Disconnecting Church and State

...The meaning of this opinion was unclear, and the Court refused to extend the logic of its decision...

...Justice Owen Roberts delivered the opinion, asserting that "the fundamental concept of liberty embodied in that [the Fourteenth] Amendment embraces the liberties guaranteed in the First Amendment...

...Tocqueville was a practicing Roman Catholic, and he asked a great many Catholic priests, as well as other American clergymen and laymen, for an explanation...

...Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another...

...In reading the Ti/ton opinion, one gets the impression that the Court has almost given up trying to enforce the principle of separation...

...The state was almost openly providing support to religious institutions but the Court, eager to show its good faith to the accommodationists, chose to overlook this clear penetration of the wall of separation...

...Black, in what appeared something of a reversal from his opinion in the Everson case, chose to dwell on what should have been obvious: "...tax-raised funds cannot constitutionally be used to support religious schools, buy their school books, erect their buildings, pay their teachers, or pay any of their maintenance expenses, even to the extent of one penny...

...Madison and Jefferson could not have imagined the variety of problems that would arise...

...Rutledge pointed out that the law clearly was intended to help only religious schools, since students at private profit-making schools were not eligible for the free transportation...

...Subsequent wrangling broadened the first phrase and eliminated the last, resulting in the present version: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...

...Congressman John Bingham of Ohio, the primary author of the Amendment, saw it as a vehicle for applying the guarantees of the Bill of Rights to the states, explaining that its purpose was "to protect by na~ona/law the privileges and immunities of all citizens of the Republic and the inborn rights of every person within its juris...

...A committee of the House of Representatives pared it down to "no religion shall be established by law, nor shall the equal rights of conscience be infringed...

...Surely a clearer breach of the principle of separation hardly could be found, and as Alexander Bickel wrote, "Hardly any qualification of the holding of unconstitutionality seems possible...

...First, there is Black Washington...

...The First Amendment didn't touch such matters, since they were outside the jurisdiction of the federal government...

...He also cited Jefferson's Statute for Religious Freedom, quoting from the preamble the words, "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical," and noting that the statute provided that "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever...

...Unless they see it as a symbol of their dreams, as a kind of marvelous promise, as a glorious fragment of a lovely poem only they can interpret--unless they see all this, they are doomed...

...Their quarrel was with what they saw as Black's lack of rigor in applying the enunciated principle...

...In recent decisions, however, the Court has appeared intent less on maintaining a clear separation of church and state than in trying to balance the interests of the two sides by giving each some of what it wants...

...had it been designed to enforce separation at the state level, Jefferson likely would not have tolerated such a rule...

...In ruling the practice unconstitutional, Justice Black noted that "not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines, the State also affords sectarian groups an invaluable aid in that it helps provide pupils for their religious classes through use of the State's compulsory public school machinery...

...All the same, the crucial point is that the Founders did set down a clear and uncompromising principle--that "Congress shall make no law respecting an establishment of religion' '--and the framers of the Fourteenth Amendment made that prohibiton applicable to the states as well...

...He said flatly, "This is not separation of Church and State...

...President as he addresses the Sons and Daughters of the Montenegrin-American Society--unless one hears the faint whispers of the seductive music of power as a background theme, Washington is nothing but a cold, dead, uninteresting third-rate city on a second-rate river, a city of white monuments and black people...

...But what actually were the views and intentions of the Founders in framing the religion clauses of the First Amendment...

...But this version provoked a great deal of opposition, both because it prohibited support of religion by the states and because it clearly protected atheists and agnostics, by appealing to the "rights of conscience" rather than to religious freedom, a slightly more ambiguous concept...

...Things would have remained that way except for the Fourteenth Amendment, passed after the Civil War, which reads in part as follows: "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law...

...That approach, the heart of American legislative politics, is essential to most of the policy decisions in a democracy, but it has no place in the application of the Constitution...

...Viude (1962) and Schemp v. Abington SchoolDistrict (1963...

...If there is no certitude, no help for pain beneath that bright shining dome, then where...

...to his astonishment, they all attributed the religious atmosphere of America to "the complete separation of church and state...

...Opposed to such practices were Madison and Jefferson, who wanted a complete divorce between church and state at every level, and whose allies included most of the major luminaries of the Revolution--Franldin, Washington, Hamilton, Paine, and Henry, among others...

...No tax in any amount, large or small, can be levied to support any religious activities or institutions...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...

...That the problems of determining the proper line of division between church and state are complex and difficult is beyond dispute...

