IFAS | Freedom Writer | January/February 1996 | legal.html

On separation of church and state

By Barbara A. Simon, Esq.

There are those who say that the phrase "separation of church and state" does not appear in the Constitution. They are correct. The words "a wall of separation between church and state" are not found in our Constitution. Neither are the words "separation of powers;" "right to travel;" "freedom of association;" or "religious liberty" found in our Constitution. This does not mean that those concepts are not embodied in our Constitution. The words "wall of separation between church and state" are the words of Thomas Jefferson.

The First Amendment to the Constitution reads: "Congress shall make no law respecting an establishment of religion [government neutrality toward religion], or prohibiting the free exercise thereof [religious freedom]." The 14th Amendment extended this requirement beyond the Federal government to all the state governments.

In Reynolds v. United States (1878), the Supreme Court stated, "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.'" This was further emphasized in Everson v. Board of Education (1947), as expressed in the opinion for the majority written by Associate Justice Hugo Black. He wrote, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

In Lemon v. Kurtzman (1971), the Court established a three-prong test to determine if a governmental action is neutral toward religion. First, government institutions or legislation must have a secular purpose; second, the primary effect must be one that neither advances nor inhibits religion; and third, there must not be an excessive government entanglement with religion. This principle was further clarified by Associate Justice Sandra Day O'Connor in Lynch v. Donnelly (1984). She said, "What is crucial is that a governmental practice not have the effect of communicating a message of government endorsement or disapproval of religion."

The Supreme Court decisions provide an explanation of the rights and responsibilities granted by our Constitution. "Separation of church and state" is a constitutional principle that has been embraced by Supreme Court jurisprudence for more than one hundred years.

Those who insist upon denying the constitutional principle of "separation of church and state" are engaging in revisionist history. "Separation of church and state" is the prerequisite for religious and political liberty.

© 1998 Institute for First Amendment Studies, Inc.