More on Separation of Church and State

Christine O'Donnell: I Won That First Amendment Debate! "'It's really funny the way that the media reports things,' O'Donnell told ABC News this morning. 'After that debate my team and I we were literally high fiving each other thinking that we had exposed he doesn't know the First Amendment, and then when we read the reports that said the opposite we were all like 'what?''"

She went on to say that he ignored the next phrase in the First Amendment " or prohibiting the free exercise thereof". But I don't know that he's campaigned on preventing some exercise of religion or what religious exercise she feels is being prohibited that she feels the need to defend. If O'Donnell's point is that "separation of church and state" doesn't appear in the constitution I'd say that Rick never said "Play it again Sam" in Casablanca but that doesn't prevent millions from misquoting it.

What she's missing is any interpretation by the Supreme Court on the matter, which Coons did mention in the debate. Jefferson wrote the phrase "a wall of separation between church and State" in a letter about the constitution and proposed different amendments on the matter before the first amendment was ratified. Jeffersons letter has been quoted in Supreme Court cases bringing the phrase into Constitutional law. He also added the No Religious Test Clause to Article VI, "no religious test shall ever be required as a qualification to any office or public trust under the United States."

Anyway I used this as an opportunity to learn about some of the more important relevant cases.

Of course free exercise of religion can be regulated if there is a compelling state interest. You can't sacrifice your first born even if God tells you to. I think the first time such a question came before the court was Reynolds v. United States (1878). The court found that a Morman charged with bigamy could not claim it was his religious duty to have multiple wives to get around a law. This is also the first case that quotes Jefferson's letter bringing the phrase "a wall of separation between church and State" into constitutional law.

A 1947 case, Everson v. Board of Education was about a tax payer suing to prevent his money from funding the religious education of others. "A New Jersey law authorized payment by local school boards of the costs of transportation to and from schools - including private schools. Of the private schools that benefited from this policy, 96% were parochial Catholic schools." He lost, but the decision written by Justice Black defined a test to be used in such cases and for the first time incorporated the establishment clause on the states. Meaning it applied not just to federal laws but to state laws. It was a 5-4 opinion based on the fact that money was given to parents (not churches) for sending children to any school (not just religious ones). The dissenters said "Here parents pay money to send their children to parochial schools and funds raised by taxation are used to reimburse them."

Engel v. Vitale in 1962 was the first prayer in public school case. It found by 6-1 that a state could not write even a non-denominational prayer and require it to be said at the beginning of school. The dissenter was Justice Potter Stewart and he argued that separation of church and state doesn't appear in the constitution and God is mentioned on US coins, in the Nation Anthem and int he Pledge of Allegiance.

The current governing test is the Lemon Test from Lemon v. Kurtzman (1971). All three of these must be true for a law to be constitutional with respect to the establishment clause:

1. The government's action must have a secular legislative purpose;
2. The government's action must not have the primary effect of either advancing or inhibiting religion;
3. The government's action must not result in an "excessive government entanglement" with religion.

Apparently in following cases Lemon has been applied haphazardly and Justices Scalia and Thomas don't like it.