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Maintaining the Separation of Church and State

Updated: Mar 15

A five-point plan to protect religious freedoms while consolidating the secularity of the state. The opinions expressed in this piece are those of the individual authors, whose information can be found below.


Big Picture


Despite First Amendment protection, religious freedom continues to be challenged in court and legislation every year. The Free Exercise Clause of the Constitution allows an individual to actively identify with whatever religion they want, and the Establishment Clause ensures that they do not impose their beliefs. Both are important. Updates are required to ensure the adequate protection of both.


Operative Definitions


  1. Religious Freedom: The First Amendment right to practice religion or to not practice religion.

  2. Proselytize: The attempt to convert someone from one religion to another.

  3. The Free Exercise Clause: A First Amendment provision that protects the right of American citizens to practice their religion (so long as it does not interfere with “public morals” or a “compelling” government interest).

  4. The Establishment Clause: A First Amendment provision that prohibits the government from “establishing” a religion. Establishment of religion is governed under the “Lemon Test” which states that the government can assist religious institutions only if 1) the purpose is secular, 2) the government neither promotes nor inhibits religion and 3) there is no excessive entanglement between Church and State.


Important Facts and Statistics

  1. According to the First Amendment, Congress is not to make any laws respecting an establishment of religion or prohibiting the free exercise thereof.

  2. Congress has always been overwhelmingly Christian. Roughly nine in 10 representatives, or 88 percent, of the current Congress identify as Christian, according to a 2019 analysis.

  3. Sixty-three percent of Americans say churches and other houses of worship should stay out of politics. 76 percent say that these places of worship should never endorse a political candidate. 


Five-Point Plan


(1) Ensure a balance between personal expression of religion and the use of secular texts in public schools. 

The educational materials in public schools must remain purely academic and unbiased. Proselytizing must be prohibited, meaning religious texts or pamphlets cannot be distributed on school grounds during the school day. That said, non-proselytising religious expression must be protected. This includes accommodations for students who are directed by their religion to wear physical garments, such as head-coverings, jewelry and religious symbols, or maintaining quotas, such as beards or keeping hair a particular length.


(2) Establish criteria to change religious symbols on federal buildings.

Religious artifacts and ceremonial displays on government property can only be preserved if they hold more historic value than religious value. If the local population considers a display on government property to be overtly religious, then a vote would take place in the relevant state legislature. State or Federal court decisions might also rule that certain monuments be removed.


(3) Simplify the petition process for recognizing religious holidays.

Create a feasible process, such as voting and polling, to allow localities to identify which holidays are most heavily celebrated in their religion. This will foster more inclusivity and respect for diverse beliefs. Information derived from polling will showcase which days are necessary for people to take off from work, to properly celebrate their holy days.


(4) Ensure appropriate funding to religious schools.

Religious schools may receive state funding and vouchers unless the money is used for overtly religious causes or activities. For example, in 2020 in Espinoza v. The Montana Department of Revenue, the Supreme Court upheld the constitutionality of tuition assistance for attendees of Stillwater Christian School. This case confirmed that religious institutions can benefit from “neutral government programs,” illustrating that legislatures should be updated to ensure equitable access and that legislative language should explicitly clarify that tax-credit scholarships can be used for religious schools.

 

(5) Preserve access to state-appointed legal counsel in religious freedom cases.

All defendants, regardless of religion, must be guaranteed the constitutional right of preserving access to state-appointed legal counsel in religious freedom cases. In the 2018 case Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a same-sex couple was denied their wedding cake because of the cake maker’s religious objections to same-sex marriage. Ultimately the Supreme Court ruled in favor of the cake maker. This case appeared before the Supreme Court because the Colorado courts treated the defense without an appropriate level of impartiality. Religious liberty prevailed due to a more detailed consideration of how the legal process itself was carried out. 


Why This Initiative Is Important


This proposal protects religious freedoms while solidifying the separation and secularity of the state. This balance is achieved by collectively establishing what rights are protected and where government interference is allowed. Educating people on the First Amendment, starting in grade school, ensures equal access to its protections. Religious freedom can ultimately lead to healthier economic trends. However, it is a fundamental right that requires formulated solutions to maintain its effectiveness.


Acknowledgements:


The following student(s) worked on this proposal: Hritamber Chakraborty, Johns Hopkins University; Royce “Rice” Williams, University of California, Davis; Jack Feenick, University of Virginia; Hannah Halladay, Cornell College.

The following individuals gave feedback during the creation of this proposal:

  1. David C. Iglesias, Director and Associate Professor of Law and Politics, Wheaton College for Faith, Politics and Economics. Wheaton, IL.


Note: Not all participants necessarily agree with every aspect of this proposal.


Sources


“Your Right to Religious Freedom.” American Civil Liberties Union, www.aclu.org/other/your-right-religious-freedom.


Religion in Schools | OSPI. (n.d.). Washington Office of Superintendent of Public Instruction. https://www.k12.wa.us/policy-funding/equity-and-civil-rights/information-families-civil-rights-washington-schools/religion-schools.


Rio, G. M. N., & Rojas, R. (2020, September 3). Mississippi Wants Magnolia to Be Centerpiece of New State Flag. The New York Times. https://www.nytimes.com/2020/09/02/us/mississippi-magnolia-state-flag.html.


Smith, S. (2020, July 1). Why Mississippi voted to change its flag after decades of debate. NBC News. https://www.nbcnews.com/news/us-news/why-mississippi-voted-change-its-flag-after-decades-debate-n1232607.


Esseks, J. (2018, June 4). In Masterpiece, the Bakery Wins the Battle but Loses the War. ACLU. https://www.aclu.org/blog/lgbt-rights/lgbt-nondiscrimination-protections/masterpiece-bakery-wins-battle-loses-war.


Supreme Court of the United States. Home. Supreme Court. https://www.supremecourt.gov/.

FindLaw Team. (2016, June 20). What is a Blaine Amendment? FindLaw. https://www.findlaw.com/education/curriculum-standards-school-funding/what-is-a-blaine-amendment.html.


Black, B. & Nelson, J. R. (2020, August 28). U.S. Supreme Court Expands Religious Freedom in Key Rulings. New York Law Journal. https://www.law.com/newyorklawjournal/2020/08/28/u-s-supreme-court-expands-religious-freedom-in-key-rulings/?slreturn=20210111193650.


Hilliard, N. M. (2004, December). The Separation of Church and State and Its Impact on Elementary Education. Southern Illinois University Edwardsville. 


Lempert, R. (2018, June 6). Masterpiece Cake: Baker Wins but the Supreme Court Leaves Key Questions Unanswered. Brookings. https://www.brookings.edu/blog/fixgov/2018/06/06/masterpiece-cake-baker-wins-but-the-supreme-court-leaves-key-questions-unanswered/.


Bauges, B. (2019). Balancing Religious Liberties and Anti-Discrimination Interests in the Public Employment Context: The Impact of Masterpiece Cakeshop and American Legion. Social Science Research Network, 54(943), 1-50. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3468352.


Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 584 U.S. Page 1 (2017) https://www.supremecourt.gov/opinions/17pdf/16-111_new2_22p3.pdf.


Hylton, K. N., Rodionova, Y. & Deng, F. (2011) Church and State: An Economic Analysis. American Law and Economics Review, 13(2), 402-405. https://www.jstor.org/stable/42705599?seq=1.


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