Examples of violations of separation of church and state

Although the words “separation of church and state” do not appear in the First Amendment, the establishment clause was intended to separate church from state. When the First Amendment was adopted in 1791, the establishment clause applied only to the federal government, prohibiting the federal government from any involvement in religion. By 1833, all states had disestablished religion from government, providing protections for religious liberty in state constitutions. In the 20th century, the U.S. Supreme Court applied the establishment clause to the states through the 14th Amendment. Today, the establishment clause prohibits all levels of government from either advancing or inhibiting religion.

The establishment clause separates church from state, but not religion from politics or public life. Individual citizens are free to bring their religious convictions into the public arena. But the government is prohibited from favoring one religious view over another or even favoring religion over non-religion.

Our nation’s founders disagreed about the exact meaning of “no establishment” under the First Amendment; the argument continues to this day. But there was and is widespread agreement that preventing government from interfering with religion is an essential principle of religious liberty. All of the Framers understood that “no establishment” meant no national church and no government involvement in religion. Thomas Jefferson and James Madison believed that without separating church from state, there could be no real religious freedom.

The first use of the “wall of separation” metaphor was by Roger Williams, who founded Rhode Island in 1635. He said an authentic Christian church would be possible only if there was “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.” Any government involvement in the church, he believed, corrupts the church.

Then in 1802, Thomas Jefferson, in a letter to the Danbury Baptist Association, 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 and State.”

The Supreme Court has cited Jefferson’s letter in key cases, beginning with a polygamy case in the 19th century. In the 1947 case Everson v. Board of Education, the Court cited a direct link between Jefferson’s “wall of separation” concept and the First Amendment’s establishment clause.

Category: Freedom of Religion

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WASHINGTON, June 28 (Reuters) - The conservative-majority U.S. Supreme Court has chipped away at the wall separating church and state in a series of new rulings, eroding American legal traditions intended to prevent government officials from promoting any particular faith.

In three decisions in the past eight weeks, the court has ruled against government officials whose policies and actions were taken to avoid violating the U.S. Constitution's First Amendment prohibition on governmental endorsement of religion - known as the "establishment clause."

The court on Monday backed a Washington state public high school football coach who was suspended by a local school district for refusing to stop leading Christian prayers with players on the field after games. read more

On June 21, it endorsed taxpayer money paying for students to attend religious schools under a Maine tuition assistance program in rural areas lacking nearby public high schools. read more

On May 2, it ruled in favor of a Christian group that sought to fly a flag emblazoned with a cross at Boston city hall under a program aimed at promoting diversity and tolerance among the city's different communities. read more

The court's conservative justices, who hold a 6-3 majority, in particular have taken a broad view of religious rights. They also delivered a decision on Friday that was hailed by religious conservatives - overturning the 1973 Roe v. Wade ruling that legalized abortion nationwide - though that case did not involve the establishment clause.

Cornell Law School professor Michael Dorf said the court's majority appears skeptical of government decision-making premised on secularism.

"They regard secularism, which for centuries has been the liberal world's understanding of what it means to be neutral, as itself a form of discrimination against religion," Dorf said of the conservative justices.

In Monday's ruling, conservative Justice Neil Gorsuch wrote that the court's aim was to prevent public officials from being hostile to religion as they navigate the establishment clause. Gorsuch said that "in no world may a government entity's concerns about phantom violations justify actual violations of an individuals First Amendment rights." read more

'WALL OF SEPARATION'

It was President Thomas Jefferson who famously said in an 1802 letter that the establishment clause should represent a "wall of separation" between church and state. The provision prevents the government from establishing a state religion and prohibits it from favoring one faith over another.

In the three recent rulings, the court decided that government actions intended to maintain a separation of church and state had instead infringed separate rights to free speech or the free exercise of religion also protected by the First Amendment.

But, as liberal Justice Sonia Sotomayor wrote in the Maine case, such an approach "leads us to a place where separation of church and state becomes a constitutional violation."

Opinions vary over to how much flexibility government officials have in allowing religious expression, whether by public employees, on public land or by people during an official proceeding. Those who favor a strict separation of church and state are concerned that landmark Supreme Court precedents, including a 1962 ruling that prohibited prayer in public schools, could be imperiled.

"It's a whole new door that (the court) has opened to what teachers, coaches and government employees can do when it comes to proselytizing to children," said Nick Little, legal director for the Center for Inquiry, a group promoting secularism and science.

Lori Windham, a lawyer with the religious liberty legal group Becket, said the court's decisions will allow for greater religious expression by individuals without undermining the establishment clause.

"Separation of church and state continues in a way that protects church and state. It stops the government from interfering with churches but it also protects diverse religious expression," Windham added.

Most of the religious-rights rulings in recent years involved Christian plaintiffs. But the court also has backed followers of other religions including a Muslim woman in 2015 who was denied a retail sales job because she wore a head scarf for religious reasons and a Buddhist death row inmate in 2019 who wanted a spiritual adviser present at his execution in Texas.

The court also sided with both Christian and Jewish congregations in challenges based on religious rights to governmental restrictions such as limits on public gatherings imposed as public safety measures during the COVID-19 pandemic.

Nicole Stelle Garnett, a Notre Dame Law School professor who joined a brief filed with the justices backing the football coach, said the court was merely making clear that governments must treat religious people the same as everyone else.

Following Monday's ruling, many issues relating to religious conduct in schools may be litigated anew under the court's rationale that the conduct must be "coercive" in order to raise establishment clause concerns.

"Every classroom," Garnett said, "is a courtroom."

(For a related graphic, click https://tmsnrt.rs/3njwtCD)

Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham and Scott Malone

Our Standards: The Thomson Reuters Trust Principles.

Lawrence Hurley

Thomson Reuters

Washington-based reporter covering legal affairs with a focus on the U.S. Supreme Court, a Pulitzer Prize winner for team project on how the defense of qualified immunity protects police officers accused of excessive force.

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