The Wall Between Religion and the People

Today, the secular nature of the federal government is ingrained in our understanding of how it affects our lives and relationships. Our understanding often flows from the Constitution's Bill of Rights, First Amendment, the so-called Establishment & Free Exercise Clauses:

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof ... .

Constitution, Amend. 1.

Today, we use these clauses to shield the government from religious incursion. For instance, they have been used to argue — sometimes successfully, sometimes not — against (click for resources on each topic):

• Public Prayer.
• Creationism and its flavors .
• Public display of the Ten Commandments.
• Crosses on public land.
• "In God we Trust" lawsuit.
• "Under God," Pledge of Allegiance lawsuit.

However, these clauses developed as a personal right — hence their position amongst the rights enumerated in the Bill of Rights — to protect religion instead. For instance, the antifederalists argued, during debate over what would become the Free Exercise clause:

[A North Carolina delegate] "advocate[d] for... [the right] of worshipping [sic] God according to the dictates of conscience in particular. He therefore thought that no one particular religion should be established. 

[A New York antifederalist] criticized the Constitution, stating, "I could have wished also that sufficient caution had been used to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment... ." 

Advocates of amendments in Maryland urged "[t]hat there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty. 

... the Virginia ratifying convention included among its proposed amendments a statement "[t]hat religion ... can be directed only by reason and conviction, not by force or violence; and therefore ... no particular religious sect or society ought to be favored or established, by law, in preference to others."

Natelson, William and Mary Bill of Rights Journal, The Original Meaning of the Establishment Clause (2005) at 89 (formatting added).

An excellent observation on the religious views of the time come out in Natelson's discussion that the Establishment Clause was originally designed to protect only theists, and not to protect atheists:

... the contemporaneous "middle" was quite a bit more religious than it is today. One is reminded of the observation by that proto-Whig whose legal commentaries educated so many offounding generation's lawyers, Sir Edward Coke: "[I]n religion ... if a man go too much on the right hand, he goes to superstition, if too much on the left, to profaneness and atheism. And take away reverence, you shall never have obedience ... . "

Natelson at 114.

Indeed, many of the constitutional delegates were actively hostile to atheism generally. "Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist." Id. at 101 quoting John Locke.

The point here is that the wall between church and government was not constructed to keep the church out of our lives, but to allow individuals believers to choose their own religion. Yet, the language is so clear: the state is a secular organization which cannot establish a religion and cannot interfere with its free exercise.

And the logical extension has been that favoring one religion over another amounts to an establishment of religion. This test has become embodied in a key constitutional decision on this matter in Lemon v. Kurtzman:

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be "no law respecting an establishment of religion." 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.

Lemon v. Kurtzman, 430 U.S. 602, 613 (1971).

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion[; third], the statute must not foster "an excessive government entanglement with religion."

Id. (citations and formatting omitted).

Other, related tests exist, but this one is still widely used. What its saying is that government action must be secular in nature, cannot impinge religious belief one way or the other, and cannot encumber the operation of the government with religion.

Thus, current constitutional thinking does create a wall of separation between church and state. When it comes to laws, there can be no entanglement. This wall should be favored by theists and atheists alike. It keeps theists safe from the tyranny of a state religion and likewise keeps religion far from atheists.

If anyone tells you that the United States is a Christian nation, you can tell them that they are wrong. Their own religious forefathers made sure of that.

Your,
Bear