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The Separation of Church and State: Have We Gone Too Far?


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IV. America's Stance on Establishment Clause Cases

A. The Supreme Court is Unwilling to Set a Per Se Rule with Regards to Establishment Clause Violations.

While the Establishment Clause puts restrictions on the rights of the government with regards to religion, it does not require a complete separation of church and state.14 In fact, "some relationship between government and religious organizations is inevitable."15 The Establishment Clause "affirmatively mandates accommodations, not merely tolerance, of all religions, and forbids hostility toward any."16

With this in mind, it is important to note that throughout history, religion has not been kept wholly separate from the institutions of state. In fact, Congress, in conjunction with the Treasury, maintains the stamp "In God We Trust" on the currency of the United States, and the Judiciary is yet to ban the closing to the Pledge of Allegiance, which proclaims that America is "one nation under God."17 Such religious interventions prevent the Judiciary from taking a bright line approach with Establishment Clause cases, noting that "an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court."18

Accordingly, the Court has taken an ad hoc approach to cases involving the Establishment Clause, reviewing the surrounding circumstances in each case individually.19 "The Establishment Clause, like the Due Process Clauses, is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause 'was to state an objective, not to write a statute.'"20 Therefore, "the line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test."21 This is because the Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."22 Because of this inability to create a bright line rule, courts have sought to discover a way to determine whether a challenged law or conduct is in violation of the Establishment Clause.

Over time, the ad hoc inquiry into the circumstances of individual cases has led the Court to look at a myriad of factors that motivate individual behaviors and conduct. The Court has determined, under the Lemon test, that to avoid conflict with the Establishment Clause, the legislation or conduct in question must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster excessive government entanglement with religion.23 However, although the Lemon test has become a primary decision-making tool, it is important to remember the emphasis the Court has placed on its "unwillingness to be confined to any single test or criterion in this sensitive area."24

B. The American Judiciary Stands Strong Behind the Separation

After years of legal and social evolution and interpretation, the Establishment Clause has not only retained its literal meaning, but has taken on broader interpretations. In recent decisions, increasing numbers of states have used the Establishment Clause to challenge the legitimacy of religious expressions in state institutions.25 Such cases demonstrate a desire to mandate a high degree of separation between religious domination in state matters.26 However, as previously noted, the Supreme Court has been hesitant to instate a per se rule, but as directed its efforts in Establishment Clause cases towards a case by case analysis.27 Even this case by case analysis has faced scrutiny, giving the Court even more leeway in its varying decision-making tactics. For example, in Marsh v. Chambers, the Court dismissed the Lemon test and examined whether there "exists any impermissible motive or indication that such prayer opportunity is being used to exploit, proselytize, advance or disparage any other faith or belief."28 With this disparity in examining techniques for Establishment Clause cases, it is important to look at recent Supreme Court interpretations of the Establishment Clause.

Where a monument is placed in a government building for a non-secular purpose and has the primary effect of endorsing religion with no historical background, the placing of the monument is in violation of the Establishment Clause.29 In Moore, the Chief Justice of the Alabama Supreme Court placed a two-and-a-half ton granite monument engraved with the Ten Commandments (and other references to God) in an Alabama State Judicial Building.30 The monument portrayed the Ten Commandments as the "moral foundation of law."31 Justice Moore specified that by the term "God," he specifically meant the "Judeo-Christian God of the Holy Bible and not the God of any other religion."32 Installed without the knowledge of the other eight justices (including their opinions on the size, shape, color, location and wording on the monument), the monument was immediately visible upon entering the building.33 The Court held that "for a practice to survive an Establishment Clause challenge, it 'must have a secular legislative purpose, . . . its principal or primary effect must be one that neither advances nor inhibits religion, . . . [and it] must not foster an excessive government entanglement with religion.'"34 The Court reasoned that the Chief Justice, by placing the monument in the courthouse, had both a non-secular legislative purpose, and the primary effect of advancing religion.35 Therefore, the Court held that the monument had to be removed because it violated the First Amendment's Establishment Clause.36

It should be noted that there exists a gray area in Establishment Clause cases where a line must be drawn between actions that constitute violations of the Establishment Clause because they "foster excessive government entanglement with religion," and actions whose religious affect are secondary to its secular motive.37 For instance, in Moore, the Court noted that its decision should be construed narrowly because "the Court believes it is important to clarify at the outset that the Court does not hold that it is improper in all instances to display the Ten Commandments in government buildings; nor does the Court hold that the Ten Commandments are not important, if not on of the most important sources of American law."38 It seems that even when courts have been compelled to decide whether a conduct or legislation is in violation of the Establishment Clause, the institution refuses to set precedent in this sensitive area by way of narrow construction.

