CHATE: Building Up and Chipping Away at Thomas Jefferson s Wall of Separation of Church and State. By: Karen Salvemini.

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1 CHATE: Building Up and Chipping Away at Thomas Jefferson s Wall of Separation of Church and State By: Karen Salvemini 18 April 2006 The involvement of religion in affairs of the government has historically served as a matter of contention in a majority of the countries of the world. The idea of forcing a set of beliefs on an individual frustrated many societies and often led to political struggles, persecution, war, and in some cases, the creation of a new country. Exam ples of political upheaval deriving from religious matters can be found in practically every corner of the earth, from the Christian Crusades of the medieval period, the establishment of the Church of England by Henry VIII and the subsequent struggle between the Anglicans and Christians, the creation of colonies and eventually a new country of the United States of America due to the desire for religious freedom and the fear of persecution in England, the anti-semitism resulting in the persecution of Jews during the Holocaust of World War Two, and the continuing clash between Israelis and Palestinians in the Middle East based on the intolerance of varying religious groups. Religious movements have shaped the course of history and over time, have caused

2 great resentment of any religious institution s participation and attempted interference in the government affairs of a recognized state. The explosion of the Christian influence over ancient Europe, the tremendous power and influence of the Pope over kings and queens all over the world, and the eventual corruption of the Church which resulted in the Protestant Reformation all eventually led to a backlash against religious interference in state politics and the notion of a drastic separation of church and state emerged. This intense distrust of religious influence in government affairs and its role in the political arena would eventually play a major role in the creation of the United States of America. Prior to the Protestant Reformation and the lessening influence of the Christian Church over secular and political matters, religion controlled politics and the Christian Church was regarded to be greater than the state. In the words of Pope Gregory VII ( ), all Christian rules were under God and were, as Christians, to be held to the moral law and the teachings of the Church (Olsen 77). The Christian Church had the power and influence to control the leaders of some of the greatest nations of its contemporary times. It was this power and control which eventually led to the corruption of the Church, evident through the use of usury and the abuse of power by the Popes. Religious individuals, such as Martin Luther, who initiated the splintering of the Christian Church and created the Protestant branch of the Church, recognized the unhealthy influence of the corrupt church leaders on affairs of the state. The Church s influence over citizens of the world persisted through the Enlightenm ent period. Enlightenm ent thinkers of the eighteenth century began to portray the Catholic Church as the enemy of reason and freedom and merely accepted the morality and values that Christianity had nurtured in society, not the theological teachings of the Church (Olsen 120). The morals and values of the

3 Christian Church have thus persisted to the present day and continue to serve as the foundation and guides for proper and ethical behavior in society. The repercussions of the Protestant Reformation and the religious intolerance demonstrated by various states, such as Great Britain, played a major role in the creation of the colonies of the New World and the eventual formation of the United States of America. As author A. James Reichley writes, Religion played an important part in motivating colonists to come to the New World (Reichley 2). One of the first colonial establishments in North America resulted from a desire to flee religious persecution and worship as one pleased. In the case of William Bradford and the Puritan Pilgrims of Plymouth, Massachusetts, in 1620, they sought to establish a land where there could exist freedom of religion for all men (Bradford 159). This basic premise would serve as a major feature of the Bill of Rights when the United States would later seek to establish the role of religion in the foundling country. The Puritans sought to lay some good foundation for the propagating and of advancing the gospel of the kingdom of Christ in those remote parts of the world (Bradford 160). Due to the intolerance of the English government for the outspoken Puritans, the Puritans desired to live in a land where they could freely and openly practice their religion and spread their Christian beliefs, creating a morally upright and Christian society. The notion of freedom of religion which Bradford and the Pilgrims embraced on venturing to the New World is not as highly contested as the idea of the separation of religious interference in the affairs of the government. England s experimentation with a State-endorsed religion, in the views of James Madison, had simply promoted, Pride and indolence in the Clergy, ignorance and servility in the laity; in both superstition, bigotry and persecution (Reichley 88). His distrust of the establishment of a country s own religion which was headed by the supreme governor of the nation caused

