Life, Liberty, and the Pursuit of Godlessness: are church and state really separate in the law?

By Michael Alban


As easy as it is to comment on the spectacle that is Donald Trump,    we seem to have forgotten that he does not have a monopoly on the curious and sometimes questionable aspects of our presidential race. While much of Trump’s antics are unique to him as an individual and his attempt to achieve what he apparently thinks is best, other candidates have demonstrated more subtle, and perhaps more sinister, issues in the operation of the U.S. government. As is the case with all presidential elections, religion is a topic that is inevitably addressed. We see candidates (in this case particularly Ted Cruz) gain a significant part of their support largely based on sharing the faith of their supporters. A number of candidates have invoked religion in talks about their ideals and motivations. Governor John Kasich even proposed the creation of a governmental agency that promotes what he called Judeo-Christian values. In urging that “the West begin to embrace again our Jewish-Christian tradition rather than running from it, hiding from it,” the governor of my home state reminded me that it often seems in politics that we run and hide from the idea of a “separation of church and state.”

Many of this nation’s founders and most prominent political figures have echoed this phrase’s sentiment—a sentiment that has been formative in shaping America’s history. The first official, governmental mandate of the need for this separation is found in the 1789 Establishment Clause of the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This ostensibly straightforward sentence seems clear in its intent, but history has proven that its interpretation is one that can be hotly disputed. During this election season, at the end of which the selected candidate will be sworn in with his or her hand on a Christian Bible, we might consider to what extent governmental policy upholds this foundational idea. Are the church and state truly, legally separate in the United States?

The Establishment Clause consists of essentially two distinct parts: the restriction of any laws that might show preference to any established religion, and the requirement that the government not interfere with the free practice of religious worship. So we have our first test to determine the separation of church and state of this self-proclaimed secular nation: Does the United States government currently support any law that shows preference to an establishment of religion? The United States fails this first test in one particular fashion (among others), on such a grand scale that it is almost comical, if only it were not so unsettlingly defiant of one of its own founding principles. The American treasury prints proof of this failure approximately 38 million times every day. On July 11, 1955, Congress passed a public law, “[t]o provide that all United States currency shall bear the inscription ‘In God We Trust’.” Although this phrase had been printed on some currency for a large part of the nation’s history, this act of Congress officially codified the phrase as a motto for currency, and it was in 1956 that it was officially declared the nation’s motto. The time during which the U.S. government made this choice should not be ignored. Although to many the inclusion of “In God We Trust” on the currency seems second nature simply for its decades of use, this particular instance of governmental support of religion was in fact in response to the fear of Communism at the time. It is not terribly surprising (although no more excusable) that the government tried to combat this ideology with religion. Marxist Communism requires a lack of religious belief among the populace, so increased religiosity was a seemingly natural response. While some might argue (and seemingly have already done so, with enough support) that the motto does not violate the Establishment Clause, an impressive level of cognitive dissonance must be had in order for one to support a national motto endorsing praise of “God” while also maintaining that the government “shall make no laws respecting an establishment of religion.”

A number of lawsuits have been levied to correct this rather obvious contradiction, but have failed in both the United States Court of Appeals and the Supreme Court. In 1970, at the conclusion of Aronow v. United States, the Court of Appeals stated that the motto “has nothing whatsoever to do with the establishment of religion.” Furthermore, the court claimed that “[i]ts use is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.” The problem is that the Establishment Clause made no reference to religious exercise, but to “an establishment of religion.” The continuation of “In God we Trust” creates explicit and clear support by the government for a certain faith tradition, particularly a monotheistic and religious one. Thus, the United States perpetually violates its own laws by showing particular respect to established monotheistic religion at the exclusion of its polytheistic and atheistic citizens.

