IFAS | Freedom Writer | November/December 1996 | roots.html

The roots of
church/state separation

By Barbara A. Simon, Esq.

First coined by the 17th century Baptist leader Roger Williams who, in 1636, founded Rhode Island, the phrase "separation of church and state" was used by both Thomas Jefferson and James Madison (the father of the Constitution), to describe the meaning of the Constitution's religion clauses. The religion clauses provide for the "free exercise" of religion and prohibit the government from "establishing" religion by favoring one religion over another or favoring religion over non-religion. The U.S. Supreme Court, the ultimate arbiter of the Constitution's meaning, first utilized the phrase in the 1878 case of Reynolds v. United States, stating that Jefferson's term 'wall of separation between church and state' "may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment."

The Court has repeatedly held that "separation of church and state" is the constitutional cornerstone of religious liberty. In the 1947 case of Everson v. Board of Education, Justice Hugo Black, in writing for the majority, stated: "In the words of Jefferson, the clause against establishment of religion was intended to erect a wall of separation between church and state." In defining what is meant by the establishment of religion, Justice Black wrote, "Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.... The First Amendment has erected a wall of separation between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

Over the years the Court has developed and applied what has become known as the "Lemon Test" to decide Establishment Clause cases. The Lemon Test, codified in the Court's 1971 Lemon v. Kurtzman, is a three-pronged inquiry: 1) Does the challenged legislation or activity have a legitimate secular purpose?; 2) Does the legislation or activity have a primary effect that neither advances nor inhibits religion? and 3) Does the legislation or activity excessively entangle government with religion? Although individual Justices of the Court have, on various occasions, expressed dissatisfaction with this standard of review, the Lemon Test has not yet been replaced.

Among the most recent Establishment Clause cases is the 1994 case of Board of Education v. Grumet in which New York enacted a law establishing a separate public school district, Kiryas Joel Village School District, with the sole function of the new district to provide special education services to the special needs children of the village and other Hasidic communities nearby. The Court, in a 6-3 decision, struck down the legislation, as failing the test of neutrality, stating that the Establishment Clause precludes the government from treating people differently "based on the God or gods they worship or don't worship." The dissenters were Chief Justice Rehnquist, Justice Thomas and Justice Scalia. These same justices were also the dissenters in the 1996 Colorado case of Romer v. Evans which held that Colorado's Amendment 2, which repealed state and local provisions that barred discrimination on the basis of sexual orientation, violated the constitutional principle of equal protection under the law.

Justices Rehnquist, Scalia and Thomas favor accommodation of religion over the constitutional requirement for separation between church and state. In the 1993 case arising from Arizona, Zobrest v. Catalina Foothill Schools District, Justices Rehnquist, Scalia and Thomas were three-fifths of the Court's majority which found that a public school district could pay for and place a sign language interpreter for a deaf child in a parochial school without violating the Establishment Clause. In another 1993 case arising out of New York, Lamb's Chapel v. Center Moriches Union, Justices Rehnquist, Scalia and Thomas represented three-ninths of the majority in holding that the Center Moriches school board violated the First Amendment's free speech clause by denying access to school premises, outside school hours, to a church group seeking to exhibit a film by the Christian ministry Focus on the Family. In this case, Justice Scalia was joined by Thomas in a separate dissent, concurring in t he judgment, but expressing the view that the Court should not have applied the Lemon Test in its decision-making process. Justice Scalia compared the Lemon Test to a "ghoul in a late-night horror movie" that "stalks" our Establishment Clause jurisprudence. Justice Scalia expressed the view that it is a "strange notion" that a Constitution which "gives religion in general preferential treatment [through the Free Exercise Clause] forbids endorsement of religion in general."

The 1992 case of Lee v. Weisman, arising out of Rhode Island, was widely viewed as the Court's opportunity to reconsider and perhaps replace the three-pronged Lemon Test with a standard that might permit a greater presence for religion in public activities. The Court, in its 5 to 4 decision, did not overturn the Lemon Test, and found that prayers at public high school graduations were not allowed under the Establishment Clause. The dissenters who found no Establishment Clause violations in this practice were Justices Scalia, Rehnquist, Thomas and White. (In 1993, Justice White's seat was filled by Justice Ruth Bader Ginsburg.) The dissent, written by Justice Scalia, argued that the majority's decision to prohibit invocations and benedictions "lays waste a tradition that is as old as public school graduation ceremonies themselves ...," and eliminates a component of an "even more long-standing tradition of nonsectarian prayer to God at public celebrations generally." Since 1991, when Justice Thomas, appointed by President Bush, joined the Court, we have seen that Justices Thomas, Rehnquist and Scalia are united in the view, shared by the religious right, that government should do all it can to accommodate religion, even at the expense of church/state separation.

© 1998 Institute for First Amendment Studies, Inc.