The Crumbling Wall of Separation Between Church & State
The Crusaders are tearing down the wall of separation between church and state by discarding the long-accepted and historically-motivated interpretation of the First Amendment’s establishment clause.
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Tear Down That Wall
Ronald Reagan famously said “tear down that wall,” referring to the Berlin Wall. The Crusadersare trying to tear down a different wall, Jefferson’s wall of separation between church and state, which he articulated in 1802 in his response to a letter from the Danbury (Connecticut) Baptists (emphasis mine):
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.
The Danbury Baptists, as a religious minority, wrote out of concern that they would be persecuted for failing to align with the dominant Christian sect, the Congregationalists.
Jefferson’s wall has been debated since then, with people favoring religious freedom pointing to it and the First Amendment as the the force requiring government to neither help nor hinder religion. People seeking to establish us as a Christian nation argue (see, for example, this article by the Christian Heritage Fellowship) that Jefferson’s actions confirm that he believed that we are a Christian nation.
I’m going to take the First Amendment and Jefferson’s wall as our starting point for our discussion of the Crusaders’ efforts to blur Seidel’s Line #3. I continue to be guided by Seidel’s book American Crusade: How the Supreme Court is Weaponizing Religious Freedom. I’ve also found the First Amendment section of the Congressional Research Service’s annotated website Constitution of the United States: Analysis and Interpretation (abbreviated “Constitution Annotate” or “CONAN”) to be very helpful.
Jefferson’s Wall Applies to the States
When the First Amendment was ratified in 1791, it prohibited Congress from creating laws to establish religion. At that time, the First Amendment applied only to the actions of Congress, not to the actions of the states. State-established (and funded) religions were common. Indeed, the colonies had a long history — which carried forward to statehood — of religion established, funded, and enforced by the state.
The Fourteenth Amendment, passed in the aftermath of the Civil War, has led to the doctrine of incorporation, the concept that the due process clause of the amendment extends the reach of most of the rights granted in the Bill of Rights to include actions by state governments. This was not accomplished in one fell swoop, but rather through a series of rulings by the Supreme Court over nearly a century.
The First Amendment’s establishment clause was first applied to the states in the 1947 Supreme Court case Everson v. Board of Education. Everson was a New Jersey taxpayer who objected to taxpayer funds being spent to provide transportation to and from private schools, 96% of which were Catholic schools. The Court ruled in a 5-4 decision that this use of funds was acceptable.
For our purposes, the outcome of the case is irrelevant, but the arguments made in both the majority opinion and the dissents made clear for the first time that the First Amendment’s establishment clause applies to the actions of states.
The Court’s opinion (written by Justice Hugo Black) surveys (pages 8-15) the long history of the practices of the “old world”, the colonies, and the states, in which members of various religions persecuted members of other religions, governments forced participation in religion, collected taxes to support religion, and punished disbelievers. The opinion gives particular importance to the key roles that both Jefferson and Madison played in defeating a Virginia law to renew a tax levy for support of the established church. The Court summarized Madison’s great (the Court’s word) Memorial and Remonstrance against Religious Assessments (p. 12):
“In it, he eloquently argued that a true religion did not need the support of law; that no person, either believer or nonbeliever, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free, and that cruel persecutions were the inevitable result of government-established religions.”
After further discussion, the Court spells out what the establishment clause means (p. 15, emphasis mine):
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 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."
In other words: Jefferson’s wall of separation is what the First Amendment’s establishment clause was intended to erect.
A skeptic might say: This may be the opinion of the five justices in the majority, but what about the four dissenting justices?
The dissenters disagreed with the Court’s ruling that using state money to fund transportation is acceptable. Indeed, the dissent argues for stricter separation of church and state than the majority’s opinion. Justice Rutledge writes (p. 29):
Neither so high nor so impregnable today as yesterday is the wall raised between church and state by Virginia's great statute of religious freedom and the First Amendment, now made applicable to all the states by the Fourteenth.
