American Minute with Bill Federer
"Constitution does not require complete separation of church and state" -
Lynch v. Donnelly,
1984
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Justice William Orville Douglas
served the longest term on the bench in the Supreme Court's history -- 36 years, until his death JANUARY 19, 1980.
He was one of the eight Supreme Court Justices nominated by
Franklin D. Roosevelt.
He previously taught law at Columbia Law School and Yale Law School, and served on the U.S. Securities and Exchange Commission.
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Justice William O. Douglas
wrote the majority decision in the 1952 case of
Zorach v. Clauson:
"The
First Amendment,
however,
does not say
that in every and all respects there shall be a
separation of Church and State ...
Otherwise the
state
and
religion
would be aliens to each other --
hostile,
suspicious, and
even unfriendly ...
- Municipalities would not be permitted to render police or fire protection to religious groups.
- Policemen who helped parishioners into their places of worship would violate the Constitution.
- Prayers in our legislative halls;
- the appeals to the Almighty in the messages of the Chief Executive;
- the proclamations making Thanksgiving Day a holiday;
- 'So Help Me God' in our courtroom oaths;
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-- these and all other references to the
Almighty
that run through our laws, our public rituals, our ceremonies would be flouting the
First Amendment.
A fastidious atheist or agnostic could even object to the supplication with which the
Court opens each session: 'God save the United States and this Honorable Court ...'"
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Justice Douglas
continued:
"We are a religious people
whose institutions presuppose
a Supreme Being
... When the
state encourages religious instruction
... it follows the
best of our traditions.
For it then respects the
religious nature of our people
and accommodates the public service to their spiritual needs.
To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups.
That would be preferring those who believe in no religion over those who do believe ..."
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Douglas
concluded:
"We find
no constitutional requirement
which makes it necessary for
government to be hostile to religion
and to throw its weight against efforts to widen the effective scope of religious influence ...
We
cannot read into the Bill of Rights
such a philosophy of
hostility to religion."
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Chief Justice Warren E. Burger
cited Justice Douglas'
Zorach v. Clauson
opinion in the 1984 decision of
Lynch v Donnelly:
"The concept of a
'wall' of separation between church and state
is
a ... figure of speech
... but the
metaphor
itself is
not a wholly accurate description
of the practical aspects of the relationship that in fact exists between
church and state.
The Constitution does not require complete separation of church and state;
it affirmatively mandates
accommodation,
not merely tolerance, of all religions, and
forbids hostility
toward any.
Anything less would require the
'callous indifference'
(Zorach v. Clauson),
that was
never intended by the Establishment Clause ...
Indeed, we have observed,
such hostility
would bring us into 'war with
our national tradition
as embodied in the
First Amendment's guaranty
of the
free exercise of religion.
(McCollum)
..."
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Justice Stanley Reed
wrote in his dissent of
McCullum v Board of Education,
1948:
"Rule of law
should
not
be drawn from
a figure of speech."
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Justice Potter Stewart
wrote in his dissent of
Engle v Vitale,
1962:
"The Court ... is not aided ... by the ... invocation of
metaphors
like the
'wall of separation,' a phrase nowhere to be found in the Constitution."
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Justice William Rehnquist
wrote in his dissent of
Wallace v Jaffree,
1984:
"The
'wall of separation between church and State'
is
a metaphor
based on
bad history,
a
metaphor
which has proved
useless
as a guide to judging. It should be frankly and
explicitly abandoned.
It is impossible to build sound constitutional doctrine upon a
mistaken understanding of Constitutional history ...
The
establishment clause
had been expressly freighted with
Jefferson's misleading metaphor
for nearly forty years ...
There is simply
no historical foundation
for the proposition that the framers intended to build
a wall of separation ...
The
recent court decisions
are
in no way
based on either the language or
intent of the framers
... But the greatest injury of the
'wall' notion
is its
mischievous
diversion of judges from the actual intentions of the drafters of the Bill of Rights."
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Judge Richard Suhrheinrich
wrote in
ACLU v Mercer County,
2006:
"The ACLU makes repeated reference to
'the separation of church and state.'
This
extra-constitutional
construct
has grown
tiresome.
The
First Amendment
does
not
demand a
wall of separation between church and state.
Our nation's history is replete with g
overnmental acknowledgment
and in some cases, accommodation
of religion."
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In
Committee for Public Education & Religious Liberty v. Nyquist,
413 U.S. 756, 760 (1973), the Court stated:
"This Nation's history has
not
been one of entirely sanitized
separation between Church and State.
It has
never
been thought either
possible
or desirable to enforce a regime of
total separation."
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The Court stated in
Lemon v. Kurtzman,
403 U.S. 602 (1971):
"Our prior holdings
do not call for total separation between church and state;
total
separation is not possible
in an absolute sense."