...As a result, its opinions suffer from inconsistency and a limp reluctance to offend...

...Most of the new state constitutions drafted after the Revolution included religious tests for civil rights that excluded Catholics, Jews, and nonbelievers...

...The Supreme Court took an equally uncompromising stand in an 1845 case, stating flatly, "The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties...

...The Court was less timid when confronted in Lemon v. Kurtzman with laws in Rhode Island and Pennsylvania providing state payments to some teachers of secular subjects in private schools...

...William F. Gavin Washiugtou: Land of Dreams Every night before the capital goes to sleep, fantasies of power rise from thousands of beds and hover over the city...

...see it as three cities in one geographic location...

...But the Court zigged back in the direction of accommodation in Tilton v. Richardson (1970), upholding federal construction grants to private sectarian colleges for buildings other than those used for religious instruction and worship...

...Joining with the New Englanders and Virginians were many Antifederalists who simply objected to any further erosion of the powers of the states...

...The answers to these questions are neither simple nor easily discovered...

...The Amendment managed to pass the House, but the Senate balked...

...The Continental Congress, for example, urged the colonies to promote "true religion and good morals" as "the only solid foundation of public liberty and happiness...

...if submitted to public definition, would be narrowed much more than they are likely ever to be by an assumed power...

...diction whenever the same shall be abridged or denied by the unconstitutional acts of any State...

...He wanted only "to arm the Congress of the United States...with the power to enforce the Bill of Rights as it stands in the Constitution today...

...perhaps for that reason in recent decisions it has tried to give the accommodationists the benefit of every doubt...

...Not even 'three pence' contribution was to be exacted from any citizen for such a purpose...

...All this has produced much indignation and little understanding in the general public, and a corresponding decline in public respect for both the Court and the idea of church-state separation...

...What was at issue was simply whether it was proper for the state to nurture religion in its schools...

...Justice Black's opinion for the Court concluded that "the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government...

...In an exhaustive analysis, drawing extensively on Madison and Jefferson, Rutledge argued that "By no declaration that a gift of public money to religious uses will promote the general and individual welfare, or the cause of education generally, can legislative bodies overcome the Amendment's bar...

...Most Americans saw no contradiction between broad religious liberty and public support of churches: when the Revolution broke out, most of the colonies still provided funds for religion, though a few were broadening their support from one church to several and others were moving to disestablishment...

...Each side of the issue claims the sanction of the nation's Founders --the separationists seeing Jefferson and Madison as the first pioneers of religious liberty and independence, the "accommodationists" contending that the Founders could never have intended such silly things as banning prayer from public schools...

...Clearly the Amendment was meant to expand the power of the federal government at the expense of the states...

...The watershed case for the establishment clause of the First Amendment was Everson v. Board of Education (1940...

...For all the Uproar they caused, few cases have offered such clear choices...

...nor is there any inhibition imposed by the Constitution of the United States in this respect on the states...

...Unless, during the most boring of subcommittee hearings or staff meetings or while working on a draft of remarks that will be used by the William F. Gavin is author of Street Corner Conservative...

...Two years later, however, it declared that the Fourteenth Amendment protected freedom of speech and press from abridgement by the states...

...No person can be punished for entertaining or professing religious beliefs, for church attendance or non-attendance...

...The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...

...Payments to religious institutions amount to aid of religion by the state...

...He believed the existence of numerous sects would ensure the survival of toleration, fearing that "the rights of conscience in particular...

...The breakthrough came in 1923, when the Court confronted the implications of the word "liberty" in the Fourteenth Amendment...

...Many Virginians, notably Richard Henry Lee, also objected to such interference, even though they had lost the fight to maintain an established church in their own state...

...A year later the Court was confronted with the "released-time" practice, in which religious instruction was provided in public schools for students who wanted it while those who didn't attended other classes...

...Justice Robert Jackson, in a separate dissent, criticized the Court for its "failure to apply the principles it avows," and dismissed the majority's opinion as reminiscent of Byron's Julia, who "whispering 'I will ne'er consent'mconsented...

...As late as 1891, the Court said unequivocally, "The States may establish a Church or Creed, and maintain them, so far as the Federal Constitution is concerned...they [the Founders] left the States the most absolute power on the subject...

...They look across the street at the white shining majesty of the Capitol dome, bathed in light...

...The Court's decisions against prayer in public schools brought a storm of public outrage on its head...

...Each private school in New York was allowed to choose from a list of approved textbooks, and the books chosen were lent to the school's students...