After drawing extensively on the arguments in Madison’s Remonstrance, Justice Rutledge concludes (p 63):
Now, as in Madison's day, it is one of principle, to keep separate the separate spheres as the First Amendment drew them, to prevent the first experiment upon our liberties, and to keep the question from becoming entangled in corrosive precedents. We should not be less strict to keep strong and untarnished the one side of the shield of religious freedom than we have been of the other.
The Everson case represents both the first time that the Supreme Court explicitly incorporated the First Amendment’s establishment clause — making it applicable to states — and also the first time that the Court grappled with exactly what Jefferson’s wall means.
An Establishment Test
With the Everson case making it clear that the establishment clause applies to the states, the Supreme Court heard a sequence of cases that tested the boundaries of what the establishment clause actually means.
In the 1971 Lemon v. Kurtzman case, building on criteria that the Court used in cases over many years, the Court established a three-part test to determine whether a government’s action violates the establishment clause.
The case consolidated issues that arose related to statutes in Pennsylvania and Rhode Island that required the state to pay for some aspects of non-secular, non-public education. Rhode Island’s law required the state to pay 15% of teachers salaries in non-public elementary schools, while Pennsylvania’s law required the state to pay for non-public teachers’ salaries and instructional materials for secular subjects.
The Court ruled in 8-0 (Pennsylvania) and 8-1 (Rhode Island) decisions that both laws are unconstitutional.
In the Court’s opinion, Chief Justice Warren Burger wrote (p. 612):
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.”
This three-part test, now known as the Lemon test, after the name of the appellant in the Pennsylvania case, became a strong precedent for decades.
Indeed, the Lemon test defined what it meant to cross Seidel’s Line #3. So much so, that, as we’ll see, the Crusaders had to attack it.
The Bladensburg Peace Cross
A 40-ft tall cross was erected as a World War I memorial on property owned by the American Legion in Bladensburg, Maryland.
When the cross was dedicated in 1925 the ceremony was explicitly Christian, and, before the area was built-up and isolated by roads and traffic, regular Christian prayer services were held there. Being on private property, this was entirely appropriate.
The situation changed when the American Legion disclaimed interest in the land and ownership went to the state of Maryland in 1961. In 1985, the Maryland government spent taxpayer money to repair the deteriorating monument.
Similar large crosses maintained on public land in other states had been ruled unconstitutional in the Ninth and Tenth Circuits. The American Humanist Association (AHA) brought suit, arguing that the Peace Cross violated the Establishment Clause. Using the Lemon Test, the Court of Appeals for the Fourth Circuit agreed and ordered that the Peace Cross either be modified or razed.
The Case and Ruling
Maryland’s planning commission (responsible for the Peace Cross) and the American Legion asked the Supreme Court to review the Fourth Circuit’s decision. The case, known as The American Legion v. American Humanist Association, was decided in 2019.
The Court ruled 7-2 that the Peace Cross does not violate the Establishment Clause, with the Court’s opinion written by Justice Alito, with five concurring opinions written by Justices Breyer, Kavanaugh, Kagan, Thomas, and Gorsuch. Justice Ginsburg wrote the dissenting opinion. It is worth understanding the varying rationales that the Justices applied.
Justice Alito’s core argument is that, while the cross is certainly a Christian symbol, through the passage of time the Peace Cross took on various secular meanings and is thus acceptable.
He also took the opportunity to critique the Lemon test:
For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations. Together, these considerations counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices.
In articulating his four reasons, he argues that identifying the original purposes of monuments, symbols, and practices might be difficult; that over time the purposes often multiply; that the message of monuments and symbols can change over time; and that removing an existing monument, symbol, or practice may have a negative implication to people for whom it is familiar or historically significant.
Justice Alito gives a long exegesis on this idea using legislative prayer, display of symbols like tablets with the Ten Commandments on government buildings, and governmental use of mottos like In God We Trust.
He goes on to say (emphasis mine):
While the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.
In other words, our past practices, be they right or wrong, are grandfathered into constitutionality.
