1983). According
to the logic of
Marsh v. Chambers, if a practice was instituted
a long time ago, the initiators of this practice must have had a
secular or non-religious purpose in mind, but if the practice is more
recent, the instigators clearly had a religious purpose in mind. This
amorphous and backwards approach would presume that Americans are
becoming more and more religious, in spite of every secular indicator to
the contrary.
MUCH LEARNING IS DRIVING YOU MAD!
At this point in our analysis, the words of Festus come to mind, when
he shouted, “Paul, you are beside yourself. Much learning is driving you
mad!” (Acts 26:24). While Paul was clearly not insane, but was speaking
words that were reasonable and true (vs. 25), “reason” and “truth” are
not the words that come to mind when surveying the dizzying array of
Establishment Clause tests that courts have concocted to reflect the
leanings and trends of our contemporary culture. While sifting through
all this madness—these tests, multiple elements, sub-elements, and new
tests—it now becomes clear how we have digressed from a simple,
straightforward Establishment Clause with a clear original purpose and
history, and how we now find ourselves living in an age where the
government has not only sterilized itself from all Christian religion,
but is even hostile and adverse toward Christianity. Scholarly
smokescreens, guised in complex and multifarious tests created over an
extended period of time, hope to eventually erase history and overrule
the original intent of constitutional language.
It is important to know the many tests that courts have contrived in an
effort to further estrange and remove religion from our government,
communities, schools, and way of life. We should be familiar with these
tests so that we can combat those who try to use them to justify their
anti-religious views. We should combat them with the historical context
of our Founding Fathers, even the authors of the First Amendment itself.
Without this knowledge, some people may even be convinced that phrases
like “separation of church and State” are actually found somewhere in
the pages of our
Constitution. Rewriting history is a deceptive
and popular way to persuade people. While it is obviously inconsistent
and insincere to close one’s eyes to reality and history, it is not
without precedent. As George Orwell described it:
And if all others accepted the lie which the Party imposed—if all
records told the same tale—then the lie passed into history and became
the truth. “Who controls the past” ran the Party slogan, “controls the
future: who controls the present controls the past” (1949, Part 1,
Chapter 3).
Or, as Reich Minister of Propaganda in Nazi Germany under Hitler, Joseph Goebbels, put it:
If you tell a lie big enough and keep repeating it, people will
eventually come to believe it. The lie can be maintained only for such
time as the State can shield the people from the political, economic
and/or military consequences of the lie. It thus becomes vitally
important for the State to use all of its powers to repress dissent, for
the truth is the mortal enemy of the lie, and thus by extension, the
truth is the greatest enemy of the State (1941).
We should be aware of the historical context and proper meaning of the
First Amendment. We should also be aware of the alleged “arguments” and
“legal tests” that have mutated over the years, allowing courts to
confuse and delude people into an interpretation and application of the
First Amendment that would be unrecognizable to its framers.
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