...B~0Q~Q~B~g~wo~0QO0~000Q00D0~m0tQD00~m0D~I~0~i~Q6~DB0~It600O000~0DQ0Q~OD0~QQQQO~Qi~i~9I~0~QiO00gQQl0O0~Q~o~QB00o~9Q0Qii6IO~0ti~Q0t0g~0~DQ0Q~i6Q Stephen J. Chapman Disconnecting Church aful State The Constitutional case for complete separation...

...They reflect the basic premise of a constitution, the idea, in Hayek's words, that "no power should be arbitrary and that all power should be limited by higher law...

...By one stroke, the Supreme Court made the religion clauses of the First Amendment binding on the actions of the states, once and for all...

...A few dissenting justices contended that the Amendment prohibited the states from violating religious freedom and supporting religion, but such views did not prevail on the Court until well into the twentieth century...

...In France he "had seen the spirits of religion and freedom almost always marching in opposite directions" but in America he "found them intimately linked together in joint reign over the same land...

...In the last two decades the courts have had to rule on the constitutionality o f a number of educational practices alleged to breach the wall between church and state erected by the First Amendment...

...It is difficult to imagine that such prayers in public schools could have been approved by Madison, who objected to the hiring of chaplains by Congress, or Jefferson, who refused to follow the Presidential tradition of proclaiming national days of thanksgiving and prayer...

...Justice Stanley Reed dissented, citing a regulation of Jefferson's University of Virginia, a state institution, which explicitly permitted "the religious sects of this State, or any of them, according to the invitation held out to them, to establish within, or adjacent to, the precincts of the University, schools for the instruction in the religion of their sect...

...Though formal disestablishment took place everywhere, states retained vestiges of the old order, such as Sunday closing laws, Bible classes and prayer in public schools, religious tests for civil rights, and so on...

...nor deny to any person within its jurisdiction the equal protection of the laws...

...Following the mistaken lead of Everson and going even further, the Court ruled in Board of Education v. Allen (1970) that states could provide textbooks to sectarian schools, on the theory that such books were provided not to schools but to students as part of a general program to ensure them an adequate secular education...

...In the next fifty years, he was vindicated...

...And, as that, to those who come to Washington seeking not reality but a dream, it is unbearable...

...The decisive action was taken in 1940, in a case involving members ofJ ehovah's Witnesses, who were arrested for soliciting money for their church without the license required by a Connecticut law...

...One of Tocqueville's most surprising discoveries in America was the "quiet sway of religion over [our] country...

...Why the Court outlawed such "support for nonpublic, sectarian institutions" in this case, while permitting it in the textbook and construction grant cases, is a mystery, for what is true of the first is undeniably true as well of the latter two...

...An expansive wave of religious revivalism that washed over the entire colonial landscape in the 1740s, the Awakening spawned numerous new sects whose rapid growth gave rise to a general acceptance of toleration, even in the most steadfastly orthodox Stephen J. Chapman, a native of Austin, Texas, now lives in lVashington...

...With the exception of bureaucrats who have a universe of their own, those who work in Washington, D.C...

...John Adams, who opposed any interference with state establishments, like that of his own Massachusetts, declared that The Alternative: An American Spectator February 1977 11 "one might as well expect a change in the solar system as that the great Puritan commonwealth would abolish its ecclesiastical laws...

...As for the state establishments, history was on his side, and he knew it...

...That given, he decided that such open aid to religious institutions was permissible because in sectarian colleges, "religious indoctrination is not a substantial purpose or activity...

...By design, nothing in the Amendment could interfere in any way with the states, which remained free to support churches and to restrict the rights of dissenters...

...This is a Washington unknown to most of the white people who work in the city and totally unknown to the big names of the national press who, we are told, "cover" Washington...

...The question was no longer whether to apply the First Amendment's religion clauses to the states, but how--an imposing task...

...Those who work in Washington are all standing on Dover Beach whether they will it or not: either they see Washington as "a land of dreams, so various, so beautiful, so new" or else are forced to see it as a place with "neither joy nor love nor light, nor certitude nor peace nor help for pain...

...Tocqueville perceived an unqualified consensus in favor of such separation, but he also observed that education in America was entrusted almost exclusively to the clergy...

...Each side saw what it wanted: libertarians took solace in the complete break between religion and government at the federal level, while New Englanders, Virginians, and Antifederalists were pleased that the states retained their authority over religious matters...

...So the politician and his aides look at L'Enfant's city as if it were a garden of mystery with a hidden meaning that can be uncovered, that must be uncovered, by work and diligence and faith...