4 Madison to fully support what is now known as the Free Exercise Clause of the First Amendment of the Bill of Rights, which states, Congress shall make no law prohibiting the free exercise thereof religion (Bill of Rights). The ability of every individual to participate in whichever religious organization he pleased was fundamental to the creation of a country which prided itself on its religious tolerance. The foundation of the United States of America rested on the first government on American soil, which was the civil covenant of the Mayflower Compact, designed to allow the temporal state to serve the godly citizen (Baym 156). In the words of William Bradford, the settlement at Plymouth was established for the Glory of God and the advancement of the Christian Faith (Bradford 174). These citizens relied on their established state to allow them to put into practice their religious beliefs and to live a moral life free of the interference of the government. The moral beliefs of the Christian faith would play a major role in the development and implementation of the laws and statutes of the United States and the desire for free expression of religious ideas became fundamental for the survival of the nation. One of the first cases which called into question the right of citizens to practice their own religion without interference of a political force was that of the Quakers William Penn and William Mead on September 1, 1670, in London, England. The Conventicles Act forbade worship other than that performed according to Anglican form. Penn and Mead were arrested for violating this act in addressing a group of Quakers outside a Meeting House and were placed on trial. The jury found both Penn and Mead guilty for speaking to a gathered crowd but refused to indict Penn for violating the law. The jury clearly revoked the notion that a man could be guilty of a crime when peacefully gathering to worship God and rejected the enforcement of an unjust law of England which they felt to injure a religious group (Abramsom 68-73).

5 After his experience and persecution for his religious beliefs in England, Penn would establish the colonies known as Pennsylvania and Delaware as lands allowing the free exercise of religion. Since it became clear at the time of the American Revolution that one basic premise of the country would be the free practice of religion, many intellectual thinkers and leaders of the newly-forming nation were faced with the decision of how best to approach the separation of government and religion. Extremely intelligent philosophers, including the Founding Fathers such as Thom as Jefferson, Benjamin Franklin, and James Madison have debated the role of religion in politics for centuries. From the classical writings of Aristotle and Plato to the writings of Thomas Jefferson and other Deists of the eighteenth century and current political and religious writers, such as Philip Hamburger and Richard McBrien, there have been significantly varied views on the connection between politics and religion and the question of what relationship should exist between the two. Due to their firsthand knowledge of the damaging control of the Church of England by the English monarchy and the distrust of established religion and its role in the governance of political states which derived from this knowledge, the Founding Fathers sought to eliminate such a possibility from occurring in the United States of America. This mistrust of the possibility of religion and government to co-exist peacefully led to Thomas Jefferson s controversial idea of the wall of separation between church and state. Jefferson, along with the other Founding Fathers, found this issue of religion to be a dominate topic of debate when struggling to develop the rights which are imbued to every citizen of a society. The wall of separation would serve as his solution to maintaining the distinct roles of both religious institutions and the government. This phrase would become permanently connected to the Establishment Clause of the First Amendment which states, Congress shall make

6 no law respecting an establishment of religion (Bill of Rights). The controversy of this separation would not end with the ratification of this amendment but continues to serve as a contentious issue even to the present day. Through various interpretations of the Founding Fathers intentions by Supreme Court justices over the past two hundred and fifty years, Jefferson s wall of separation has found both proponents and opponents of the supposed division between religious institutions and government. In considering the political and religious views which made an impact on the creation of the Declaration of Independence and the Constitution and Bill of Rights of the United States of America, it is necessary to begin with a study of one of the major philosophical influences on the Founding Fathers. Philosopher John Locke served as a major reference and source in the theories and principles which would serve as the foundation for the creation and establishment of a democratic republic in the United States. As Richard McBrien states, Locke is considered to be have had perhaps the greatest single impact on the constitutional shape of the American republic (McBrien 23). It was John Locke who proclaimed the linked ideas of toleration of various faiths, the separation of Church from state, and the primacy of the state over religion (Olsen 132). Locke did not seek to exclude God from government but acknowledged the natural law which derived from God and which established basic principles in society. The state of nature was considered good and pure and as a people, citizens of any nation decide which natural rights to cede to the government (McBrien 23). Humans form social contracts to regulate and preserve property to create a peaceful and economic society. Civil government arises from a contract through which men seek to protect and secure their God-given rights of life, liberty, and property that are theirs in the state of nature, according to Locke (Reichley 90). While Locke acknowledged the role of God in the law of nature and the rights which have been given to every human

