American Minute with Bill Federer
"Constitution does not require complete separation of church and state" -
Lynch v. Donnelly,
Justice William Orville Douglas
served the longest term on the bench in the Supreme Court's history -- 36 years, until his death JANUARY 19, 1980.
He was one of the eight Supreme Court Justices nominated by
Franklin D. Roosevelt.
He previously taught law at Columbia Law School and Yale Law School, and served on the U.S. Securities and Exchange Commission.
Justice William O. Douglas
wrote the majority decision in the 1952 case of
Zorach v. Clauson:
does not say
that in every and all respects there shall be a
separation of Church and State ...
would be aliens to each other --
even unfriendly ...
- Municipalities would not be permitted to render police or fire protection to religious groups.
- Policemen who helped parishioners into their places of worship would violate the Constitution.
- Prayers in our legislative halls;
- the appeals to the Almighty in the messages of the Chief Executive;
- the proclamations making Thanksgiving Day a holiday;
- 'So Help Me God' in our courtroom oaths;
-- these and all other references to the
that run through our laws, our public rituals, our ceremonies would be flouting the
A fastidious atheist or agnostic could even object to the supplication with which the
Court opens each session: 'God save the United States and this Honorable Court ...'"
"We are a religious people
whose institutions presuppose
a Supreme Being
... When the
state encourages religious instruction
... it follows the
best of our traditions.
For it then respects the
religious nature of our people
and accommodates the public service to their spiritual needs.
To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups.
That would be preferring those who believe in no religion over those who do believe ..."
no constitutional requirement
which makes it necessary for
government to be hostile to religion
and to throw its weight against efforts to widen the effective scope of religious influence ...
cannot read into the Bill of Rights
such a philosophy of
hostility to religion."
Chief Justice Warren E. Burger
cited Justice Douglas'
Zorach v. Clauson
opinion in the 1984 decision of
Lynch v Donnelly:
"The concept of a
'wall' of separation between church and state
a ... figure of speech
... but the
not a wholly accurate description
of the practical aspects of the relationship that in fact exists between
church and state.
The Constitution does not require complete separation of church and state;
it affirmatively mandates
not merely tolerance, of all religions, and
Anything less would require the
(Zorach v. Clauson),
never intended by the Establishment Clause ...
Indeed, we have observed,
would bring us into 'war with
our national tradition
as embodied in the
First Amendment's guaranty
free exercise of religion.
Justice Stanley Reed
wrote in his dissent of
McCullum v Board of Education,
"Rule of law
be drawn from
a figure of speech."
Justice Potter Stewart
wrote in his dissent of
Engle v Vitale,
"The Court ... is not aided ... by the ... invocation of
'wall of separation,' a phrase nowhere to be found in the Constitution."
Justice William Rehnquist
wrote in his dissent of
Wallace v Jaffree,
'wall of separation between church and State'
which has proved
as a guide to judging. It should be frankly and
It is impossible to build sound constitutional doctrine upon a
mistaken understanding of Constitutional history ...
had been expressly freighted with
Jefferson's misleading metaphor
for nearly forty years ...
There is simply
no historical foundation
for the proposition that the framers intended to build
a wall of separation ...
recent court decisions
in no way
based on either the language or
intent of the framers
... But the greatest injury of the
diversion of judges from the actual intentions of the drafters of the Bill of Rights."
Judge Richard Suhrheinrich
ACLU v Mercer County,
"The ACLU makes repeated reference to
'the separation of church and state.'
wall of separation between church and state.
Our nation's history is replete with g
and in some cases, accommodation
Committee for Public Education & Religious Liberty v. Nyquist,
413 U.S. 756, 760 (1973), the Court stated:
"This Nation's history has
been one of entirely sanitized
separation between Church and State.
been thought either
or desirable to enforce a regime of
The Court stated in
Lemon v. Kurtzman,
403 U.S. 602 (1971):
"Our prior holdings
do not call for total separation between church and state;
separation is not possible
in an absolute sense."
Chief Justice Warren E. Burger
Lynch v Donnelly,
"That neither the draftsmen of the Constitution, who were
Members of the First Congress
, nor the First Congress itself, saw any establishment problem in
employing Chaplains to offer daily prayers in the Congress
is a striking example of the
accommodation of religious beliefs intended by the Framers ...
