There has been a lot of noise in the media and the campaign trails lately about the separation of church and state. Many different things are being said and not much of it is correct.
Let’s examine what “separation of church and state” really means as it applies to United States law, because that’s what it is. We have laws, written into the Constitution, that explain exactly how this is supposed to work.
We need to look at three parts of the Constitution: Article VI section 3, the 1st Amendment & the 14th Amendment.
We’re also going to look at an often forgotten part of Article VI – section 2 – regarding treaties.
But first, a little history.
We all learned in grade school about the Pilgrims and how they fled religious persecution in England. England had a state religion (the Church of England) and in the years prior to the Separatists’ and Puritans’ journey to North America, it was illegal not to attend Church of England services and you could be fined for it. It was also illegal to conduct unofficial services which could also lead to fines and even imprisonment.
What is shocking is that, after English colonies had been established, the colonies followed the example set by England and began to set up “state religions.”
- In the 1650’s, Peter Stuyvesant formally banned all religions other than the Dutch Reformed Church in New Netherland (now New York).
- Massachusetts had in their state constitution a clause which left the decision of who was taxable for a particular religion in the hands of the selectmen. Obviously, this system was abused but wasn’t abolished until 1833.
- Connecticut set up the Congregational Church as a state church and Yale College, at the time a Congregational institution, received grants from the State.
The stories we heard in grade school were false. Each state, whether they set up a formal “state church” or not, did play favorites – one religion over another. It was a volatile situation and a topic that was heavily debated while the U.S. Constitution was being drafted.
Article VI section 3
…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Before any amendments were applied to the Constitution, this was the only mention of religion in the law. What does it mean?
First, it’s important to understand that this clause only applied to federal office until the 14th Amendment was ratified. Before that time, most colonies had in place a Test Act – usually an oath to swear that you were of a particular faith. Anyone not of that faith could not hold office.
For example, the New Jersey Constitution of 1776 states:
That there shall be no establishment of any one religious sect in this Province, in preference to another; and that no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government, as hereby established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.
This clause would allow for a Test Act, but it didn’t explicitly require one.
Article VI of the U.S. Constitution forbid Test Acts for people seeking federal office. This was a first step towards separation.
The First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
It is important to note that this is the very first line of the Bill of Rights coming before even freedom of speech. The religion question was just as important then as it is now.
It seems pretty straight forward, but James Madison, author of the Bill of Rights, said, “… the meaning of the words…, 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…”
In other words, the federal government (remember, until the ratification of the 14th Amendment, this didn’t apply to the states) can not say, “Only Scientology can be practiced in the United States. All other religions are illegal and you have to worship in such-and-such a way … etc.”
That’s as far as it goes. No decrees of a State Church and in no way can the Federal Government tell you who, what, when, where or why you can or can not worship.
It’s freedom “of” and freedom “from” religion.
The 14th Amendment section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Not only did this clause secure rights for former slaves in the first sentence, it also allowed the Federal Government to incorporate all relevant federal rights against the states in the second sentence.
In other words, the states now had to follow the Bill of Rights just as the Federal Government had to, and the U. S. Supreme Court has upheld it but didn’t actually do so until 1947 in the Everson vs Board of Education case. The case dealt with whether government funds could be used to pay for transportation of students to both public and Catholic schools. The state law was upheld in this case (public funding to bus students to a Catholic school neither establishes a state religion nor does it tell people how to worship) but the significance is that the states were now officially to abide by the Bill of Rights.
On the other side, in 1962, the Supreme Court heard the case of Engel vs Vitale in which the issue of officially sponsored prayer or religious recitations were legal in public schools. The court decided that it was unconstitutional for state officials to compose official school prayers. 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.
Remember what Madison wrote? “…and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience…”
Article VI section 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
What this is saying is that the Constitution, any new laws made according to the rules laid out by the Constitution and all treaties made are to be considered laws in which both the Federal Government and the States are to follow them.
This is interesting because of one treaty the United States made in 1797 with Tripoli. In article 11 of that treaty it 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 tranquillity, of Mussulmen [Muslims]; 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.
This is interesting for two reasons.
First, this treaty confirms that the U. S. Government was created to be religiously neutral.
Second, it also confirms that the U. S. Government has no enmity towards Muslims.
The line seems pretty clear. The United States are to be religiously neutral, allowing all citizens to worship (or not) as they please. The government of the states and at the federal level can not create or establish a “National (or State) Church.”
It is a system that has allowed a variety of religions to flourish in the US unlike anywhere else in the world.
Understanding what Roger Williams, the founder of Rhode Island, meant when he wrote in 1644, “[A] hedge or wall of separation between the garden of the church and the wilderness of the world” is essential to understand and intelligently talk about the issues and topics surrounding the current presidential election.
The next step is to spread awareness of what an awesome thing the Separation of Church and State policy really is and what it has done for this country. Once people learn that, perhaps individual religious prejudice will end.