Separation of Church and State
“Constitution does not require complete separation of church and state” —Lynch v. Donnelly, 1984
Justice William Orville Douglas served the longest term on the bench in the Supreme Court’s history — 36 years, until his death JANUARY 19, 1980.
He was one of the eight Supreme Court Justices nominated by Franklin D. Roosevelt.
He previously taught law at Columbia Law School and Yale Law School, and served on the U.S. Securities and Exchange Commission.
Justice William O. Douglas wrote the majority decision in the 1952 case of Zorach v. Clauson:
“The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State …
Otherwise the state and religion would be aliens to each other — hostile, suspicious, and even unfriendly …
– Municipalities would not be permitted to render police or fire protection to religious groups.
– Policemen who helped parishioners into their places of worship would violate the Constitution.
– Prayers in our legislative halls;
– the appeals to the Almighty in the messages of the Chief Executive;
– the proclamations making Thanksgiving Day a holiday;
– ‘So Help Me God’ in our courtroom oaths;
— these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment.
A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: ‘God save the United States and this Honorable Court …’”
Justice Douglas continued:
“We are a religious people whose institutions presuppose a Supreme Being … When the state encourages religious instruction … it follows the best of our traditions.
For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.
To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe …”
“We find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence …
We cannot read into the Bill of Rights such a philosophy of hostility to religion.”
Chief Justice Warren E. Burger cited Justice Douglas’ Zorach v. Clauson opinion in the 1984 decision of Lynch v Donnelly:
“The concept of a ‘wall’ of separation between church and state is a … figure of speech … but the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.
The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.
Anything less would require the ‘callous indifference’ (Zorach v. Clauson), that was never intended by the Establishment Clause …
Indeed, we have observed, such hostility would bring us into ‘war with our national tradition as embodied in the First Amendment’s guaranty of the free exercise of religion. (McCollum) …”
Justice Stanley Reed wrote in his dissent of McCullum v Board of Education, 1948:
“Rule of law should not be drawn from a figure of speech.”
Justice Potter Stewart wrote in his dissent of Engle v Vitale, 1962:
“The Court … is not aided … by the … invocation of metaphors like the 'wall of separation,’ a phrase nowhere to be found in the Constitution.”
Justice William Rehnquist wrote in his dissent of Wallace v Jaffree, 1984:
“The ‘wall of separation between church and State’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.
It is impossible to build sound constitutional doctrine upon a mistaken understanding of Constitutional history …
The establishment clause had been expressly freighted with Jefferson’s misleading metaphor for nearly forty years …
There is simply no historical foundation for the proposition that the framers intended to build a wall of separation …
The recent court decisions are in no way based on either the language or intent of the framers … But the greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.”
Judge Richard Suhrheinrich wrote in ACLU v Mercer County, 2006:
“The ACLU makes repeated reference to ‘the separation of church and state.’ This extra-constitutional construct has grown tiresome.
The First Amendment does not demand a wall of separation between church and state. Our nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion.”
In Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973), the Court stated:
“This Nation’s history has not been one of entirely sanitized separation between Church and State. It has never been thought either possible or desirable to enforce a regime of total separation.”
The Court stated in Lemon v. Kurtzman, 403 U.S. 602 (1971):
“Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense.”
Chief Justice Warren E. Burger continued in Lynch v Donnelly, 1984:
“That neither the draftsmen of the Constitution, who were Members of the First Congress, nor the First Congress itself, saw any establishment problem in employing Chaplains to offer daily prayers in the Congress is a striking example of the accommodation of religious beliefs intended by the Framers …
Our history is pervaded by official acknowledgment of the role of religion in American life, and equally pervasive is evidence of accommodation of all faiths and all forms of religious expression and hostility toward none …
It would be ironic if the inclusion of the creche in the display, as part of a celebration of an event acknowledged in the Western World for 20 centuries, and in this country by the people, the Executive Branch, Congress, and the courts for 2 centuries, would so ‘taint’ the exhibition as to render it violative of the Establishment Clause …
To forbid the use of this one passive symbol while hymns and carols are sung and played in public places including schools, and while Congress and state legislatures open public sessions with prayers, would be an overreaction contrary to this Nation’s history and this Court’s holdings …”
Burger continued in Lynch v Donnelly:
“A significant example of the contemporaneous understanding of that Clause is found in the events of the first week of the First Session of the First Congress in 1789.
