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Wall of Separation

September 14, 2008

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
First Amendment, U.S. Constitution

There may be no more controversial document written in the preceding 300 years than the Constitution of the United States. Of the twenty-seven amendments, few are without multiple interpretations and extrapolations to those Americans who worry themselves about such technicalities. Words, such as reasonable and excessive, take on several meanings, each framed in its own argument, meaning to prove one view as justified, and another as incorrect. Even commas are not immune from the debate, as seen in Second Amendment arguments every few years.


The First Amendment — the amendment that is probably most closely linked with an American’s perception of freedom — guarantees no less than six different rights. The freedom of speech, the freedom of the press, the freedom to peaceable assembly, the freedom to lobby the government, the freedom of religious practice, and the freedom from an established religion are all included in the First Amendment. Quite a lot of freedom is packed into that scant forty-five word clause, but like the other amendments it is not without its very own debate as to its actual meanings.


Although all the elements of the first amendment are worthy of attention, two parts have become hotly contested since the overt emergence of religiously conservative organizations and individuals in the political sphere starting in the 1960s (Wacker, 2000). The freedom of religious practice and the freedom from an establishment of religion have become fodder for constitutional arguments that could very well shape the United States’ political future. The United States could either embrace much the same as it has for the past one hundred years, or we could see prayer in school, religiously oriented teachings of science curriculum, public financing of private religious schools, and legal cases being decided from interpretations of the Bible. These are only some of the examples of agendas seen in the public political dialogue over the past ten years pitting private faiths against an entrenched political balance. It is impetrative that government entanglement with religious organizations is halted before the first amendment’s establishment clause becomes completely overridden.


The most controversial issue in regards to the “wall of separation” clause of the Constitution, in American politics today, is the government funding of religious organizations. In 1996, a bill for an adjustment in expenditures of the welfare system called the Personal Responsibility and Work Opportunity Act (PRWORA) passed into law including the Temporary Assistance for Needy Families (TANF) program. TANF was a substantial departure from the historically available welfare programs of both state and federal levels, including provisions limiting the length of time a recipient may collect assistance monies as well as penalties for recipients not demonstrating participation in work activities for designated weekly amounts. Many, if not most of the changes instituted in the TANF program were needed to reacclimatize assistance reliant families and individuals to a more fulfilling and less governmental resource draining lifestyle. There are however issues within the program that come into immediate conflict with the “wall of separation clause.”


Funding religious institutions, no matter the good deeds and alleviation of government burden, is strictly forbidden under the First Amendment (Black, 1943). As Supreme Court Justice Hugo Black stated in his 1943 majority opinion in Everson v. Board of Education, “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called…”, yet TANF does just that.
Although the wording is somewhat benign in TANF, stating that government social program grants and bids are open to sectarian institutions, the reality of this allowance is very troubling for the Forefathers intent. Thomas Jefferson wrote, in an 1802 letter to the Danbury Baptists, “…religion is a matter that lies solely between a man and his God…the legitimate powers of government reach actions only, & not opinions…” This has been used in several Supreme Court decisions as a basis for interpreting the meaning of the Establishment Clause, as it points to the meanings behind a very important sixteen word phrase. TANF allows the federal government to invest in religious institutions in the form of grants and quid pro quo contracts, linking the two entities, and creating an entanglement of State and Church.


In 1968, the State of Pennsylvania passed the “Nonpublic Elementary and Secondary Education Act”, allowing the Superintendent of Public Instruction to outsource educational services to nonpublic schools. The state would reimburse the nonpublic schools for the teachers salaries, textbooks, and other education related expenses that were secular in nature, thereby attempting to bypass Establishment Clause restrictions, and provide public funding to the popular Catholic Schools that more than twenty percent of children in the state went to. In 1969, Rhode Island moved to provide supplementary income to teachers at nonpublic schools, also heavily Catholic Church affiliated, to the amount of fifteen percent. Both of these state level laws became highly contentious, and became cases that reached the Supreme Court. Lemon v. Kurtzman, Earley v. DiCenso, and Robinson, Commissioner of Education of Rhode Island v. DiCenso were heard as one case before the Supreme Court in 1971.


