It is a well-established principle of American law that the Constitution requires a separation between church and state. The general understanding is that the Constitution prohibits any religious expression in the public square and that American governmental territories are obligated to be a religion-free zone. That conventional wisdom might lead to a surprise of most American citizens that “the separation of church and state” is not mentioned in the Constitution. Never. Not once. In fact, at the time the Constitution was drafted it was understood as a matter of general fact that religion played a large role in society and, in fact, was expected to take a prominent place in the establishment of the new American nation.
That is not to say that the fundamental principle of separation of church and state has no place in the American experience, but rather that its construction is often misunderstood. The colonial and subsequent immigrant experience in America was built on a foundation of religious freedom, not freedom from religion. In fact, America’s first settlers, the Pilgrims, were yearning to establish a place of free religious worship where they were free from the totalitarianism of a despotic state—they were not seeking to be free from religious society in all respects. The freedom to worship as we choose, free from government interference, is the most fundamental of religious principles—it is so important that it was established as a matter of preferential treatment in the Bill of Rights as the First Amendment, the primary amendment, which among the freedoms of speech, the press and assembly established the freedom to exercise religion.
The foundation of religion—rather than the freedom from religion—is an essential rudimentary basis of American society. It is the difference between a secular government and a government that does not interfere with religious practice. America has never been built on a construct of secularism. We trust in God on our currency. And Congress begins its sessions with a prayer. The president often asks God to bless the American people. This is consistent with the First Amendment, which prohibits the government from establishing impediments to our expressions of religion.
The construction, placing religious freedom at the center of the American experience, is why a law, like in France, that prohibits the wearing of head coverings is illegal in the United States. In June, 2015, the United States Supreme Court ruled, in the case regarding a religious Muslim woman who was fired from her job as a saleswoman at Abercrombie and Fitch because she wore a hijab, that the retail outlet could be sued for violating her rights. American courts have similarly found in favor of a Seventh Day Adventist who was punished for refusing to drive a bus on Saturday and in favor of a Jew in the Air Force who was facing discipline because he said wearing a kippah while piloting a plane was a matter of religious principle.
In the alternative, the European Union has established a structure not based on religious freedom, but rather the preeminence of secularism. As a result, the French legislative body has made it illegal to wear items of religious expression. Last year, a teacher in Germany sued because she is a religious Muslim and wore a scarf in the classroom. The secular court ruled that the termination from her job was rational and correct. It is a result that would never be countenanced under American law and the First Amendment principle of religious freedom.
So considering the First Amendment’s religious language, how did the concept of “separation of church and state” become so prominent in the understanding of American law? The answer is found in the notes of the First Congress, which wanted to create a framework different from Europe where the government and church were intertwined. A note leading to the creation of the First Amendment stated: “The Constitution did not create a nation, nor its religion and institutions. It found them already existing, and was framed for the purpose of protecting them under a republican form of government, in a rule of the people, by the people, and for the people.” In other words, religion was here first, the government cannot interfere. It was Thomas Jefferson who first talked about a separation of church and state, and said the practice of religion “should be secured,” from the government.
It was almost 100 years later that the idea of religious separation was first considered in judicial law. In an 1878 Supreme Court case, Reynolds v. US, the Court first opined that there is a separation between what the state can do that might affect religious practice. The Court took a very deferential position but said it is necessary to look outside the Constitution since the Constitution does not define religion.
It took almost another 70 years until the Court took a second look at the buffer between government restriction and religious practice. In 1947 the Supreme Court first used the expression “separation of church and state” in deciding the case of Everson v. Board of Education, which established the limits of state funding in religious schools. The court concluded in a 5-4 decision limiting funding of parochial schools: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”
The “wall of separation” became the fundamental structure of analysis for the next 30 years. Among the cases decided, the court ruled that schools could not require students to recite the Pledge of Allegiance if it violated their religious beliefs, schools could not include a prayer to begin the school day, even if non-sectarian, and schools could not teach Biblical studies as a class subject, even if it was a basic part of western literature.
The “wall of separation” era culminated in 1971 with the case of Lemon v. Kurtzman, which challenged the public funding of the salaries of teachers of secular subjects in parochial schools. The Supreme Court struck down the funding based upon the principles of separation of church and state and established the “Lemon Test,” which became the preeminent method of establishing legal state entanglement with religion for the next 20 years. Under the Lemon test, a law involving religion was only legal if (1) the law or policy is neutral and is not meant to promote religion, (2) the law or policy has a fundamental secular purpose and (3) there is no “substantial entanglement” between the state and religion. The Court ruled that “the wall” between church and state should not be blurred. For a generation, that was the understanding of the Constitution that became prevalent.
Then two Native Americans were prosecuted for using peyote. In 1987 Alfred Smith and Galen Black of the “Native American Church” were prosecuted for using the substance, which was considered a controlled substance under Federal Law. They appealed the prosecution on First Amendment grounds, but the court, based upon the principles of precedent, ruled that Smith and Black had no right to their religious expression. Under Lemon, the drug laws were neutral, secular and did not blur the wall between church and state. Their religious expression, although not harming anyone, was in violation of an established law—and therefore could be rightfully prosecuted.
That drove many civil liberty advocates and led to a push to recalibrate the role of government in ruling over religious expression. Less than a year after the Supreme Court decision, which imprisoned Smith and Black, Congress on a bilateral basis established the Religious Freedom Restoration Act, which was signed into law by President Bill Clinton in 1993.
Under the RFRA, federal law recognized the right of religious practice to be free from government interference except in very limited circumstances. In order for a repeat of the prosecution that led to jailing Smith and Black, a law limiting free expression is legal only when the law is vital for meeting a compelling government objective and there is no way to effect the compelling government objective in a less restrictive manner than the law imposed. In other words, a very high burden. Under RFRA most zoning laws fail, and after the most recent Supreme Court decision on the matter, this past June in Trinity Lutheran v. Comer, so does any regulation that restricts religious practice as a criterion for funding from the state.
In the wake of Trinity Lutheran a client asked me where this leaves religious institutions under the Lemon test. My response was that Lemon is dead. The Court in the Trinity opinion did not say so explicitly, but it is clear from the analysis that the legality of any particular law that involves religion cannot be based upon a preference for secular purpose, but in a diametric opposite calibration, it cannot discriminate against religion. In doing so, after a detour, it probably makes Constitutional analysis closer to the perspective that the Founders had when the Constitution was first drafted.
The bottom line is that since its founding, from the Pilgrims, to the Quakers, to the Catholics, to the Jews, to the Muslims, to the Buddhists, to the members of the Native American Church, America has been a grand experiment seeking the limits of free religious expression. The First Amendment guarantees citizens two clauses regarding religion: that the government will not establish a religion, and it will guarantee the free exercise thereof. Those two provisions are double any other First Amendment guarantees: that of speech, of the press, of the right to assemble and the right to petition the government. The fact that religion is so prominently featured, and first featured, shows its value as uniquely American…This grand experiment, vibrant and almost 250 years old, is still a government, indivisible under God and it was never countinanced as a government established as separated by a wall from God, except as not to interfere in God’s works with its citizens.
By Stephen Loeb, Esq.
Stephen R. Loeb is an attorney with a private practice in New Jersey and New York. He can be reached at [email protected] or 212 766-5268.
