| | High and Impregnable?
Perhaps the most well known constitutional concept to the average American is the Separation of Church and State. Despite not actually appearing in the Constitution, it is one of the most controversial ideas in modern jurisprudence. It has been cited as the basis for rulings as diverse as declaring the Pledge of Allegiance unconstitutional, ruling that the cross at the Mt. Soledad War Memorial (formerly known as the Mr. Soledad Easter Cross) should be removed, and removing public prayer, creation teaching, and the ten commandments from Public schools. Obviously, this is an idea with consequences, and all Americans would do well to know its history and various applications. Its most widely used application is the Lemon test, written in the decision Lemon v Kurtzman. However, the Separation of Church and State – and its application, the Lemon test – is not the only interpretation of the Establishment Clause known to modern judges. Several others have been proposed, most significantly, moderate Justice Anthony Kennedy’s “Coercion Test,” proposed in the 1992 case County of Alleghany v. ACLU. The major question is this: does the Lemon test most accurately represent the Establishment Clause, or does the “Coercion Test.” Only a close examination of history will tell.
The term “Separation of Church and State” actually first appeared in Thomas Jefferson’s letter to the Danbury Baptists, after the Bill of Rights was added to the Constitution. However, it did not enter the judicial lexicon until 1948, when Justice Hugo black wrote in Emerson v. Board of Education “the clause against establishment of religion by law was intended to erect "a wall of separation between church and State,"” After Black’s landmark ruling, the concept continued developing until it’s defining expression, the Lemon test, was written in 1971. The Lemon test consists of three components. For a law to avoid violating the “Separation of Church and State”, it must a pass three pronged test: first, the law must have a secular purpose, second, it must not have the primary effect of advancing or prohibiting religion, and finally, it must not result in an “excessive entanglement” between church and state. If a law doesn’t violate any of these provisions, it passes the Lemon test. On the other hand, the Coercion test declares a violation of the Establishment Clause if the government provides direct aid to religion in a way that would tend to establish a state church, or coerces people to support or participate in religion against their will. It can be found in the Kennedy dissent to the 1992 Supreme Court case Alleghany v. ACLU.
Now, the main question is: which of these two tests is a more accurate application of the ten words “Congress shall make no law respecting an establishment of religion” of the Establishment Clause? Logically, the starting point of any discussion of the proper application Establishment Clause is an examination of what the clause meant when it was written. In 1790, when the first congress met to add a Bill of Rights to the new Constitution, the freedom of religion was on everyone’s minds. Many people feared that the new federal government would impose a state church on the nation, like all the governments in Europe did. According to Law Professor Jim Baker, the founders feared that their own state established churches would be abolished, and that America would be declared a Baptist, or Anglican, or Presbyterian, or Congregationalist nation. From these fears, we get the somewhat awkward wording “…no law respecting an establishment of religion.” If the clause had been intended to merely ban an establishment of religion, why didn’t the founders simply write, “Congress shall establish no national religion” in the 1st amendment? They wrote what they did because not only did they not want congress to establish a religion, they did not want congress disestablish a state religion. “No law respecting an establishment of religion” means no law establishing or disestablishing any religions. The Establishment Clause was written not only to protect the nation from religious establishment, but also to protect state churches from religious disestablishment.
With that in view, the next step in determining the meaning of the Establishment Clause is to discover what precisely constituted an “establishment of religion” to the authors of the 1st amendment. Looking at the debate over the wording of the Establishment Clause is quite effective in illuminating it’s meaning, since during the debate, the authors decided what they were banning. In particular, looking at the Senate’s proposed wording of the Establishment Clause and its rejection will show what, to the founders, constituted an “establishment of religion.” When the Senate completed its debate on the wording of the Establishment Clause, the finished product read: “Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” This version was rejected in conference, however, because it allowed the government to fund a particular religion. Instead, the current version was accepted. What does this show? The initial wording and its rejection reveal the components of an established religion. An “establishment of religion” codifies into law certain articles of faith, a particular mode of worship, and provides funding a given sect. Any of these three would count as an “establishment of religion.’ For a final snapshot of the Establishment Clause, and how people shortly after the founding era viewed it, former Supreme Court justice and Harvard Law Professor Joseph Story’s highly respected Commentary on the Constitution of the United States is ideally suited. Concerning the Establishment Clause, Story writes:
The real object of the amendment was, not to countenance, much less to advance Mahometanism [sic], or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an [sic] hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age (Story 728).
Now, returning to the Lemon and “Coercion” tests, which of these is most faithful to the meaning of the text? While the Lemon test does prohibit articles of faith, a mode of worship, and funding for a given religious sect, it bans more than that. Nowhere does the Establishment Clause mandate that laws have a secular purpose, nor does it prohibit laws with a vaguely worded “primary effect of advancing or inhibiting religion.” What about the coercion test? It prohibits direct government aid to religion in a way tending to establish a church, thus making it impossible for the government to give money to a particular religious sect. Also, by stating that no one be coerced into supporting or participating in a religion, it effectively rules out any national articles of faith or set mode of worship. Thus, the “Coercion Test” is the best interpretation of the Establishment Clause in jurisprudence today.
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| | Posted 5/16/2007 2:40 AM - 18 views - 0 comments
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