What the Law Says About Church/State Separation January 23, 2010

What the Law Says About Church/State Separation

There are a few questions about church/state separation that pop up more often than others:

  • Are persons elected or nominated to serve as government officials required to place their hands on the Bible when making oaths or affirmations?
  • May elected officials reference religious ideas and discuss their personal religious beliefs while operating in their official capacities?
  • May the government erect temporary holiday displays that contain some religious elements such as a crèche or a menorah?
  • May public schools lead students in a voluntary recitation of the Pledge of Allegiance with the words “under God” at the beginning of the school day?

Every few months, it seems, another one of these issues is brought to the forefront of political discussion

The Center for Religion and Public Affairs at the Wake Forest University School of Divinity has put together a statement on Religious Expression in American Public Life (PDF).

It’s a handy guide to answering those questions, stripped of any ideology, just limited to what the law says. Definitely a useful educational resource.

… While there is disagreement among us about the merits of some of the court decisions and laws mentioned in this document, we agree that current law protects the rights of people to express their religious convictions and practice their faiths on government property and in public life as described here. Thus, we hope this document will help settle the debate about whether current law provides any protection for the right of religious expression and practice in these settings (it clearly does) and focus our attention on the merits of specific laws and court decisions in this area. Finally, when engaging in these more focused discussions, we hope this document will help Americans describe current law as accurately as possible. That certainly will not end our debates, but it will help make them more productive.  

(Thanks to Debbie for the link!)

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What Are Your Thoughts?leave a comment
  • Heather

    Thank you so much for this link. We are dealing with a case of religious bullying at my daughter’s school. This link has been very helpful!

  • Sensil

    Is it just me or were none of the people who disagree with the expression of religious views in public places included in the panel preparing this Joint Statement? If I’m right then this is like a Joint Statement from a committee of turkeys attempting to document the clear legal position once and for all that beyond debate Thanksgiving is unconstitutional. Why did they doom this effort to failure from the beginning by having the wilful arrogance to exclude those who might have a differing view?

  • Ron in Houston

    Well, legal and proper operate in two very distinct spheres.

  • Mark C.

    If we’re going just based off of what the Constitution says…

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

    … then I’m not sure how we can justify erecting a church-state wall where the relevant laws say nothing about religion.

    We’ve had many church-state victories, which I’m glad for… but at the same time, I can’t see how the Constitution would prohibit some of what we say is against the separation of church and state.

    Again, I’m glad for our victories, so please don’t misunderstand what I’m saying.

  • muggle

    Mark, look at the first part of that. They can’t establish a religion. The Supreme Court has interrupted that to mean they can’t establish one religion over another or religion over irreligion.

    (Damn, Hemant. Still having the same problem.)

  • Mike

    Mark C.: exactly, thank you very much for making a good point and a sober observation – we CAN’T justify erecting a church-state wall according to the Constitution of the United States. Unfortunately the Supreme Court has been corrupted by a humanist/secular agenda and has ruled in direct opposition to the first Amendment. The Supreme Court has, in effect, used the VERY amendment that guarantees our religious freedoms to wage war on those freedoms…

  • Evan

    They are not required but they are usually given the opportunity to swear over the Christian Bible and usually do not hesitate.
    Elected officials are certainly allowed to reference anything they want, but legislation should be made upon universal retrospection. It rarely is, but it should.
    The government may only erect holiday displays that do not condone one particular religious/non-religious belief. One religious display would require countering religious displays. If the government can maintain equality in open displays, it is welcome, if not then they cannot display anything.
    The Pledge of Allegiance is always meant to be voluntary. The school must make students aware that it is voluntary and that no reprimands will be made for any student not participating.

  • Alz

    Mike, which of your religious freedoms have been compromised? Isn’t preventing those in government from using their office to promote their brand of religion protecting everyone’s freedom of religion and preventing an establishment of a particular religion?

  • wow
    they actually said this:

    An officeholder may choose to add the words “so help me God” at the end of this oath or affirmation. Adding these words to the oath or affirmation, however, is not and could not be required by government.

    That’s Michael Newdow’s whole case!

  • Ron in Houston

    Mike @9:56

    Nice buying into the propaganda of the right. Listen to Bill O’Reilly much?

    The fact is its still quite legal to begin legislative sessions with a “prayer.” Now whether that’s to Jehovah, Allah, or even a “higher power” it still excludes and often offends atheists.

    The honest fact is that courts are often way too willing to give deference to government crossing the First Amendment line. Just because something has been somewhat secularized or is historical does not make it any less of a violation of the First Amendment.

    As someone said, show me some violation of your rights.

  • Mark C.


    “Mark, look at the first part of that. They can’t establish a religion. The Supreme Court has interrupted that to mean they can’t establish one religion over another or religion over irreligion.”

    Going solely by the words in the First Amendment, the only prohibition is against laws with certain content. But it seems that lots of things we atheists object to as infringements of church-state separation just aren’t things that are legislated at all.

    Do I want our objections to hold? Do I want people to not use their public offices to push their religious views (not through legislation)? Do I love it when we win a church-state separation case? Definitely. I just don’t see how some/many of our objections stand up to scrutiny when the First Amendment is used as justification.

