by Lenny Flank
(c) copyright 2005
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
With those words, in the First Amendment to the Constitution, the fledgling United States of America became the first nation to place into law the notion that religious beliefs were a private matter for individuals who had the legal right to freedom of conscience, and that no government had the right or authority to dictate what religious opinions people shall or shall not hold. Since then, the "wall of separation between church and state" has been a bedrock principle of democracy -- and it is this very principle that has become the focus of attack by the fundamentalist political movement in the US today. The openly-declared aim of the fundamentalist Christian movement is precisely to dismantle the wall between church and state, and to legally establish the US as a fundamentalist version of a "Christian Nation".
In order to understand the significance of the First Amendment's "establishment clause", it is helpful to look at the reasons why it was adopted, and the history that made it necessary. That history begins in Europe.
For 1500 years, the Roman Catholic Church was the only religious authority in Europe. The Papal organization had also come to enjoy a significant secular political influence, as well. By the beginning of the 16th century, the Catholic Church was the most powerful (and wealthy) organization in Europe. Not surprisingly, it had also become riddled with corruption and abuses of both religious and secular power, and these provoked criticism, opposition, and, eventually, outright rebellion.
The explosion happened in 1517, when an Augustinian monk named Martin Luther nailed his "95 Theses" to the door of the Wittenburg Church in Germany. The Theses protested the corruption and abuses that Luther saw in the Church hierarchy, including such practices as the sale of indulgences, the marriage of priests, and the secular power and wealth of the Pope. Three years later, Luther wrote three books which attacked the doctrine of papal infallibility and the status of priests as intermediaries between humans and God. Instead, Luther argued, every man was entitled to be his own priest, to read and interpret the Bible for himself. The resulting "Protestant" movement soon spread throughout Europe. In 1535, the city of Geneva overthrew the local prince (who was also a Bishop in the Catholic Church) and declared itself a Protestant city. In response, Protestants in Bern sent John Calvin to Geneva to help organize the new churches. Calvin followed a severely strict interpretation of the Bible, and imposed a harsh set of moral laws on the city of Geneva. The citizens of Geneva, in turn, viewed Calvin as no better than the Pope, and exiled him three years later. Calvin settled in the city of Strasbourg, where he wrote "The Institutes of the Christian Church". Along with Luther, Calvin would become one of the most influential founders of Protestant Christianity.
Calvin popularized two ideas which would later become important in Christian fundamentalism (indeed, most modern fundamentalists are heavily Calvinist in their views). The first of these was "biblical literalism", the idea that every word written in the Bible had to be followed totally and unquestioningly, and, conversely, any religious doctrine that was not found in the Bible was false and must be rejected. Calvin's second idea was that of "predestination", the idea that the vast majority of Christians would not be saved and would go to Hell, while only a tiny minority of Christians had already been selected by God to enjoy salvation. While nobody knew who had been predestined to be saved or not, Calvin asserted that, since the truly saved would naturally gravitate towards the correct Christian beliefs, his own church would be made up mostly of the selected elite. They were, Calvin declared, "living saints".
The Protestant Reformation split Europe in two, leading to centuries of political and religious conflicts. Between 1560 and 1715, there were only thirty years during which there were no large-scale wars between Catholic and Protestant rulers. In Germany, various Catholic and Protestant principalities fought each other until the Peace of Augsburg in 1555 divided Germany into Catholic and Protestant regions. In France, a Calvinist group known as Huguenots rebelled against the Catholic king. The French Wars of Religion lasted from 1562 to 1598. The climax of the French Wars of Religion was the St Bartholomew Massacre in 1572, when the French King's troops rounded up over 3,000 French Huguenots in Paris and systematically killed them all. By 1609, Europe was divided into two hostile armed camps, the Catholic League and the Protestant Union. In 1618, all of Europe was consumed by the Thirty Years War, in which Catholics and Protestant slaughtered each other on a scale not seen again in Europe until the Napoleonic Wars. The war ended in 1648, leaving Europe fragmented into over 300 different kingdoms and principalities, each with its own state religion of Catholicism, Lutheranism or Calvinism.
