|by Clark Moeller||
A Keystone to Peace
Clark Moeller, January 2004 --
[Copyright 2004, Pennsylvania Alliance for Democracy -- Printing, copying and distribution is encouraged with full attribution.]
TABLE OF CONTENTS (opens in separate popup window)
The quintessential American value of religious liberty is being eroded in the United States today. The causes of this erosion are described in the following, and the reasons why the effects of this loss will diminish other civil rights, weaken our democracy, and sap the vitality and independence of religious organizations are presented. These perspectives are based in part, on a review of the historic and current experience of church and state relations in the United States compared to those relations elsewhere in the world. If these comparisons are reliable indicators, the loss of religious liberty underway in the United States is now undermining the remarkable progress we have made to build a nation of people who live in peaceful co-existence while professing a greater variety of religious and secular beliefs than occurs in any other nation in the world.1
Of the 195 countries in the world in 2001, only six had full religious freedom according to ratings of Freedom House.2 These six were Estonia, Finland, Ireland, the Netherlands, Norway, and the United States.3 It is remarkable that the United States is included in this short list because its religious liberty has been weakened, and unlike the other 5 countries, the U.S. is not a small, fairly homogeneous nation. It is a large, heterogeneous country with a population of 281 million, 35% to 40% of whom attend the religious services of 325,000 congregations.4 These congregations belong to more than 2,000 religious denominations, many of which espouse religious beliefs very different from one another.
It is often claimed that the diversity and the extent of religious freedom enjoyed in the United States are the result of more than 200 years of church-state separation as defined in the Establishment Clause of the First Amendment to the Constitution of the United States. Nevertheless, religious liberty as defined by the First Amendment has been a source of controversy since its adoption in 1791. The controversy continues today among religious communities, at the municipal, county, state, and federal levels of government, including among the nine members of the United States Supreme Court.5
Although the specifics of these conflicts have changed over the years, the underlying issues remain the same. These include whether religion should play a formal role in the governance of this country at the local, state, and federal levels, and if our government should underwrite the costs of religious organizations, or otherwise support a religion or various religions. The practical implications of these questions are being vigorously debated today. For example, should taxes be used to fund religious activities, pay for private, parochial schools, and build churches? Should the phrase "under God" be included in the Pledge of Allegiance recited in public schools? Should state-sponsored prayer be permitted in public schools? Should creation-science or intelligent design6 be taught in public schools? Should religious organizations be running U.S. Post Offices and distributing their religious literature in these facilities?7 Does the government have a compelling state interest8 to decide who marries, be they heterosexual or homosexual? Should the Ten Commandments be posted in public buildings?9 Should tax-exempt, religious organizations be permitted to engage in partisan, electoral politics?10
Given the durability of the underlying issues, some people have suggested that it is time to rewrite the First Amendment in order, for example, to permit state-sponsored prayer in public schools, as proposed in the Religious Freedom Amendment11 introduced by Representative Ernest Istook (R) of Oklahoma in 2001, and in his 2003 proposal to amend the First Amendment, the Pledge and Prayer Amendment. This states, in part, "the people retain the right to pray and to recognize their religious beliefs, heritage, and traditions on public property, including schools."
Before any rewriting of the First Amendment is undertaken, it is important to evaluate the benefits of church-state separation. Toward that end, this paper explores three questions. What benefits has church-state separation added to society? to democracy? and to organized religions?
The focus throughout this paper is on the relationships among organized religions, and between these and government. These relationships influence the degree to which individuals are free to engage in their spiritual and religious life in houses of worship, in their homes, and community.12
A Brief Review of Church-State Separation: The term "church-state separation"13 is commonly used as a synonym for the Establishment Clause (bolded below) in the First Amendment to the Constitution of the United States.
There are two clauses in the first 16 words of the First Amendment: the Establishment Clause, "make no law respecting an establishment of religion, or" and the Free Exercise Clause, "prohibiting the free exercise thereof." Together these are intended to provide the constitutional guarantee of religious liberty. The means for achieving this freedom was to create a "wall of separation" between church and Congress, according to Thomas Jefferson.16
To ensure that Congress did not make laws "prohibiting the free exercise" of religion that might result in the punishment of or discrimination against an individual because of his or her beliefs, the founders separated church from state, and state from church, in 1791 by including the Establishment Clause in the First Amendment. Historically, laws regarding religion in both Europe and the colonies had favored, de jure or de facto, one religion, and .suppressed other religions.
To achieve church-state separation, the word ‘respecting' in "no law respecting an establishment of religion" of the Establishment Clause means no law ‘involving' or ‘concerning' religion. By constitutionally preventing Congress from making laws respecting religion, the founders intended to preclude the possibility that Congress would establish, endorse, or promote any religion.17 In essence, the government should be neutral, neither favoring one religion nor discriminating against others, directly or indirectly.
In 1940 and 1947, the U.S. Supreme Court determined that church-state separation applied to the state governments as well as to Congress. Subsequently, the U.S. Supreme Court adopted the following three-part test for evaluating whether a Congressional or state law is consistent with the Establishment Clause: a law must have a secular purpose; its purpose must not be intended to prohibit or promote religion, and the law should not cause government to become very entangled with religion.18
Church-state separation is intended to create for individuals the widest opportunity for their "free exercise" of religion: to hold, express, and practice their belief. But this freedom does not mean a person or a religious institution can engage in activities that violate the law, such as human sacrifice, or interfere with the religious freedom of others. This is how each person's freedom is guaranteed while respecting that same freedom for others. The American ideal of freedom is based on this concept of fairness.
Readers who dismiss the validity of "church-state separation" are referred to the Appendix where three common criticisms of church-state separation are discussed. These include the complaints that the meaning of the Establishment Clause does not imply the concept of separation of church from state, that none of the separation phrases such as church-state separation are found in the language of the First Amendment, and the suggestion that America has been and continues to be a "Christian nation."