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Chief Justice Warren E. Burger
continued in
Lynch v Donnelly,
1984:
"That neither the draftsmen of the Constitution, who were
Members of the First Congress
, nor the First Congress itself, saw any establishment problem in
employing Chaplains to offer daily prayers in the Congress
is a striking example of the
accommodation of religious beliefs intended by the Framers ...
Our history is pervaded by
official acknowledgment of the role of religion
in American life, and equally pervasive is evidence of accommodation of all faiths and all forms of religious expression and
hostility toward none ...
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... It would be ironic if the inclusion of the
creche
in the display, as part of a celebration of
an event acknowledged in the Western World for 20 centuries,
and in this country by
the people,
the
Executive Branch,
Congress,
and the
courts
for
2 centuries,
would so 'taint' the exhibition as to render it violative of the Establishment Clause ...
To forbid
the use of
this one passive symbol
while
hymns and carols
are sung and played in public places including schools, and while Congress and state legislatures open public sessions with
prayers,
would be an overreaction contrary to this Nation's history
and this Court's holdings ..."
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Burger
continued in
Lynch v Donnelly:
"A significant example of the contemporaneous understanding of that Clause is found in the events of the first week of the First Session of the First Congress in 1789.
In
the very week that Congress approved the Establishment Clause
as part of the Bill of Rights for submission to the states,
it enacted legislation providing for paid Chaplains for the House and Senate ...
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... It is clear that
neither
the 17
draftsmen of the Constitution
who were
Members of the First Congress,
nor the
Congress of 1789,
saw any establishment problem
in the employment of
congressional Chaplains
to offer
daily prayers
in the Congress, a practice that has continued for nearly two centuries.
It would be difficult to identify
a more striking example of the accommodation of religious belief
intended by the Framers ..."
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Chief Justice Burger
continued:
"Our history is replete with
official references to the value and invocation of Divine guidance
in deliberations and pronouncements of the Founding Fathers and contemporary leaders.
Beginning in the early colonial period long before Independence, a
day of Thanksgiving
was celebrated as a
religious holiday
to give thanks for the bounties of Nature as
gifts from God.
President Washingto
n and his successors proclaimed
Thanksgiving,
with all its
religious overtones,
a day of national celebration and Congress made it a National Holiday more than a century ago ...
That holiday has not lost its theme of expressing
thanks for Divine aid
any more than has
Christmas
lost its
religious significance ...
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...
Executive Orders
and other official announcements of Presidents and of the Congress have proclaimed both
Christmas and Thanksgiving National Holidays
in
religious terms.
And, by
Acts of Congress,
it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the
Chaplains of the Senate and the House and the military services ...
Thus, it is clear that Government has long recognized -- indeed it has subsidized --
holidays
with
religious significance."
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Burger
added:
"Other examples of reference to our religious heritage are found in the statutorily prescribed national motto
'In God We Trust,'
which Congress and the President mandated for
our currency,
and in the language
'One nation under God,
' as part of the
Pledge of Allegiance
to the American flag. That pledge is recited by many thousands of public school children -- and adults -- every year.
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... Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly
inspired by one religious faith.
The
National Gallery in Washington,
maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably
the Last Supper,
and paintings depicting
the Birth of Christ,
the Crucifixion, and the Resurrection,
among many others with explicit
Christian themes
and messages.
The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent -- not seasonal --
symbol of religion: Moses with the Ten Commandments.
Congress has long provided
chapels
in the Capitol for
religious worship
and meditation.
There are countless other illustrations of the
Government's acknowledgment of our religious heritage
and governmental sponsorship of graphic manifestations of that heritage ..."
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Burger
continued:
"Congress has directed the President to proclaim a
National Day of Prayer
each year 'on which (day) the people of the United States may turn to
God
in
prayer
and meditation at
churches,
in groups, and as individuals.'
Our Presidents have repeatedly issued such Proclamations. Presidential Proclamations and messages have also issued to commemorate
Jewish Heritage Week,
Presidential Proclamation No. 4844, 3 CFR 30 (1982), and the
Jewish High Holy Days,
17 Weekly Comp. of Pres. Doc. 1058 (1981) ..."
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Chief Justice Warren E. Burger
concluded the
Lynch v. Donnelly
decision:
"One cannot look at even this brief resume without finding that
our history is pervaded by expressions of religious beliefs
such as are found in
Zorach.
Equally pervasive is the evidence of accommodation of all
faiths
and all forms of
religious expression,
and
hostility toward none.
Through this accommodation, as
Justice Douglas
observed, governmental action has 'follow[ed] the
best of our traditions'
and 'respect[ed] the
religious nature of our people.'"
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Justice Anthony Kennedy
wrote in
Town of Greece v. Galloway,
May 5, 2014:
"In
Marsh v. Chambers,
463 U. S. 783, the Court found
no First Amendment violation
in the Nebraska Legislature's practice of
opening its sessions with a prayer
delivered by a
chaplain
paid from state funds.
The decision concluded that
legislative prayer,
while religious in nature, has long been understood as compatible with the Establishment Clause.