...How would they decide the sorts of church-state questions raised before the Supreme Court in recent years ? How faithful has the Court been to the original purposes of the First Amendment, and what other factors have influenced its decisions...

...The origins of religious freedom and church-state separation in America are complex and somewhat contradictory...

...Such clear support of religious institutions could hardly go unchallenged by the Court, however much it 'endeavored to satisfy the accommodationists...

...If there were a majority of one sect, a bill of rights would be a poor protection for liberty...

...In a unanimous decision, the Court overturned the conviction of the two men and ruled the law unconstitutional...

...Perhaps sensitive to the weakness of its reasoning in the textbook case, the Court unanimously struck down the laws, concluding in a scrupulously balanced opinion, "We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of precollege education...

...The limitation of the Bill of Rights to the federal government thus became an accepted legal principle in the nineteenth century...

...The multitude of relationships involving the two--from taxes to public services--often brush up against the principle of separation, and it is not always easy to discern where the line should be drawn...

...Most of his allies thought it superfluous, on the theory that the federal government could exercise only those powers explicitly granted it, but Madison simply doubted it would be effective...

...Legislatures are free to make, and courts to sustain, appropriations only when it can be found that in fact they do not aid, promote, encourage or sustain religious teaching or observances...

...Justice Wiley Rutledge agreed with Black's interpretation of Madison's intent, saying that nowhere was Madison "more unrelentingly absolute than in opposing state support or aid by taxation...

...It is hard to quarrel with Black's lucid interpretation or his reading of Madison and Jefferson, and significantly, none of the justices who dissented from the Court's opinion did so...

...But the Court left the religion clauses of the First Amendment out of this protection, and for the next decade and a half refused either to broaden or to refine its interpretation...

...Chief Justice Warren Burger, who in Lemon had feared that constant surveillance of teachers would be required to ensure their neutrality on religious matters, was satisfied that no similar surveillance was needed in the case of buildings...

...Confused attempts to somehow reconcile separation with its opposite not only permit a bridge where the Founders intended a chasm, but undermine the rule of law, and with it the ideal of a constitutional republic...

...Admitting that "this Court has not attempted to define with exactness the liberty thus guaranteed," it was certain that the term included, among other liberties, the right of every man "to worship God according to the dictates of his own conscience...

...In formulating that definition, Black carefully noted the views of Madison and Jefferson, and even went so far as to include in an appendix Madison's Memorial and Remonstrance against Religious Assessments, written in opposition to a proposal to provide tax money for the support of churches in Virginia...

...colonies...

...The meaning of all this was that the prohibitions of the Amendment-strict and uncompromising as they were--applied only to the federal government...

...Probably the most famous and controversial cases were those concerning prayer in schools--Enge/v...

...Neither was the notion of toleration absolute...

...On cold, clear winter evenings, ambitious, bright young Congressional aides working in the Senate and House office buildings pause on their way home to their high-priced apartments to stand on the corner for a moment...

...Except for Maryland, South Carolina, and most of New England, all the new states legally disestablished religion...

...Reed failed to note that at the time the First Amendment did not apply to the states...

...The Court rejected such practices on the ground that "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions...

...But Black upheld the New Jersey law on the ground that it was aimed at promoting the public welfare, not at assisting religious schools...

...How was the Court to apply to the states a principle that originally was not intended to be applied to the states...

...The Court's responsibility is not to balance the opposing claims of the two sides in the separation controversy, but to enforce without exception the principle that the state should not support religious institutions, beliefs, or activities...

...In 1833, Chief Justice Marshall wrote a crucial decision on the scope of the Bill of Rights: The Amendments contain no expression indicating an intention to apply them to the State governments...Had Congress engaged in the extraordinary occupation of improving the Constitution of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language...

...Having seen the collapse of established religion in his own state, Madison was confident that the process would repeat itself elsewhere...

...Justice Douglas, dissenting, complained about the wide latitude granted schools in choosing books best suited to their religious views, and left it to Justice Fortas to dot the i: "It could be called a 'general' program only if the school books made available to all were precisely the same--the books selected for use in the public schools...

...Madison gave up the thoroughgoing separation of church and state he wanted, but he managed to enshrine the idea of separation in the Bill of Rights...

...No State shall violate the equal rights of conscience...

...Since his visit in the 1830s, however, American education has become a much more public affair, and the consensus Tocqueville perceived has increasingly given way to public discord about the principle of separation, particularly as it applies to schools...