7 being, he also found that there existed the need for some sort of separation of church and state. In his selection, Of Property, from his Second Treatise of Government, Locke focuses on God as the provider of the world to men and states that the Earth is given to Men for the Support and Comfort of their being (Locke 21). This premise recognizes the role of God in the lives of men and the notion that land is given to humans to be used for the betterment of society and in support of life and liberty. While Locke believes that the church is created by a voluntary society whose primary concerns are spiritual and moral, he maintains that nothing ought nor can be transacted in this society relating to the possession of civil and worldly goods (Reichley 91). This allusion to a separation of church and state has often been cited as a philosophical foundation for Jefferson s erection of a wall of separation between the two entities. While Locke wrote that the church itself is a thing absolutely separate and distinct from the commonwealth, many critics believe that Locke s use of the word separate refers to the distinction between religious and civil jurisdictions and not the complete severance of all ties between the two institutions (Hamburger 55). Jefferson would take a markedly stiffer stand than Locke on the need for an established separation of the religious and civil institutions of American society. Each Founding Father also had his own religious principles and views which highly im pacted his view on religion s place in government and in society. The debate revolved around how to appease the proliferating Protestant society which encompassed the United States during the years of the writing of the Declaration of Independence and the creation of the United States Constitution and Bill of Rights and yet still maintain some guarantee in the lack of interference of the government in religious matters. Regardless of Benjamin Franklin s personal views on religion, he

8 acknowledged that there existed a Publick Religion, which was the expression of enlightened religious values that were widely shared among citizens of the republic (McBrien 12). These religious values were highly Christian which seems understandable when recognizing that the majority of citizens at the time were practicing Protestants. In the case of Thomas Jefferson, the primary writer of the Declaration of Independence and one of the leading Founding Fathers of the United States of America, the influence of his Deistic beliefs and the philosophies of Locke and other Enlightenment thinkers led to his high regard for the creation of a separation of church and state. Jefferson s lifelong passion was to liberate the human mind from tyranny, whether imposed by the state, the church, or one s own ignorance (Baym 725). As a Deist, Jefferson believed in one Supreme Being but rejected revelation and all the supernatural elements of the Christian Church (Allen 16). He believed that the words of the Creator could be best found in Nature and that the established Church simply hindered one s personal relationship with this Supreme Being. This Being was uninvolved in people s daily travails, and was viewed as the watchmaker God who winds the clock and lets it run on its own (Reichley 95). The Deist faith focused on human reason and placed little emphasis on the need for clergy or creeds (Hamburger 61). Jefferson expressed his belief in a Higher Being who established natural law and yet was uninvolved in the daily actions of a man s day to day life. While Jefferson was careful to retain some semblance of a belief in the Supreme Being, he routinely criticized Christianity and consistently emphasized the need for a clear separation of church and state. In his Notes on the State of Virginia, Jefferson criticized the state of Virginia for its Declaration of Rights which declared it to be a truth, and a natural right, that the exercise of religion should be free ( Notes 734). The state then failed to pass any law which distinguished this right to freely practice any

9 religion without interference by the state. Jefferson wrote on the need for unbounded tolerance for other religions and commented on the experiments of Pennsylvania and New York to subsist with no established religion. At the time of Jefferson s writing, he was impressed with the success of these states where religion was well supported by its citizens with no interference from the state. Where all religious sects are allowed to exist in harmony with each other, all are sufficient to preserve peace and order (Jefferson 736). It was through this observation that Jefferson became extremely supportive of the ability of religious institutions to exist and prosper without any involvement or acknowledgement from the government. This belief would lead to his conclusion that a wall of separation of church and state would permit every individual to practice his or her religion without the concern that the state would attempt to control any sect which would develop. The infamous wall of separation of church and state has been a highly debated topic since its inception by Thomas Jefferson during the Bill of Rights debate over the role of religion in America. Jefferson distrusted the corruption of established priesthoods and the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established false religions over the greatest part of the world and through all tim e (Allen 16). His concern was that government, in the form of legislators or powerful church leaders, would grow to become too powerful and would eradicate the people s freedom of religion by interfering in the practice of their beliefs. While many Americans believe that

10 the wall of separation is an original idea and attribute the metaphor to Jefferson s creativity, scholars have researched the origin of the phrase to two individuals, founder Roger Williams and writer James Burgh. Roger Williams believed that the division between the worldly and the spiritual maintained that civil governments had not been given authority over spiritual matters and thus could not force him and his followers to conform to the practices of the Church of England (Hamburger 42). In other words, Williams believed that both the civil state and the church have their proper, divinely ordained functions and that neither was to interfere in the other (Dreisbach 78). In the same vane, James Burgh, a Scottish political writer, invoked the need for an impenetrable wall of separation between things sacred and civil (Dreisbach 81). Both Williams and Burgh viewed the interference of the secular authority as damaging to the spiritual lives of the individuals who should be allowed to practice their faith without state involvement. As it is certain that Jefferson read and admired Burgh s writings (Dreisbach 81), many philosophers contend that his idea of the separation of church and state derived from Burgh s notion of the wall, but even some of the most philosophically gifted thinkers cannot be definitive on Jefferson s intentions towards supporting a separation between church and state. On January 1, 1802, President Thomas Jefferson wrote a letter to the Danbury Baptist Association of Connecticut where he described the First Am endm ent relationship between religion and civil government: Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an

