The Establishment Clause of the First Amendment prohibits Congress from making laws "respecting the establisment of religion." The clause was adopted as an overt opposition to the practice of having official state churches that were supported by taxation, as was prevalent in Europe and the American colonies of the time. Thomas Jefferson referred to this concept as a "wall of separation between church and state." In Everson v. Board of Education (1947) the Supreme Case adopted Jefferson's phrase.
Another brick has been added to the wall. With the nomination of David Hamilton to the bench, President Obama has added a jurist to the federal roster with a record of supporting a stringent separation.
Testing Ground: Prayer in Public School
There is no greater collision between the religious and the secular than on the issue of prayer in public school. This is the preeminent battle over the separation in the present day political culture. What does the Establishment Clause mean in a public school? Does it require Jefferson's high wall of separation? It is fair to say that the Supreme court has been stricter when applying the Establishment Clause in this environment. Observing the Establishment clause in the context of a public school emphasizes the importance of "neutrality" by school faculty towards religion.
The counterpoint to the Establishment argument is in citing the Free Exercise clause. The Free Exercise clause states the the government shall "make no law...prohibiting the free exercise of religion." There are certain obvious exceptions to the "no law" phrase. The First Amendment would not protect the practice of human sacrifice even if one's religion requires it. As Charles Haynes succinctly states in The First Amendment in Schools, "...the freedom to believe is absolute, the freedom to act on those beliefs is not."
The Supreme Court has applied the Establishment Clause in public schools primarily because students attending these schools are a captive audience that are required by the state to be there. However, it is a misconception that students are not allowed to prayer in public school. The Supreme Court has never outlawed prayer in schools. Students are free to pray alone or in groups, as long as they are not disruptive or infringe on others. But this freedom does not include the right to have a captive audience or compel others to participate. What the Court has done repeatedly is to strike down state sponsored or organized prayers in public schools.
The Sherbert Test
The Supreme Court has developed a test to establish the legal extent of free exercise. In Sherbert v. Verner (1963) the Court found in favor of a woman's right to refuse to work on her Sabbath without relinquishing the right to unemployment benefits. The result of the case was the creation of the Sherbert or "compelling interest" test.
The test consists of four parts. The plaintiff must prove (1) the sincerity of the religious belief and (2) the extent of government burden on the practice of these beliefs. If these two elements are established the government must prove that (1) that they are acting in a "compelling state interest" and (2) this interest has been pursued in a the manner least restrictive to religion.
Social Conflict Continues: Gay Marriage, Abortion, Prayer in Public and Stem Cell Research
The separation of church and state, both constitutionally stated and implied, continues from the halls of public schools to the chamber of the Supreme Court. Many of the most pressing social issues that are debated by all political ideologies have the trappings of religion. Gay marriage, abortion, prayer in public school and stem cell research are all intrinsically linked to religious philosophy. As long there issues are part of the daily discourse so will be the structure of the great wall of separation.
Sources:
Haynes, Charles et al., The First Amendment in Schools. Nashville: The First Amendment Center, 2003.
Stephens Jr., Otis H. and John M. Scheib II. American Constitutional Law. 3rd Edition. Belmont, CA:
Thompson West, 2003.
Mark St.Amant - My name is Mark and I am pleased to be contributing to Suite 101. I am originally from Brockport, NY but I have lived and worked in ...