In England, a group known as the Puritans shrilly criticized the Church of England, which, though Protestant, was not "reformed" enough for Puritan taste. In 1603, the Puritans (who were largely Calvinists) demanded a set of reforms to be applied to the Church of England which would have imposed Puritan religious opinions onto the entire country. These proposed reforms were rejected, and under Archbishop William Laud, the Church of England attempted to marginalize and repress the Puritans -- a difficult task, since the Puritans made up a large section of the English population. The Puritans, meanwhile, viewed King Charles I with suspicion, pointing to his French wife and his reluctance to enter the Thirty Years War as evidence of his "papist" leanings. When the English Civil War broke out in 1642, the Puritans made up most of the Parliamentarian forces under Oliver Cromwell, which defeated the Royalist armies of King Charles I and beheaded him in 1649.
For the next four years, Parliament ruled England. In 1653, however, Cromwell and his army took over, disbanded Parliament ("in the name of God", he announced to them, "go"), and declared himself the "Lord Protector" of England. Until his death in 1658, Cromwell ruled as king in all but name, and placed England under the harshly strict moral code demanded by his Calvinist faith. Theaters were closed; work on the Sabbath was forbidden; even swearing was outlawed under penalty of a fine or, for repeat offenders, prison. His anti-Catholic stance prompted him to invade Ireland and "tame" it with a large force of troops. By the time he died in September 1658, Cromwell was a hated man. Within two years, England no longer had any functional central government, and in 1660, at the behest of the Army, Charles II, the son of the beheaded Charles I, was restored to the throne. In 1662, the Act of Uniformity expelled all of the remaining Puritans from the Church of England, and other laws outlawed any non-Anglican religious gatherings and required all public officeholders to swear allegiance to the Church of England.
All of this had a direct effect on what would become the United States. In 1608, a sect of Puritans, called the Separatists, were convinced that the Church of England was so corrupt that it could not be reformed, and decided to form their own church. They quickly came to the attention of Archbishop Laud's efforts to repress religious dissenters, and left England for the more religiously open Netherlands. By 1620, 88 Separatist "Pilgrims" embarked on the ship Mayflower for Delaware, in the New World, where they hoped to establish their own version of the "pure church". By mistake, they landed at a spot in Massachusetts now known as "Plymouth Rock" in December 1620. Within a few years, other Puritans had formed the Massachusetts Bay Company, which obtained a charter from Charles I (who was glad to be rid of them) for a colony in the New World. In 1630, the Massachusetts Bay colony was formed, with John Winthrop as its governor. By 1640, there were some 17,800 Puritan colonists in New England, growing to over 100,000 by 1700. The bulk of immigration from England to North America, known as The Great Migration, took place in the twelve years before the outbreak of the English Civil War. Between the English Civil War and the American War of Independence, the flow of people from England to America slowed to a mere trickle; most New Englanders in 1776 were descendents of ancestors who had come over in the Great Migration.
The Puritans who founded the New England colonies may have fled what they perceived as "religious intolerance" (it was, after all, the Puritans themselves who were attempting to force their religious extremism onto the English state), but this did not prevent them from practicing religious intolerance themselves. The Puritans believed themselves to be God's Elect, and each of their colonies was a tiny Cromwellian theocracy, ruled in strict accordance with Biblical strictures. In most respects, Puritans in America were even stricter and more harsh than their English counterparts. Although ministers were not usually members of the civil government, they exercised enormous influence, and the secular authorities scrupulously enforced Puritan religious ideals. Laws required all colony members to attend Sunday church services, and taxes were used directly for church expenses. Contrary to English law, the Puritan colonists in Massachusetts required voters and public office-holders to be Puritans, rather than Anglican -- a defiance which led the King of England to revoke the colony's charter in 1684.
