Crumbling wall between church and state

Dear Readers, Nestled in our First Amendment is the quaint notion of an impenetrable wall separating religion from government.  “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.”  This is why religious organizations pay no income or property taxes on church holdings.

The statutory definition of religion is broad; it creates scads of headaches in our jails and prisons.  8^th Amendment civil rights litigations prod prisons to accommodate a wide variety of religious practices of even the most obscure of religions. 

Peyote consumption is fundamental to some Native American religious practices.  It is also a psychedelic and classified as a controlled substance.  This creates a difficult dichotomy, permitting its use in a ceremony and criminal code enforcement.  The same is true with marijuana consumption in “boutique” religions.  

We require a house of worship not to be used for political purposes.  Yet, we have political leaning activities not directly attached to a church (like “Pews to the Polls” and “Right to Life” marches) that clearly have political influence on society.  You cannot bleed politics out of worship, particularly in modern American society.

When our country was formed, it was born in the cauldron of nation-states in Europe, duking it out over religious differences.  Prussia formed out of the Protestant rebellion started by Martin Luther’s heretical posts.  King Henry VIII converted an entire country to, essentially, state-supported Catholicism by regal edict (so he could marry Anne Boleyn and divorce Catherine of Aragon).  In one instance, he defrocked the Pope as the head of a religion and established regal religious supremacy.  An eventual backlash, begat “Bloody Mary’s” cleansing of Protestantism and a religious conflagration sparked a Hundred Year War across Europe … and crept into the New World.

Our forebearers came here, in part, to flee the warring religious chaos in Europe; the settlement of our colonies is intertwined with the pursuit of religious freedom.  Calvinist/Puritan adherents in England fled persecution for the wilds of new opportunities in a New World.  France viewed itself as the champion of Catholicism and was hostile to the Huguenot-Protestant John Calvin followers amongst its population.  The Huguenots sought freedom to practice their form of Protestantism.  

Maryland (invoking the name of Queen Mary) was created as a refuge for Catholic Englishmen seeking a sanctuary to practice their religion free of the influence of the Anglican Crown.  Roger Williams even tried to offer Rhode Island as a sanctuary from religious persecution. 

From this cesspool of religious persecution was born our religious tenets in the First Amendment.  Congress (later extended to the states) is prohibited from “establishing” a religion, and we have the right to “freely exercise” are religious practices.  This has been coined as the “wall of separation between church and state.”

The law has had to wrestle with many thorny religious thickets.  The Quakers have a pacifist core principle and oppose warring of any type.  Does this mean adherents are not subject to a draft?  Jehovah’s Witnesses proselytize by going door-to-door, spreading the “Good News.”  Can this type of solicitation be barred?  We recognize that atheists have the right not to practice a religion.  Can children be forced to say the Pledge of Allegiance or pray in public schools?  These are just a few tangled Constitutional questions.

The religious issues have become even more complicated today.  Religious institutions are interwoven in our commercial activities, running hospitals, teaching our children, providing socially uplifting services, etc.  Yet, they still claim the right to their moral tenets.  They do not want to be forced to provide access to contraceptives to employees or abortion counseling.

As the demarcation between church and state weakens, we move ever closer to selecting religious “winners” with public dollars.  Right now, the Supreme Court is considering a case that may eradicate this separation; we are ever closer to state-sponsored religious activity.

St. Isidore of Seville Catholic Virtual School in Oklahoma has applied for taxpayer support as a religious charter school.  Under the theory, it cannot be “discriminated” against, because of its fundamental Catholic mission; St. Isidore argues it must be granted taxpayer support.  As Justice Sotomayor observed at oral arguments, “What you’re saying is the Free Exercise Clause trumps the essence of the Establishment Clause.”

This case could be the final wrecking ball protecting us from the state-supported religious persecution denounced by the Founding Fathers.  If the state can be used as a mechanism to indoctrinate our youth in a specific faith, we will be swimming in dangerous waters.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.