Our history is pervaded by
official acknowledgment of the role of religion
in American life, and equally pervasive is evidence of accommodation of all faiths and all forms of religious expression and
hostility toward none ...
... It would be ironic if the inclusion of the
in the display, as part of a celebration of
an event acknowledged in the Western World for 20 centuries,
and in this country by
would so 'taint' the exhibition as to render it violative of the Establishment Clause ...
the use of
this one passive symbol
hymns and carols
are sung and played in public places including schools, and while Congress and state legislatures open public sessions with
would be an overreaction contrary to this Nation's history
and this Court's holdings ..."
Lynch v Donnelly:
"A significant example of the contemporaneous understanding of that Clause is found in the events of the first week of the First Session of the First Congress in 1789.
the very week that Congress approved the Establishment Clause
as part of the Bill of Rights for submission to the states,
it enacted legislation providing for paid Chaplains for the House and Senate ...
... It is clear that
draftsmen of the Constitution
Members of the First Congress,
Congress of 1789,
saw any establishment problem
in the employment of
in the Congress, a practice that has continued for nearly two centuries.
It would be difficult to identify
a more striking example of the accommodation of religious belief
intended by the Framers ..."
Chief Justice Burger
"Our history is replete with
official references to the value and invocation of Divine guidance
in deliberations and pronouncements of the Founding Fathers and contemporary leaders.
Beginning in the early colonial period long before Independence, a
day of Thanksgiving
was celebrated as a
to give thanks for the bounties of Nature as
gifts from God.
n and his successors proclaimed
with all its
a day of national celebration and Congress made it a National Holiday more than a century ago ...
That holiday has not lost its theme of expressing
thanks for Divine aid
any more than has
religious significance ...
and other official announcements of Presidents and of the Congress have proclaimed both
Christmas and Thanksgiving National Holidays
Acts of Congress,
it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the
Chaplains of the Senate and the House and the military services ...
Thus, it is clear that Government has long recognized -- indeed it has subsidized --
"Other examples of reference to our religious heritage are found in the statutorily prescribed national motto
'In God We Trust,'
which Congress and the President mandated for
and in the language
'One nation under God,
' as part of the
Pledge of Allegiance
to the American flag. That pledge is recited by many thousands of public school children -- and adults -- every year.
... Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly
inspired by one religious faith.
National Gallery in Washington,
maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably
the Last Supper,
and paintings depicting
the Birth of Christ,
the Crucifixion, and the Resurrection,
among many others with explicit
The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent -- not seasonal --
symbol of religion: Moses with the Ten Commandments.
Congress has long provided
in the Capitol for
There are countless other illustrations of the
Government's acknowledgment of our religious heritage
and governmental sponsorship of graphic manifestations of that heritage ..."
"Congress has directed the President to proclaim a
National Day of Prayer
each year 'on which (day) the people of the United States may turn to
and meditation at
in groups, and as individuals.'
Our Presidents have repeatedly issued such Proclamations. Presidential Proclamations and messages have also issued to commemorate
Jewish Heritage Week,
Presidential Proclamation No. 4844, 3 CFR 30 (1982), and the
Jewish High Holy Days,
17 Weekly Comp. of Pres. Doc. 1058 (1981) ..."
Chief Justice Warren E. Burger
Lynch v. Donnelly
"One cannot look at even this brief resume without finding that
our history is pervaded by expressions of religious beliefs
such as are found in
Equally pervasive is the evidence of accommodation of all
and all forms of
hostility toward none.
Through this accommodation, as
observed, governmental action has 'follow[ed] the
best of our traditions'
and 'respect[ed] the
religious nature of our people.'"
Justice Anthony Kennedy
Town of Greece v. Galloway,
May 5, 2014:
Marsh v. Chambers,
463 U. S. 783, the Court found
no First Amendment violation
in the Nebraska Legislature's practice of
opening its sessions with a prayer
delivered by a
paid from state funds.
The decision concluded that
while religious in nature, has long been understood as compatible with the Establishment Clause.