Religious dissent, however, infested the Puritan colonies, and they reacted in the same manner that Cromwell did -- by repressing it. Quakers, Anglicans and other non-Puritans were denied the right to either vote or hold public office. In 1635, one of the most prominent dissenters, Roger Williams, was banished by the Massachusetts Bay colony. Williams had argued on Biblical grounds that no human government could have any power over the church, and that the Puritan theocracy was heretical. After his banishment, Williams founded his own colony at Rhode Island, and declared that the colonial government there would not support or repress any religious views, including Quaker, Jew or Anglican.
By 1776, economic and political realities had turned most of the colonies away from strict Puritan theocracy. The religious influence of the Puritans, however, continued to be evident, and after Independence was gained in 1783, many state constitutions continued to establish official religions and use public funds to support favored churches. Of the thirteen colonies, eleven had religious requirements for voting or holding public office. Massachusetts, Delaware and Maryland required all public officials to be Christians; Pennsylvania, New Jersey, New Hampshire, Vermont, North and South Carolina and Georgia all required, more specifically, that officeholders be Protestants. Even Rhode Island, which had been founded on Roger Williams' principle of religious freedom, specified that only Protestants could vote or hold office. At this time, Protestants of various sects dominated the colonies --- the entire United States in 1780 contained only 56 Catholic churches and 5 Jewish synagogues. In the southern colonies, which had all been established by Royal Charter, the state constitutions established the Church of England as the official state church.
These official state endorsements, naturally, were opposed by members of competing sects, and after Independence, the colonies faced the question of how to placate the critics. In New England, several colonies tried to solve the problem by collecting taxes for the support of churches, but allowing each individual taxpayer to decide which church would receive his payment. This, however, produced problems of its own. The Quakers and the Baptists objected on religious grounds to any state involvement in their church, even if the state was giving the money to their own church. The colonial governments responded by allowing Quaker and Baptist objectors to apply for certificates which exempted them from paying these taxes. This, however, provoked even more problems. Members of other denominations could not object to paying these taxes unless they "converted" to Baptism or Quakerism. This led to complaints that many of the objectors weren't really Baptists or Quakers at all, which necessitated the state deciding who really was or wasn't a Baptist or Quaker, and thus "entangling" itself in delicate matters of religious doctrine.
A similar program was attempted in Virginia in 1784. After the Anglican Church was disestablished, a group of Virginian legislators introduced a proposed law that would tax citizens to support all churches in the state equally. According to the proposed law, the result would be "a General and equal contribution of the whole State upon the most equitable footing that it is possible to place it", and "would have no Sect or Denomination of Christians privileged to encroach upon the rights of another." (cited in Feldman, 2005, p 35) This proposal became known as General Assessment.
General Assessment was opposed by many prominent Virginians, including James Madison. Although proponents of General Assessment argued that the bill only supported religion in general, and was "nondenominational" and "nonsectarian" because it did not favor one religious group over another, Madison argued that this was not enough -- the state had no business supporting or interfering with religion at all:
"Because we hold it for a fundamental and undeniable truth, 'that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.' The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men . . . The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? . . . Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation." (Madison, "Memorial and Remonstrance" 1785)
When the Constitutional Convention met in 1787, the topic of religion, and its relation to the government, weighed heavily in the minds of the delegates. The bloody carnage of recent European history, including the French Wars of Religion, the Thirty Years War, and the English Civil War, were all directly the result of governmental support for and action on behalf of religions, and the Founding Fathers were determined that the new United States would not fall victim to the same mistakes. As Madison told the Constitutional Convention, ""Religion itself may become a motive to persecution and oppression." (http://www.usconstitution.net/consttop_reli.html) In the Federalist Papers, Madison echoed: "Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. . . .A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good." (Madison, Federalist Papers #10) Citing the English Test Laws (which required all public officials to be Anglicans), future Chief Justice Oliver Ellsworth, argued, "The business of civil government is to protect the citizen in his rights. . . Civil government has no business to meddle with the private opinions of the people . . . A test law (is) the offspring of error and the spirit of persecution. Legislatures have no right to set up an inquisition and examine into the private opinions of men." (cited in Kramnick and Moore, 1996, p 42)
And, although the Founding Fathers were all religious men (at least six different Protestant sects were represented at the Constitutional Convention; many of the delegates were Deists, two were Roman Catholics), they also recognized that putting religious power into the hands of the government would inevitably lead to religious repression and intolerance, and that religion itself would best flourish if allowed to operate freely without governmental intrusion. James Madison argued: "The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State" (Letter to Robert Walsh, Mar. 2, 1819). Madison added, "The experience of the United States is a happy disproof of the error so long rooted in the unenlightened minds of well-meaning Christians, as well as in the corrupt hearts of persecuting usurpers, that without a legal incorporation of religious and civil polity, neither could be supported. A mutual independence is found most friendly to practical Religion, to social harmony, and to political prosperity" (Letter to F.L. Schaeffer, Dec 3, 1821). Thomas Jefferson agreed, arguing, "No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the power of its public functionaries, were it possible that any of these should consider a conquest over the conscience of men either attainable or applicable to any desirable purpose" (Letters to the Methodist Episcopal Church at New London, Connecticut, Feb. 4, 1809). Much of the US Constitution was explicitly modeled on the classical Roman Republic, which was remarkably tolerant of all the varying religions of its conquered subjects, and never made any effort to force anyone to give up any native religion.