11 establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church and State (Dreisbach 1-2). Some scholars have contended that Jefferson s statements in his letter were written without any legal precision and according to Chief Justice Rehnquist, the letter was simply a short note of courtesy (Doerr 11). The majority of studies on Jefferson s letter believe that the President, through his own request to his chief consultants on New England, Attorney General Lincoln and Postmaster General Granger, sought to broadcast a condemnation of the alliance between church and state, under the authority of the Constitution, without offending the people with provocative rhetoric (Dreisbach 44-45). Jefferson sought to clarify that the First Amendm ent rights guaranteed that religious practices be free of government interference and that the state would restrain itself from demonstrating any show of favoritism of one religion over another. This letter and Jefferson s interpretation of the First Amendment would serve as the foundation for determining the Founding Fathers intent when creating the Free Exercise and Establishment Clauses. Although Jefferson s concept of the wall would serve as the basis for the majority interpretation of the First Amendment by the Supreme Court, another Founding Father had a similar and yet more fluid view of this separation of church and state. James Madison propounded the idea of a line of separation between the rights of religion and the Civil authority (McBrien 66). The fluidity associated with the concept of a line provides a much more open interpretation of the relationship between religion and government and allows the line to be overstepped at times. The notion of the separation of church and state as an adaptable line which can be changed draws a significant amount of criticism. Many of the justices of the U.S. Supreme Court, such as Felix Frankfurter, have commented that, Separation means separation, not something

12 less (Dreisbach 88). The concept that the line of separation imparts is the idea that there would exist a slight accommodation between religion and the civil authority with a mutual respect for the power of each institution in its own realm. This implies that at times, the line of separation can be crossed and government and religious organizations can work together to achieve a common goal for the betterment of the people. To the present time, this view has been rejected by many of the legal persuasion and Madison s concept of the line of separation has failed to find a significant place in the interpretation of the First Amendment. While many individuals today view the concept of the wall of separation of church and state as a concrete barrier which has been erected to prevent any demonstration of religion in politics and vice versa, this conclusion is a shallow and uneducated understanding of the Founding Fathers view for the need of the Establishment Clause. Many highly educated and intellectual analysts study the Declaration of Independence and the Constitution and criticize the limited use of any reference of God or a Superior Being. In contrast, there are just as many philosophers which emphasize the use of such references as acknowledgements by the Founding Fathers as to the need for a moral foundation and the importance of belief in a higher spiritual being. The only direct reference to God in the Declaration of Independence comes in the first paragraph as Jefferson, Benjamin Franklin, and John Adams reference the laws of nature and of nature s God (Jefferson 728). In a more deistic approach, Jefferson later refers to the Supreme Being as the Creator, acknowledging the existence of God and yet hesitating to rely on religion as the foundation for the complaints against the King. As historian Walter Isaacson writes, The final version of the sentence, [ That they are endowed by their Creator with certain inalienable rights ], weaves together a respect for the role of the Almighty Creator with a belief in reason

13 and rationality ( God Of Our Fathers 63). Jefferson and the Founding Fathers were not against the practice of religion but felt that the decisions of the government were to be based on man s reason and prudence, not on the theoretical beliefs of religious dogma. These men were not opposed to each person s personal religious beliefs but expressed concern that any one religion would play a dominate role in the decisionmaking process of the nation. The rational conclusion by the Founding Fathers, such as Jefferson and Madison, was to erect a separation between church and state in order to protect religion and government from damaging interference by the opposite institution. Despite all that Jefferson personally believed in his faith and the necessity of the Establishment Clause, he viewed religion as integral to a nation, stating, No nation has ever yet existed or been governed without religion. Nor can be. The Christian religion is the best religion that has been given to man and I as Chief Magistrate of this nation am bound to give it the sanction of my example (Allen 18). Years after the Bill of Rights had been established and Jefferson had been elected as the third President of the United States, he acknowledged the importance of religion in the life of his citizens and attended church services to be included as one of the people. While his personal religious beliefs may not have matched entirely with the Protestant beliefs of those he prayed with, Jefferson fully understood the significance of the beliefs and morals which the majority of American citizens practiced. It was this religious foundation which established the government of the United States and the principles which continue to influence the creation of laws and impact presidential elections as citizens vote on moral and ethical issues. While he wished to prevent citizens from feeling pressured by the government to practice any one particular religion in any specific fashion, Jefferson

