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“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”
This is a direct quote from a letter that founding father Thomas Jefferson wrote in 1802 to the Danbury Baptist Association in Connecticut to assure them that the federal government would not interfere with their religion. This was a worry of the early church in America because they had left the tyrannical rule of England where the Catholic church was the state sponsored church and there were no freedoms to one’s own religion.
You will not find the words “Separation of Church and State” anywhere in the U.S. Constitution, but you hear it often in regard to any religious issue in America. There are, however, principles relating to this separation in the Constitution, and you will also find mention of it in court cases.
Constitutional Separation of Church and State
The founders of the Constitution were well aware of the tyrannical religion they had just escaped in England and didn’t want to repeat that in their newly founded country; therefore, the very first words of the first amendment contained a very important concept:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
This was written to keep the federal government from interfering into your right to the religion of your choosing. It doesn’t matter if you are Buddhist, Catholic, Protestant, Muslim, Hindu, Sikh, or any other religion—the government cannot make laws that prohibit your exercise of religion.
You will notice that this is where the separation stops. There are no further clauses or comments in the Bill of Rights, nor the Constitution, that refer to any power of the Church over the State. Any idea otherwise is a misinterpretation of the First Amendment and its original intent.
Judicial Separation of Church and State
There have been a couple landmark Supreme Court cases that have dealt with this idea of a separation between the Church and the State. The first big case was Everson v. Board of Education in 1947. The 5-4 vote extended the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”) down to the State level of government. Prior to this decision, states had been making laws that could benefit one religious organization over another.
In 1971, the 8-1 Lemon v. Kurtzman ruling set up the “Lemon Test” for state laws and whether they violate the Establishment Clause of the First Amendment. The threefold test reads:
- The statute must have a secular legislative purpose.
- The principal or primary effect of the statute must not advance nor inhibit religion.
- The statute must not result in an “excessive government entanglement” with religion.
Once again, this ruling only affected the government supporting or advancing any particular religion.
In 2017, the Supreme Court issued a 7-2 ruling in the Trinity Lutheran Church of Columbia, Inc. v. Comer case which seemed to apply the principles set forth by Lemon v. Kurtzman. They ruled that the Church could not be exempted from a public benefit or grant strictly because of its religious status. It was determined that the grant they had requested would have been used for a secular purpose (playground) and did not advance religion, nor did it result in excessive government entanglement with religion.
Role of the Church in the State
The Courts and the Constitution are clear that the State should not be involved in advancing the affairs of the Church, but what about the Church being involved in the State affairs? It is common to hear the phrase “Separation of Church and State” used when arguing that members of the clergy cannot endorse any political candidate or party from the pulpit. This issue, however, has no Constitutional or Court basis.
However, there is a separation that has been established for the Church between it and the State. This separation was put in place by the IRS in its tax-exemption regulations. Most churches fall under Section 501(c)(3) of the Internal Revenue Code (IRC) for their tax-exempt status. This code specifies that churches “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.”
This means that pastors and other members of the clergy cannot speak from the pulpit and endorse a political candidate because he/she would be speaking for the church in his/her endorsement. The IRC prohibits the Church from endorsing a candidate, but it does not prohibit the member of the clergy from endorsing as a member of the general public. If a church officially endorses a candidate for political office, they risk losing their tax-exempt status with the IRS, which would be detrimental to their existence. (Individual pastors are allowed to endorse any political candidate as long as they are not representing their organization.)
The original idea for this article spawned from a daytime TV show in which a well-known New York City pastor, Carl Lentz of Hillsong Church, discussed his approach to politics as a pastor of a church.
In the video above, Joy Behar mentions the “Separation of Church and State law.” She later tries to walk it back a little by mentioning the tax-exempt status, but she still gets it wrong. This is not a law; it is a code that prohibits tax-exempt organizations from endorsing a particular candidate from the pulpit. The first amendment’s Establishment Clause and Free Exercise clause do not restrict a pastor or a church or any religious organization from endorsing anything in politics. Congress has not passed any laws regarding this issue because that law would not stand up to the scrutiny of the Supreme Court.
In summary, Congress cannot advance any religion with laws that would benefit a religious organization. Pastors can endorse any political candidate they want from any location that they want, without breaking the law. Those same pastors, however, could put their church’s tax-exempt status in jeopardy. There are many, many other examples of religious symbols that the Court has allowed (Ten Commandments) and disallowed (Cross) on public property, with each having its own reason for being allowed or rejected. Overall, many issues that aren’t cut and dry will likely be subject to judicial review from the highest court of the land.
~Jason – Three Patriots
Recently, I finished a 3-part series on the powers of government. This series covered the powers of the legislative branch, the judicial branch, and the executive branch of the federal government. However, these powers do not include the other powers granted to government by the Constitution. The 10th Amendment in the Bill of Rights grants one other form of power to a form of government: the individual states.
The 10th Amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
So, let’s break it down into powers that are not granted to the federal government that would pass along to the state governments:
– Build and maintain roads
– Collect taxes
– Educate inhabitants
– Make and enforce laws
– General welfare expenses
– Ratify Constitutional amendments
– Issue licenses
– Regulate business within the state
– And so on…
Several of the items on that list have been taken over by the federal government, along with others not listed. Education has only become federally regulated since 1960 and, even more so, with the No Child Left Behind Act and the newer Every Student Succeeds Act. With these two acts, the federal government has decided that they can do a better job of regulating the education system than the state governments, but the problem is that the Constitution didn’t provide that power to the federal government.
