Overview of Church and State Separation Debate
Tom Peters

Introduction

The debate over church/state separation is fundamentally a debate about the meaning of the Constitution and the Bill of Rights. Briefly, one side in the debate believes that the Constitution gives government the power to regulate some aspects of religion, and that the First Amendment bars only the establishment of a national church. The other side in the debate believes that the Constitution gives government no power over religion, and that the First Amendment should be broadly read to ban all types of interference with religion. In this section we identify what parts of the Constitution are at issue in the debate, and lay out the positions of both sides in greater detail.

What the constitution has to say

The Constitution is a written document that serves as the organic (i.e., basic) law of the United States. The original Constitution was written in 1787, and became effective when the ninth state (New Hampshire) ratified the document on June 21, 1788. In 1791 the states approved ten amendments to the Constitution. These ten amendment are known collectively as the Bill of Rights. The first of these amendments deals, in part, with the issue of the power of government over religion and, hence, has become the focal point of the debate over church/state separation.

While the interpretation of the First Amendment is obviously crucial to the separation debate, we want to emphasize here the importance of the unamended Constitution to the debate. Briefly, the purpose of the Constitution was to specify the powers of the federal government, and to distribute those powers among the three branches of government (the executive, the legislative, and the judicial). As we document elsewhere, the assumption of the framers of the Constitution was that the federal government could exercise only those powers delegated to it by the Constitution (i.e., the federal government could not make up its own powers as it went along). By default, undelegated powers were assumed to be reserved to the states. This arrangement is called federalism, and it is the philosophical basis of the American system of government.

One of the things at issue in the separation debate is whether the original Constitution gave the federal government any power over religion. In particular, we note that, if the Constitution delegated no power over religion, the question of whether the First Amendment bans, eg., aid to religion, is moot. If there is no power to aid, no aid can be given, regardless of whether there is a ban. Accomodationists, in other words, must first demonstrate that the original Constitution delegates power to the federal government over religion before their claims about the First Amendment are of any significance. This issue is the focus of our discussion in the sections of our web page entitled federalism and absence of delegated powers.

A second issue is whether the First Amendment can itself be interpreted as a grant of power to the federal government. If the First Amendment can be so read, then it might confer some power to the federal government over religion that is not conferred in the original Constitution. We discuss this issue in our section of this web page devoted to the grammar of the establishment clause.

What the Bill of Rights has to say

The part of the Bill of Rights that is most important to the separation debate is the First Amendment, in particular, the two religion clauses of the first Amendment. These clauses deal precisely with the issue of what government can and cannot do with respect to religion. Below, we lay out the wording of these clauses, and what is at issue in their interpretation.

The establishment clause makes up the first ten words of the First Amendment. It reads as follows:

Congress shall make no law respecting an establishment of religion...

The free exercise clause makes up the next six words of the Amendment. It reads as follows:

or prohibiting the free exercise thereof;

Together, these clauses comprise the most specific statement in the Constitution about the powers of the federal government over religion. It is interesting, for example, to note that both clauses are phrased in the negative, that is, they describe what the federal government cannot do with respect to religion. Hence, if the framers gave some power to the federal government over religion, they must have specified it elsewhere in the Constitution.

While both clauses are important to religious liberty, it is the establishment clause that has become of the focus of the current debate over separation. In particular, the clause is generally interpreted in one of two mutually exclusive ways. The narrow interpretation (favored by accomodationists), holds that the clause bans only the establishment of a state church or religion. A classic statement of this position is found, for example, in J. M. O'Neill's Religion and Education Under the Constitution, p. 56, where he holds that the First Amendment proscribes only "a formal, legal union of a single church or religion with government, giving the one church or religion an exclusive position of power and favor over all other churches or denominations." On this line Congress might do any of a number of things that aid religion so long as it doesn't directly establish a state church.

In contrast, separationists favor what is known as the broad reading of the First Amendment. This reading holds that the First Amendment bans not only the establishment of a state church, but the establishment of any religious belief or practice by law. Hence, separationists would hold that, eg., when government requires prayer in the public schools, it establishes a religious practice and is, hence, illegal. The classic statement of this position is Justice Black's majority opinion in Everson v. Board of Education. These issues are discussed throughout our section of the web page devoted to the case for separation.

