The debate on where to draw the line between the separation of church and state has been at a near constant since the very words were written. Though the majority of the Founders and everyday Americans today agree that the United States should not establish a national religion, other areas where the church and the state intersect bring about much argument.
Issues such as school prayer, the taxing of religious institutions, and religious imagery on government property, are all contentious as a result of the Constitution’s lack of specificity with regards to the relationship the government should have with religion.
The idea of the separation of church and state comes from a paraphrasing of the Establishment Clause and the Free Exercise clause:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
Two clauses of the one sentence that makes up the First Amendment are all that we have to guide our government’s limitation on intertwining with religion. Though the separation of church and state is not explicitly stated in the Constitution, it has been understood as the meaning since the early days of the United States.
The phrase itself can be traced to a letter written by Thomas Jefferson in 1802 where he writes:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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.
Jefferson’s letter, as a result, has guided constitutional scholars and Supreme Court Justices to act under this interpretation of the Establishment and Free Exercise Clause. This is not to say that many haven’t tried to change this, however. There are dozens of Supreme Court decisions that have had to flesh out where to draw the line.
As the country has become more and more secular, the line has moved accordingly as well. For some Americans, the increasingly clear delineation between church and state feels like a direct attack on their right to exercise religion, predominately those of the Christian faith.
As reported on November 2nd, the Supreme Court has decided to give another day in the sun to the issue of separation of church and state. The Court will review a case involving the constitutionality of a monument that uses religious imagery that is maintained by the state of Maryland on government property.
The monument in question is the “Peace Cross,” pictured above, that was built to honor men from Prince George’s county who died in World War I. At the time of its construction, and for many years after, it was on private property. However, when Maryland acquired the land it sits on in 1961, the monument then became maintained by the state as it was on government property.
The case was first brought up in 2012, but only recently has much traction occurred on the issue. Based upon the rationale that the memorial was “used for the secular purpose of honoring fallen soldiers,” a District Court in Maryland found it did not violate the Establishment Clause of the First Amendment.
Not long after, the Fourth Circuit reversed the decision on appeal finding that its location on government property intrinsically tethered the religious symbol to the state. Because the state maintained the memorial, government funds were used in its upkeep.
In its opinion, the court wrote: “The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity.” As such, they held that yes, it was a violation of the Establishment Clause.
Though they ruled that the memorial was unconstitutional, the court did not come up with a remedy for the state to enact, leaving their obligations unclear moving forward. This uncertainty, along with those who would want to see the memorial remain, saw it appealed again.
After weeks of considering the various appeals submitted, the Supreme Court has agreed to review this case to decide whether to uphold the Fourth Circuit’s opinion.
As Tim Zubizarreta explains, this case has the potential to fundamentally alter the separation of church and state depending on whether their decision focuses solely on the specific monument or if the Court uses the opinion to establish new precedent. “The Supreme Court’s decision may come to impact both public schools and religious displays on public property depending on the scope of its ruling.”
Considering the Court’s recent shift to a conservative majority, all eyes will be on the Court when they make their decision.