14 did not seek to push religion out of the picture. Instead, he simply sought to protect the interests of America s people by forcing government out of their spiritual lives. While m any people invoke the phrase, the separation of church and state, to refer to the First Amendment, it is also important to remember that this phrase does not appear anywhere within the United States Bill of Rights. The First Amendment specifically states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof (Bill of Rights). The application of the idea of the separation of church and state was erected from letters of the Founding Fathers on the topics of religion and government in America. Maybe Jefferson and Madison intended to erect a deliberate separation between a citizen s spiritual and secular life but some of the greatest thinkers in the history of this country have debated the issue. As Jefferson purportedly supported the complete distinction between church and state, many of the prominent justices of the Supreme Court have differed over their interpretation of this Clause. Was the Establishment Clause intended to completely prevent government from assisting religious institutions even when asked? Did the Founding Fathers expect little to no collaboration between established churches and government institutions? Were they never meant to work together for the betterment of society? These questions have been hotly debated in American society and many of these issues have been brought before the United States Supreme Court. Today, the separation of church and state continues to serve as a m atter of contention in society as individuals seek to fully understand what this separation truly implies. For over 150 years after the establishment of the Bill of Rights, the United States Supreme Court had been given few occasions on which to consider the true meaning of the Establishment Clause of the First Amendment. With the passage of the Fourteenth Amendment which applied the Bill of Rights to the states as well as to the

15 federal government, the Supreme Court would begin to hear cases based on the First Amendment issues. Beginning with the case of Everson v. Board of Education (1947), the Supreme Court has been practically bombarded with a variety of cases regarding Jefferson s wall of separation and the meaning of what exactly the wall of separation entails. Each case has led to a slightly different interpretation over the course of time and has caused a differing of opinions even among the justices as they interpret the intentions and words of the Founding Fathers in application to the law. The majority opinion that shaped the interpretation of the Establishment Clause by the U.S. Supreme Court through the 1980s was the decision of Everson v. Board of Education (1947). The case at hand was a challenge to New Jersey s subsidizing of school busing for both public and private schools as a violation of the First Amendment of the federal Constitution. Plaintiff Arch Everson protested the government s use of his taxes to reimburse parents for transportation of their children to Catholic parochial schools (Hamburger ). In the majority opinion written by Justice Hugo Black, the Court upheld the use of taxes to subsidize bus funding. Black opened his opinion by referring to the original intentions of the Establishment Clause as held by Madison and Jefferson at the time of fear of governmental intrusion on religious liberty and stated: The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. 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. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be

16 levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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 (Everson v. Board of Education 236). Black also insisted that the First Amendm ent requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary (Everson v. Board of Education 237). This statement refers to the prohibition of the government favoring irreligion over religion and emphasizes the government s need to adhere to strict neutrality. With these specifications and interpretations of the role of the Establishment Clause, the Supreme Court would base its subsequent decisions on the guidelines established in Black s opinion. Later Supreme Court decisions would support the specifications of the Establishment Clause laid out in Everson v. Board of Education and would strike down state and federal laws which the Court believed to trod on the government s position of neutrality. The case of the School District of Abington Township v. Schempp questioned the constitutionality of a Pennsylvania law requiring daily Bible reading in schools and of a Baltimore school board regulation requiring Bible reading and prayer in school (Rossum & Tarr 238). The Court struck down the religious exercises required by the state and found the states in violation of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion (School District of Abington Township v. Schempp 239). Particularly in education, the Court has remained strict about the presence of the Bible and prayer in the school system. In the

