Western Creed, Western Identity: Essays in Legal and Social Philosophy

6. Separating Church and State

    SEPARATING CHURCH AND STATE The first ten amendments to the U.S. Constitution are commonly known as the “Bill of Rights.” Like other declarations of rights before it, it is a document that both describes the fundamental liberties of a people and forbids the government to violate them. The first eight amendments to the Constitution list rights and freedoms possessed by every citizen. Amendments IX and X forbid Congress to adopt laws that would violate these rights. The First Amendment reads, in part,“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”The first of the religion clauses has come to be known as the “establishment clause,” the second as “the free-exercise clause.” The meaning of these clauses, then and now, is the subject of this enquiry . I propose therefore to organize my material under four headings : () the role of religion in society, as understood by the Framers of the Constitution; () the meaning of the religion clauses, as given in the Bill of Rights; () the relationship between church and state, as determined by the U.S. Supreme Court over the past fifty years (that is, since the landmark  Everson case); and () the implications of what I take to be a loss of respect for the intellectual and cultural role of religion in our society. We can hardly imagine a United States without the freedoms guaranteed by the First Amendment. Yet we are vaguely aware that when our nation came into being established religions existed not only in Europe but within the colonies themselves. The colonists were for the most part an English-speaking people who emigrated from a land      where the Anglican Church was the established religion. That church retained its ascendancy in the New World. At the outbreak of the American Revolution in , there were established churches in nine of the thirteen colonies. The Anglican Church had been established in Virginia in , in NewYork starting in . Establishment of the Anglican Church occurred in Maryland in , in South Carolina in , in North Carolina in , and in Georgia in . The Congregational Church was established in Massachusetts, Connecticut, and New Hampshire. True, there were dissenters: Methodists and Presbyterians were not of one doctrinal mind with their Anglican brethren and repudiated certain features of the Anglican episcopal structure. There were also various forms of Pietism, which were influential in some colonies.1 The Framers of the Constitution, taking into consideration dissent within the Church of England itself and cognizant of religious conflict on the Continent, decreed that there would be no established church for the nation as a whole. The principle of federalism dictated that each state was to be free to establish as it saw fit. The Framers had no intention of disestablishing churches in New England or in the South. Congress was to keep its hands off all local establishment policies . The religion clauses of the First Amendment were designed to establish a separation of church and national state and to prevent the Congress from interfering with individual religious conviction. In the age of the Founding Fathers, religion permeated the whole society, from school to Congress. Its presence and presumed beneficent influence were not challenged until after World War II. Only since that war has the U.S. Supreme Court developed what one constitutional scholar has called a“gloss on the First Amendment.” Given the Court’s propensity to use historical material to support its decisions in religion cases, we have reason to look to the past to determine original intent. In the debates that led to the adoption of the Constitution, and . For a thorough study of this topic, see Robert L. Cord, Separation of Church and State: Historical Fact and Current (New York: Lambeth Press, ). See also Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, ). Separating Church and State  subsequently of the Bill of Rights, James Madison’s role was significant . In the opening debates of the First Congress, Madison included among his several proposals an amendment forbidding the establishment of a national religion. The House Select Committee agreed to the following formulation of Madison’s proposal: “No religion shall be established by law, nor shall the equal rights of conscience be infringed .” Benjamin Huntington of Connecticut feared that such a formula might be interpreted to forbid state laws requiring contributions in support of churches and their ministers. He wanted to avoid...