The delegates' goal of keeping the Federal Government independent of religion was the topic of very little actual debate at the Convention. At one point, Madison introduced the idea of allowing Congress to establish a national university, and carefully added the provision that in staffing and in the courses offered, "no preferences or distinctions should be allowed on account of Religion." (http://www.usconstitution.net/consttop_reli.html) The national university idea was voted down, but the delegates accepted Madison's idea that the US government should be strictly neutral and noncommittal on matters of religion. The matter of religion was only mentioned twice in the Constitution. The first reference, in Article Six, specifies that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." This was a direct rejection of the European practice (taken up by the Puritan colonies) of requiring public officials to swear loyalty to one religion or another, and to exclude any others from office. The second reference to religion is more obscure -- it occurs in the Oath of Office required of the President: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." The option to either "swear" or "affirm" the oath of office is a direct result of the delegates' desire to avoid government siding for or against any religion. Several colonial churches, including the Quakers, considered it un-Christian to "swear" oaths, and the Constitution therefore protected the right of these dissidents, as well as non-religious people, to instead "affirm" the Oath of Office in a religiously neutral or non-religious form.
When the Constitution was finished and presented for ratification, it did not contain the listing of individual rights and liberties that we now refer to as the Bill of Rights. The Framers had not thought it necessary to specifically list these, but the omission sparked a storm of criticism, including that of religious figures who were alarmed that no specific freedom of religious thought had been enumerated. Influential Baptist minister John Leland objected that the Constitution didn't specifically guarantee freedom of religion, pointing out that "if a Majority of Congress with the President favour one System more than another, they may oblige all others to pay to the support of their System as much as they please." (http://www.loc.gov/exhibits/religion/rel06.html)
When the state legislature of Virginia ratified the US Constitution, it did so with the understanding that the new Congress would pass a bill of rights, based on twenty recommendations proposed by the Virginia delegates. One of these was that "no particular religious sect or society ought to be favored or established by Law in preference to others." (http://www.loc.gov/exhibits/religion/rel06.html) This proposal was based on a law written by Thomas Jefferson (Jefferson was absent for the entire Consitutional Convention -- he was in France serving as Ambassador), that had been passed in Virginia in 1777:
"A BILL FOR ESTABLISHING RELIGIOUS FREEDOMSECTION I. Well aware that
the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds;
that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint;
that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone;
that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time:
that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness; and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind;
that our civil rights have no dependance on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way;
that the opinions of men are not the object of civil government, nor under its jurisdiction; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous falacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own;
that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order; and finally,
that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.
