A Wall of Separation – Lemon v. Kurtzman (1971) & “The Lemon Test”

September 14, 2016June 4, 2023 ~ Blue Cereal

*Dramatic Voice* Previously, on Blue Cereal Education…

I recently proffered a brief overview of the whole ‘Wall of Separation’ idea in American jurisprudence, then dove into a few early Supreme Court Cases involving religion and public schools.

We looked at Everson v. Board of Education (1947) in which the Court determined it was perfectly acceptable for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

Then came Engel v. Vitale (1962), in which the Court made clear that the state could NOT require – or even promote – prayer in public schools as part of the school day. It was followed closely by Abington v. Schempp (1963) in which the same decision applied to the reading of Bible verses or the recitation of the Lord’s Prayer.

In neither case was the goal to drive faith out of public education. The Court’s concerns, rather, were to prevent either the power of government or the foibles of politicians from unduly interfering in man’s reach for the Almighty. Or, at least, that’s how they interpreted the Framers’ concerns as expressed in the First Amendment, applicable to the states via the Fourteenth.

The Abington decision included a little checklist by which interested parties could determine whether or not something violated the “establishment” clause or the “free exercise” clause of the First Amendment. That checklist was improved less than a decade later when the Court heard Lemon v. Kurtzman (1971).

Which is where we are now.

As of 1969, both Pennsylvania and Rhode Island had lots of private schools, the vast majority of which were Roman Catholic. Then, as now, most private schools operated on tight budgets. The average per-pupil expenditure was lower than in public schools in the same area – even when numbers were adjusted to reflect only “secular education.”

In other words, students in private Catholic schools weren’t benefitting from the same resources as kids in public schools, even when learning science, math, or other non-religious subjects.

Both states passed legislation furnishing supplemental support for these private schools, provided the extra funds were used only for the teaching of secular subjects and buying non-religious materials. In some cases this included helping with teacher salaries.

In both states, some parents complained that this diverted resources from public schools to support sectarian institutions, thus violating the First Amendment.

Only a few years before, the Court had determined in Board of Education v. Allen (1968) that it was acceptable for New York to provide textbooks free of charge to all secondary students (Grades 7 – 12), including those in private schools. Surely, Rhode Island and Pennsylvania reasoned, this was essentially the same sort of non-sectarian support.

It was an interesting question. Is modest financial assistance for a sectarian school more like pushing a little prayer and some Bible verses in Engel or Abington, or supplying bus fare and textbooks as in Everson or Allen? Does state assistance constitute “establishment,” or would eliminating that help violate “free exercise”?

Spoiler Alert: the Court decided almost unanimously that it was the former. The help to Catholic schools was a big Constitutional “no-no.”

The conclusion was far from foregone, however. Lemon came hot-on-the-heels of Walz v. Tax Commission of the City of New York (1970) in which the result had been quite different. Walz wasn’t a public school case, but many of the issues were similar.

The city of New York granted property tax exemptions to religious organizations if the property in question was used exclusively for religious worship – putting them in the same category as schools or charities. Some property owners who did pay taxes argued this violated the Establishment Clause.

The Court determined that while government certainly had no business promoting religion, these tax exemptions didn’t actually do that – not quite. They merely allowed the “free exercise” of groups serving the public good, without the same taxes levied on for-profits. They weren’t “establishing,” the Court said – they were stepping back and letting faithy people do faithy stuff.

The majority opinion, written by Chief Justice Warren Burger, cites a number of prior cases by way of illumination – many of them the public school cases we’ve already discussed. At the risk of straying too far from Lemon, he includes a wonderful homage to fallibility and balance worth sharing:

The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated, but the purpose was to state an objective, not to write a statute…

I really like that part.

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other…

In other words, the Court recognized that the best application of First Amendment values wasn’t necessarily obvious in each and every case. Sometimes, protecting the rights of everyone concerned is an imperfect balancing act.

The First Amendment, however, does not say that, in every and all respects, there shall be a separation of Church and State. We sponsor an attitude on the part of government that shows no partiality to any one group, and that lets each flourish according to the zeal of its adherents and the appeal of its dogma…
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited…

So… we’re faithful to the principles by being flexible with specifics. How pragmatic!

Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference…

There’s “room for play in the joints”? *snort*

It almost seems like Burger wanted to dress up what was in reality a collective, black-robed shrug – a mumble to the effect of “we’re just figuring it out was we go.” Of course, in his defense, the “figuring it out” included 15 pages of detailed analysis, history, and jurisprudence.

We also see a foreshadowing of the following year’s “Lemon Test”:

Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result — the effect — is not an excessive government entanglement with religion. The test is inescapably one of degree. Either course, taxation of churches or exemption, occasions some degree of involvement with religion…

Speaking of Lemon v. Kurtzman (1971), we should probably get back to that one – seeing as how it’s in the title of the post and all.

As previously mentioned, both laws – in Rhode Island and in Pennsylvania – were found to be unconstitutional entanglements of the state with religion. As with Walz, Chief Justice Burger wrote the majority opinion.

He again acknowledges the difficulty of neither promoting nor hindering religion, although with much less aplomb than he’d managed the year before.

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment…
A law may be one “respecting” the forbidden objective while falling short of its total realization. A law “respecting” the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.

Yeah, exactly! And also, huh?!

He quickly redeems himself, however, with that surprise judicial hit, “The Lemon Test” – the first of many to come from the Burger Court.

Also, it’s funny to say “Burger Court” and mean something totally for real and serious.

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster “an excessive government entanglement with religion”…

Or, rephrased to apply more specifically to the case at hand:

In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority…

Justice Burger goes on to explain how very clearly religious these private schools were. Most were located on the same grounds or in close proximity to associated churches. Religious symbols pervaded each campus. Roughly two-thirds of the instructors were nuns.

To cap it all off, the Catholic faith was pretty explicit about the fact that a large part of the reason they had parochial schools to begin with was to spread their faith. So are they religious? Is the Pope Cath-

Um… you probably get the idea.

But what about Allen a few years prior?

In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books.

Good to know someone realizes that. Can we add “or online courses”?

In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. 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 pre-college education. The conflict of functions inheres in the situation.

You gotta love a phrase like “the conflict of functions inheres in the situation.” And despite several more pages of explanation, that pretty much sums it up. The balance between pushing religion and punishing it is a tricky one, yes – but in this case, the Court decided, the state had some seriously conflicted inhering going on.

It wasn’t malicious. It wasn’t fair to expect teachers to completely separate their spiritual function from their secular labors.

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral.
Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make a total separation between secular teaching and religious doctrine…

Finally, expecting the state to supervise or punish violations of this unattainable “total separation” created the exact sort of entanglement the First Amendment hoped to circumvent. It made the government into the theology police.

To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions…
Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.

So bus fare and math books are OK. Government-led prayer or devotional readings are not. And, after Lemon, direct support to sectarian schools – under whatever formula – is out as well.

On the other hand, I wish I were young enough to start a band just so I could call it the “Prophylactic Contacts.” But the conflict of functions would probably inhere in my situation.

A Wall of Separation – Engel v. Vitale (1962)

September 6, 2016August 10, 2023 ~ Blue Cereal

After Everson v. Board of Education (1947), fifteen years passed before the next important ‘religion and public schools’ case made its way to the Supreme Court. Whereas Everson dealt with transportation, Engel v. Vitale (1962) addressed the role of the supernatural in the classroom itself.

To this day, many evangelicals blame this case for the collapse of American culture. After the highest court in the land “kicked God out of public school,” there came the sex, the drugs, the decadence, and the disrespect.

Just think – we could have avoided disco altogether if nine old men in robes could have restrained their humanistic tendencies for just a few more decades.

But I’m getting ahead of myself.

Sometime in the 1950s, the Board of Regents of the State of New York put together a “voluntary,” non-denominational prayer to be recited by students each day. It was pretty tame:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.

But then, a prayer is a prayer.

In 1958, a small group of parents (including Steven Engel, who was Jewish) vocalized their objections to this prayer. The district argued that the prayer was technically voluntary, and that participation was protected by the “free exercise” clause of the First Amendment.

The parents sued, thus landing school board president William Vitale on the other side of the italicized “v.” The case eventually wound up in the Supreme Court, which decided Engel v. Vitale in 1962.