Another pie that the federal government has stuck its proverbial finger into is minimum wage. It has never been granted the power to regulate wages. The history of minimum wage is quite interesting, with multiple Supreme Court cases invalidating and later upholding the minimum wage laws in 1941. Since then, the federal government has taken that power and has run with it, increasing minimum wage as often as it sees fit. It would be possible to return to a strict Constitutional approach to minimum wage with another Supreme Court decision, but it would likely be very unpopular with a portion of the country who feel that the federal government should tell the states how they should govern. States still continue to regulate the minimum wage as they see fit, but their minimum wage must be at least the same as the federal minimum, if not higher.
The United States of America was originally created with the idea that the federal government has a limited power and that each individual state would have as much or more power than the federal government. This is happening in some instances, while in others like education and minimum wage, it is not. For example, the medical and recreational marijuana laws that some states have passed are bucking the federal law prohibiting the possession and use of marijuana.
James Madison wrote in The Federalist No. 45:
The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state.
Each year, the federal government takes more and more power from the states and gives it to itself. The only way for this transfer and takeover of power to end is for the states to keep those powers through court action and likely a Supreme Court ruling. Right now, however, the Supreme Court justices are not largely on the side of states’ rights over federal powers. Until states insist on their powers remaining within their own control, you can expect the federal government to continue to grab for more and more authority.
Jason – Three Patriots
Photo Credit: http://www.livebinders.com/play/play?id=1164130
So far, we have covered the powers granted by the US Constitution to the legislative branch (read here) and the executive branch (read here), which leaves just one final branch—the judicial branch of government. Once again, let’s start by defining what the judicial branch entails. The judicial branch is headed by the US Supreme Court with the lower level civil and criminal courts below it. Broadly, the purpose of the judicial system is the interpret and apply the law. Typically, most court cases begin in the lower courts with judges applying their own interpretation of the laws and the Constitution. No matter the outcome of the lower court’s ruling, the losing party can appeal that decision to a higher court—all the way up to the US Supreme Court. At that point in time, the justices of the Supreme Court will look at all the cases that have made it to the highest court and will decide if they will hear the case or leave the ruling of the lower courts in effect.
If the justices believe the case is worth hearing, arguments before the court are scheduled from October to April each year. The court hears arguments, asks questions, and sometimes, includes their own opinions in the questioning. Later, they come to a conclusion on the constitutionality of each case with a vote or series of votes. All 9 justices (odd number to decrease possibility of a tie) will vote based on their interpretation of the laws and the Constitution. Then, one of the justices will write a majority opinion, and one or more will write a dissenting opinion if the decision is not unanimous. By the end of June, all cases heard by the court will be ruled upon by the justices, and the majority and dissenting opinions are released. At this point in time, the court’s ruling is final…unless the Constitution is amended, or the court reconsiders its opinion and changes it (which is extremely rare).
Article III of the Constitution states what powers the Supreme Court is allowed:
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;– to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
Interestingly enough, the Constitution does not grant the power of judicial review (where the constitutionality of laws is interpreted), but that power has been in practice since the early 1800s without any legitimate challenge to the authority.
Let’s take a real world example to provide some context here. In 2010, President Obama signed the Patient Protection and Affordable Care Act (aka Obamacare) into law. Part of that legislation included a mandate that all people have health insurance or pay a penalty when they file their taxes each year. Many argued that this mandate was unconstitutional and outside of the powers granted to Congress in the Constitution. A lawsuit was filed against the mandate in Florida, and the District Court agreed that it was not constitutional. The government appealed that decision to the 3-judge panel of the 11th District Court of Appeals, who agreed with the lower court 2-1 that the mandate was unconstitutional. The government then appealed that decision to the US Supreme Court, and arguments were heard in March 2012.
The Supreme Court was divided on its ruling, but in a 5-4 decision, it stated that the individual mandate was constitutional by declaring it a tax rather than a penalty.
This 5-4 ruling by the Court is somewhat unprecedented. It actually changed the law that was passed by Congress and signed by the President rather than deciding if it was constitutional. The original powers granted to the Supreme Court in the Constitution do not allow them power to change laws; that power is given only to the legislative branch.
History has very few instances where the court has overstepped its power to rule…at least, until the last decade or so. Most recently, another example of judicial overreach has hit the news. In 2015, the Court ruled that the ban on gay marriage was not only unconstitutional, but they also legalized it in every state, ignoring what the individual state had to say about it. This is another incidence where the Court’s power was seen by many to be abused beyond what it was given.
If the court thought that the laws of the US or a state were not in compliance with the Constitution, they have every right to remove it, but they have not been given a power to make their own laws after invalidating another. They are also not allowed to rewrite a law so that it becomes constitutional; that is the responsibility of the legislature. In such a case, the Court should give its ruling to invalidate a law, and then, Congress can decide what it wants to do with the issue at hand.
There is a fine line between using and abusing powers granted by the Constitution, and lately, the Court has been teetering on the wrong side of its granted powers. As with the legislative and executive branches, the extra powers that the judiciary has taken upon itself will be very difficult to remove due to the precedence that has been set for future justices and judges.
Jason – Three Patriots