SECT. II. WE, the General Assembly of Virginia, do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
SECT. III. AND though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right. " (http://www.religioustolerance.org/virg_bil.htm)
As a result of the Virginia stipulation and other criticism, the First Congress passed ten amendments to the new constitution, the Bill of Rights. And the first of these amendments took up the topic of the relationship of government to religion. The initial draft of what later became the First Amendment was introduced by Representative James Madison: "The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases." (http://www.religioustolerance.org/amend_1.htm) Several different versions of the same idea were introduced by various members of Congress, including, "No religion shall be established by law, nor shall the equal rights of conscience be infringed," "Congress shall make no laws touching religion, or infringing the rights of conscience," "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience," "Congress shall make no law establishing religion, or prohibiting the free exercise thereof," and "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." (http://www.religioustolerance.org/amend_1.htm) In the end, all of these versions were distilled down to ""Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", and this was the wording that was codified into the First Amendment. The Bill of Rights was ratified in 1791.
When the new Constitution was presented to the state legislatures for ratification, it came under immediate attack by religious groups and political figures, on the grounds that it did not support religion and did not officially establish the US as a Christian nation. The "no religious test" provision in Article 6 was the object of severe criticism. A critic in New Hampshire argued that the lack of a religious test would allow "a papist, a Mohomatan, a deist, yea an atheist at the helm of government". In North Carolina, one delegate complained that "pagans, deists and Mahometans might obtain offices among us", while another delegate was terrified that "Jews and pagans of every kind" could take office. In Massachusetts, another critic declared that he hoped Christians would be voted into office, but "by the Constitution, a papist, or even an infidel was as eligible as they". In the south, the slavery issue was raised; a writer in Charleston, South Carolina, pointed out that without any religious test for office, anti-slavery sects such as the Quakers "will have weight, in proportion to their numbers, in the great scale of the continental government". The New York Daily Advertiser was also horrified at what democracy would produce, without any religious test for office: "1st. Quakers, who will make the blacks saucy, and at the same time deprive us of the means of defense -- 2dly, Mahometans, who ridicule the doctrine of the Trinity -- 3dly. Deists, abominable wretches -- 4thly. Negroes, the seed of Cain -- 5thly. Beggars, who went sent on horseback will ride to the Devil -- 6thly. Jews etc etc." (cited in Kramnick and Moore, 1996, p 32-33) For these people, the Constitution was fatally flawed precisely because it did not establish the Christian religion -- they viewed the Constitution as a godless document, and condemned its "general disregard of religion" and "cold indifference about religion". A Virginia writer declared, "The Constitution is deistical in principle, and in all probability the composers had no thought of God in all their consultations." (cited in Kramnick and Moore, 1996, p 33-34)
One of the most widely read attacks on the new Constitution was a satirical pamphlet by "Aristocrotis", titled The Government of Nature Delineated, or an Exact Picture of the New Federal Constitution. In it, the writer argued that the Constitution was a godless document, written by a handful of apostates, with the express goal of stamping out religion:
"There has been but few nations in the world where the people possessed the privilege of electing their rulers; of prefixing a bill of rights to their constitutions, enjoyed a free press. or trial by jury; but there was never a nation in the world whose government was not circumscribed by religion. . . .What the world could not accomplish from the commencement of time till now, they easily performed in a few moments, by declaring, that "no religious test shall ever be required as a qualification to any office, or public trust; under the united states." This is laying the ax to the root of the tree; whereas other nations only lopped off a few noxious branches. This is purifying the fountain; the streams must of course be pure. By this provision the convention hath prudently removed the distemper from the head. and secured it from contamination.--the certain method to preserve the members from catching the infection. Religion is certainly attended with dangerous consequences to government: it hath been the cause of millions being slaughtered. whose lives and services might have been of use to their masters; but in a peculiar manner the Christian religion. which has these several centuries past prevailed over a great part of Europe, and is professed by a great many of the vulgar in this country. is of all others the most unfavourable to a government founded upon nature; because it pretends to he of a supernatural divine origin, and therefore sets itself above nature, its precepts are likewise so rigid and severe as to render it impossible for any gentleman of Fashion or good breeding to comply with them in any sense, without a manifest violation of decorum, and an abandonment of every genteel amusement and fashionable accomplishment; but another capital objection against this singular system of religion is, that it prohibits slavery, which is so essential to government. that it cannot exist, with any degree of energy, without it, for all the subjects of a good government ought to be slaves in a political sense; or as they were anciently termed, vassals; that is, their persons and property must be entirely at the will and disposal of their masters; which is ingeniously provided for in the new constitution under the articles of taxation and discipline of the militia.(Anti-Federalist #51, cited in http://www.members.tripod.com/candst/testban5.htm)
