It’s beginning to look a lot like Christmas everywhere you look. (Actually, it has been since before Halloween.)
Christmas trees are popping up in storefronts, home windows, public parks and even government buildings.
For many people, this is their favorite part of the year, and I’m no exception.
But when does a Christmas tree, a nativity scene or a Santa Claus cross the line and violate what has come to be called the “separation of church and state”? (As a side note, those words aren’t found anywhere in the U.S. Constitution.)
Constitutional law and constitutional interpretation are certainly not easy topics, but they are topics that fascinate me and have profound impacts on our lives.
With that being said, I turned to a recognized expert in the area of constitutional law and the religious liberties the Constitution guarantees to tackle these tough issues.
Jack L. Sammons Jr. is the Griffin B. Bell Professor of Law Emeritus at the Mercer University School of Law and has lectured on, researched and written about the Constitution, religious liberties and the relationship of religion to government. He has presented papers on these issues at numerous universities, including Oxford, Notre Dame, Nebraska, Pepperdine, Washington, Fordham and Arkansas to name just a few.
KYR: Where does the concept of “separation of church and state” originate?
Sammons: For our purposes it originates in the radical elements of the Protestant Reformation, Baptists and Anabaptists primarily, who thought these two institutions should be kept separate for theological reasons. Most of the Protestants who fled England to come to the colonies were not opposed to established religions at all (and, therefore, not concerned with “separating”), just ones that established Catholicism. And most, the Puritans especially, thought that the purposes of the state were best understood theologically: doing God’s work. Almost all of the colonies, including Georgia, had established religions at some point – mostly rather mild, relatively non-coercive, forms of establishment however.
KYR: In general, what factors does a court use to determine if that principle is violated?
Sammons: Well, first, courts do not determine if the principle of the separation of church and state has been violated because there is no such principle in the law. Instead, what federal courts in this country do is interpret two clauses of the First Amendment governing the treatment of religion by the government: the Establishment Clause (Congress shall pass no law respecting an establishment of religion) and the Free Exercise Clause (Congress shall pass no law prohibiting the free exercise of religion). And, of course, state courts interpret similar provisions in state constitutions. Regarding the Establishment Clause, the prevailing test, although it is still much disputed among the Justices of the Supreme Court, is whether or not a governmental action or governmental speech “endorses” a particular religion or endorses religion generally in such a way that citizens not of the “endorsed” religion or citizens with no religion would feel themselves to be second class citizens, not equally treated by the government because of their religion. Regarding the Free Exercise Clause, laws which by their nature are designed to disadvantage some particular religion are clearly unconstitutional. Beyond this, however, it gets rather complex. At one time, general laws which substantially burdened a religion were deemed unconstitutional unless the government’s reasons for not exempting the religion so burdened were very, very good. In the Employment Division v. Smith opinion, Justice Scalia, along with what would typically be described as the more conservative Justices on the Court, removed this protection for religions. Now, however, you can find similar protection in state constitutions, state court opinions, and state statutes along with a few federal statutes which only apply in very particular areas where problems of discrimination against religions in the past can be demonstrated.
KYR: Can you illustrate this idea? What are examples of what government can and cannot do?
Sammons: Generally, neither the federal nor a state government can act in such a way that displays a clear preference for one religion. To do so would violate the Establishment Clause. Neither the federal government nor a state can restrict someone from engaging in a religious activity if the purpose of the law was to do exactly that. To do so would violate the Free Exercise Clause. So, a law which said that all students at public schools (educating is one way in which the government acts) must participate in a Christian prayer each morning would violate the Establishment Clauses. A law which said that there shall be no slaughtering of animals for religious purposes would violate the Free Exercise Clause. On the other hand, a student or students praying in school does not, by itself, violate the Establishment Clause, and a law governing the slaughtering of animals that happens to adversely impact those religions like Santeria which practice ritual slaughter, does not violate the Free Exercise Clauses. (Again, however, the federal constitutionality of the law in this last example is not the end of the matter. State constitutions, state statutes and state opinions have to be considered. Not so much in Georgia, however.)
KYR: Has the Supreme Court’s interpretation of separation of church and state changed over time? Is there a trend in how the Supreme Court interprets the concept?