17 1985 case of Wallace v. Jaffree, the plaintiff argued that an Alabama law requiring schools to institute a moment of silence for meditation or voluntary prayer violated the Establishment Clause of the First Amendment to the Constitution (McBrien 172). The majority opinion of the Court concurred with Jaffree and as Justice Sandra Day O Connor wrote, The conclusion is unavoidable that the purpose of the statute is to endorse prayer in public schools (Wallace v. Jaffree 245). Simply because the Alabama law mentioned the use of the moment of silence as a possibility for a time of voluntary prayer, the Supreme Court chose to invalidate the law. Not only has the Court s majority ruled that there can exist no organized prayer in the public school system, but it has also made it impossible for a mom ent of silence to exist because it may provide for an opportunity for prayer. This moment of silence does not force any student to practice any religious activity or profess faith in a particular religion or Supreme Being, yet the Court has ruled that it lends itself to religious intent and is therefore unconstitutional. While this may be the opinion of the majority of the Supreme Court, through various dissenting opinions, many justices have expressed their own disagreement of the application of the Establishment Clause in several cases. Over the past sixty years, the Supreme Court has found itself in continuous conflict as it strives to obey the precedents in its own interpretation of the Establishment Clause while also attempting to reconcile the idea of neutrality versus favoritism of secularism over religion. Protests against the majority decisions of the Court can be found in the dissenting statements of many prominent and highly intellectual men and women of the Supreme Court. The difficulty of interpreting the Establishment Clause of the First Amendment becom es abundantly clear when even the Court finds it impossible for all nine of its members to come to a consensus on what the Founding Fathers desired for a separation of church and state. Would Jefferson and Madison be

18 content with the modern interpretation of the Clause which seeks to eliminate any connection between church and state or would they have been horrified to discover just how far the simple metaphor of a wall of separation has been carried in its application? Speaking in dissent on the Wallace v. Jaffree decision, Chief Justice Warren Burger made a point which has been referenced by many proponents for some kind of prayer in public schools. He wrote that, [The Supreme Court s] opinions have stated that hostility towards any religion or toward all religions is as much forbidden by the Constitution as is an official establishment of religion (McBrien 172). In the same case, Justice William Rehnquist criticized the Court s reliance on Jefferson s misleading metaphor and provided historical examples as to the lack of evidence supporting the Framers intention to build a wall of separation. As he states in his opinion, The Establishment Clause had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations (Wallace v. Jaffree 246). The Court has placed too much emphasis on Jefferson s metaphor and not enough on the historical foundation which led to the creation of the Establishment Clause. The Framers did not intend to eliminate the place of religion in society but to create its own sphere in the public sector, in order for citizens to practice whatever religion he or she chose. As Justice William O. Douglas opined in Zorach v. Clauson (1952), The First Amendment does not say that in every and all respects there shall be a separation of Church and State (Dreisbach 121). Douglas takes the opportunity to remind the Court that while the Clause does call for a separation of church and state, it does not distinguish to what degree this separation must occur. The Court has interpreted the separation to be a barrier, a distinct block preventing any connection between the two, while Douglas calls attention to the

19 possibility of allowing a modicum of discretion as to what lengths the state or federal government seeks to establish that separation. Along with Justices Burger, Rehnquist, and Douglas, Justice Potter Stewart also spoke out sharply in dissent against the government s refusal to acknowledge any relationship between itself and religious institutions. He viewed the harsh stance taken by the Supreme Court in interpreting the Establishment Clause as the Court s favoritism of secularism over religion. In his dissent in School District of Abington Township v. Schempp, Stewart voiced his concern that the Court and its decision that the inclusion of prayer in public schools was unconstitutional and in violation of the doctrine of the separation of church and state was violating its own insistence of state neutrality. Stewart wrote that the Court s elimination of prayer in schools created an establishment of a religion of secularism, or at least as government support for the beliefs of those who think that religious exercises should be conducted only in private (Reichley 149). By favoring no religion over religion, the Court systematically, though perhaps unconsciously, demonstrates support for atheism and for agnostics as it removes government from acknowledging the place of religion in society. While the First Amendment calls for a separation of church and state, there is little support for the notion that the Founding Fathers of this nation would have sought the complete disregard of religion by the government. At a time in the nation when religion was a dominant institution in the lives of most citizens, the Founding Fathers, such as Jefferson and Madison, would not want the government to be unsupportive of religion; instead, they wished to provide for religion to be free of interference by the government, not to be ignored or viewed as a distant relative which one would like to be rid of forever. Religion, in at least the moral and ethical sense, has proven to be an integral part of the

