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April 30th, 2010

Tear Down This Wall of Separation

church and stateWritten by Nathan Tucker

“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 States.” (emphasis added) This now infamous commentary of the First Amendment was provided by Thomas Jefferson in an 1802 letter to the Danbury Baptists.

The Supreme Court made Jefferson’s statement the foundation of its Establishment Clause jurisprudence when it declared in Everson v. Board of Education (1947) that the First Amendment “was intended to erect ‘a wall of separation between church and State’…[that] must be kept high and impregnable. We could not approve the slightest breach.”

For over sixty years now, this “wall of separation” has more often been used to advance religious discrimination by the government than as a means to prevent it. As then-Justice William Rehnquist noted in dissent in Thomas v. Review Bd. of Indiana, this “wall” has led to a tension between the Establishment Clause and the Free Exercise Clause, a tension which “was unknown at the time of the framing and adoption of the First Amendment.”

This tension lies in a profound misunderstanding of the First Amendment—the courts have read into the Constitution two religion clauses when there is in fact only one: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The Religion Clause was intended to protect a freedom—religious liberty—from the coercive power of government. The goal was not to simply prohibit a state church or the prosecution of a church by the state, but to prohibit all religious discrimination that can occur between these two sides of the same coin.

The only way to consistently protect all aspects of religious liberty is to read it as one unified clause prohibiting religious discrimination by the government. Such discrimination can occur in three primary forms: governmental denial of equal protection based on religion, government interference with a religious organization’s beliefs and practices, or coerced adherence by the government to a particular religious faith.

It is time for the courts to tear down this unworkable “wall of separation” once and for all and replace it with an understanding of the Religion Clause that seamlessly works together to effectively prohibit religious discrimination. The courts will soon have the opportunity to do so in the following two cases.


This first case involves the appeal of the recent decision by U.S. District Judge Barb Crabb in which she ruled that the National Day of Prayer was unconstitutional because it violated “the wall of separation of church and state.”

The National Day of Prayer was first established in 1952, and the statute presently reads: “The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.”

It is this simple statement that Judge Crabb found to be constitutionally indefensible. In her ruling, she wrote that, “[i]n my view of the case law, government involvement in prayer may be consistent with the establishment clause when the government’s conduct serves a significant secular purpose and is not a ‘call for religious action on the part of citizens.’”

She determined that the National Day of Prayer failed that test, finding that it went “beyond mere ‘acknowledgment’ of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context.”

She concluded that, “the government has taken sides on a matter that must be left to individual conscience….[R]ecognizing the importance of prayer to many people does not mean that the government may enact a statute in support of it, any more than the government may encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic.”

Judge Crabb’s ruling is only the latest example of the state of confusion that exists in the case law concerning ceremonial deism. For instance, the Supreme Court has upheld the use of the motto “In God We Trust” on our nation’s currency but, conversely, has held that the display of the Ten Commandments in a courtroom is unconstitutional.

The Supreme Court has held that manger scenes may be constitutional, but only if surrounded by a Christmas Tree, menorah, and Rudolph. It has held that prayer before the opening of a legislative body is constitutional, but lower courts have found some prayers to violate the 1st Amendment. The Supreme Court hasn’t addressed the constitutionality of the Pledge of Allegiance yet, but in 2002 the 9th Circuit found that it ran afoul the great wall of separation of church and state.

When one tears down the “wall of separation” and instead simply asks whether the government had engaged in religious discrimination by proclaiming a National Day of Prayer, the answer is a clear and unmistakable “no.” Symbolic references to religion—such as the National Day of Prayer, Ten Commandments, and manger scenes—do not fall into any of the three categories of government religious discrimination.

Though generic endorsements may, as Justice O’Connor has noted in Lynch v. Donnelly (1984), send “a message to non-adherents that they are outsiders,” these “non-adherents” are not denied the equal protection of the laws because they fail to conform. “Non-adherents” would be largely anonymous and, even if known, would not be treated any differently by the government or society at large for failing “to conform.”

Nor does ceremonial deism present the threat of government interference with a church or organization’s religious tenants and customs. Neither can symbolic references constitute coercion because they cannot reasonably and tangibly lead to government indoctrination and proselyzation.


The second case, which the Supreme Court will decide by June, involves a religious group, the Christian Legal Society (CLS), which was denied official recognition as a student organization by Hastings College of Law because it refused to allow those who did not share its tenets to be members.

An officially recognized student organization at Hastings would have access to travel funds, a weekly newsletter and other forms of communication, office space, and use of a student information center. In order to enjoy such privileges, however, a student group had to abide by the law school’s non-discrimination policy which prohibited discrimination on the basis of race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation.

The Christian Legal Society refused to change its bylaws to conform with the policy and sued in federal court. In a ruling, which was later upheld by the 9th Circuit without comment, the trial judge ruled that the non-discrimination policy did not violate the First Amendment.

Lost in the ruling, as happens too often in religion cases, is any discussion of the Religion Clause. Because of the “tension” the courts have read into the Clause, most injured parties are forced to seek protection for religious liberty in other parts of the Constitution, primarily in the Free Speech Clause.

But an essential component of religious liberty is the idea of institutional autonomy. As the Supreme Court itself has noted in Roberts v. United States Jaycees (2000), “[a]n individual’s freedom…to worship…could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort towards those ends were not also guaranteed.”

Religious institutional autonomy is violated when the government forces the organization to accept as members those who do not share its faith. To quote the Roberts Court again, “there can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.”

Hastings College of Law did exactly that, however, when it required CLS, as a condition to equal access of benefits enjoyed by other organizations, to allow individuals who do not share its beliefs to become members and serve as its officers.

This conduct falls in the intersection of two of the categories of religious discrimination described earlier—the denial of equal protection and the interference with the beliefs and practices (institutional autonomy) of a religious organization. If the decision is upheld, it will have far-reaching and dangerous consequences for churches, religious schools, and other non-for-profits seeking equal access in the public arena.

It is past time for the courts to replace their unworkable and conflicting religion jurisprudence with one that makes sense—that the Religion Clause is only violated by government religious discrimination. The courts should use these two cases as the perfect opportunity to tear down the wall of separation.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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