...Given the nation's diverse views and practices regarding government and religion, the wording of the First Amendment was a tricky proposition...

...Bingham vehemently denied that his proposal would diminish states' rights, arguing that the Bill of Rights was intended to apply to the states all along, the rulings of the Supreme Court notwithstanding...

...For decades, despite the aims of the men who framed the Fourteenth Amendment, the Supreme Court hewed to the traditional interpretation of the Bill of Rights, and particularly of the First Amendment...

...this is left to the state constitutions...

...Aside from the doubtful accuracy of that observation, the fact remains that such institutions are religious in origin and The Alternative: An American Spectator February 1977 13 purpose, however subtle or secondary that purpose may be...

...If you see Washington only as a place where a quest for power can be fulfilled, Black Washington is something to follow in the newspapers and on the local television evening news, much in the same way one might follow the activities of the San Diego Padres if 14 The Alternative: An American Spectator February 1977...

...one by one, each state establishment fell, the last being that of the "great Puritan commonwealth" of Massachusetts in 1833...

...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...

...The Fourteenth Amendment has rendered the legislatures as incompetent as Congress to enact such laws...

...Equally difficult is trying to extrapolate from the writings of the Founders how they would view contemporary issues that they could not possibly have imagined...

...In PEARL v. Nyquist (1972) the Court found itself forced to overrule a clearly intolerable violation of the principle, in this case involving grants to parochial schools for maintenance and repair of facilities and for ensuring the health and welfare of students, combined with tax credits and reimbursements to parents for tuition payments...

...The religion clauses of the First Amendment established a clear principle, but one carefully limited in scope, reflecting a sophisticated compromise intended to offend as few as possible...

...As a member of the Virginia House of Burgesses, Madison had in 1787 orchestrated the passage of Jefferson's Statute for Religious Freedom, a passionate and stinging denunciation of intolerance and state-supported religion and one of the three achievements Jefferson wanted mentioned in his epitaph...

...Principles established in a constitution are by nature ground rules transcending and underlying all other actions taken by government...

...Even as he affirmed the constitutionality of a New Jersey law providing free bus transportation to students in parochial schools, Justice Hugo 12 The Alternative: An American Spectator February 1977 Black offered what would become the definitive interpretation of the clause: Neither a state nor the Federal Government can set up a church...

...In doing so the Court clearly acted in conformity with the aims of the framers of the Fourteenth Amendment, and opened up a wholly new and uncharted area of constitutional law...

...Despite these reservations, Madison finally agreed to include a Bill of Rights when he saw the Constitution could not be ratified without one...

...It saw no basis in the Fourteenth Amendment for interfering in state practices toward religion...

...The job of the Court is to locate the line between church and state and to keep each on its own side of the line--a difficult task, but no more so than applying any of the other principles established in the Bill of Rights...

...Top national reporters for the New York Times and even the Washington Post, who could take you on a tour of Belgrade or Helsinki blindfolded in a snowstorm, would need a compass if they wandered off their regular paths in Washington and found themselves in an all-black neighborhood...

...In Chief Justice Burger's words, "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...

...But to the young and ambitious--and to some extent, to the rest of us--one cannot live--cannot live-knowing that Washington has no meaning...

...Madison was the principal author of the Constitution and, like most of those who supported the document, he argued against including a Bill of Rights...

...At the same time, the colonial mind held on to a belief in the obligation of the state to protect and assist religion...

...The judicial decisions resulting from such challenges have been confusing and difficult to understand, due to what appears to be an odd inconsistency: the Supreme Court has upheld providing textbooks and bus rides to parochial school children, and construction grants to religious colleges, even as it struck down religious exercises in public schools, payments to teachers of secular subjects in parochial schools, and tax credits to parents for tuition payments to such institutions...

...that was essential if Congress was to carry out its program of reconstruction...

...Justice Douglas would have no part of the decision, pointing out that the "Federal Government is giving religious schools a block grant to build certain facilities" and noting that the "milliondollar grant sustained today puts Madison's miserable 'three pence' to shame...

...Having seen the Virginia Bill of Rights ignored on several occasions by the colonial government, he asked rhetorically, "Is a bill of rights a security for religion...

...He graduated from Harvard last June...

...They trace back at least to Roger Williams, but the major impetus for toleration was the Great Awakening of the eighteenth century...

...Madison originally suggested the following: "The civil rights of none shall be infringed on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed...

...A conference committee altered it to read "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience...

...Nor may the courts sustain their attempts to do so by finding such consequences for appropriations which in fact give aid to or promote religious uses...