New York’s law promoting prayer – any prayer – in public schools was unconstitutional. Unlike Everson fifteen years earlier, the Court had but one dissenter – Justice Potter Stewart. Like Everson, the Court’s majority opinion was written by Justice Hugo Black.

Black’s written opinion has some golden moments. Let’s gaze into the rhetoric, shall we?

Among other things, these parents challenged the constitutionality… of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that “Congress shall make no law respecting an establishment of religion” — a command which was “made applicable to the State of New York by the Fourteenth Amendment…”

If you missed the part about “incorporation” via the 14th Amendment, you might wish to review.

The New York Court of Appeals… sustained an order of the lower state courts which had upheld the power of New York to use the Regents’ prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents’ objection. We granted certiorari to review this important decision involving rights protected by the First and Fourteenth Amendments.

In other words, lower courts had accepted the idea that the prayer was acceptable because it was technically voluntary. ‘Granted certiorari’ (Sir Shoe RHARee) is a fancy way of saying the Supreme Court agreed to hear the case. In Latin it means something like, “OK – inform us!”

The number of petitions to the highest court in the land would quickly prove crippling if Justices were compelled to hear all of them. In most cases, then, it is entirely up to the Court which cases they decide to hear and which they don’t. If they agree to hear the case, they ‘grant certiorari’.

We think that, by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity…
The Board of Regents as amicus curiae, the respondents, and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage…

Unlike your typical television courtroom drama, most Supreme Court cases prompt multiple amicus curiae, or “friend of the court,” briefs. Pretty much any interested party can submit research, arguments, background, etc., for the Court to consider – even if they’re not directly involved in the case.

Black’s point here is that no one involved was disputing that the prayer was religious. Instead, they were arguing that it was OK that it was religious because Americans are largely people of faith, historically speaking. In short, supporters wanted to frame the prayer as more like a Christmas Tree than a Cross.

Justice Black then dives into a history lesson on the subject, as he was wont to do. The gist of it is that America was largely founded by people trying to get away from other people – especially those in government or other positions of power – telling them how to pray and exactly what to believe. The subplot is that government efforts to standardize and mandate faith – however general or ‘voluntary’ – repeatedly caused more problems than they solved.

And you know what they say about those who don’t know their history…

It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies…

Ah, history and its uncomfortable lessons… We fight the power until we become the power, at which point abuse suddenly seems like a really good idea – in everyone’s best interest, in fact – because now it’s ME!

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.

This is a theme we don’t appreciate sufficiently whenever church/state issues arise. It’s not just about “protecting” the government from religious influence; it’s about protecting individuals and their faith from the damage government inherently brings to everything it “improves.”

They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch.
But this safeguard was not enough… The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say — that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office…

Here comes my favorite part. You might want to grab a Slurpee and some popcorn – this is delish!

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that.
Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.

Think about this argument for a moment. Once your personal walk with God becomes just another parking meter demanding quarters or a regulation with which you must comply before adding a shed in the backyard, it’s no longer your reach for the divine – it’s merely another vulgar hoop through which you must jump.

Didn’t someone relatively significant die to overcome this sort of entrenched legalism at some point?

The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith.

Think about modern politics replacing your Holy Spirit. Do you seriously want Donald Trump and Hillary Clinton going back and forth about whether or not baptism requires immersion? John Bennett and Emily Virgin on a committee together to determine whether or not Jesus is OK with you changing churches twice in the same year?

I can’t wait to hear what Governor Fallin and Preston Doerflinger determine about how much tithe God intends for you to pay, and where it should best be applied. And if you argue against them, you’re part of the godless liberalism pervading our once great nation. Good times!

That may sound like it’s a far cry from “we beg Thy blessings upon us,” but whether you’re a lefty or a righty, you know how slippery government slopes tend to be. Chutes and ladders, kids.

Lest we think the Court is suggesting secular government should instead be in some way hostile towards faith, Black goes again to history. On behalf of the Court, he acknowledges not only the role of religion, but it’s power in shaping the best of the New World’s aspirations.

