Church and State… No simple discussion

Gott ist ein Popstar

Und die Show geht los

Gott ist ein Popstar

Der Applaus ist groß

Gott ist ein Popstar

Ihm gehört die Welt

Gott ist ein Popstar

Bis der Vorhang fällt1

– Oomph, “Gott ist ein Popstar

This post is not an attempt for me to voice my personal opinion on the “separation of church and state.” Instead, it is an attempt to provide information on the Constitution’s 1st Amendment, Supreme Court decisions related to the “establishment clause” of the amendment, and an example of a present legal question concerning the “establishment clause.” Anyone can voice their opinion, but a smart person attempts to arm themselves with knowledge.

The 1st Amendment of the U.S. Constitution states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of people to peaceably assemble, and to petition the Government for a redress of grievances.” There is no “separation,” “church,” or “state” in the 1st Amendment. This is usually understood to mean that the government (big or little “g”) shouldn’t establish, endorse, support, or get involved with any religion. People aren’t too good with knowing facts.

People are never really concerned with facts. Thomas Jefferson, one of the authors of the Declaration of Independence but not the Bill of Rights, stated in his “Wall of Separation Letter,”2 addressed to the Danbury Baptist Association in 1802, that “religion is a matter which lies solely between Man & his God” and that the 1st Amendment was “building a wall of separation between Church & State.” When people start talking about the separation of church and state they think they are using a phrase from the Constitution, when in reality they are repeating Thomas Jefferson’s words from a letter he sent to a Christian association in an attempt to explain the 1st Amendment.

This discussion of government’s role in religion is a long and lengthy one. The Supreme Court of the United States (SCOTUS) has decided the constitutionality of numerous “church and state” laws. They can be categorized as A) government intervention in church controversies; B) the free exercise of religion; and C) the establishment of religion. The “establishment clause” of the 1st Amendment is what most people are referencing (whether they realize it or not) when they start talking about the “separation of church and state.” There are specific SCOTUS decisions that affect our present view on the establishment clause.

The establishment clause SCOTUS decisions can be further categorized as A) standing to sue; B) religious institution tax exemption; C) work on Sunday; D) religious institutions functioning as a government agency; E) unequal treatment of religious groups; F) legislative chaplains; G) government-sponsored Nativity scenes; H) federal funding to public education; I) federal aid to church-related schools; J) Prayer in public schools; and K) teaching creationism in public schools. Basically, there are numerous SCOTUS decisions related to the establishment clause.

How a case gets to SCOTUS also determines the court’s involvement in a case. Simply, SCOTUS determines to hear a case if:

– a U.S. court of appeals has entered a decision in conflict with the decision of another U.S. court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of SCOTUS supervisory power;

– a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or a U.S. court of appeals; and

– a state court or a U.S. court of appeals has decided an important question of federal law that has not been, but should be, settled by SCOTUS, or has decided an important federal question in a way that conflicts with relevant SCOTUS decisions.3

Finally, it requires four of the 9 SCOTUS justices to agree to consider the case. SCOTUS agrees to consider very few cases, approximately 100 a year. Then if four justices agree, after considering the case, SCOTUS agrees to have the case placed before the court. In America’s history, SCOTUS has only had approximately 40 cases related to the “separation of church and state.”

For example, one issue that is related to the “separation of church and state” is the prayers and invocations that are held prior to city/county municipal council meetings. Recently, the Huntsville (Alabama) city council decided to put have its opening prayer conducted by a rotation of interfaith religious leaders. The idea is to extend an offer to multiple religious leaders (Jewish, Islamic, Christian, etc) to provide a prayer, or invocation, at the opening of the council’s meetings. The Freedom from Religion Foundation, however, has issues with this and claims that the use of any faith’s prayer at the beginning of the city’s council meetings as a breach of the 1st Amendment’s establishment clause, and the Foundation is threatening to sue the council.

The Foundation argues that any prayer from any faith is a proselytizing event to non believers, and thus is unconstitutional. Interestingly, an unofficial media poll in the Huntsville area showed that 46% of respondents (approximately 1,500 people) wanted no prayer, 42% wanted just a Christian prayer, and a minor 5.2% supported the council’s decision to have an interfaith rotation of prayer.

There is precedence in an US court of appeals deciding on a case of this nature. Pelphrey v. Cobb County, the 11th Circuit of the U.S. court of appeals ruled that a rotation of an interfaith prayer is legal. The plaintiffs (identified as “taxpayers”) argued that the establishment clause permits only nonsectarian prayer, however, the 11th US court of appeals disagreed and ruled in favor of the defendants (Cobb County, Georgia). The court decided that the use of a blessing, prayer, or invocation prior to a council meeting was not used (or exploited) for religious proselytizing. This case has not been referred to SCOTUS for final constitutional judgement. The Huntsville city council is arguing that the Pelphrey v. Cobb County decision will aid them if the Freedom from Religion Foundation does, indeed, sue.

Prayers and invocations before council meetings (or other government bodies) is not considered free speech. Precedents and numerous court decisions have determined, however, that it is okay to say “God” in a generic sense in a government meetings invocation. It is not acceptable to mention a specific religious god’s name (think of all the thousands of gods that have a name, including Jehovah and Jesus) in the invocation. One might argue that this violates the idea of promoting all religions above secularism, however, it seems that courts and legislatures do not consider this a serious threat to cause it to be judged and considered unconstitutional.

The idea and discussion of the “separation of church and state” is not simple, nor is it based strictly on tradition and law. It is a discussion that is full of misinformed conversations and opinions. It is a discussion full SCOTUS decisions related to the 1st Amendment and the misapplied phrase of “separation of church and state.” The concept of establishment clause is a foundational element of American legal history. It is important to understand that this discussion, like so many others, is not only full of facts but it is full of emotions and visceral reactions.

1. “God is a popstar, and the show begins, God is a popstar, and the applause is big, God is a popstar, the world belongs to him, God is a popstar, until the curtain falls.”

2. This letter is stored at the Library of Congress… go LOC!

3. These are considered the “Considerations Governing Review on Writ of Certiorari,” Supreme Court Rules, Section III, Rule 10.


2 thoughts on “Church and State… No simple discussion”

  1. “The idea and discussion of the “separation of church and state” is not simple, nor is it based strictly on tradition and law.” Absolutely true! Historically, church and state have not been absolutelty separate in the U.S., a point I discuss at:

    And might I add that Jefferson was NOT at the Constitutional convention and did not draft the Bill of Rights. (He did senda letter to James Madison kvetching about the absence of a Bill of Rights in the Constituion as rdafted.) So the very notion that we should trust him as a guide to what the 1st Amendment means is a bit cockamamie.

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