Other opponents attacked the Constitution in the same vein. In New Hampshire, a delegate to the Ratifying Convention argued that under the Constitution, "Congress might deprive the people of the use of the Holy Scriptures". In Massachusetts, another writer declared that "without the presence of Christian piety and morals, the best Republican Constitution can never save us from slavery and ruin". Other Anti-Federalists warned ominously that the godless Constitution would cause God to turn his back on the US, "because thou hast rejected the word of the Lord, he hath also rejected thee". (cited in Kramnick and Moore, 1996, p 35-36)
Members of several state ratifying conventions moved to change the Constitution by adding a religious test to it; all these efforts were voted down. Other states tried to add amendments banning only government establishment of a "particularly religious sect or society . . . in preference to others". (cited in Feldman, 2005, p 49)This was rejected on the grounds that it would still allow an unacceptable General Assessment type of government support for "nondenominational" or "nonsectarian" religion. The Constitution, with its explicit rejection of all governmental support for religion, was ratified in 1788, and the First Amendment banning establishment of religion was passed three years later.
Decades later, Jefferson summarized the stance of the Constitution towards religion with a famous phrase: "Believing that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and 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 and State" (Letter to the Danbury Baptists, 1802).
In 1796, the new United States concluded a treaty with the Barbary Coast. During negotiations for the treaty, the northern Africans, who were Muslim, expressed alarm that the treaty may not hold up due to the longstanding enmity between Muslims and Christians. In response, the United States pointed out that it was a completely secular state and not religiously-based, and this understanding was written into the text of the treaty: " ARTICLE 11. As the government of the United States of America is not in any sense founded on the Christian Religion, as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen, and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries." (Treaty of Tripoli, 1796)
It is not enough, however, to consider solely what the Founding Fathers intended for the church/state relationship when they wrote the Constitution. After all, those same Founding Fathers also clearly supported and legitimized human slavery in the Constitution, as well as specifically limiting the right to vote to white male property-owners (less than five percent of the colonial population actually had the right to vote under the Constitution). In the centuries since, of course, the American understanding of civil rights and human rights has evolved, and the Constitutional status of voting rights and civil rights has changed in response. Just as no sane person would argue today that slavery should be legalized or that 95% of the US should be denied the right to vote since that is what the Founding Fathers intended, neither can we base current laws concerning the relationship between religion and state solely on the opinions of the Founding Fathers on the matter. As Chief Justice William Brennan wrote in a 1997 essay, "The genius of the Constitution rests not in any static meaning it may have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs." (quoted in Washington Post, July 25, 1997, p. A1) In the years since the US was founded, several Supreme Court cases have therefore played major roles in deciding exactly where the wall between church and state lies, and how much, if any, intercourse there can be through this wall.
For its first half-century, the United States was fairly homogenous in its religious outlooks. Protestants dominated every state, and while these all squabbled with each other over doctrinal differences, for the most part they were able to live in harmony with each other. By the second half of the 19th century, however, serious religious conflicts began to appear in the US. In the 1840's, large numbers of Catholics began emigrating to the US from Ireland. Not long after, the Mormons founded the Church of Jesus Christ Latter Day Saints. Theological conflict between these groups and the dominant Protestants invariably led to both sides seeking political support for their religious views, and this ran directly into the wall between church and state.
The first major Supreme Court ruling involving church/state issues was the 1878 Reynolds v United States decision. In this case, a Mormon defendant argued that he should not have been convicted of bigamy, since his religion mandated multiple wives, and therefore the state's anti-bigamy law violated the free practice of his religion.
In its ruling, the Supreme Court noted: "Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition." (Supreme Court, Reynolds v US, 1878)
"The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State having under consideration 'a bill establishing provision for teachers of the Christian religion,' postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested 'to signify their opinion respecting the adoption of such a bill at the next session of assembly.'
