Separation of Church and State revisited

The Supreme Court has agreed to hear a case involving permissible overlap between church and state. Photo: wikicommons

WASHINGTON, May 24, 2013 – The Supreme Court has agreed to hear a case that may resolve some of the issues surrounding the permissible overlap between church and state.

The case in issue involves the Town of Greece, New York. From 1999, mostly every town meeting was opened with Christian-oriented prayer. The town’s policy is to go down a list from anyone interested in offering the prayer and arrange for the first person available to do the honors.  Overwhelmingly, the prayers delivered were from Christian clergy. Two individuals objected to being forced to listen to these Christian prayers, indicating they felt marginalized.

The constitutional issue presented stems from the First Amendment’s “Establishment Clause. It provides in part “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This concept has been carried through to all of the states.

The aggrieved individuals in the town filed suit alleging that the totality of the situation was effectively advancing a single faith over other religions and non-religion. A federal judge dismissed their case. The judges of the Second Circuit Court of Appeals reversed indicating that the town had aligned itself with a single religion in violation of the First Amendment. The town has appealed and the Supreme Court will hear the case later this year.

The Second Circuit indicated the town should have made a greater effort to invite people from other faiths to open the meetings. The judges noted “Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter. The rare handful  of cases, over the course of a decade, in which individuals from other faiths delivered the invocation, cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion.”

This is a classic “separation of church and state” case.


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Retired Supreme Court Justice Sandra Day O’Connor advocated keeping church and state separate. She supported the view that the government cannot endorse a particular religious belief or take action that might convey such a message to a reasonable observer. She would likely tell us that the Town of Greece’s practice is one that endorses Christianity.

Ian Millhiser of thinkprogress.org predicts that without O’Connor, the Court will continue to chip away at the wall between church and state and side with the Town of Greece, endorsing the town’s policy.

“Separation of church and state” is a phrase first originated by Thomas Jefferson, about twelve years after the Constitution was written and ratified. In a letter to the Danbury, Connecticut Baptist Association Jefferson stated that “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…’ thus building a wall of separation between Church and State.”

Jefferson has been quoted many times by the Supreme Court. In one such case, Reynolds v. United States (1879), the Court wrote that Jefferson’s comments “may be accepted almost as an authoritative declaration of the scope and effect of the First Amendment.”

The First Amendment forbids sponsorship and compulsion of religious exercise by individual citizens. It has not been interpreted to require absolute separation at all times on all levels. 

In Lemon v. Kurtzman (1971) the Supreme Court ruled that a Pennsylvania policy of reimbursing the salaries of teachers for secular subjects in religious schools violated the Establishment Clause and noted that “prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable” and “far from being a wall, entanglement is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”

Following the Lemon case, the Supreme Court formulated a three-pronged test to determine if government action violates the First Amendment Establishment Clause. The test became known as the “Lemon Test.”

–    The law or policy must have been adopted with a neutral or non-religious purpose.

–    The principle or primary effect must be one that neither advances nor inhibits religion.

–    The law or policy must not result in an “excessive entanglement” of government with religion.

It will be interesting to see how the Court rules in the Greece case.

Listening to our country’s former leaders and great thinkers would not help here.

George Washington:It is impossible to rightly govern a nation without God and the Bible.

Robert A. Heinlein: Almost any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.

Sandra Day O’Connor: Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served others so poorly?”

Ronald Regan: Christmas can be celebrated in the school room with pine trees, tinsel and reindeers, but there must be no mention of the man whose birthday is being celebrated.

Harry A. Blackmun: A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some.

We are told we should not discuss politics or religion with others before knowing the others’ opinions. Shall we thus “bless” the Supreme Court for undertaking this daunting task?

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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