In the very week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states, it enacted legislation providing for paid Chaplains for the House and Senate …
It is clear that neither the 17 draftsmen of the Constitution who were Members of the First Congress, nor the Congress of 1789, saw any establishment problem in the employment of congressional Chaplains to offer daily prayers in the Congress, a practice that has continued for nearly two centuries.
It would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers …”
Chief Justice Burger continued:
“Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders.
Beginning in the early colonial period long before Independence, a day of Thanksgiving was celebrated as a religious holiday to give thanks for the bounties of Nature as gifts from God.
President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, a day of national celebration and Congress made it a National Holiday more than a century ago …
That holiday has not lost its theme of expressing thanks for Divine aid any more than has Christmas lost its religious significance …
Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms.
And, by Acts of Congress, it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the Chaplains of the Senate and the House and the military services …
Thus, it is clear that Government has long recognized — indeed it has subsidized — holidays with religious significance.”
“Other examples of reference to our religious heritage are found in the statutorily prescribed national motto ‘In God We Trust,’ which Congress and the President mandated for our currency, and in the language ‘One nation under God,’ as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children — and adults — every year.
Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith.
The National Gallery in Washington, maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit Christian themes and messages.
The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent — not seasonal — symbol of religion: Moses with the Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation.
There are countless other illustrations of the Government’s acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage …”
“Congress has directed the President to proclaim a National Day of Prayer each year ‘on which (day) the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.’
Our Presidents have repeatedly issued such Proclamations. Presidential Proclamations and messages have also issued to commemorate Jewish Heritage Week, Presidential Proclamation No. 4844, 3 CFR 30 (1982), and the Jewish High Holy Days, 17 Weekly Comp. of Pres. Doc. 1058 (1981) …”
Chief Justice Warren E. Burger concluded the Lynch v. Donnelly decision:
“One cannot look at even this brief resume without finding that our history is pervaded by expressions of religious beliefs such as are found in Zorach.
Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none.
Through this accommodation, as Justice Douglas observed, governmental action has ‘follow[ed] the best of our traditions’ and ‘respect[ed] the religious nature of our people.’”
Justice Anthony Kennedy wrote in Town of Greece v. Galloway, May 5, 2014:
“In Marsh v. Chambers, 463 U. S. 783, the Court found no First Amendment violation in the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a chaplain paid from state funds.
The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause.
As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society …
Legislative invocations are compatible with the Establishment Clause.
The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time …
That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society …
In the 1850’s, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment.”
Justice Kennedy was referring to the House Judiciary Committee Report of Congressman James Meacham of Vermont, March 27, 1854:
“At the adoption of the Constitution, we believe every State — certainly ten of the thirteen — provided as regularly for the support of the Church as for the support of the Government.”
Justice Kennedy continued in Greece v. Galloway:
“Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change …
An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases …
The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable …”
“One of the Senate’s first chaplains, the Rev. William White, gave prayers in a series that included the Lord’s Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom’s Prayer, and a prayer seeking ‘the grace of our Lord Jesus Christ, &c’ …
The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today …”
“The Court instructed that the ‘content of the prayer is not of concern to judges’ …
To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech,
a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact …
It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere.
Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy …
See Lee v. Weisman, 505 U.S. 577, 590 (1992) (‘The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted’);
Schempp, 374 U. S., at 306 (Goldberg, J., concurring) (arguing that ‘untutored devotion to the concept of neutrality’ must not lead to ‘a brooding and pervasive devotion to the secular’) …”
Justice Kennedy added:
“The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech …
While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws.
The first prayer delivered to the Continental Congress by the Rev. Jacob Duché on Sept. 7, 1774, provides an example:
‘Be Thou present O God of Wisdom and direct the counsel of this Honorable Assembly; enable them to settle all things on the best and surest foundations; that the scene of blood may be speedily closed; that Order, Harmony, and Peace be effectually restored, and the Truth and Justice, Religion and Piety, prevail and flourish among the people.
Preserve the health of their bodies, and the vigor of their minds, shower down on them, and the millions they here represent, such temporal Blessings as Thou seest expedient for them in this world, and crown them with everlasting Glory in the world to come.
All this we ask in the name and through the merits of Jesus Christ, Thy Son and our Saviour, Amen’. W. Federer, America’s God and Country 137 (2000) …”
Justice Anthony Kennedy concluded the Town of Greece v. Galloway decision, May 5, 2014:
“As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions …
It is presumed that the reasonable observer is acquainted with this tradition … Their purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers …
Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define
and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs.”