| Separation Of Church And State In The United States |
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BACKGROUND In the 17th and 18th centuries, many Europe ans Immigrated to the land that would later become the United States . The primary reason for many was the desire to Worship freely in their own fashion. These included a large number of Nonconformist s such as the Puritan s and the Pilgrim s, as well as Catholic s. However, with some exceptions such as Roger Williams of Rhode Island and William Penn , most of these groups did not believe in Religious Toleration and in some cases came to America with the explicit aim of setting up a Theocratic state compatible with their faith. In 1773, Isaac Backus , a prominent Baptist minister in New England , observed that when ''"church and state are separate, the effects are happy, and they do not at all interfere with each other: but where they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued."'' George Washington wrote in 1790 to the country's first Jewish congregation, the Touro Synagogue in Newport, Rhode Island to state:
A "WALL OF SEPARATION" The phrase " {Link without Title} wall of separation between church and state" was first used by theologian (a religious minority concerned about the dominant position of the Congregationalist Church in Connecticut ). His intention was to assure this religious minority that their rights would be protected from undue external interference. The paragraph containing the phrase is:
Jefferson's letter was in reply to a letter {Link without Title} that he had received from the Danbury Baptist Association dated 1801-10-07 . In an 1808 letter to Virginia Baptists, Jefferson would use the same theme:
LEGAL FRAMEWORK Regarding religion, the first amendment to the US Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" both these clauses, known as the "establishment clause" and the "free exercise clause" respectively, are significant. To give perspective, there was a great conservation of language in the Bill of Rights; the intention was to avoid creating loopholes, while still providing a buffer between the Legislature and the most basic rights of the people. It is significant, then, that there are two clauses where one would suffice, were the intention only to prevent respect for a religious establishment or only to protect free exercise. At the time of the passage of the . It is commonly accepted that, under the doctrine of Incorporation - which uses the Due Process clause of the Fourteenth Amendment as the vehicle by which the protections and restrictions of the Bill of Rights are applied to the states - they could not be reestablished today. ( Justice Thomas has occasionally made note of a view, held by a small number of constitutional scholars, that the states could still establish official religions today; under this view, the establishment clause cannot be incorporated under the Fourteenth Amendment, because under its arcane wording, it is a "hands-off" directive aimed solely at Congress. Others take the view that so long as religion is established by the government, "establishment of religion" is "establishment of religion" no matter whether Congress is directly involved.) Prior to the inclusion of the Bill of Rights, the only mention of religious freedom in the Constitution was a clause forbidding any "religious test" for government employees. This has been called the "no Religious Test" Clause , and is found at the end of Article VI, Section 3 (the final clause of the original Constitution save only for the Ratification Clause stating under what conditions the new Constitution would be deemed to be valid and in effect), which reads in part "but no religious test shall ever be required as a qualification to any office or trust under the United States." The Tripoli Treaty of 1796 between the United States and the Barbary States , specifically stated that ''"the government of the United States of America is not in any sense founded on the Christian Religion"''. Many are of the view that this statement (known as Article 11), which was written in a document endorsed by then-president John Adams and passed unanimously by the Senate, taken in context with similar writings of the founding fathers, supports the idea of a secular state. In 1875, Representative James Blaine of Maine proposed a Constitutional Amendment which would specifically prohibit the use of public funds for any religious purpose. The amendment did not pass, but many states adopted similar laws which are commonly known as Blaine Amendment s. In 1902, the Nebraska Supreme Court, ruled in a case brought by Daniel Freeman (who was, coincidentally, the first person to file a claim for a homestead under the Homestead Act ) that under the Nebraska Constitution, the local public school teacher could not lead religious exercises. SUPREME COURT DECISIONS The phrase ''"separation of church and state"'' became a definitive part of Establishment Clause Jurisprudence in '' Everson V. Board Of Education '', 330 U.S. 1 (1947). ''Everson'' also was the first case to interpret the Clause as imposing a restraint on the states as well as the federal government, based upon the Due Process clause of the Fourteenth Amendment . In 1962, the Supreme Court banned from Public School s all public Prayer s and religious readings done for religious purposes. The Supreme Court continued to allow ''private'' prayer. As such, any teacher, faculty, or student can pray in school, in accordance with their own religion. However, they may not lead such prayers in class, or in other "official" school settings such as assemblies or programs. Even "non-sectarian" teacher-led prayers are not allowed, e.g. "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country," which was part of the prayer required by the New York State Board Of Regents prior to the decision of the Warren Court in '' Engel V. Vitale ''. The court noted that it "is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America." {Link without Title} As authorized by state law, the "Almighty God" prayer had followed the teacher-led directions of the Creator," it did not deliberate upon the "Under God" pledge. Religion expression