The plaintiffs argued that by providing funds to religious organizations the states were “establishing religion”, thus going against the Establishment Clause (Burger, 1971), the defendants countered that the funding was purely for secular purposes, therefore the laws did not impinge upon the First Amendment. The Court’s unanimous decision, written by Chief Justice Burger, concurred with the plaintiffs, but also set up a standard to steer clear of government and church entanglement. The decision has been come to be known as the “Lemon Test.”

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster “an excessive government entanglement with religion.
(Lemon v. Kurtzman, 1971)

TANF, by using federal money to fund religious institutions is breaking two of the three steps in the “Lemon Test.” The intent of the program is purely secular, that is, to provide social welfare assistance to needy families and individuals, but by contributing to the institutions overall funding, the federal government is having those institutions benefit from public, rather than private funds. There are many programs funded through TANF that have violated, or seem to violate the Establishment Clause.

One of these programs, Faith Works, an alcohol and drug rehabilitation program in Milwaukee, received almost $1 million dollars through TANF block grants (Goodstein, 2002). This program intertwined religion and rehabilitation similar to Alcoholics Anonymous, yet more emphasis was placed on religion than in AA. Faith Works was seen to be pervasively sectarian with the intent of indoctrinating or furthering Christian religious belief (Bolton, 2000), as seen in the program’s “Statement of Faith.” This statement was not a short paragraph stating a mere understanding of people’s faith, but a 2300 word Christian “witness” contract which the participants needed to agree with in order to participate (FFRF v. Faith Works, 2002). A lawsuit to that effect was filed in 2000.


The lawsuit was brought by the Freedom from Religion Foundation (FFRF), an Establishment Clause watchdog group in Wisconsin. Because TANF grants are federal funds distributed at the state level, the group filed against the state level employees and the governor of the state, as they were responsible for appropriation and oversight of the program. The plaintiffs filed a seventy-seven point legal brief to the Western District of Wisconsin United States District Court, outlining a plethora of Establishment Clause violations (Lemon v. Kurtzman, 2000). Although the program was voluntary, it was seen by Judge Barbara B. Crabb to be in violation of the Establishment Clause, and funding was ordered stopped (FFRF v. Faith Works, 2002).


On June 1, 2004, President George W. Bush signed an executive order seeking to identify and remove “…regulations, rules, orders, procurement, and other internal policies and practices…” that “…discourage or disadvantage…” faith based organizations in federal funding (Bush, 2004). This seems to directly contradict James Madison’s beliefs outlined in his veto of ‘An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory.’ Madison, the principle author of the U.S. Constitution and fourth President of the United States, stated that a mere reservation of a parcel of land to a Baptist church “…compromises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares ‘Congress shall make no law respecting a religious establishment.’” (Madison, 1811)


In a December 12, 2002 executive order, outlining an endorsement of opening government funding to religious institutions, President Bush stated “…organizations that engage in inherently religious activities, such as worship, religious instruction, and proselytization, must offer those services separately in time or location from any programs or services supported with direct Federal financial assistance…” Yet, as seen before in the Supreme Court decision in Lemon v. Kurtzman, funding of religious institutions, even if only funding the secular parts of the program, such as in the Pennsylvania portion of the case, is contrary to the Establishment Clause (Lemon v. Kurtzman, 1971).


On Jefferson’s tombstone, he directed that he wanted to be remembered for three things, author of the Declaration of Independence, the Virginia Statute of Religious Freedom, and the Father of the University of Virginia. He chose not to be remembered as President of the United States, holding the Virginia Statute on Religious Freedom in higher regard. His statute passed the Virginia Legislature in 1786, and was instrumental in the drafting of the First Amendment. In it, he writes “…no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever…”, but what is the usage of public monies collected through the leverage of taxes but a compelled support of religion?
Proponents of this integration of government and religion are quick to point out that  the forefathers were good Christians, and that their intent was to found a Christian nation. As there is no evidence that this was the intent, other than an inclusion of a couple of phrases and words used to further understanding of where man’s natural rights to freedom originated from, it seems disingenuous at best to make such a large and profound assumption.