The excerpt is a bit lengthy, but well-worth some mastication:

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong.
The history of man is inseparable from the history of religion. And perhaps it is not too much to say that, since the beginning of that history, many people have devoutly believed that “More things are wrought by prayer than this world dreams of.”
It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose.
And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either.
They knew, rather, that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

We don’t separate church and state because we’ve forgotten the role of faith in our creation; we separate them because we remember.

A Wall of Separation – Everson v. Board of Education (1947)

September 2, 2016June 4, 2023 ~ Blue Cereal

Prior to the 14th Amendment, the protections offered by the Bill of Rights applied primarily to the Federal Government. While most States had similar protections in their own constitutions, these were inconsistent and locally interpreted.

The 14th Amendment changed all of that in ways neither immediate nor obvious. Passed in 1868 as part of the ‘Reconstruction Amendments,’ its initial intent was to guarantee full and equal citizenship for Freedmen – newly freed Black Americans.

It reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the first time that the States had been specifically targeted this way. It chipped away substantially at the wall separating State and Federal power – with central authority clearly coming out ahead.

Still, several generations passed before the Supreme Court began regularly interpreting the Fourteenth Amendment as a means of “incorporation” – applying the Bill of Rights to the States by way of that part about “equal protection.”

In 1947, this gradual “incorporation” finally crossed into the realm of public schooling. Well… sort of.

It made it as far as the bus.

New Jersey regularly reimbursed parents whose children rode public transportation to school. This sounds strange in the Midwest, where fleets of bouncy yellow school busses are a seasonal hallmark, but it’s not unusual in larger cities even today. Why duplicate something already in place and working, running up costs and clogging everything up unnecessarily? They’re not Congress, after all.

Children who attended parochial Catholic schools were entitled to the same assistance. A local taxpayer challenged this on the basis that it was government support for religion – that his tax dollars were being used to make it easier for children to attend Catholic indoctrination.

The case eventually reached the Supreme Court as Everson v. Board of Education of the Township of Ewing (1947). The central question was whether New Jersey’s reimbursement to parents for the cost of sending their darlings to private religious schooling violated the Establishment Clause of the First Amendment as applicable to the states through the Fourteenth Amendment.

The short answer was no, New Jersey wasn’t violating anything. The bus thing was fine.

The Court’s decision was split 5-4, which doesn’t make it any less binding, but certainly makes the discussions more interesting. Justice Hugo Black, writing for the majority, argued that busing in this case was comparable to police or fire department protection, and that refusing parochial school students the same government services as public school students would in fact violate the Free Exercise clause of the First Amendment.

But the Supreme Court doesn’t just rule yay or nay. They write about why they decided what they did, and any Justices who disagree write about why they disagree. It can be tedious reading, but there are often nuggets of mirth or pith sprinkled amongst the elucidation.

For example, in Justice Black’s majority opinion:

The only contention here is that the state statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects… First. They authorize the State to take by taxation the private property of some and bestow it upon others to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment.

One argument by the petitioner – the guy who originally complained about his tax dollars being used this way – was that the Fourth Amendment guarantees him “due process” before the government can take his stuff. Essentially he argued that the government was acting as a sort of Papal Robin Hood, appropriating his money for redistribution against his will.

Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of state power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states.

That’s the part that got this one into the history books, and why we’re talking about it here.

First. The due process argument that the state law taxes some people to help others carry out their private purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public’s interest in the general education of all children…
But the New Jersey legislature has decided that a public purpose will be served by using tax raised funds to pay the bus fares of all school children, including those who attend parochial schools… The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need.

In other words, it’s fine for the state to dedicate public funds to bus fare for all kids – whatever type of school they’re attending – because it serves a broader and legitimate government purpose benefitting all citizens.

Not everyone needs the fire department the same. Not everyone calls the police the same number of times. But that doesn’t matter, Black explains, because those services aren’t about individuals – they’re about the larger ‘social contract’. They’re about ALL of us being better off when those around us are safe and whole.

And educated.

Modern civilization is built on the understanding that we’re all willing to give up a bit of our individual freedom – our short-term self-interest – in order to benefit the whole. This is the social contract at its most basic.
We cooperate not because it’s nice, or because it makes us feel like good people – we do it because in the end, we each benefit from this collective action. We behave unselfishly, but for self-serving reasons.

