Church and State

Legal Framework

People argue that there is no doctrine of “separation between church and state” in the US Constitution. To me that is a fight over the right to use labels, not over substance. The Constitution is not all that complicated. It says in Article VI:

…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States:

and in the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…

The two clauses of the First Amendment are called the “establishment clause” and the the “free exercise” clause respectively.

The United States was colonized in no small part part by people who felt oppressed by state-run religions in Europe. The concept of “freedom of religion” is foundational to our country. I see the First Amendment as a reaction to the religious abuses in Europe, and essentially codifying liberty for religious dissenters. And by “religious dissenters” I include people who want to practice no religion at all.

James Madison wrote in the Federalist Papers – 51:

In a free government the security for civil rights must be the same as that for religious rights. … Justice is the end of government. It is the end of civil society. … In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger, …

I do not agree, however, that anyone has a Constitutionally protected right not to ever have to see anything “religious”. We are a plural society and different ideas will jostle each other.

Most elected officials in the United States have religious affiliations, so the question arises: how do these persons govern without establishing a religion or prevent the free exercise of religion by those of “other” or no religion. I want to talk about this question by examining some public policy questions, but first I want to put forward a thesis on how legislation should be measured against the constitution.


There are certain core values in the United States that have widespread agreement from the population, regardless of religious differences. I offer as one example: “slavery should not be permitted in the United States”. I think that the government should govern according to the Constitution and those core values, and on the other hand when a value is a characteristically religious one (i.e. a value generally held only by persons affiliated with a religion), they may not be legislated, even if they are a majority position.

Case one: Tax-exempt status for churches

Certain organizations are exempt from taxes under Section 501(c)(3) of the Internal Revenue Code. The following is excerpted from the IRS web site.

The exempt purposes set forth in IRC Section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and the prevention of cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erection or maintenance of public buildings, monuments, or works; lessening the burdens of government; lessening of neighborhood tensions; elimination of prejudice and discrimination; defense of human and civil rights secured by law; and combating community deterioration and juvenile delinquency.
…An organization will be regarded as “operated exclusively” for one or more exempt purposes only if it engages primarily in activities which accomplish one or more of the exempt purposes specified in IRC Section 501(c)(3). An organization will not be so regarded if more than an insubstantial part of its activities is not in furtherance of an exempt purpose….

Here, churches are not singled out for “special treatment”, the IRC code doesn’t make it easier for one religious group to beat up others, and it codifies the Constitution’s “free exercise” clause. I want to come back to that “operated exclusively” a bit later.

Case two: Stem cell research

Human embryos are destroyed (a few cells from the leftovers at a fertility clinic) to create possible therapeutic agents. If the only significant objection to stem cell research comes from clearly identified religious factions, then a government prohibition against stem cell search is the establishment of religion and in particular the oppression of the minority of persons with certain debilitating diseases. The restrictions are unconstitutional.

Case three: School Prayer

When I was growing up, student-lead prayers and Bible readings were broadcast over the public address system to the entire school daily. This was a clear violation of the “establishment clause”. A religious exercise was imposed on everybody. On the other hand there was a student Christian organization that met on school premises alongside the Math Club and the Beta Club. School property was used for religious purposes, but it was not a preference for one voluntary association over another, and it didn’t oppress the rights of any religious dissenter.

Case four: The Ten Commandments

The Ten Commandments seem to be quite popular nowadays (even though most folks number them wrong). Hart County, Georgia, was in the news just last night because the county commissioners voted to post the Ten Commandments in the county courthouse (the poster is placed next to the snack machine). If there was a groundswell of people, Christians, Buddhists, Humanists, socialists and atheists, clamoring for the posting of the Ten Commandments it might be considered because of its historical place in the development of laws, but this isn’t the case. It’s a group of fundamentalist Christians trying to add government sanction to their particular holy book. It violates the “establishment clause” and the courts have so ruled. I think a big mural on “the foundations of law” painting a broad picture of the development of the rule of law (and containing the Ten Commandments, and the International Declaration of the Rights of Man, the Magna Carta, etc.) is appropriate, because that does not favor a religious view over others. That is government need not be “purified” of religion; it just can’t take sides.

Case five: Political activities by churches

This is a sticky one. Going back to the IRS test “operated exclusively”, I think that it is permissible for a politician to address a church meeting on occasion. When the church starts “organizing” for a candidate or distributing campaign literature (or so-called “voter guides” that favor one candidate or party), then they have crossed the line and do not deserve tax-exempt status. This is not to say that there can be a prohibition against religious activity by churches, just churches that become political lose their tax-exempt status.

Case six: Federal funding of social programs administered by faith-based charities

The Welfare Reform Act passed by Congress and signed by President Clinton in 1996 provides for “Charitable Choice”, saying that religious-based charities can participate on an equal footing with other charities for federal funds. In a survey of religious-based charities it was found that in large part religious-based social programs usually did not seek to convert the people they helped and that they did not generally require religious affiliation for their paid staff.

The Federal dollars come with conditions: “public funding is not to be used for or diverted to such religious activities as worship services, sectarian instruction, or proselytizing.” Using church facilities in which religious symbols are present is allowed. However, they are subject to the same accountability standards and administrative protocols as other charities, they
must serve clients without regard for their religion and they may not discriminate in hiring based on religion (except for the ministerial exemption). I do not think this is the establishment of religion under this set of rules.

In 2001 a contentious bill called the Community Solutions Act would have significantly weakened the restrictions of the 1996 Welfare Reform Act. It passed the House on a party-line vote, but it was not passed by the Senate.

About Kevin

Just an old guy with opinions that I like to bounce off other people.
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