So, where is the separation between church and state presently? In summation, President Jefferson's simple correspondence to the Danbury Connecticut Baptist Association, which had intentions of reinforcing the Constitution by limiting Congress' ability to declare a national religion or church, has been reinterpreted so many times that it might be possible that the true meaning of both the Establishment Clause and the "separation between church and state" have been lost in dictum.

Although the Supreme Court has established that to some degree, religion and state must be kept separate, it cannot be said that religion has not been an important source in American Law.39 It is important to remember that although religion may play a part in the foundation of the American Legal System, the very existence of a single established American religion is prohibited in the foundation of the country's legal system, the Constitution.40 Whatever President Jefferson intended by "building a wall of separation between Church and State," it is clear that without the ability to establish a single religion, there will always be a separation (although not always a perfectly clear separation) between religion and the state.

C. The Flexibility of the Common Law System Allows the Supreme Court to Take an Ad-Hoc Approach to Establishment Cases

The Court's "unwillingness to be confined to any single test" should leave citizens with a feeling of uneasiness with its stance on the Establishment Clause. In essence, the court has determined that although it is certain that "some relationship between government and religious organizations is inevitable,"41 it is not certain to what degree it should exist. This uncertainty leaves the Court with the only objective standard it could create: restricting legislation that has no secular purpose, no primary effect other than inhibiting or advancing religion, and no excessive government entanglement with religion.42

This lack of a per se rule leaves the Court without a clear perception of where to draw a line in cases that inevitably mix religion into the institutions of state. However, in contract to a civil law system, the nature of the American legal system allows for such ambiguity to exist.43 The American common law system is derived from the English common law system, which is a legal structure that relies upon judicial precedent to make legislative interpretations.44 Because each court has the power to interpret and modify legislative enactments, the American legal system allows for legal flexibility and adaptation through interpretation.45 Within this genre, there exists the ability to instantaneously resolve an issue and arrive at a verdict that modifies an existing law.46 This flexibility within the American legal system is what gives the Supreme Court, and its lower counterparts, the ability to resolve Establishment Clause issues without such a bright line rule. Therefore, although the foundation of the separation between church and state is engrained in the very foundation upon which the United States lies, the subtleties and interpretations of the modern American view of the "separation between church and state" can and will evolve with the constantly changing societal norms.

V. Some Degree Between Church and State is Necessary for the Good of Society

The Saudi Arabian Legal and Social Structure is Examined

By way of the Establishment Clause, the United States has built a system that inherently creates a certain degree of separation between religion and state.47 This degree of separation should not be taken for granted. For example, countries operating under Shar'ia, or Islamic Law, have little to no separation between religion and state, leaving most Islamic nations under a theocratic type of government.48 In order to make a valid comparison of the different degrees of separation and the role it plays in society, a basic understanding of the Islamic legal and social structure must be achieved.

i. Separation Between Religion and State in Saudi Arabia

Founded in 1932, Saudi Arabia is an Islamic Nation that strictly enforces Islamic principles on both its citizens and guests of the country.49 Saudi Arabia requires that its citizens be Muslim, and prohibits citizens from converting religions.50 The official religion is the Wahabi branch of Sunni Islam, a stringent sect of the religion that reflects the practices of Islam as they were performed during the life of Muhammad.51

Similar to the United States Constitution, the Saudi Arabian Constitution sets forth the degree of separation between religion and state in its first article.52 Article One of the Saudi Arabian Constitution states, "The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God's Book and the Sunnah of His Prophet, God's prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital."53 This article dictates the official religion, legal system, capital, and language of Saudi Arabia.

