Separation of church and state in the United States

The U.S. Constitution

Article 6

Article Six of the United States Constitution provides that "no religious test shall ever be required as a Qualification to any Office or public Trust under the United States". Before the adoption of the Bill of Rights, this was the only mention of religion in the Constitution.

The First Amendment

The first amendment to the Constitution reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The two parts, known as the "establishment clause" and the "free exercise clause" respectively, form the textual basis for the Supreme Court's interpretations of the "separation of church and state" principle. Although the phrase "separation of church and state" does not appear in the Constitution, the Establishment Clause has often been interpreted as requiring separation between government and religion. Three central concepts derived from the First Amendment became America's doctrine for church-state separation: no coercion in religious matters, no expectation to support a religion against one's will, and religious liberty encompasses all religions. In sum, citizens are free to embrace or reject a faith, support for religion—financial or physical—must be voluntary, and all religions are equal in the eyes of the law.

The First Congress's deliberations show that its understanding of the separation of church and state differed sharply from that of their contemporaries in Europe. As the 19th-century historian Philip Schaff observed:

The American separation of church and state rests upon respect for the church; the [European anticlerical] separation, on indifference and hatred of the church, and of religion itself... The constitution did not create a nation, nor its religion and institutions. It found them already existing and was framed for the purpose of protecting them under a republican form of government, in a rule of the people, by the people, and for the people.

An August 15, 1789, entry in Madison's papers indicates he intended for the establishment clause to prevent the government imposition of religious beliefs on individuals. The entry says: "Mr. Madison said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience."

Some legal scholars, such as John Baker of LSU, theorize that Madison's initial proposed language—that Congress should make no law regarding the establishment of a "national religion"—was rejected by the House, in favor of the more general "religion" in an effort to appease the Anti-Federalists. To both the Anti-Federalists and the Federalists, the very word "national" was a cause for alarm because of the experience under the British crown. During the debate over the establishment clause, Rep. Elbridge Gerry of Massachusetts took issue with Madison's language regarding whether the government was a national government, or a federal government (in which the states retained their individual sovereignty), which Baker suggests compelled Madison to withdraw his language from the debate.

Following the argument between Madison and Gerry, Representative Samuel Livermore of New Hampshire proposed language stating that "Congress shall make no laws touching religion or the rights of conscience." This raised an uproar from members, such as Representative Benjamin Huntingdon of Connecticut and Representative Peter Sylvester of New York, who worried the language could be used to harm religious practice.

Others, such as Representative Roger Sherman of Connecticut, believed the clause was unnecessary because the original Constitution gave Congress only stated powers, which did not include establishing a national religion. Anti-Federalists such as Representative Thomas Tucker of South Carolina moved to strike the Establishment Clause completely because it could preempt the religious clauses in the state constitutions, but did not persuade the House of Representatives to drop the clause from the First Amendment.

The Senate went through several more narrowly targeted versions before reaching the contemporary language. One version read, "Congress shall make no law establishing one religious sect or society in preference to others, nor shall freedom of conscience be infringed," while another read, "Congress shall make no law establishing one particular religious denomination in preference to others." Ultimately, the Senate rejected the more narrowly targeted language.

At the time of the passage of the Bill of Rights, many states acted in ways that would now be held unconstitutional. All the early official state churches were disestablished by 1833 (Massachusetts), including the Congregationalist establishment in Connecticut. It is commonly accepted that under the doctrine of Incorporation—which uses the Due Process Clause of the Fourteenth Amendment to hold the Bill of Rights applicable to the states—these state churches could not be reestablished today.

Yet the provisions of state constitutions protected religious liberty, particularly the so-called freedom of conscience. During the nineteenth century (and before the incorporation of the First Amendment of the U.S. Constitution through the Fourteenth Amendment), litigants turned to these provisions to challenge Sunday laws (blue laws), bible-reading in schools, and other ostensibly religious regulations.