This brought out a determined opposition. Amongst others, Mr. Madison prepared a 'Memorial and Remonstrance,' which was widely circulated and signed, and in which he demonstrated 'that religion, or the duty we owe the Creator,' was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session the proposed bill was not only defeated, but another, 'for establishing religious freedom,' drafted by Mr. Jefferson, was passed. In the preamble of this act, religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State." (Supreme Court, Reynolds v US, 1878)
Based upon this, the Court ruled that, although people have the right to hold whatever religious opinions they like, they do not have the right to act upon them if such actions have been banned in the interests of public order or safety. "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." (Supreme Court, Reynolds v US, 1878)
The real basis for most of 20th century law concerning church/state issues was set by the Supreme Court in 1947, in the Everson v Board of Education ruling. In this case, a state law in New Jersey allowed state funds to be used to reimburse parents of children who had to use public transportation in order to get to school. Since a number of parents who sent their children to parochial Catholic schools were also reimbursed under this plan, a resident of New Jersey filed suit, arguing that this practice was an unconstitutional support for religion.
In its decision, the Supreme Court noted that the separation of church and state was a crucial principle in constitutional law:
"A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them. These practices of the old world were transplanted to and began to thrive in the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or non-believers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many of the old-world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated. And all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters. These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group." (Supreme Court, Everson v Board of Ed, 1947)
The Court then spelled out what has become the legal basis for every "establishment clause" case since:
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. . . . New Jersey cannot consistently with the "establishment of religion" clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." (Supreme Court, Everson v Board of Ed, 1947, emphasis in original)
Oddly enough, the Court then decided, by a 5-4 vote, that the state of New Jersey had not violated this principle by using state funds to transport parochial students to their schools -- it was simply providing public transportation for all. The "establishment clause" test spelled out by Justice Hugo Black in the majority opinion, however, remains as the basis for all subsequent church/state decisions. Specifically, the Everson ruling was the basis for one of the most divisive Supreme Court cases of the 20th century, one resulting in the rise to political prominence of the Christian fundamentalist movement -- the 1962 Engel v Vitale school prayer case.
The New York Board of Regents had issued a "Statement on Moral and Spiritual Training", which recommended daily prayers at the beginning of the school day. In response, a school district in New Hyde Park, New York, instructed its teachers to lead their students in reciting, "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country" each morning.
In its 6-1 ruling, the Supreme Court flatly concluded that state-sponsored or endorsed prayer was unconstitutional and violated the Establishment Clause. "We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty." (Supreme Court, Engel v Vitale, 1961)
"By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say -- that the people's religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment's prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity." (Supreme Court, Engel v Vitale, 1961)"There can be no doubt that New York's state prayer program officially establishes the religious beliefs embodied in the Regents' prayer. The respondents' argument to the contrary, which is largely based upon the contention that the Regents' prayer is "non-denominational" and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program's constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind -- a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding "unlawful [religious] meetings . . . to the great disturbance and distraction of the good subjects of this kingdom . . . ." And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself. (Supreme Court, Engel v Vitale, 1961)
The Court concluded by saying:
"It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that since the beginning of that history many people have devoutly believed that "More things are wrought by prayer than this world dreams of." It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." (Supreme Court, Engel v Vitale, 1961)
The Engel ruling was expanded upon in the Abington School District v Schempp case two years later. The Abington case was actually a consolidation of two different cases which dealt with the same question --- Bible readings in public schools. The Pennsylvania Abington case involved a requirement to read ten Bible verses daily at the beginning of the school day; the Murray v Curlett case involved a Maryland school requiring a passage from the Bible or the Lord's Prayer daily.