20 sustenance of this continually growing country, which constantly adds new religious sects everyday. The history of the United States of America is speckled with the role of religion in society. Clearly, the founding of the country resulted from the desire to practice religion freely and with a sense of security of one s safety. This nation prides itself on its willingness to allow anyone within its borders, including those from a variety of religious backgrounds. The phrase, In God We Trust, exists on every scrap of money which is produced by the United States Mints and circulates in the hands of every United States citizen. The Christian heritage which has been passed down from generation to generation has served as the foundation of many moral and ethical decisions of the United States and persists as a major factor in the creation and application of laws. As author George Weigel com ments in his novel, The Truth of Catholicism, many current critics of the Catholic Church state that there exist no absolute moral truths and that any idea of binding moral truths is incompatible with democracy. Weigel argues that this secular view of the Church was clearly not the view of the Founding Fathers who pledged their lives, liberties, and sacred honor to a dem ocracy built on self-evident moral truths which continue to motivate and inspire millions of Americans today (Weigel 154). Regardless of the time period, the Christian moral truths on which the Declaration of Independence relies for its right to break ties with its sovereign king continue to shape America and serve as the foundation for our freedom and natural rights. Even today, the notion of religion and its connection or lack thereof with the government creates tremendous controversy and continues to spark public debate on the positive and negative consequences of the infamous wall of separation between matters of church and state.

21 Highly respected and intellectual Founding Father, Thomas Jefferson, has been described by Walter Isaacson as the nation s foremost apostle of the Enlightenment s faith in reason, experiment, and tolerance (Benjamin Franklin 469). Most justices and historians, therefore, turn to Jefferson s wall of separation as the most significant explanation of the Founder s intentions with which to interpret the Establishment Clause of the U.S. Constitution. While it is acknowledged that Jefferson was one of an elite group of thinkers for his time, Jefferson s distrust of government may have prevented him from recognizing a logical need for a working relationship between the two entities. The First Amendment was not intended by all at the Constitutional Convention to serve as a com plete eradication of any communication between church and state; rather, it was to act as a buffer between religious and civil authorities and either institution s attempt to gain power over the other. His wall of separation has often made it extremely difficult for the presence of religion in society to be acknowledged by the government. It is foolish to believe that a government can survive without the assistance of God; hence, the phrase In God We Trust is found on every piece of money and the inclusion of the phrase, Under God, has been allowed to remain in the Pledge of Allegiance as a symbol that the nation would not exist without the guidance of a Higher Being. Justice William Brennan, in his concurring opinion in the case of Abington School District v. Schemp, attempted to justify the reasoning for allowing such references to God to remain in such prominent national symbols as the United States monetary system and the official Pledge of Allegiance. He stated that the motto, In God We Trust, had ceased to have religious meaning and would probably survive any challenge of violating the Establishment Clause (Reichley 149). Brennan further elaborated on the issue of under God in the Pledge and commented that this reference only refers to the historical fact that the nation was founded under

22 God as per the Mayflower Contract (Reichley 149). While Brennan may have viewed such phrases as untouchable and unlikely of being challenged in court, the Pledge of Allegiance and the inclusion of the phrase under God would come under fire years later as an allusion to the government s favoritism of religion over non-religion. Although the Supreme Court has not ruled on the constitutionality of the recitation of the Pledge of Allegiance in public schools, a federal court judge has ruled that forcing children to affirm God in the Pledge violates their right to be free from coercion of their religious beliefs (Herel 1). Justice Brennan may have honestly believed these references to God had taken on a secular meaning, but apparently many individuals do not see the word God as a nonreligious word. It is naïve to think that the use of the word God would not evoke some sort of moral and religious sentim ent. Religion has to play a role in the development of a m oral backbone for a nation and the references to God in many secular aspects of government undeniably acknowledge the role of God in the life of the country. A variety of topics in contemporary American society evoke the idea of the separation of church and state and continue to spark debates over the government s role in religious institutions. The topic of providing federal aid to programs that benefit both sectarian and nonsectarian institutions has caused extreme difficulty for the justices of the Supreme Court as they strive to apply the Establishment Clause to the constitutionality of such programs (Rossum & Tarr 226). The issue of the legality of providing aid to private, religious institutions and along with that, the use of school vouchers, has been a subject of consideration for the past several years and continues to be studied as to whether this funding eliminates the boundary between parochial and public schooling. The highly controversial involvement of practically every branch of the state and federal governments in the Terri Schiavo case of 2005 again brought