The first article of the Saudi Arabian Constitution by itself proscribes to some degree the nation's stance on a separation between religion and state.54 However, contrary to the United States, the Saudi Arabian notion of separating church and state is non-existent because religion is state. Article One of the Saudi Arabian Constitution proscribes that Islam is the foundation of the country, both religiously and secularly.55

ii. Religion and State are so Intertwined that the Entire Legal System is Based on Religious Principles

Shar'ia: Islamic Law

Islam proscribes not only what the devout Muslim should believe about the heavens, but also the way he should live if he wishes to find God's favor.56 Everything, from the religious beliefs to the way a Muslim should live, is described within the Koran.57 In fact, religion is so inextricably intertwined with state matters that there is no true distinction between religion, state, or law. Therefore, the mannerisms, words, and actions of both Allah and Muhammad have become codified legal principles that are based on the religion, regulating the conduct and social interactions of all Muslims in commercial, domestic, criminal, political, and devotional practices.58 This codification is known as Shar'ia.59

Shar'ia is based on the actions and words of Muhammad as dictated in the Sunnah.60 Therefore, the law only deals with situations that Muhammad would have experienced during his lifetime rather than those situations that may potentially have arisen in a broader sense.61 For example, the Pagan Arabians practiced infanticide, or the killing of baby girls.62 Muhammad outlawed such a practice.63 Similarly, the Arabians did not practice euthanasia, so Muhammad did not rule on its legality under Islamic law.64 Like American courts today, Muhammad did not attempt to ban practices that were so deeply engrained in society that the rejection of them would cause rejection of his entire message.65

As Muhammad was beginning his plight to replace false idols with Allah, he was confronted with numerous legal obstacles.66 At the time, law and religion were so intertwined that "an attack on religion was a violation of law."67 Muhammad's abandonment of idolatry in favor of monotheism eventually prevailed, making the Koran the basic source of both religion and legislation, with the Sunnah following close behind.68

It was previously noted that the Koran is the actual word of God, passed along to Muhammad as Allah's final message.69 If the Koran is Allah's last revelation, and Shar'ia is based upon those revelations, how can Islamic law evolve with mankind? This is a very difficult question to answer. Shar'ia evolves with history because it is written by man, unlike the Koran.70 Shar'ia is based on both the Koran and the Sunnah, which can both be quite vague at times.71 These two books frequently contradict on another.72 There have been continuous efforts to codify Shar'ia because it would give believers a more rigid law by which to abide by, but such efforts have been unsuccessful.73

Shar'ia has evolved and transformed from the laws of the uneducated Arabians into a codified version based upon the Koran and Sunnah.74 However, it is not so codified that deviation from the Koran is impermissible.75 Shar'ia has gradually developed over time to conform to the changing world.76 Legalists have applied the principles of religion to situations beyond the comprehensibility of Muhammad.77 However, just because Islamic jurisprudence has evolved over the years does not make it a flexible form of law.78 Taking into consideration the ability of common law to change overnight, Islamic jurisprudence looks unbendable.

iii. Saudi Arabia's Non-Existent Separation Between Religion and State Created a Very Strict Religious Presence in Secular Structures

Saudi Arabia's distinction between religion and state is non-existent.79 In fact, religion and state are so inextricably intertwined that Saudi Arabia has divided their enforcement agencies into two sections: religious police and civil police.80 Islam's laws and morals are firmly enforced by the religious police, known as the Matawain.81 Such police even enforce the dress code in public.82 With full civil authority to arrest violators of Shar'ia principles, visitors of the country may find themselves confronted with a camel whip on a street corner if their dress does not conform to Islamic principles.83 In fact, where civil and religious jurisdictions overlap, the civil authorities defer to the Matawain.84

As expected, the Matawain have been the subject of many scholars in the human rights sector.85 However, it is not only the Matawain that are questioned by the human rights scholars. The Saudi Arabian government's human rights effort is quite inefficient.86 Both the Matawain and civil police have been noted for their continued abusive conduct to detainees and prisoners.87 The abuse was so problematic that the Council of Ministers recently had to approve a new law regarding punitive measures, allowing those accused of crimes to hire a legal agent.88 As engrained with human rights as this legislation is, it had to conform with Islamic principles of Shar'ia before being passed by the legislature of Saudi Arabia. The legislation had to conform to such principles because the government views "its interpretation of Islamic law as its sole source of guidance on human rights."89 However, prolonged detention without charge is still problematic, and the Matawain continue to intimidate, abuse, and detain citizens and foreigners. Saudi Arabia is currently considered one of the world's least progressive countries in the area of human rights.90 In fact, even if Saudi Arabian citizens desired change, they have neither the right nor the legal means to change their government.91

iv. The Saudi Arabian Citizens' Inability to Modify the Existing Government Stems from an Inflexible Legal System