It is true that this Court has, in rare instances, struck down state statutes on the ground that the purpose for which tax raised funds were to be expended was not a public one… But the Court has also pointed out that this far-reaching authority must be exercised with the most extreme caution…

Sit up straight and pay attention – here comes a really good part:

Otherwise, a state’s power to legislate for the public welfare might be seriously curtailed, a power which is a primary reason for the existence of states…

According to our founding documents, the primary function of national government is the protection of property – our life, our liberty, and our stuff – but if Justice Hugo is correct, one essential function of state government is coordinating and administering the collective good. The social contract.

It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose…

Justice Black then proceeds to offer an extensive history lesson in the necessity of the Establishment Clause. It’s too long to reproduce here, but certainly worth reading. It even contains the wonderful phrase, “Baptists were particularly obnoxious” – which out of context makes a great teaser for the rest, yes?

The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religions and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion…

Seventy years later, we still encounter similar ‘difficulties’ from time to time.

The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority…

Just a reminder that it works both ways. Yes, the Framers wanted to keep secular power out of religious control. But they also wanted to avoid secular interference in matters of faith. Historically, overt cooperation between church and government works out poorly more often than not.

{W}e must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.

That was the key. It’s a tricky balance, the Court acknowledges, but in this case a balanced understanding dictates that the bus thing is fine.

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.

When every opinion you issue potentially shapes the logistics and ideology of an entire nation, you want to be as specific as possible regarding what you do and don’t mean by them.

There were two dissenting opinions, including one by Justice Robert Jackson which is both passionate and amusing. At one point he makes rather naughty use of Lord Byron.

Unfortunately, we’re out of time. You’ll just have to look it up on your own.

RELATED POST: Should You Legislate the Bible?

RELATED POST: The Blaine Game

Building A Wall of Separation (Faith & School)

September 2, 2016August 10, 2023 ~ Blue Cereal ~ 1 Comment

The U.S. Constitution was written as a replacement for the Articles of Confederation – our first effort at writing a broad set of laws by which to govern the nation. The Articles had guaranteed the States almost complete sovereignty and absolute independence from one another – a great idea in theory, but not as workable as one might hope in practice.

It was understandable they’d err on the side of freedom, having finally won an extended and bitter war with the Motherland over a King they’d claimed was a “Tyrant.” There were over two dozen specific examples of his excessive rule-making and liberty-crushing behavior included in the break-up letter penned by the Colonies – a missive better known as the “Declaration of Independence.”

So, you know… downer.

But they had, perhaps, swung a bit too far away from structure and security. The Constitution was an effort to rectify the resulting difficulties. Turns out that sometimes, thoughtful limits actually grease the wheels of liberty and justice for all.

When the U.S. Constitution was finally ready for public review and debate in the late 1780’s, there were many who thought we’d once again overcompensated – this time back towards too much government, and too little freedom. They wanted some sort of written guarantee they wouldn’t be oppressed by this bigger, stronger government.

The authors were appalled at this concern. Obviously any powers not specifically granted to the national government by this document remained with the States and the People thereof! To spell out those protections would be… redundant! Possibly even limiting! What if listing some specifically guaranteed rights implied that they were the only ones entirely secured?!

It almost got ugly.

Nevertheless, a compromise was reached. The Constitution was ratified, and a collection of ten clarifying Amendments almost immediately passed as a package deal. Thus, the “Bill of Rights.”

Despite the numbering system, there are far more than ten rights included. Some Amendments, like the Fourth and Fifth, are packed with guarantees and thick verbiage. Others, like the Eighth, are fairly crisp and to the point – although written in such a way as to allow at least 225 years of subsequent debate as to exactly what they mean.

The Third is all but irrelevant. The Seventh, strangely technical. The Second – well, the Second was badly written from the moment it was passed. Forget whatever it may or may not intend to say about the right to bear arms, Madison’s English teacher must have had a fit.

But the best-known is probably the First.

The First Amendment contains six specific protections, somewhat related, and presumably so very important that they all tied for first when the Framers were debating what to guarantee the mostiest mostest.