As practiced by Congress since the framing of the Constitution,
lends gravity to public business,
to transcend petty differences in
pursuit of a higher purpose,
and expresses a common aspiration to a just and peaceful society ...
are compatible with the Establishment Clause.
made it an early item of business to appoint and
pay official chaplains,
and both the House and Senate have maintained the office virtually uninterrupted since that time ...
provided for the appointment of
only days after approving language for the
demonstrates that the Framers considered
a benign acknowledgment of
religion's role in society ...
In the 1850's, the judiciary committees in both the House and Senate reevaluated the practice of
after receiving petitions to abolish the office. The committees concluded that the office
posed no threat of an establishment."
was referring to the
House Judiciary Committee Report of Congressman James Meacham
of Vermont, March 27, 1854:
"At the adoption of the Constitution, we believe
-- certainly ten of the thirteen --
as regularly for the
support of the Church
as for the
support of the Government."
Greece v. Galloway:
"Any test the Court adopts
must acknowledge a practice that was accepted by the Framers
and has withstood the critical scrutiny of time and political change ...
insistence on nonsectarian or ecumenical prayer
as a single, fixed standard
is not consistent with the tradition of legislative prayer
outlined in the Court's cases ...
The Congress that drafted the First Amendment
would have been accustomed to
invocations containing explicitly religious themes
of the sort respondents find objectionable ..."
"One of the Senate's first chaplains, the
Rev. William White,
in a series that included the
the Collect for Ash Wednesday,
for peace and grace, a general
St. Chrysostom's Prayer,
'the grace of our Lord Jesus Christ, &c' ...
Christian nature of these prayers must not be dismissed as the relic of a time
when our Nation was less pluralistic than it is today ..."
"The Court instructed that the
'content of the prayer
not of concern to judges' ...
To hold that invocations must be nonsectarian
would force the legislatures that sponsor prayers and the
that are asked to decide these cases to act as supervisors and
censors of religious speech,
a rule that would
involve government in religious matters
to a far greater degree than is the case under the town's current practice of neither editing or approving prayers in advance nor criticizing their content after the fact ...
It would be but a few steps removed
from that prohibition for legislatures to
redact the religious content
from their message in order to make it acceptable for the public sphere.
... Government may not mandate a civic religion
that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy ...
Lee v. Weisman,
505 U.S. 577, 590 (1992) ('The suggestion that
government may establish an official or civic religion
as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that
cannot be accepted');
374 U. S., at 306 (Goldberg, J., concurring) (arguing that 'untutored devotion to the
concept of neutrality'
'a brooding and pervasive devotion to the secular') ..."
"The First Amendment
define permissible categories of religious speech ...
vary in their
degree of religiosity,
they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in
but in our
founding documents and laws.
delivered to the Continental Congress by the
Rev. Jacob Duché
on Sept. 7, 1774, provides an example:
'Be Thou present O
God of Wisdom
and direct the counsel of this Honorable Assembly; enable them to settle all things on the best and surest foundations; that the scene of blood may be speedily closed; that Order, Harmony, and Peace be effectually restored, and the
Truth and Justice, Religion and Piety, prevail
and flourish among the people.
Preserve the health of their bodies, and the vigor of their minds, shower down on them, and the millions they here represent, such temporal
Blessings as Thou seest expedient
for them in this world, and crown them with
everlasting Glory in the world to come.
All this we ask
in the name
and through the merits of
Thy Son and our Saviour,
Amen'. W. Federer,
America's God and Country
137 (2000) ..."
Justice Anthony Kennedy
Town of Greece v. Galloway
decision, May 5, 2014:
"As a practice that has long endured,
part of our heritage
and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of
'God save the United States and this honorable Court'
at the opening of this Court's sessions ...
It is presumed that the reasonable observer is acquainted with this tradition ... Their purpose is largely to
accommodate the spiritual needs of lawmakers
and connect them to
a tradition dating to the time of the Framers ...
is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by
precepts far beyond the authority of government to alter or define
and that willing
participation in civic affairs
can be consistent with a brief acknowledgment of their
belief in a higher power,
always with due respect for those who adhere to other beliefs."
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