The First Amendment
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Chapter 7 outline

A. Dueling justices

I. A porous wall

II. Testing the Establishment Clause

III. Testing the Free Exercise Clause

IV. Happy Holidays

V. Limited diversity

VI. Issues of conscience

VII. Back to the future: Scalia, Thomas and Rehnquist

VIII. The Catholic Court?

IX. Into the future: John Roberts and Samuel Alito

X. Beyond the wall

Religious Liberty in America:
The First Amendment in Historical and Contemporary Perspective

© Bruce T. Murray

Published by the University of Massachusetts Press.

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Beyond the ‘Wall of Separation’

How the Supreme Court continues to redefine separation of church and state

Excerpt from Chapter 7 of Religious Liberty in America: The First Amendment in Historical and Contemporary Perspective by Bruce T. Murray

Dueling justices

“The ‘establishment of religion’ clause of the First Amendment means at least this: 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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”
Justice Hugo Black, delivering the majority opinion of the Court in Everson v. Board of Education of Ewing Township (1947)

“The concept of a ‘wall’ of separation between church and state is a useful metaphor but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the ‘callous indifference’ that was never intended by the Establishment Clause.”
— Former Chief Justice Warren Burger, delivering the majority opinion of the Court in Lynch v. Donnelly (1984)

A porous wall

Like most of the rights enumerated in the Bill of Rights, those granted in the Religious Liberty Clauses of the First Amendment are not clear-cut or absolute, nor are the interpretations of these 16 monumental words set in stone or unchanging. School vouchers for parochial schools, religious displays on public property and prayers before Congress and even the Supreme Court are examples of where total separation of church and state breaks down.

Accommodating certain aspects of religion in public life, while barring others, has been the tortuous task of the Supreme Court. The lines of separation and accommodation have changed significantly since the 1940s, when the Court began a wholesale re-evaluation of the Religious Liberty Clauses – and their application to the states and local governments. For the past 60-plus years, the Court’s philosophy has changed significantly, and it continues to evolve. Old metaphors for describing “separation of church and state” are being cast aside, while new ones are being introduced.

In the landmark 1947 case, Everson v. Board of Education, the Court adopted the “wall of separation” metaphor, which many have lamented ever since. In Everson, which dealt with the use of public funds for the transportation of children to parochial schools, Justice Hugo Black cited Thomas Jefferson’s 1802 letter to the Danbury Baptist Association, in which Jefferson explained his vision of separation of church and state:

Jefferson“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 of church and state.”

For Black, the “wall” was the applicable metaphor for an absolute separation of church and state. “That wall must be kept high and impregnable. We could not approve the slightest breach,” Black wrote. Ironically, his ruling in Everson did permit public funds to be used for the transportation of children to parochial schools. Apparently, the wall did not extend to the moon. Nonetheless, the Court was stuck with the “wall” metaphor for years to come, and many subsequent justices have been trying to shake off its shadow ever since.

“Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship,” former Chief Justice Warren Burger wrote in the landmark case, Lemon v. Kurtzman (1971) “Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.”

For former Chief Justice William Rehnquist, Burger’s “blurred barrier” was no less problematic than the wall. “In the 38 years since Everson, our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, have with embarrassing candor conceded that the ‘wall of separation’ is merely a ‘blurred, indistinct, and variable barrier,’” Rehnquist wrote in his dissenting opinion in Wallace v. Jaffree (1985), in which the majority of the court held that an Alabama law authorizing a one minute period of silence in public schools violated the Establishment Clause.

“The ‘wall of separation between church and state is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned,” Rehnquist continued. “The crucible of litigation has produced only consistent unpredictability, and today’s effort is just a continuation of the sisyphean task of trying to patch together the ‘blurred, indistinct and variable barrier’ described in Lemon. We have done much straining since 1947, but still we admit that we can only ‘dimly perceive’ the Everson wall. Our perception has been clouded not by the Constitution, but by the mists of an unnecessary metaphor.”

“Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage.”
Justice Anthony Kennedy

In lieu of the blurred barrier, how can the Court’s current position be defined? Although the Court is so often divided, the results of its recent decisions are often called “accommodationist”; that is, the government may acknowledge and even support certain facets of religion without creating an “Establishment.”

“Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage,” Justice Anthony Kennedy wrote in Allegheny County v. ACLU (1989). “Rather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society. Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious.”

Diversity has become an important factor in the modern Court’s decisions. Holiday displays that embody diversity get points, as in the Allegheny case, in which the Court approved a display that included a Christmas tree and a menorah. But as part of the same case, the Court struck down a nativity scene that lacked diversity in its presentation.

“This nation is heir to a history and tradition of religious diversity that dates from the settlement of the North American continent. Sectarian differences among various Christian denominations were central to the origins of our republic. Since then, adherents of religions too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion,” wrote former Justice Harry Blackmun for the Court in Allegheny.
“Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare:

‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …’

“Perhaps in the early days of the republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism,” Blackmun wrote.

But within the broad scope of “accommodation,” even with diversity factored in, there is always the possibility of accommodating too far – skirting over that blurry line into something beyond what the Framers intended in the Religious Liberty Clauses. Some would use the Free Exercise Clause as an instrument for establishing their own religion or asserting dominance of the majority. The Court has recognized this contradiction of logic and refuses to permit it.

“In a pluralistic society there may be some would-be theocrats, who wish that their religion were an established creed, and some of them perhaps may be even audacious enough to claim that the lack of established religion discriminates against their preferences,” Blackmun wrote Allegheny. “But this claim gets no relief, for it contradicts the fundamental premise of the Establishment Clause itself. The antidiscrimination principle inherent in the Establishment Clause necessarily means that would-be discriminators on the basis of religion cannot prevail. To be sure, some Christians may wish to see the government proclaim its allegiance to Christianity in a religious celebration of Christmas, but the Constitution does not permit the gratification of that desire, which would contradict the logic of secular liberty it is the purpose of the Establishment Clause to protect.”

Read the rest of this chapter in Religious Liberty in America: The First Amendment in Historical and Contemporary Perspective, available from the University of Massachusetts Press.