David Sehat, professor of American Intellectual and Cultural History at Georgia State University, writes that:

But when the First Amendment was ratified in 1791, it did not apply to the states and would not until well into the 20th century. As a result, the First Amendment did not prevent states from paying churches out of the public treasury, as Maryland, Massachusetts, New Hampshire, Vermont, Connecticut, and South Carolina did when that amendment was written. And those states that did not fund churches still favored Christianity. Blasphemy was forbidden in Delaware in 1826, and officeholders in Pennsylvania had to swear that they believed in “the being of a God and a future state of rewards and punishments.” American federalism gave states enormous power to regulate the health, welfare and morals of their citizens. Because many thought religion was the foundation of American society, they used their power to imprint their moral ideals on state constitutions and judicial opinions for much of American history.

The Fourteenth Amendment

The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments intended to secure rights for former slaves. It includes the due process and equal protection clauses among others. The amendment introduces the concept of incorporation of all relevant federal rights against the states. While it has not been fully implemented, the doctrine of incorporation has been used to ensure, through the Due Process Clause and Privileges and Immunities Clause, the application of most of the rights enumerated in the Bill of Rights to the states.

The Supreme Court applied the Free Exercise Clause to the states in Cantwell v. Connecticut (1940). The Establishment Clause was applied to the states in the landmark case Everson v. Board of Education (1947), completing the First Amendment religious Clauses through the Fourteenth Amendment.

The incorporation of the Establishment Clause in Everson v. Board of Education has affected the subsequent interpretation of the separation of church and state in regard to state governments. Although it upheld state law in that case, which provided for public busing to private religious schools, the Supreme Court held that the First Amendment Establishment Clause was fully applicable to state governments. Board of Education of Kiryas Joel Village School District v. Grumet (1994) involved the application of this principle to the states.

Supreme Court cases

Jefferson's concept of "separation of church and state" first became a part of Establishment Clause jurisprudence in Reynolds v. United States, 98 U.S. 145 (1878). In that case, the court examined the history of religious liberty in the US, determining that while the constitution guarantees religious freedom, "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 court found that the leaders in advocating and formulating the constitutional guarantee of religious liberty were Madison and Jefferson. Quoting the "separation" paragraph from Jefferson's letter to the Danbury Baptists, the court concluded that "coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."

The centrality of the "separation" concept to the Religion Clauses of the Constitution was made explicit in Everson v. Board of Education, 330 U.S. 1 (1947), a case dealing with a New Jersey law that allowed government funds to pay for transportation of students to both public and Catholic schools. This was the first case in which the court applied the Establishment Clause to the laws of a state, having interpreted the due process clause of the Fourteenth Amendment as applying the Bill of Rights to the states as well as the federal legislature. Citing Jefferson, the court concluded that "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

While the decision (with four dissents) upheld the state law allowing the funding of transportation of students to religious schools, the majority opinion (by Justice Hugo Black) and the dissenting opinions (by Justices Wiley Blount Rutledge and Robert H. Jackson) each explicitly stated that the Constitution has erected a "wall between church and state" or a "separation of Church from State": their disagreement was limited to whether this case of state funding of transportation to religious schools breached that wall. Rutledge, on behalf of the four dissenting justices, took the position that the majority had indeed permitted a violation of the wall of separation in this case: "Neither so high nor so impregnable today as yesterday is the wall raised between church and state by Virginia's great statute of religious freedom and the First Amendment, now made applicable to all the states by the Fourteenth." Writing separately, Jackson argued that "there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating a complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters."

In 1962, the Supreme Court addressed the issue of officially sponsored prayer or religious recitations in public schools. In Engel v. Vitale, 370 U.S. 421 (1962), the Court, by a vote of 6–1, determined it unconstitutional for state officials to compose an official school prayer and require its recitation in public schools, even when the prayer is non-denominational and students may excuse themselves from participation. (The prayer required by the New York State Board of Regents before the Court's decision was: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country. Amen.") As the Court stated:

The petitioners contend, among other things, that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention, since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

The court noted that it "is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America." The lone dissenter, Justice Potter Stewart, objected to the court's embrace of the "wall of separation" metaphor: "I think that the Court's task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the 'wall of separation,' a phrase nowhere to be found in the Constitution."

In Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court considered an Arkansas law that made it a crime "to teach the theory or doctrine that mankind ascended or descended from a lower order of animals" or "to adopt or use in any such institution a textbook that teaches" this theory in any school or university that received public funds. The court's opinion, by Justice Abe Fortas, ruled that the Arkansas law violated "the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas' law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group." The court held that the Establishment Clause prohibits the state from advancing any religion, and that "the state has no legitimate interest in protecting any or all religions from views distasteful to them."

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the court determined that a Pennsylvania state policy of reimbursing the salaries and related costs of teachers of secular subjects in private religious schools violated the Establishment Clause. The court's decision argued that the separation of church and state could never be absolute: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable," the court wrote. "Judicial caveats against entanglement must recognize that the line of separation, far from being a 'wall', is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."

Since that decision, the Supreme Court has applied a three-pronged test to determine whether government action comports with the Establishment Clause, known as the "Lemon Test". First, the law or policy must have been adopted with a neutral or non-religious purpose. Second, the principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute or policy must not result in an "excessive entanglement" of government with religion. (The decision in Lemon v. Kurtzman hinged upon the conclusion that the government benefits were flowing disproportionately to Catholic schools, and that Catholic schools were an integral component of the Catholic Church's religious mission, thus the policy involved the state in an "excessive entanglement" with religion.) Failure to meet any of these criteria is a proof that the statute or policy in question violates the Establishment Clause.

In 2002, a three-judge panel on the Ninth Circuit Court of Appeals held that classroom recitation of the Pledge of Allegiance in a California public school was unconstitutional, even when students were not compelled to recite it, due to the inclusion of the phrase "under God". In reaction to the case, Elk Grove Unified School District v. Newdow, both houses of Congress passed measures reaffirming their support for the pledge and condemning the panel's ruling. The case was appealed to the Supreme Court, which overturned the ruling in 2004 on procedural grounds not related to the substantive constitutional issue. Rather, a five-justice majority held that Newdow, a non-custodial parent suing on behalf of his daughter, lacked standing to sue.

When the Louisiana state legislature passed a law requiring public school biology teachers to give Creationism and Evolution equal time in the classroom, the Supreme Court ruled that the law was unconstitutional because it was intended to advance a particular religion, and did not serve the secular purpose of improved scientific education.

The display of the Ten Commandments as part of courthouse displays was considered in a group of cases decided in the summer of 2005, including McCreary County v. ACLU of Kentucky and Van Orden v. Perry. While parties on both sides hoped for a reformulation or clarification of the Lemon test, the two rulings ended with narrow 5–4 and opposing decisions, with Justice Stephen Breyer the swing vote.

On December 20, 2005, the United States Court of Appeals for the Sixth Circuit ruled in the case of ACLU v. Mercer County that the continued display of the Ten Commandments as part of a larger display on American legal traditions in a Kentucky courthouse was allowed, because the purpose of the display (educating the public on American legal traditions) was secular in nature. In the Mount Soledad Cross controversy on May 3, 2006, however, a federal judge ruled that the cross on public property on Mount Soledad must be removed.

In Town of Greece v. Galloway, 12-696, the Supreme Court agreed to hear a case regarding whether prayers at town meetings, which are allowed, must allow various faiths to lead prayer, or whether the prayers can be predominantly Christian. On May 5, 2014, the U.S. Supreme Court ruled 5–4 in favor of the Town of Greece by holding that the U.S. Constitution not only allows for prayer at government meetings, but also for sectarian prayers like predominantly Christian prayers.

The Supreme Court in The American Legion v. American Humanist Association 2019 reversed the Fourth Circuit's ruling in a 7–2 decision, determining that since the government-maintained Peace Cross in Bladensburg, Maryland, had stood for decades without controversy, it did not violate the Establishment Clause and could remain standing.