    If I were told how our objections could be squared with the First Amendment, I would be very happy. So, if you were going to, please don’t call my motivations into question. As a philosophical pedant, however, I just want consistency, because if we aren’t consistent, then the other side could have their way more often, as well (and they’d be just as justified as we are if we aren’t consistent), the latter of which I certainly don’t want.

  • Mark,

    That’s a valid, but discredited, point of view. The Supreme Court has not given the “pure textualism” view of the Constitution the time of day in quite some time.

    Consider, for example, the exclusionary rule. That’s the rule, arising out of the Fourth Amendment, that says that evidence gathered in contravention of the Fourth Amendment can’t be used against you in trial. Where does it say that in the Constitution? It doesn’t. But the Supreme Court has said that the Constitution means that.

    Just as the Supreme Court has said that the Establishment Clause means that the government action must have a secular purpose, must not primarily advance or inhibit religion, and must not cause “excessive government entanglement” with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). The phrase “Congress shall make no law,” when interpreted together with the Fourteenth Amendment, really means that the government, state or federal, can’t take the proscribed action.

    Our objections square with the First Amendment, as interpreted by the Supreme Court.

    I’m required by the North Carolina Rules of Professional Responsibility that nothing contained in this message is or should be construed as legal advice. For legal advice, please contact an attorney licensed in your jurisdiction.

  • Autumnal Harvest

    Mark C, I’m having trouble understanding your issue. Can you be more specific? What things do we atheists object to that aren’t, in your view, actually objectionable under the First Amendment? In every establishment of religion case that I know of, the relevant laws are about religion (implicitly or explicitly).

  • Hemant, thank you for posting this. I found it very helpful and informative.

  • Mark C.


    Having only read the First Amendment and the Wikipedia section on the 14th Amendment in Wikipedia’s article on church-state separation, things like teachers proselytizing in class can’t be said to be unconstitutional unless Congress passed a law related to the teaching profession that said something about religion or which was motivated by religion (in which case the law would also be unconstitutional). The US military purchasing rifle sights with biblical verse references on them, likewise, couldn’t be constitutionally objectionable. And even having “In God We Trust” on coins and “Under God” in the Pledge (as long as the Pledge isn’t required) wouldn’t be unconstitutional.

    I have not investigated the cases that Michael cited above, so I’m not completely informed on the matter — reading more could make all the difference. However, he said that “Congress shall make no law”, together with the 14th Amendment, pretty much makes complaining about the things I mentioned above constitutionally justified. However, from reading just those amendments, I see no way of interpreting things in such a way, and as a freethinker and a pedant, I’m not inclined to give even the Supreme Court the liberty to interpret things in such a loose way — no human can declare things by divine fiat, so to speak, and simply make them true. It would be like saying “football” could mean “panda”, though obviously less absurd.

    Again, I like the way things are being done on our end of the church-state separation front and I want it to continue, but if these actions can’t be squared with any reasonable interpretation of the Constitution, we should have a new amendment (unfortunately, I don’t think it would pass, especially with today’s Republican party).

  • Siamang

    Mark C…

    I think you need a further grounding in legal principles.

    All actions of government are subject to the First Amendment, and not just those which specifically are enacted in a law.

    This is because all the actions of government are funded by congress. And all government budgets are passed as law.

    The first amendment protects the public from the government. We WANT that protection.

    It wouldn’t do to have the government start shutting down newspapers they didn’t agree with, then turn around and say “well, we didn’t make it a LAW… we just did it!”

  • Autumnal Harvest

    Mark, the things that the executive branch, and federal bureaucracy do, all (with a few exceptions) ultimately flow out of Congressional laws. For example, the US military purchases rifles with funds allocated to it by Congress. I believe “In God We Trust” on coins is based directly on a law, but even if it wasn’t, its indirectly based on it, because there’s a law that establishes a mint. Because all the actions of the government ultimately (are supposed to) flow back to Congress, it’s understood that the First Amendment is talking about government actions, not just government actions that are explicitly described in a law. Your overly literal way of reading the First Amendment would produce absurd results. For example, suppose the President decided to have people arrested for criticizing the government, and someone challenged their arrest under the First Amendment. If the President argued “Oh, there’s no Congressional law that I relied on, I just decided to do it on my own,” any court would agree that that would make the President’s case worse, not better. Laws and constitutions are supposed to be interpreted in ways that don’t produce absurd results, and it would be absurd to say that the government has a better case when it acts without the authorization of a law. No lawyer or judge would argue for this overly literal way of reading the Constitution – it’s not really a liberal/conservative thing, or theist/atheist thing, so much as a basic issue about how to read laws and get sensible results.

    As for the 14th amendment, that’s relevant only for actions of state government. Teachers are paid for by the actions of state legislatures, so their actions don’t flow out of Congressional laws, and so you are correct that the First Amendment alone doesn’t apply. The 1st Amendment, as originally passed, applied only to actions of the federal government, not those of state governemtns. The 14th Amendment is relevant here because it’s been held to incorporate (most of) the Bill of Rights against the states.

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