As practiced by Congress since the framing of the Constitution,
legislative prayer
lends gravity to public business,
reminds lawmakers
to transcend petty differences in
pursuit of a higher purpose,
and expresses a common aspiration to a just and peaceful society ...
Legislative invocations
are compatible with the Establishment Clause.
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... The
First Congress
made it an early item of business to appoint and
pay official chaplains,
and both the House and Senate have maintained the office virtually uninterrupted since that time ...
That the
First Congress
provided for the appointment of
chaplains
only days after approving language for the
First Amendment
demonstrates that the Framers considered
legislative prayer
a benign acknowledgment of
religion's role in society ...
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In the 1850's, the judiciary committees in both the House and Senate reevaluated the practice of
official chaplaincies
after receiving petitions to abolish the office. The committees concluded that the office
posed no threat of an establishment."
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Justice Kennedy
was referring to the
House Judiciary Committee Report of Congressman James Meacham
of Vermont, March 27, 1854:
"At the adoption of the Constitution, we believe
every State
-- certainly ten of the thirteen --
provided
as regularly for the
support of the Church
as for the
support of the Government."
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Justice Kennedy
continued in
Greece v. Galloway:
"Any test the Court adopts
must acknowledge a practice that was accepted by the Framers
and has withstood the critical scrutiny of time and political change ...
An
insistence on nonsectarian or ecumenical prayer
as a single, fixed standard
is not consistent with the tradition of legislative prayer
outlined in the Court's cases ...
The Congress that drafted the First Amendment
would have been accustomed to
invocations containing explicitly religious themes
of the sort respondents find objectionable ..."
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Kennedy
continued:
"One of the Senate's first chaplains, the
Rev. William White,
gave
prayers
in a series that included the
Lord's Prayer,
the Collect for Ash Wednesday,
prayers
for peace and grace, a general
thanksgiving,
St. Chrysostom's Prayer,
and a
prayer
seeking
'the grace of our Lord Jesus Christ, &c' ...
The decidedly
Christian nature of these prayers must not be dismissed as the relic of a time
when our Nation was less pluralistic than it is today ..."
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Kennedy
added:
"The Court instructed that the
'content of the prayer
is
not of concern to judges' ...
To hold that invocations must be nonsectarian
would force the legislatures that sponsor prayers and the
courts
that are asked to decide these cases to act as supervisors and
censors of religious speech,
a rule that would
involve government in religious matters
to a far greater degree than is the case under the town's current practice of neither editing or approving prayers in advance nor criticizing their content after the fact ...
It would be but a few steps removed
from that prohibition for legislatures to
require
chaplains
to
redact the religious content
from their message in order to make it acceptable for the public sphere.
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... Government may not mandate a civic religion
that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy ...
See
Lee v. Weisman,
505 U.S. 577, 590 (1992) ('The suggestion that
government may establish an official or civic religion
as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that
cannot be accepted');
Schempp,
374 U. S., at 306 (Goldberg, J., concurring) (arguing that 'untutored devotion to the
concept of neutrality'
must
not
lead to
'a brooding and pervasive devotion to the secular') ..."
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Justice Kennedy
added:
"The First Amendment
is
not
a
majority rule,
and
government
may
not
seek to
define permissible categories of religious speech ...
While these
prayers
vary in their
degree of religiosity,
they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in
religious traditions,
but in our
founding documents and laws.
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... The
first prayer
delivered to the Continental Congress by the
Rev. Jacob Duché
on Sept. 7, 1774, provides an example:
'Be Thou present O
God of Wisdom
and direct the counsel of this Honorable Assembly; enable them to settle all things on the best and surest foundations; that the scene of blood may be speedily closed; that Order, Harmony, and Peace be effectually restored, and the
Truth and Justice, Religion and Piety, prevail
and flourish among the people.
Preserve the health of their bodies, and the vigor of their minds, shower down on them, and the millions they here represent, such temporal
Blessings as Thou seest expedient
for them in this world, and crown them with
everlasting Glory in the world to come.
All this we ask
in the name
and through the merits of
Jesus Christ,
Thy Son and our Saviour,
Amen'. W. Federer,
America's God and Country
137 (2000) ..."
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Justice Anthony Kennedy
concluded the
Town of Greece v. Galloway
decision, May 5, 2014:
"As a practice that has long endured,
legislative prayer
has become
part of our heritage
and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of
'God save the United States and this honorable Court'
at the opening of this Court's sessions ...
It is presumed that the reasonable observer is acquainted with this tradition ... Their purpose is largely to
accommodate the spiritual needs of lawmakers
and connect them to
a tradition dating to the time of the Framers ...
Ceremonial prayer
is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by
precepts far beyond the authority of government to alter or define
and that willing
participation in civic affairs
can be consistent with a brief acknowledgment of their
belief in a higher power,
always with due respect for those who adhere to other beliefs."
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