23 about the classic clash of government and religion. The ethical and moral debate which surrounds the matter of abortion continues to demonstrate the friction between church and state and serves as a major issue in presidential elections and appointm ents to the Supreme Court. Each topic demonstrates yet another facet in the turmoil of the conflict caused by the Supreme Court s interpretation of the Establishment Clause. Reasonable men of all time periods, of varying class and educational backgrounds, still conflict over the true meaning of the Establishment Clause of the First Amendment. While the phrase, separation of church and state, has become synonymous with the idea of the forbiddance of Congress to pass a law creating an establishment of religion, it is important to remember that this phrase can be attributed to the opinion of one man. While Jefferson greatly impacted this country not only in politics but as a writer and a political philosopher, his is only one view of the conflict between church and state. Throughout history, beginning with Madison and leading through the current day, dissenters and other men of reason have disagreed with Jefferson s stiff wall of separation and have consistently challenged the Supreme Court to look beyond one interpretation of the Clause. Instead of becoming more separate over the centuries, religious institutions and government have been forced to become even more entangled as they work together to m eet the ever-growing needs of its citizens. This is evident through the government support of faith-based programs which seek to assist the poor and lower-income students in society through organizations such as the Baltimore Christian community group called the Door. The Door is a federally funded program which tutors students to im prove math and reading scores (Benedetto 1). While it may be a religious-oriented agency, the social services rendered by the organization take a trem endous burden off the government from having to develop its own after-school programs to improve education. Over the past five years, under

24 Executive Orders by President George W. Bush, faith-based community groups have received approximately $2.1 billion a year in federal aid (Benedetto 1). While the President views these programs as extremely beneficial to providing social services in the community, many critics, such as Barry Lynn, executive director of Americans United for Separation of Church and State, view funding of these programs as a clear violation of the constitutional safeguard of the First Amendment prohibiting the endorsement of religion (Meckler 1). By working together, the government and religious organizations assist society in providing those in need with public assistance and extra educational opportunities but certainly it is only a matter of time before a case is brought to the Supreme Court, challenging this apparent violation of the separation of church and state. Even though the $2.1 billion a year are aiding and assisting citizens, one decision by the Supreme Court which identifies the funding as a violation of the First Amendment will immediately withdraw federal funding from faith-based organizations and create harmful effects for the people who rely on these programs. While these programs are proving beneficial and significant for improving communities, the severe barrier which has been erected between the government and religious institutions looks to eliminate this important funding. Would the Founding Fathers who created this wall between church and state have wanted this separation to negatively impact the welfare of its citizens? The separation of church and state was not meant to punish society but to protect citizens from government interference in their spiritual lives. Ever since the decision of Everson v. Board of Education, the Court has concluded that some aid programs are constitutionally permissible as long as the funds served legitimate secular purposes, went to the students rather than to the religious institution, and did not directly assist those institutions in accomplishing their religious objectives (Rossum & Tarr 226). This has caused a great deal of confusion and conflict

25 in determining which funding is considered appropriate and legitimate. Two cases which clearly demonstrate the apparent contradiction between government funding of religious associated institutions are Lemon v. Kurtzman and Tilton v. Richardson, both of which were ironically decided by the Supreme Court on the same day in In Lemon v. Kurtzman, the Court heard arguments challenging the constitutionality of laws of Rhode Island and Pennsylvania which, respectively, provided state funding for part of the salaries of teachers in nonpublic schools and authorized paym ent to private schools for instruction in secular subjects (Reichley 155). The majority opinion determined both laws to be unconstitutional and in violation of the Establishment Clause. Meanwhile, in Tilton v. Richardson, a case was presented challenging the Higher Education Facilities Act of 1963, which allowed private colleges to receive federal grants and loans to construct buildings to be used solely for secular purposes (Rossum & Tarr 227). Chief Justice Burger upheld the aid distributed to the Catholic colleges and universities in question in the case and justified his reasoning by differentiating between the potential for divisiveness inherent in the essentially local problems of primary and secondary schools which is significantly less with respect to a college or university (Reichley 155). One critic interprets Burger s words as implying that the Court believes that adults can handle official recognition of spiritual values but impressionable adolescents will be traumatized if there is not a strict separation of church and state (Feder 9). The Court s rulings in these cases alludes to the notion that since a teacher s ideologies cannot be controlled while the use of a building on a religiously affiliated campus can be monitored for what purpose it is used, monetary aid can be provided to the universities but not for the salaries of teachers of private schools. Another funding issue which elicits a fierce debate is that of school tuition vouchers, which would systematically provide students with the funding and the