Religious motivation in policy-making is not, however, limited to such unusual times. Even recently, government action has shown clear basis in religious belief, as in the continuance of the ban of gay marriage until 2015. Few arguments are put forth for the restriction of marriage that are not clearly from religious texts like the Bible. The case of abortion is similar: those who are against abortion are often such because of their faith, including policymakers. The issue of policy motivated by religion is subtler than the issue of policy that clearly and directly supports religion. Although somewhat different on the surface, these two types of religious legislation have effectively the same result. Just as in the case of laws directly supporting religion, legislation that is motivated by religion inevitably establishes governmental support of particular religious ideals, clearly breaking the separation between church and state.

This implicit support of a particular theistic worldview seems to also heavily affect matters concerning the second part of the Establishment Clause: that the government will make no laws “prohibiting the free exercise” of the religious. Before addressing how this clause has led to governmental support of religion at a general ideological level, we should briefly inspect how it has affected policy of the American government. Generally, the state recognition of free exercise of religion has come to mean that accommodations are made for the religious in regard to certain laws.  According to the Pew Forum on Religion and Public Life, these accommodations may serve to exempt “people of faith or religious entities from a particular legal requirement” or to exempt “religious activity from all excessively burdensome laws.” A number of rules have been established in order to separate permissible from impermissible accommodations. From the same Pew Forum article, these rules include that the accommodation “must relieve a burden that specifically affects the ability of believers to practice their religion.” Further stipulations require that the accommodations not grant religious entities powers that are typically reserved for only the government and that the government, should not impel religious practice. Finally, accommodations for the free practice of religion must not “single out particular religious groups for favorable treatment.” Here in this last rule for accommodation for religious activity we find the fundamental problem in the way government officials seem to have interpreted the Establishment Clause.

Accommodations that specifically allow religious people or entities exemption from law do in fact single out particular religious groups for favorable treatment—therefore creating laws that respect particular establishments of religion. Laws that have ostensibly allowed for free exercise of religion have in fact shown favor to religion as opposed to non-religion. Some such laws include those that require employers to accommodate for religious observances of their employees, or those that allow tax exemption for religious institutions. The legal stipulation that “the government may accommodate religious practices without accommodating their secular counterparts if the accommodation removes a government imposed burden that specially affects religious practice or belief” clearly shows respect for religion, a big problem in a claimed secular state, in that it values religious motivation above non-religious motivation. In its faith-based, non-objective nature, religion becomes essentially a matter of one’s own opinion. Unfortunately, religious opinion seems to have become sanctified above non-religious opinion. Thus, it has become true that saying “my opinion is such that I should be exempt from law” is disregarded in one case (in the case that the speaker is without religion) while it is accepted in other cases (where the speaker is with religion). It is impossible to hold this standard while maintaining that our government is one that does not show preference to religion; these two things are absolutely mutually exclusive.

Unfortunately, correcting this problem means essentially telling people that their faith has no inherent value simply for its religiosity, that a faith-based argument is no more valid than “because I said so” when asking for exemption from law. This will certainly be no easy endeavor, as it seems many Americans hold religious belief in incredibly high regard. In a national survey conducted by the Pew Research Center in 2014, in which those surveyed were asked to state how certain traits would affect their view of presidential candidates, “atheist” ranked most negative out of all traits—including such options as having had an extramarital affair and having never held office. Fifty-three percent of those surveyed responded that a candidate being atheist would make them less likely to vote for that person. But as much as it may seem that some portion of the nation’s population simply does not mind the occasional breach in separation of church and state, it is important that we try to maximize freedom for all citizens. In allowing religion to influence policy, the U.S. government shows deference to particular faiths, thus enforcing these ideals on those of other faiths or no faith. Due to the subjective nature of religion, we should instead legislate based on that which is objectively demonstrable, even if this may be difficult or not completely unanimous. Making America a truly secular state will clearly be difficult, but it is an important task in supporting the true democracy and freedom that seem to be common ideals. That is, unless the populace would prefer a theocracy, in which case we have bigger problems.


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