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

By Brian J. Hershorin

Submitted 2003

[Part 1] [Part 2] [Part 3]

I. Abstract

As the ongoing debate over what exactly the Establishment Clause in the First Amendment of the United States Constitution means continues into the twenty-first century, the Supreme Court finds itself without a bright line rule proscribing where exactly America stands on the issue of "to what degree should America separate religion from state." Originating back to 1791 when the United States Constitution was officially ratified, the drafters granted freedom of and from religion to those who wished to be part of America. However, as time passed, this freedom of and from religion began to take on new interpretations that the original drafters of the Constitution may not have foreseen.

Taken literally, the Establishment Clause does not mention anything about a "separation between church and state." This notion, which came about through a letter written by President Jefferson to the Danbury Connecticut Baptist Association in an effort to support the Establishment Clause, has now become a major source of discussion in the Supreme Court. In fact, the Establishment Clause and this fiction of a "separation between church and state" have been the driving force in many Supreme Court decisions that have little to do with establishing a national religion. It seems as if they arise as a way for state institutions to stay politically correct, so to not offend the melting pot American religions.

Modern interpretations of the Constitution have allowed the Supreme Court to stretch the meaning of the Establishment Clause beyond its original intent. Recently the Supreme Court removed a two-and-a-half ton granite monument from a courtroom, using the Establishment Clause as its basis. The Supreme Court's recent interpretations of the Establishment Clause may be beneficial to the American society as a whole. This can be seen by way of comparison.

Contrary to the American system, Saudi Arabia's theocratic form of government leaves a non-existent separation between church and state. In fact, state and religion are so intertwined that the police have authority to arrest and whip violators of religious principles. With such abuse of visitors, it is no surprise that Saudi Arabia is among the world's worst in the progression of human rights. In addition, with the inability for citizens to change the legal structure, it leaves Saudi Arabia with an inflexible legal structure that is unable to adapt to the changing societal norms the world faces.

Thus, as societal norms evolve with time, it seems only logical to institute a legal structure that allows for change and reinterpretation of existing laws. Countries such as Saudi Arabia seem unable to meet the demands of changing societal norms and citizen morale. Although the American legal structure provides for legal interpretations that may not have been in the original intent of the drafters, it does allow for these interpretations to evolve with the ever-changing norms of the individuals that comprise the American society.

II. Introduction

January 1, 1802, a date that should be well known in American history, and yet possibly all of its significance may have been lost in the ruins of an ongoing debate that still prevails today.1 This date represents the creation of the phrase, "separation between church and state."2 However, the origins of the American relationship between church and state date back even further, to the adoption of the First Amendment of the United States Constitution.3 The First Amendment of the Constitution provides that, "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof."4 By these words, the drafters of the Constitution established that this country would not stand for either an official religion or restrictions on the freedom to practice any such religion. Today, the United States has progressed from a time when First Amendment restrictions on religion simply limited the government's power, to a day in which the Establishment Clause has been interpreted to target religious statements in state institutions. Although the evolution of the Establishment Clause has led to a drastic separation between church and state in the United States, only by comparing its system with a country that lacks complete separation between church and state can the United States realize the importance of maintaining some degree of separation between religious and state institutions.

III. Origin of the Phraseology: Separation Between Church and State

A. The Establishment Clause

"Congress shall make no law resecting an establishment of religion, or prohibiting the free exercise thereof."5 This language, taken from the Establishment Clause in the First Amendment of the United States Constitution, is America's first look at the relationship between religion and state institutions. The effect of the Establishment Clause is two-fold. First, it restricts Congress' ability to establish an official religion. Second, the Establishment Clause restricts the government's ability to prohibit an individual's freedom to exercise any such religious practices. Taken literally, the Establishment Clause is the only provision in the United States Constitution that discusses the relationship religion and state have with one another.6 Even so, based solely on the first article of the United States Constitution, which denies the government the ability to proscribe a national religion, a certain degree of separation between religion and state has already been established. Without further documentation, the Establishment Clause would be the only source for information regarding the relationship between church and state in America. Therefore, in order to fuel the fire of the extended debate, further documentary evidence of such a separation must be found.7

B. A Derivation from a General Interpretation of the First Amendment

At first glance, the phraseology "separation between church and state" appears to be an interpretation of the Establishment Clause in the United States Constitution. Rather, the terminology is simply a derivation from a general interpretation of the First Amendment. It was the result of "an inference made from a letter [President Thomas] Jefferson sent to the Danbury Connecticut Baptist Association on January 1, 1802."8 President Jefferson was responding to a letter written by the Danbury Baptist Association expressing concern about individual religious liberty and its place in the new nation at the time Jefferson's presidency was being initiated.9 President Jefferson agreed with the religious association that "religion is a matter which lies solely between man and his God."10 Affirming the Establishment Clause within his letter, Jefferson rested any fears the association may have had by expressing his convictions that Congress would "make no law respecting an establishment of a religion, or prohibiting the free exercise thereof, 'thus building a wall of separation between church and state.'"11 And thus, the nation's concept of a "separation between church and state" was born.

In his letter, the president was quoting the First Amendment of the United States Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."12 Thus, from a simple correspondence, the American notion that religion and government should be kept separate in order to maintain its system of checks and balances emerged. It should be noted that modern interpretations of both the Establishment Clause and Jefferson's creation of the dicta, "separation of Church and State," have been a driving force behind both legislative and judicial decisions, an intention the drafters (President Jefferson and the drafters of the Establishment Clause) may not have considered.13

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