as part of school concerts or plays was debated before a 1980 court ruling, Florey v. Sioux Falls School District, which was upheld by the 8th U.S. Circuit Court of Appeals. The ruling allows religious songs to be performed at school concerts as long as secular songs are also included. So "Silent Night" might be followed by something like "Frosty the Snowman" or "Rudolph the Red-Nosed Reindeer." displayed alongside the flag of the USA next to the pulpit in a church in California. Note the eagle and cross finials on the flag poles.]] Currently, the Supreme Court applies a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Lemon V. Kurtzman , 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). In 2002, a '' was overturned by the Supreme Court on Flag Day , June 14 , 2004 . The Justices, however, did not reach the merits of the case (whether or not the phrase "under God" in a public school setting is Unconstitutional ). Rather, a five-justice majority held that Newdow, a non-custodial parent suing on behalf of his daughter, had no standing to bring the lawsuit in the first place, thus vacating the lower court ruling without resolving the constitutional question presented. FEDERAL COURT DECISIONS On December 20 , 2005 , the United States Court Of Appeals For The Sixth Circuit ruled that the US Constitution does not include "a wall of separation between church and state," denying a claim by the ACLU and approving the continued display of the Ten Commandments in a Kentucky courthouse. {Link without Title} The opinion authored by Judge Richard Fred Suhrheinrich states that
In its opinion, the court rejected one of the ACLU's fundamental claims in its suits against religious expression in public places, that "recognition {Link without Title} endorsement," and further asserted that if that claim were accepted and followed thoroughly, it would require a massive revision of the entirety of the legal tradition of the United States. INTERPRETIVE CONTROVERSIES Some — especially certain devout Christians — disagree with the notion of "separation of church and state", or the way the United States Supreme Court has interpreted the Establishment Clause. For instance, some groups hold that the First Amendment requires "institutional separation" of churches and the government not an absolute bar to religiousity. {Link without Title} The Founding Fathers did not prohibit religious references in official contexts. The Declaration Of Independence contains four references to a god (although the word only appears once, in the phrase "Nature and Nature's God"). While the Declaration is a rebuke to the notion of a Divine Right Of Kings , and while it can be argued that references to God were unavoidable because it is responding to a religious concept, its particular wording seemingly goes further than the minimum required for this, expressing implicit faith in and reliance on a god for the founding of the United States. The Declaration, however, is not a legal document; the Constitution — which is the legal framework of the United States — does not refer to any god (other than referring to its passage by the Constitutional Convention as occurring in the " Year Of Our Lord 1787"). It is further contended by many that the founding fathers were, for the most part, Deists , a group believing that the deity makes little to no intervention in the lives of people. The "religious test" clause has been interpreted to cover both elected officials and appointed ones, career constitution Article IX, Section 2 is one such example.) Some of these same states specify that the oath of office include the words "so help me God." In some cases these beliefs (or oaths) were historically required of jurors and witnesses in court. At one time, such restrictions were allowed under the doctrine of States' Rights ; today they are deemed to be in violation of the federal First Amendment, as applied to the states via the 14th amendment, and hence unconstitutional and unenforceable. While sometimes questioned as possible violations of separation, the appointment of official Chaplain s for government functions, voluntary prayer meetings at the Department of Justice outside of duty hours, voluntary prayer at meals in U.S. Armed Forces , inclusion of the (optional) phrase "so help me God" in the oaths for many elected offices, FBI agents, etc., have been held not to violate the First Amendment, since they fall within the realm of free exercise of religion. Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the fact that Christmas is a federal holiday, etc., have also been questioned, but have been considered examples of the governmental prerogative in deciding practical and beneficial arrangements for the society. The annual holiday of Thanksgiving , and the national motto " In God We Trust ", are clearly violations if strict separation is implied. Most of the relevant decisions (school prayer, pledge, etc.) have been based on the use of ''coercion'' by the State to promote religious dogma. Many decisions note that even if the State has no intention to promote one particular religion, in practice the predominant religious make-up of a school's population often makes those of a minority religion feel unwelcome or hated. This means that just because an act with religious connotations is deemed "voluntary" it is not specifically exempted from this doctrine; this is especially true with regard to public schools where the students are by definition young and immature and the expression of dissent can subject a child to ridicule, abuse, and negative Peer Pressure . Regarding the display of religious symbols on public property during holiday seasons, one exception has been cases in which competing religions and non-religion have Equal Opportunity , although the non-religious displays are often not guarded from Vandalism , etc. Generally, a majority of voters in America favors prayer in schools, depending upon how the poll is phrased. But the Supreme Court has interpreted the Establishment Clause as giving minority religions protection against having the majority religion forced on them by the state. {Link without Title} QUOTES
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