Sammons: The interpretation of the Establishment Clause and the Free Exercise Clause has changed rather dramatically over time. These are very difficult issues after all. There were, in retrospect, clear mistakes along the way, but most often the Court found ways to correct these. After many years of what I hope is careful study, my opinion is that, on the whole, the Court has done a very good job of addressing these difficult issues. There is a little known history in this country of violent hostility towards particular religions (Catholics, Mormons, and Jehovah’s Witnesses are the best examples) and usually, although not always, the Court has found a way of restraining this hostility while also permitting the dominant religions in our culture room for their own expression. It is really, all things considered, quite an accomplishment. And they had little to go on. Although you will frequently hear characterizations of what the Founder’s believed offered as what the Constitution means, the well established truth is, I believe, that the Founders were a very diverse lot on these issues of church and state and mostly wanted to find a way to avoid them so that they could create a nation. For example, it is becoming clear to most legal historians that the initial purpose of the Establishment Clause was jurisdictional. In other words, it was a restriction on the federal government getting involved in something that would be better left to the states. The Founders were not taking a stance on the issue of establishment because that would have been too divisive, too risky to the fragile union they were trying to create, too “principled” for good politics in other words. (Later on, after the Civil War, the 14th Amendment was adopted which, eventually, meant that the Establishment Clause would be applied to the states. This also meant that we could no longer think of the Clause as jurisdictional. So it is really what these folks, the adopters of the Amendment, were thinking that matters most; not the Founders).
As for a trend, yes, I see one. It started in the power of the purse cases involving government monies ending up in the coffers of sectarian religious schools, and has from there expanded to encompass many of the issues the Court now faces. This is the idea that we should think more carefully about what should and what should not be reasonably attributed to governmental action as opposed to the action of private individuals, either collectively or individually. So, for example, if a public school student decides to draw a picture of the Madonna for posting on the wall outside her classroom or decides to sing Ave Marie at some school function, and if the school and its teachers really had no role in this, this trend says that the government should not only not restrict this, but protect it. If, however, prayers at a graduation are encouraged by the school, or, God forbid, written by some school or other governmental official (who would want their local School Board to write payers for their kids!)) then the government is itself acting in a religious vein and this it should not do. This simple idea – is it the government speaking or acting religiously or is it ordinary folks acting or speaking on their own – has a lot of potential for offering reasonable solutions to a wide range of current issues. “For now” I should add, for these issues will continue forever. This, I think, is as it should be.
KYR: Where can you go to learn more about the First Amendment and separation of church and state?
Sammons: There are, quite literally, hundreds of very good books to consider and most focus on some particular aspect. Some on the early history, some on the development of doctrine, some on current issues, some on theoretical and jurisprudential approaches, and so forth.
That said, I think a good book that does a little of each is Noah Feldman’s Divided by God-- http://www.amazon.com/Divided-God-Americas-Church-State-Problem/dp/0374281319-- which you can buy used for just a few dollars.
A more weighty tome covering the history is Phillip Bamberger’s Separation of Church and State, http://www.amazon.com/Separation-Church-State-Philip-Hamburger-ebook/dp/B004I8W2LK/ref=la_B001JSHK9G_1_1?s=books&ie=UTF8&qid=1387388032&sr=1-1. That one is good especially if you are interested in the way that hostility towards certain religions, especially Catholicism, has shaped our approach.
If you are interested in what the Founders thought or did not think, Steven Smith’s Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom is intriguing and a good read, http://www.amazon.com/Foreordained-Failure-Constitutional-Principle-Religious/dp/0195132483.
Finally, and surprisingly perhaps, I’d also like to recommend a law school textbook. Don’t worry! It’s not technical; it’s terribly interesting throughout, and also a pleasant read. John T. Noonan and Ed Gaffney, Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government. http://www.amazon.com/Religious-Freedom-Interaction-Government-University/dp/1599412438/ref=sr_1_1?s=books&ie=UTF8&qid=1387388988&sr=1-1&keywords=john+t.+noonan+and+gaffney. That one is a little pricey, but worth it if you want full coverage. I will warn you, however, that law school texts are always filled with note questions which you are expected to try to work out on your own given the material the author or authors have provided. But if you are reading this blog you are likely up to the challenge.
Know Your Rights is a blog written by Gregory J. Gelpi, an Augusta attorney and owner of The Gelpi Law Firm, P.C. For more information about Greg, go to www.gelpilawfirm.com or contact him at firstname.lastname@example.org.
Know Your Rights is for informational purposes only. It is not legal advice. To obtain legal advice, speak with an attorney. The law varies from state to state and outcomes of individual legal matters can vary depending on the particular facts and circumstances. This blog does not create an attorney-client relationship between either the author of this blog or any attorney included in this blog and any reader of this blog.