Justice Kagan agrees to allow the Peace Cross to stand, but doesn’t entirely throw Lemon under the bus:
Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.
Justice Kavanaugh says that Lemon is not good law and that history, tradition, and precedent are what’s important:
And the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law ... On the contrary, each category of Establishment Clause cases has its own principles based on history, tradition, and precedent.
He goes on to give his own principles:
And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation.
We’ll see next time that Justice Kavanaugh’s principles are aligned with the Crusaders’ reframing of the meaning of religious freedom. That’s not an accident.
Incorporation is Wrong
Justice Thomas agrees that the Peace Cross on public land is constitutional but for a different reason: He actually rejects incorporation of the establishment clause! He writes:
The Court’s “inattention” to the significant question of incorporation “might be explained, although not excused, by the rise of popular conceptions about ‘separation of church and state’ as an ‘American’ constitutional right.” ... But an ahistorical generalization is no substitute for careful constitutional analysis. We should consider whether any longstanding right of citizenship restrains the States in the establishment context.
A Cross is a Christian Symbol
Justice Ginsburg authored the dissent, with whom Justice Sotomayor concurred. Justice Ginsburg wrote:
An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland. “[M]onumental, clear, and bold” by day, the cross looms even larger illuminated against the night-time sky.
The Latin cross is the foremost symbol of the Christian faith, embodying the “central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.” … Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, …
She rejects both the secularization of “the foremost symbol” of Christianity and attempts to use history and tradition to change that fact.
She also rejects the argument that the only remedy is to raze the monument. Instead, she suggests the options of relocating it to private land or transferring the monument and the land on which it sits to a private party.
The Court’s opinion rejected the 50-year-old precedent of the Lemon test. Instead, we should look to historical significance and cultural heritage, as Alito explains:
As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage.
This is just a “nice” way of giving a get-out-of-jail-free card to historically-dominant religious groups (Christians) that violate the First Amendment’s establishment clause.
Imagine if we applied similar logic to how the law treats our Black citizens: Historically, we’ve treated them as second-class citizens (and worse), so, for the sake of our common cultural heritage, let’s continue to do so.
With the Lemon test on the ropes, we now move on to the next stage of the Crusaders’ effort to impose their brand of Christianity on all of us.
Forcing Kids to Pray
When I went to public elementary school in the early 1960s we started every day with the Pledge of Allegiance and the Lord’s Prayer. I was a little Jewish boy and knew that this wasn’t my prayer. But I was a good little boy and prayed with the other students.
I was too young to realize that not doing so might have repercussions. But that changes as children get older. When an authority figure in a public school — like a teacher, principal, or coach — leads students in prayer, it becomes coercive because the students understand the possible outcomes of refusing to go along (ridicule by their peers, bad grades, poor recommendation letters, etc.).
School-Sponsored Prayer Violates the Establishment Clause
My experience in elementary school was an example of the common practicein the 18th through early 20th century in America of opening the public school day with a prayer or Bible reading. There has been a lot of squabbling (including some violence) about whose prayers or whose Bible should be used (e.g., Catholic vs. Protestant), failed attempts to find "non-sectarian" prayers to which all would agree, etc. Despite the common myth that "we've had prayer in school for 200 years and no one complained", school prayer has always been fraught.
The issue came to a constitutional head with two cases in the early 1960s.
In 1962 the New York Board of Regents promulgated a prayer for opening the school day, and stipulated that students could be excused from morning prayer. A group of families brought suit claiming that such prayers violate the establishment clause. In Engle v Vitale, the Supreme Court ruled that such prayer recitations are unconstitutional, even if participation is optional and the prayer is not specific to any particular religion.
Interestingly, Justice Hugh Black, writing the opinion, also addressed the idea that the encroachment is insignificant (p. 436):
It is true that New York's establishment of its Regents' prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others — that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that, because the Regents' official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:
"[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?
In the 1963 Abington School District v Schempp ruling, the Supreme Court ruled that both Pennsylvania’s law that required public schools to read from the Bible at the start of each day and Baltimore’s rule that public schools must open with a Bible reading and the Lord’s Prayer (sound familiar?) violate the establishment clause.
