Church State Separation — Really??

Church State Separation

Separation of the church and state is generally cited as a fundamental principle of the United States: Everyone thinks so. Thus it must be true?

But what does the constitution say? Read the constitution and identify all references to church and state powers.

The Constitution of the United States

Now read it again!
And again!!

The constitution does not contain the word church or a word for any institution that can be equated to church. No temple, mosque, synagogue nor any equivalent institution. Religion is mentioned but only once as a right. Here are my selections of constitutional provision that are related to religion, and indirectly to church. Probably not what you would select, but I think all of these provisions are pertinent.

{Article I, Section 1} All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

{Article II, Section 1} I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

{Article VI} This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

{Article VI} The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

{Amendment 1} Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First let us deal with what is probably the most misunderstood provision of the constitution: ...respecting an establishment of religion... What constitutes an established religion? The common misperception is financial support of religious institutions by the state: False! True, the English government and most American colonies did financially support the established religion. But in Italy, especially in the Papal States, the church collected taxes and paid the civil government. In France and Spain the policy was mixed: Frequently the state and church collected taxes independently.

The real characteristic of established religion was the sharing of governmental functions. Generally the church had nearly complete authority over education and morals. But what was meant by "morals?" Much more then than than can be imagined in present day American/European culture. "Morals" was largely the relation between the Church and the individual. Expressing the slightest doubt about religious doctrine or practices could be a capital crime. Church membership was mandatory with severe penalties for nonattendance. Canon (church) law, as well as civil law, was enforceable in civil courts. The supremacy of canon law over civil law, or vice versa, led to many conflicts and even wars.

The American constitution explicitly rejected church authority over civil law three times:

  1. All legislative Powers ... shall be vested in a Congress
  2. Laws of the United States ... shall be the supreme Law of the Land
  3. Congress shall make no law respecting an establishment of religion

First, Congress is granted the sole right to make laws. Then, these laws are declared to take precedence over all state or territorial law, and by distribution over all local entities. The third provision is redundant, the first has allocated all of the traditional religious governmental functions to Congress. This leaves no place for religious bodies enact or enforce law within the government of the United States or any of its constituent governments. It does not prohibit religious bodies from existing but it explicitly denies them any explicit role in the government.

The exclusively secular nature of the United States is re-enforced in Article VI: religious Test ... required ... to any Office or public Trust. And in the oath of office - The President-Elect swears an entirely secular oath to preserve, protect and defend the Constitution of the United States. Note the oath is specified precisely. Any variation in the wording would invalidate it. Thus, in strict application, if a President-Elect inserted a reference to a Deity, s/he would not be President.

Consequences of the Constitution

Church — It is difficult to conceive a document with a less religious intent. Public religious practice and expression are not prohibited or even limited as in France. The Constitution simply leaves no opportunity for religion to interfere in the government. The right to practice any religious belief is guaranteed but that is a personal, individual right, not a collective. Combined with the right of the people peaceably to assemble the right to organize into a church (or any other group for peaceable assembly) is assured. Provided that the assembly is peaceable both in action and in intent. If an assembly is not peaceable, the government can investigate and possibly prosecute the members. And prohibit it even if they call it a church or other religious organization.

States Rights — The Constitution is explicit: Laws of the United States ... shall be the supreme Law of the Land. Once a national law is enacted and passes the constitutional challenges, it is applicable to everyone in every state. A state or subordinate unit cannot reject, modify, or ignore it. As related to religion, a state cannot enable church participation in governmental operation. Note however that persons with strong religious convictions cannot be prohibited from participation in the government: The religious test clause prohibits excluding them from participation.

Chaplains — The purpose of Chaplains is to provide emotional, and religious, comfort and guidance. If their function is exercised under government auspices they exercise a public Trust. No religious test can be required for this position. Any person desiring to become a Chaplain must be evaluated entirely on ability without considering religion.

Educational Support — The government provides education primarily though a system of public schools. Many individuals prefer to utilize private schools for a variety of reasons, including religious. While there is no mandate for government support of private schools, there is also no prohibition, even those operated by religions organizations. Provided always that a religious test is not required. An educator in private schools would naturally come under the public trust restriction which would prohibit the religious organization from applying any religious test. The government could provide support to private schools provided all schools are treated equally and the religious test is not invoked. The Supreme Court regularly rejects government support of religious schools based on a slight twist of the religious test concept: If both religious and secular subjects are taught, the government would have to decide what was religious and what was secular. This would result in an entanglement of the government and religion, which would constitute a religious test. Thus no support for religious schools.

Faith Based Initiatives — Any initiatives based on faith would appear to be prohibited. A religious test would be essential to determine if the initiative were based on faith. Even if most of the persons involved in the initiative were agnostic, some individual in a position of public trust would have to be selected for his/her religious beliefs.

Taxation — Taxation is stated in the Constitution twice.

The Congress shall have Power To lay and collect Taxes...
The Congress shall have power to lay and collect taxes on incomes...

Nothing in the Constitution grants the right for any organization, religious or secular, to be exempt from these taxes imposed by Congress. However, Congress has granted tax exceptions to a large variety of charitable, cultural, educational and social organizations, including religious groups. As long as the exclusions granted religious groups is the same as other exempt organizations, there would appear to be no constitutional issue.

Religious Enclaves — The right to peaceable assemble permits any group to organize enclaves or retreats. Provided always that the intent is peaceable and all constitutional laws are obeyed. When any group decides to impose its own laws on its members or on the surrounding communities, it is in opposition to the Constitution. If it decides to impose its laws by force, the action constitutes revolt against the United States. The government can, and must, implement sufficient measures to suppress this revolt.

The Government Ignores the Constitution

The government has ignored the Constitution whenever it was inconvenient. Here a few obvious examples:

Executive Orders: The Constitution does not authorize executive orders but every President has issued them. Truly, they are necessary; the government could not function without them.

Slavery: The Supreme Court could have have declared slavery unconstitutional at any time. The arguments in 1789 were the same as in 1865 and 1956. However the the government lacked the power to enforce such a decision on the slave holding states. Prior to the 1840s, the nation would have fragmented.

Religious test: In 1789 almost all the states had Christian religious tests for public office. Most states were slow in removing religious tests; 1826 for Maryland and Massachusetts, 1868 for North Carolina.

No Religious Tests

In God We Trust: The phrase was first applied to money during the Civil War. Does it constitute a religious test? Some think so, others claim not. Personally I consider it a test but one that I can easily ignore.

Pledge of Allegiance: Introduced during the McCarthy era it is clearly a religious test for anyone required to perform the pledge. I learned the original pledge and have seen no reason to add the extra words; so I simply skip them.

Faith Based Initiates: Alcoholics Anonymous and religious drug rehabilitation programs definitely have religious tests. Whenever they are mandated by the government, they violate the public trust and the religious test provisions of the constitution.

Intelligent Design - Creationism: Intelligent Design and Creationism are clearly religious in intent and content. Teaching them in public schools violate the public trust and the religious test provisions of the constitution.

© Copyright 2005-2017 D E Pauley