"Separation of church and state" is often thought of as absolute. Like a wall. It is not. Volumes have been written. This is a brief column. But some recent news headlines invoke the issue, so I'll do my best.
The words "separation of church and state" oversimplify the idea. The First Amendment to the U.S. Constitution gives all citizens two basic rights concerning religion. First is the establishment clause. Second is the free exercise clause. Here's what the First Amendment actually says:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ..."
Freedom of speech comes after that.
Federal government may not, under the establishment clause, set up a religion as the church of state. Nothing resembling the Church of England could ever be created here. For all else it attempts to do, government can't establish a religion.
Free exercise may be even more important. This gives all citizens the right to select and follow their own beliefs. Government can't stop individuals from exercising the beliefs they choose. We're also free not to follow any belief and government may not intervene.
Preventing government from establishing a religion, and allowing citizens to exercise their own beliefs without government intermeddling, are rights clear as the day is long.
But an absolute wall of separation concept breaks down when tested by those who push the envelope.
If you're talking about whether one person goes to Sunday services, the next enjoys a Passover Seder, and another faces Mecca worshiping Allah, then these exercises of religion fit the concept.
But as far back as 1878, the U.S. Supreme Court held that actions violating the law under the guise of religion may be regulated by government. Congress may not legislate opinion. But the practice of polygamy, the court ruled in U.S. v. Reynolds, could be outlawed. One issue in that case was "whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land." The answer is no.
Obeying the law, then, is more important than a religious belief, if exercising that belief breaks the law. There are legal boundaries to free exercise of religion.
Reasonable people can't object to tax exemptions for local parishes. Most struggle to keep the lawn mowed, the preacher paid and the mortgage current. On the other end of the spectrum, what reasonable person could object to the conviction of televangelist Jim Bakker for fraud after his organization sold tens of thousands of memberships in a scam in which Bakker pocketed $3.7 million, promising hotel accommodations that did not materialize.
Houses of worship enjoy many protections in the U.S. A presidential candidate's minister can invoke his deity to denounce America. The First Amendment protects him. This is what distinguishes the U.S. from countries where religious leaders and followers alike are persecuted.
Most credit for religious freedom goes to the First Amendment. But, religious protection was first mentioned in the main body of the U.S. Constitution itself. Article Six says, in part: "no religious test shall ever be required as a qualification to any office or public trust under the United States." So, after adoption of the Constitution and until ratification of the Bill of Rights, this was the only constitutional reference to religious protection.
Free exercise and establishment, however, are the central concepts. The phrase "building a wall of separation between church and state" goes back to a letter written by Thomas Jefferson in 1802. Since then those words, taken out of context, sometimes divert attention from the main ideas.
Andrew Myers of Derry has law offices in Derry and North Andover, Mass. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.