These two cases established that government-sponsored prayer in public schools is unconstitutional, despite claims of it being non-coercive and non-denominational.
But the Crusaders wish otherwise and have worked to change it.
The Praying Coach
Joe Kennedy was an assistant football coach at Bremerton High School in Washington State. He routinely prayed with the players at the 50-yard line after games. School officials, fearing violations of the Establishment clause, demanded that he stop doing so, but made it clear that he was welcome to pray in more private settings before or after games. When Kennedy refused to comply, he was placed on administrative leave in 2015.
He sought an injunction ordering the school district to hire him and to allow him to pray with the players. A federal court denied the injunction and the 9th US Circuit Court of Appeals upheld that decision. The Court’s decision, written by Judge Milan D. Smith, Jr., patiently explained why Kennedy spoke as a public employee, not as a private citizen, when he knelt on the field immediately after games, which made his actions constitutionally unprotected.
This, however, was not the end of the story: Kennedy, supported by a number of Crusader organizations, appealed to the US Supreme Court. In June 2022, the Court, ruled 6-3 in Kennedy v. Bremerton School District against the school district. Justice Gorsuch, writing the Court’s opinion, argued:
“[I]t seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech.”
Gorsuch made the nonsensical argument that since the game was over and the coach was free to attend to personal matters at that time, he could not be perceived to be speaking for the government at that time. Of course, although the game was over, he was at the 50-yard line with the players around him by virtue of his position as the team’s coach.
Referring to the lower courts’ rulings, Gorsuch instructs that Lemon is dead and we’re now interpreting the Establishment Clause by reference to historical practices and understandings:
“What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot.” …
In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ‘[T]he line’ ” that courts and governments “must draw between the permissible and the impermissible” has to “ ‘accor[d ] with history and faithfully reflec[t ] the understanding of the Founding Fathers.’ ”
He then proceeds to distort the historical facts.
Justice Sotomayor makes this clear in her dissent:
The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion. To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history.
Continuing, she laments the overthrow of the Lemon test.
Today’s decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman, and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new “history and tradition” test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state.
Based on their knowledge of religious persecution in the old world, Jefferson and Madison bequeathed to us the First Amendment establishment clause. For more than two centuries, the protections of the establishment clause were realized and clarifiedby the Supreme Court, covering actions by the States, and protecting us from government actions that seek to impose religion on us.
I have just scratched the surface of the changes underway. Andrew Seidel’s book will give you much more detail if you’d like it. According to the Publisher’s note, the text of the book was finalized in June 2022. In particular, the book doesn’t discuss the Court’s ruling in Kennedy v. Bremerton or its overturning of Roe v. Wade (a huge topic in and of itself that is closely related to the weaponizing of religious freedom). Seidel provides a short update to the book at https://andrewlseidel.com/moreAC/.
The Crusader’s efforts to reshape the Supreme Court have succeeded and we are now seeing our religious freedom rights whittled away and right-wing Christian beliefs imposed on us. Next time, we’ll turn to understanding who the Crusaders are and how they operate.
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As in the last issue, I’m continuing to use Andrew Seidel’s term “Crusaders” for the people and organizations that are trying to impose a narrow view of Christianity on the rest of us.
My narrative here is based on both Seidel’s book, Chapter 12, and on the Wikipedia article on the AHA’s case.
Described on page 172 of Seidel’s book.
See the Wikipedia article on School Prayer.
More detail about the situation from many sources. I found two articles on the web site of Americans United for Separation of Church and State helpful: Penalty Flag, which covers the events through the Court of Appeals decision and Kennedy v. Bremerton School District, which covers the Supreme Court case.
I chose these words carefully. Some will say that the Court expanded the protections given in the Constitution, but after reading the history of Madison’s and Jefferson’s creation of the First Amendment, it is clear that they intended to build that wall of separation between church and state. It was no accident.