Study Guide

Church and State - FAQ

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Has religious freedom always existed in America?

No—certainly not in the sense that we now understand it. Most of the colonies had an official or established church, and some of the colonies banned believers in other faiths from even entering their territory. Even those colonies that tolerated dissenters usually required that dissenters pay taxes to support the established church and prohibited dissenters from voting and holding public office. These conditions persisted through the American Revolution.

Does this mean that the United States was founded as a Christian nation?

This is hugely controversial question—and one that's too complicated for a quick or simple answer. But it is worth noting that both sides in this debate can find evidence to support their arguments. For example, the Treaty of Tripoli, negotiated by George Washington and ratified by the Senate in 1797, explicitly stated that the "the United States of America is not, in any sense, founded on the Christian religion."

When did religious freedom, as we know it, emerge?

The First Amendment, ratified in 1791, stipulated that the federal government could "make no law respecting an establishment of religion, or prohibiting the free exercise thereof." But the states retained the authority to establish churches, collect taxes for their support, bar dissenters from public office, and make other laws regulating religious practice.

Do the religion clauses of the First Amendment still apply only to the federal government?

Not anymore. Initially the First Amendment provided protections only against the federal government—that is, while the federal government could not establish a church or pass laws restricting your religious practice, state governments could. But through the doctrine of incorporation, the First Amendment’s provisions were extended to the state government, as well.

What exactly is the doctrine of incorporation?

This legal doctrine states that the restrictions and demands placed on the federal government by the Bill of Rights apply selectively to the states, as well. Even though initially, these restrictions and demands were addressed only to the federal government, they have been extended to the states by the due process clause of the Fourteenth Amendment. The Fourteenth Amendment declares that the states may not "deprive any person of life, liberty, or property, without due process of law." The Court has held that the protections extended under the Bill of Rights are central to our understanding of liberty and therefore "fundamental" to the states’ guarantee of due process of law.

What is the establishment clause?

The establishment clause of the First Amendment specifies that Congress "shall make no law respecting an establishment of religion." In the most basic terms, this means that Congress can not identify an official or national church or collect taxes or provide public money to support a specific religion.

What is the free exercise clause?

The free exercise clause of the First Amendment specifies that Congress may not pass laws "prohibiting the free exercise" of religion." In the most basic terms, this means that Congress may not interfere with the manner in which a person chooses to worship.

Can the government infringe on religious belief in any way?

No, not on religious belief. But the courts have drawn a distinction between religious belief and religious conduct. Religious conduct can be restricted if it violates the law. For example, in 1879, the United States Supreme Court ruled that the Mormon practice of polygamy was not protected under the First Amendment, even though it was sanctioned by the church.

Is the establishment clause still relevant?

Yes. Even though the likelihood of either the federal or state governments trying to establish an official church is remote, the establishment clause has been interpreted to mean more than just a prohibition against the founding of a national church. The clause has been interpreted to mean more fully that there is a "wall of separation" between the church and the state that prohibits most forms of government assistance to religious institutions.

Can the federal or state governments provide any assistance to churches or religious organizations without violating the establishment clause?

This is controversial question. Some argue that the founders intended an extremely high and thick wall of separation between church and state. Others believe that the founders intended there to be a more flexible approach to church-state relations. The Supreme Court has ruled that certain forms of public aid can be given to religious institutions such as religious schools if the aid meets certain criteria. The aid must serve a secular purpose, it must not advance religion, and it must not lead to excessive entanglement between the church and the state.

What is the "Lemon Test"?

This is the criteria established by the 1971 United States Supreme Court decision in Lemon v. Kurtzman for determining whether a form of public aid to religious schools violates the establishment clause of the First Amendment. To be constitutional, the aid must 1) advance a secular objective, 2) neither advance nor inhibit religion, and 3) not lead to the excessive entanglement of government and religion. The first two criteria had been introduced earlier; the third represented a new legal test for a form of government aid.

What is the child benefit theory?

This is another test used by the courts to determine the constitutionality of a form of public assistance to religious schools. If the child is the direct and principal beneficiary of the aid, rather than the school, then the aid may be compatible with the establishment clause. For example, using this test the courts have allowed religious school students to receive state-funded secular textbooks and rides on public school buses.

How has the US Supreme Court ruled on prayer in school?

Since 1962, the Court has consistently held that even denominationally neutral prayer is a violation of the establishment clause of the First Amendment. The Court has also ruled that moments of silence "for prayer or meditation" are unconstitutional, as are orchestrated prayers before school events, even if the majority of the students vote to hold these prayers.

How has the US Supreme Court ruled on school vouchers?

In 2002, the Court held that vouchers do not necessarily violate the establishment clause of the First Amendment. But to be constitutional, the voucher system must be structured in a religiously neutral way—that is, it must not be designed to steer children toward religious schools, parents must exercise complete control over where the voucher is actually spent, and there must be secular options available to voucher-wielding parents and students.

How has the US Supreme Court ruled on released time programs?

The Court has ruled that released time programs, which allow public school students to leave school early in order to attend religion classes, are permissible if the religious instruction takes place off school grounds.

What are "faith-based initiatives"?

President George W. Bush introduced this government program in 2001. It subsidizes church-affiliated or religious organizations that address public needs, such as drug and alcohol rehabilitation and domestic violence. Critics argue that this represents a violation of the establishment clause, but the court has yet to hear a case dealing with this program.

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