In its ruling, the Court cited the Establishment Clause principle laid out in the Engel case, and concluded "In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the States through the Fourteenth Amendment." (Supreme Court, Abington v Schempp, 1963) The Court then went on to specify the "secular purpose" and "primary effect" tests to be used in Establishment Clause cases: "The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." (Supreme Court, Abington v Schempp, 1963) The Court continued:
The "purpose" and "effect" tests laid out in Abington v Schempp were expanded upon in the 1971 Lemon v Kurtzman case, in a ruling which has served ever since as the principle guideline for Establishment Clause cases. The Lemon case was a consolidation of three different cases, all of which involved state funds being used to supplement teacher salaries in non-public parochial schools. The Court, in ruling that these actions were unconstitutional, set out what has since been known as the Lemon Test, a three-pronged approach to be used in determining whether or not a law violates the Establishment Clause. As spelled out in the opinion, written by Chief Justice Burger, "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion." (Supreme Court, Lemon v Kurtzman, 1971) If any of these three prongs is violated, the law is unconstitutional.
"The sole question," the Court concluded, "is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn. . . . The highways of church and state relationships are not likely to be one-way streets, and the Constitution's authors sought to protect religious worship from the pervasive power of government. The history of many countries attests to the hazards of religion's intruding into the political arena or of political power intruding into the legitimate and free exercise of religious belief." (Supreme Court, Lemon v Kurtzman, 1971)
In a concurring opinion in the 1984 Lynch v Donnelly case, Justice Sandra Day O'Connor reduced the "purpose" and "effect" prongs of the Lemon Test to the single idea of "Endorsement": "The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. . . . Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. . . . The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion. . . Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion . . . What is crucial is that the government practice not have the effect of communicating a message of government endorsement or disapproval of religion.." (Supreme Court, Lynch v Donnelly, 1984) This sentiment was also expressed by Supreme Court Justice Harry Blackmun in the 1992 Lee v. Weisman ruling: "When the government puts its imprimatur on a particular religion it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some." (US Supreme Court, Lee v Weisman, 1992)
In recent years, the Lemon Test has come under fire, mostly from conservative-leaning scholars. Justice Antonin Scalia has been one of the fiercest critics, for instance writing, in a dissenting opinion in the June 2005 McCreary County v ACLU case, "Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century. And it is, moreover, a thoroughly discredited say-so. It is discredited, to begin with, because a majority of the Justices on the current Court (including at least one Member of today’s majority) have, in separate opinions, repudiated the brain-spun “Lemon test” that embodies the supposed principle of neutrality between religion and irreligion." (Supreme Court, McCreary County v ACLU, 2005) Criticism of the Lemon Test has been particularly vocal from the fundamentalist Christian wing and its political supporters, who, in addition to advocating the elimination of the Lemon test, have also argued that the First Amendment does not really require that the government be neutral in matters of religion --- only that it cannot advocate preference for one view over another. As a critic from the religious magazine First Things says, "A good beginning would be to recognize that the First Amendment does not, and never did, require strict neutrality as between religion and non-religion for purposes of the Establishment Clause. Requiring the state to be neutral as between sects is both constitutionally necessary and morally desirable. Requiring it to be neutral as between religion and non-religion generally produces a decidedly unneutral result—the triumph of practical atheism in the public square." (Michael M Uhlmann, First Things, Oct 2005) As we will see, this assertion is the source of the ID/creationist penchant for labeling evolution and science as "religion" or "materialist philosophy" or "secular humanism".
The fundamentalist argument that the Constitution intended to allow government support of nondenominational or nonsectarian "religion in general", while merely banning support for one particular sect over another, is simply not true. As we have already seen, when the colonies did attempt this, in the General Assessment laws, they were opposed and rejected. "It is therefore historically incorrect," writes researcher Noah Feldman, "to claim that the Constitution, by banning an establishment of religion, allowed the government to support religion generally or nonpreferentially." (Feldman, 2005, p. 49)
Indeed, one of the primary goals of the fundamentalist movement in the US has been to go far beyond merely modifying the legal tests which are used to adjudicate the boundary between church and state -- they openly declare that they want to dismantle that wall completely. And in support of that goal, they have attempted to re-write history by declaring that the Constitution was intended by the Founding Fathers to set up a "Christian Nation", and that it was only after the secular humanists and atheists seized control of the Supreme Court that the concept of "separation of church and state" was allowed to interfere with the original wishes of the Framers.