It is also pointed out that Jefferson’s letter to the Danbury Baptists (1802) involves the phrase “wall of separation”, is a possible homage to Rev. Roger Williams’ phrase “…hedge of separation between the garden of the church and the wilderness of the world.” Because of the similarity, religious conservatives argue that Jefferson meant that religion was to be protected from government, and not vice versa. If Jefferson had truly meant this, it would seem that one of the drafts of this letter stored in the Library of Congress would reflect this view, unfortunately, the earlier drafts seem to be more fervent in calling for an “eternal wall of separation…” rather than just a “wall” (Jefferson, 1802).


This current wave of government involvement in religious institutional funding, whatever the secular ends of the programs, is creating an excessive entanglement of Church and State. So called “Faith Based Initiatives” contradict the many Supreme Court decisions on the subject, as Jefferson called it, “the wall of separation.” It has been made clear in intent, as seen in Madison and Jefferson’s writings and the Justice’s decisions, that the government and religion should make every attempt to disentangle themselves. Originally, this may have been to protect religion from government, as seen in the original charters of the colonies, but through the evolution of laws and practices leading up to the passing of the Declaration of Independence and the United States Constitution, another view took hold. Religious endorsement or establishment is harmful to the right of citizens to freely exercise their own beliefs, as seen in every non secular government.

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Bolton, Richard L. COMPLAINT TO THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN. BOARDMAN, SUHR, CURRY & FIELD, LLP. Madison: FFRF, 2000. <http://ffrf.org/legal/faithbased_complaint.html&gt;.
Bush, George W. “Executive Order: Equal Protection of the Laws for Faith-Based and Community Organizations.” The White House. 12 Dec. 2002. President of the United States. <http://www.whitehouse.gov/news/releases/2002/12/20021212-6.html&gt;.
Bush, George W. “Executive Order: Responsibilities of the Department of Commerce and Veterans Affairs and the Small Business Administration with Respect to Faith-Based and Community Initiatives.” The White House. 1 June 2004. President of the United States. <http://www.whitehouse.gov/news/releases/2004/06/20040601-1.html&gt;.
EVERSON V. BOARD OF EDUCATION OF EWING. No. 330. U.S. Supreme Court. 10 Feb. 1947. <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=330&invol=1&gt;.
FREEDOM FROM RELIGION, INC. V. FAITH WORKS, MILWAUKEE, INC. UNITED STATES DISTRICT COURT. 7 Jan. 2002. <http://ffrf.org/legal/faithworks_decision.html&gt;.
Goodstein, Laurie. “Judge in Wisconsin Voids A Religion-Based Initiative. ” New York Times (1857-Current file)  [New York, N.Y.] 10  Jan. 2002,A22. ProQuest Historical Newspapers The New York Times (1851 – 2003). ProQuest. <http://www.proquest.com/&gt;
Jefferson, Thomas. Letter to Danbury Baptists. 1 Jan. 1802. Letter to the Danbury Baptists. Library of Congress, Washington, D.C.
Kasich, John R. United States. Cong. Personal Responsibility and Work Opportunity Act. 104 Cong., 2 sess. 3734. <http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3734:&gt;.
LEMON V. KURTZMAN. No. 89. U.S. Supreme Court. 28 June 1971. <http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=403&page=602&gt;.
Madison, James. Letter to House of Representatives of the United States. 21 Feb. 1811. Veto Message From President James Madison, Thursday, February 21, 1811. Library of Congress, Washington.
Shaw, Jr., E. Clay. United States. Cong. Temporary Assistance for Needy Families. 104 Cong., 2 sess. HR 3734. <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_bills&docid=f:h3734enr.txt.pdf&gt;.
Wacker, Grant. “The Christian Right.” National Humanities Center. Oct. 2000. Duke University Divinity School. <http://www.nhc.rtp.nc.us/tserve/twenty/tkeyinfo/chr_rght.htm&gt;.

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