Some other controversies concern the interpretation of the word "establishment" in the First Amendment, what the framers meant by "respecting" establishment, and why the framers modified the word establishment with the word "an."

The positions of both sides

Up till now we've been talking as if the debate over separation of church and state involves only two groups of people: separationists, who favor separation, and accomodationists, who oppose it. But obviously, the debate is more complicated than this. In particular, we note that not all separationists agree as to precisely what constitutes an establishment of religion, and not all accomodationists agree as what types of religious aid are permissible. Like most political debates, the debate over separation is a messy affair, and there is some disagreement within both positions as to where people actually stand.

Nevertheless, it is possible to describe with a good degree of accuracy the general positions people take within both of these camps. In most cases, these positions can be described with respect to (1) attitude toward the original Constitution, (2) attitude toward the First Amendment, and (3) attitude toward a variety of political issues around which the current debate revolves. Additionally we want to distinguish between accomodationists generally and non-preferentialists, a specific variety of accomodationist that deserves some separate treatment.

Separationists.

Attitude toward the original Constitution. Separationists hold that the original Constitution grants no power, either positive or negative, to the federal government over religion.

Attitude toward the First Amendment. Separationists generally believe that the First Amendment was intended to reaffirm that the Constitution granted no power to the federal government over religion. Additionally, they generally hold to what is known as the "broad" interpretation of the establishment clause, i.e., a belief that the First Amendment was intended to prohibit government from supporting or promoting religious beliefs or practices, even if that promotion favors no particular sect or religion. A separationists reading of the First Amendment would, for example, prohibit government from favoring religion over non-religion, using tax dollars to underwrite religious activities, or requiring people to be exposed to religious practices in the course of everyday governmental activity. A classic summary of the broad interpretation is given in Everson v. Board of Education.

Attitude toward specific political issues. Separationists would generally be against any of the following:

Accomodationists.

Attitude toward the original Constitution. Accomodationists hold either that the original Constitution conferred some grant of power to the federal government over religion, or that the Constitution should not be interpreted to prohibit such power.

Attitude toward the First Amendment. Accomodationists hold to any one of a number of "narrow" interpretations of the First Amendment clause, i.e., interpretations that allow the government considerable latitude in supporting or promoting religious beliefs and practices. Extreme accomodationists hold that the First Amendment was intended to bar only the establishment of a state church or religion, and that most types of aid that do not reach this level of favoritism are legal. Extreme accomodationists are generally very committed to majority rule at the local level and, hence, are favorable to laws that would allow local (as opposed to national or statewide) majorities to make decisions about religion in public forums. Extreme accomodationists, for example, have seriously proposed school prayer schemes that would give local school boards the power to write sectarian prayers that reflect the religious beliefs of the majority of parents in a school district (eg., prayer in the name of Jesus Christ). In practice, the overwhelming majority of accomodationists are not this extreme, and can be classified as non-preferentialists (see below).

Attitude toward specific political issues. Generally, accomodationists are in favor of the following:

Non-preferentialists.

Non-preferentialists are a subset of accomodationists. Their positions generally are the same as those of accomodationists, with an important exception: non-preferentialists believe that the Constitution allows the government to support or promote religious beliefs and practices only so long as that support favors no one religious sect or belief. Like accomodationists, non-preferentialists would hold that the First Amendment bars only the establishment of a state church, but they would interpret "establishment" somewhat more broadly to include any aid that expresses a specific religious viewpoint, even if that aid does not establish a specific denomination. Accordingly, non-preferentialists would reject accomodationist schemes to allow sectarian prayers in the public schools (eg., prayers in the name of Jesus Christ), but would allow non-sectarian prayers (eg., prayers that are general enough that they would not offend any theist). Similarly, non-preferentialists would allow government to favor religion generally over non-religion, provide at least some types of non-preferential aid to religion, and incorporate religious practices into government activities as long as those practices are non-sectarian.

A note on usage: Most of the arguments we make apply to both non-preferentialists and accomodationists. Hence, When we use the word "accomodationist," in this webpage, we mean it to apply to both groups. If it's important to an argument, we will specify that it is intended specifically to non-accomodationists.

© 1996

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