The lack of rights and legal means to make changes in the Saudi Arabian government may stem from a number of things. The inflexibility engrained in the Saudi Arabian legal system provides insight into why such rights do not exist in their culture. In contrast to the American common law system, which was based on English common law, Saudi Arabia is structured as a variation of the Roman civil law system.92 The Roman civil law system, a system where the laws are codified, gives the courts less leeway than the common law system provides for in the interpretation of law.93 Unlike American common law, where the laws are changed almost instantaneously through precedent and judicial interpretation, civil law requires an act of legislation to modify existing law.94 The problem inherent in civil law systems is a lack of flexibility.95 In order to change a law under civil code, the law under questioning has to be raised, a new law has to be brought to the legislature and drafted, and finally, the new law has to pass voting with a fifty-one percent majority vote.96 This process can take years.97 If this codification of laws is taken a step further, and the legislature is made up of God (in contrast to normal civil law where the legislature is made up of representatives), changing God's law involves claiming that God's original law was incorrect, a bold proposition to make.98 In other words, the only way to amend a law written by God is to find a man-made misinterpretation of God's word.99 This process is more inflexible than even civil law, making legal evolution in Saudi Arabia even more difficult than most other jurisprudences.100

VI. Some Degree of Separation Between Religion and State is Mandatory to Maintain an Efficient Society

The discussion of Saudi Arabia's strict theocratic government should give a striking example of a society that is run quite differently from the United States. Where the United States seeks to prevent the intervention of religion into state, Saudi Arabia strictly prevents its citizens from having the rights, legally or socially, to separate religion from the institutions of state. Thus, the underlying question becomes: "to what degree of separation between religion and state is necessary to run an efficient society."

Legal principles in any sense are based upon the current social norms. For example, "what was considered a crime in colonial times [America] hinged upon community morals."101 In colonial America, punishments, which were used to set examples to communities at large, included public hangings, whipping posts, and the removal of body parts (usually in relation to the crime, i.e. removal of a tongue on a gossiping woman).102 Today, such punishments are seen as morally reprehensible and are prohibited in the United States because current social norms have become more progressive as the human rights effort continues. Since such societal norms and morals are the basis of law, the law must be modified as these norms and morals change.

It should become clear then that a legal system providing for a flexible attitude towards the law is only fitting for a constantly changing world. Is it possible to entertain the notion of a society that provides for an official religion with a limited, if not non-existent separation between religion and state, while at the same time still retaining the ability to adapt and evolve? It appears not. As Saudi Arabia has demonstrated, an inflexible legal structure, leads to a society where people are whipped for having a shirt that does not conform with local laws.

Saudi Arabia has been noted as being among the world's worst in the progression of human rights.103 The human rights movement is based on a system of moral and religious beliefs. Thus, it should seem unimaginable that a country whose laws are based upon a system of moral and religious beliefs could find themselves at the bottom of a list proscribing the world's progression in human rights. However, it seems Saudi Arabia is in this exact situation. Saudi Arabia demonstrates the non-existent "wall of separation between church and state," and prides itself on the laws of Allah and religious principles. Yet Saudi Arabia is unable to conform to the evolving worldview of human rights.104 This leads to the conclusion that such a system, one where religion and state are of the same being, is unable to evolve quickly enough to conform with the constantly changing societal norms and expectations of the modern world. This statement is especially true when the system provides its citizens with neither the right, nor the legal means, to change the governmental structure Saudi Arabia presents.105

Thus, the Establishment Clause, although it has been reinterpreted numerous times, still creates an inherent separation between the institutions of religion and state. This separation, in combination with America's common law system and its ability to instantaneously change laws, allows for a more efficient society because legal systems are based upon societal norms and such norms are bound to change.

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