Let’s take a gander, shall we?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That’s a meaty one, to be sure. What many people don’t realize is that this version was abbreviated from James Madison’s original text. Here’s what Madison proposed as Amendment Prime:

The civil rights of none shall be abridged 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. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.

So there’s a lesson in tightening up your language without losing substance, kids.

In any case, these are the biggies that squeezed in ahead of militias and quartering of soldiers, and even beat out due process in order of presentation. The right to protest. The right to associate with whomever you wish, including but certainly not limited to political organizations of any and all stripes. Freedom of the press and of speech – absolute linchpins to any nation hoping to maintain the slightest credibility as a true democracy.

But coming ahead of all of them – earning the first two slots in all of Amendment-dom – are the twin ‘freedom of religion’ clauses.

Congress shall make no law respecting an establishment of religion…

In the most basic terms, this is the part that says the government may not do anything to promote or encourage a particular religion or the concept of religion in general. Doing so creates a double curse. It leads to the marginalization and eventual persecution of those with different beliefs (whether that difference is major or minor), AND it soils the very faith the government is promoting by making it a tool of secular authority, regulated by political maneuvering and flawed men rather than one’s own spiritual journey. A faith mandated by the guys with guns and the keys to the jail is, of course, no faith at all.

Or prohibiting the free exercise thereof…

This is the part which says that the government may not do anything to discourage, limit, or punish a particular religion or the concept of religion in general. Hopefully the problems with that sort of behavior are self-evident.

You may wonder where the famous ‘wall of separation between church and state’ comes in. As with so many things, we have Jefferson to either thank or blame for that phrase, depending on your point of view. Well, him and the Baptists.

In 1801, while Jefferson was President, he received a letter from the Danbury Baptists – yes, those Baptists. As in the folks with over 3x the membership of the next leading denomination in Oklahoma today. They had some concerns about religious freedom and what they saw as inadequate delineation between the secular and the spiritual:

Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, {and} that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor.

That’s right, kids – the Baptists were asserting that faith is between you and God while the government is simply supposed to keep you from killing one another or taking someone else’s stuff. That’s it – no getting involved in issues best left to the pulpit or the prayer closet.

But sir, our constitution of government is not specific… And such has been our laws and usages, and such still are, {so} that Religion is considered as the first object of Legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. And these favors we receive at the expense of such degrading acknowledgments, as are inconsistent with the rights of freemen.

These weren’t atheists arguing against the Ten Commandments or Muslims insisting on their right to pray to Allah instead of Jesus. These were Christians – Protestants, even – who were frustrated by their local government enabling and supporting some theological technicalities more than others.

That’s the logical and historical result when you have a religious people and a government of-the-by-the-for-the those same people. You’ve driven down the street and wondered how and why even the smallest community needs about 37 different churches? That’s the flip-side of religious freedom – where two or more or gathered, they’ll immediately begin arguing about the finer points of hermeneutics.

Unless government makes a substantial and ongoing effort to avoid such entanglements, those arguments naturally spill over into the secular realm.

It was Jefferson’s reply which gave expression to what has become the most common understanding of the First Amendment’s guarantees regarding matters of faith.

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 establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.

There it is.

By itself, it’s just a phrase in a letter. But it’s a phrase in a letter which has been repeatedly referenced and validated in Supreme Court decisions and has become an entrenched and widely accepted interpretation of First Amendment protections through case law and sheer longevity.

In other words, it’s as close to belonging in the actual text of the Constitution as something can be without actually being in the text. For the record, it’s not alone in this – the Constitution never explains Federalism or defends Democracy, both of which are now considered inherent. The Framers despised Political Parties and what letting them get involved would do to the entire system – but for better or worse, they’re clearly a thing.

And until the North won the Civil War, Equality wasn’t even a goal, let alone a realization. I’m a big fan of small government and faithfulness to the Constitution, but let’s not go overboard. It’s an outline, not a mathematical model.

So “wall of separation” it is. It sounds so simple, and it is – on paper.

In practice, though… well, let’s just say it’s come up a time or two. And sometimes, the issue involves public education.

Which is what I do.

Next: A Wall of Separation – Everson v. Board of Education (1947)

RELATED POST: Should You Legislate the Bible?

RELATED POST: Missing the Old Testament