On June 21, 2022, the Supreme Court ruled in a 6–3 vote that the state program that provides tuition to schools should not exclude religious schools and reversed the ban imposed in the state of Maine. Chief Justice John Roberts Jr. said that the issue was the "discrimination against religion" and that the tuition program "promotes stricter separation of church and state than the federal Constitution requires". The three justices who dissented said that "the decision was another step in dismantling the wall of separation between church and state that the framers fought to build.”

In Oklahoma Statewide Charter School Board v. Drummond the court split 4-4.

Early treaties and court decisions

The Treaty of Paris

In 1783, the United States signed a treaty with Great Britain that was promulgated "in the name of the Most Holy and Undivided Trinity". It credited "'Divine Providence' with having disposed the two parties to 'forget all past misunderstandings,' and is dated 'in the year of our Lord' 1783."

The Treaty of Tripoli

In 1797, the United States Senate ratified a treaty with Tripoli that stated in 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 tranquillity, of Mussulmen; and, as the said States never entered into any war or act of hostility against any Mahometan 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.

Historian Anson Phelps Stokes noted in his 1950 history of this question that "those who wished to deny that the United States as a government has any special regard for the Christian religion...[have ] almost invariably failed to call attention to the fact that the treaty was superseded, less than a decade later, by another 'Treaty of Peace and Amity,' signed in Tripoli June 4, 1805, in which the clause in question...is omitted."

Church of the Holy Trinity v. United States

In the 1892 case Church of the Holy Trinity v. United States, Supreme Court Justice David Brewer wrote for a unanimous Court that "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. ... [T]his is a Christian nation." Legal historian Paul Finkelman writes that:

Brewer, the son of a Congregationalist missionary to Asia Minor, quoted several colonial charters, state constitutions, and court decisions that referred to the importance of Christian belief in the affairs of the American people; cited the practice of various legislative bodies of beginning their sessions with prayer, and noted the large number of churches and Christian charitable organizations that exist in every community in the country as evidence that this is a Christian nation. In doing so, Brewer expressed the prevailing nineteenth-century Protestant view that America is a Christian nation.

Interpretive controversies

Since the late 20th century, some scholars and organizations disagree with the way the Supreme Court has interpreted the constitutional limitation on religious establishment. Such critics generally argue that many aspects of church and state were intermingled at the time the Constitution was ratified, and that the framers had a different intention than has developed in the more than 200 years since the constitution was written. These critics note that there were religious references in official contexts, and other founding documents, such as the United States Declaration of Independence, reference the idea of a "Creator" and "Nature's God."

Passage of the 14th Amendment in 1868 incorporated recognition that the First Amendment applied to actions by state governments. Many constitutional debates relate to competing interpretive theories of originalism versus modern, progressivist theories such as the doctrine of the Living Constitution. Other debates center on the principle of the law of the land in America being defined not just by the Constitution's Supremacy Clause, but also by legal precedents. This says that interpretations of the Constitution are subject to the morals and values of a given era. It is not a question of historical revisionism when discussing the Constitution.

The "religious test" clause has been interpreted to cover both elected and appointed federal officials, career civil servants (a relatively recent innovation), and political appointees. Religious beliefs or the lack of them have not been permissible tests or qualifications with regard to federal employees since the ratification of the Constitution.

Seven states, however, included language in their Bill of Rights or Declaration of Rights, or in the body of their constitutions, that require state office-holders to have particular religious beliefs. Some of these have been successfully challenged in court. These states are Massachusetts, Maryland, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas.

Among the required beliefs is: a Supreme Being and a future state of rewards and punishments. (Tennessee Constitution Article IX, Section 2 is an example of this.) Some of these same states specify that the oath of office include the words "so help me God." In some cases, these oaths were historically required of jurors and witnesses in court. At one time, such restrictions were allowed under the doctrine of states' rights. In the early 21st century, they are deemed to be in violation of the federal First Amendment, as applied to the states via the 14th amendment. They are unconstitutional and unenforceable.

Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the designation of Christmas as a federal holiday, etc., have also been questioned. These have continued while considered examples of the governmental prerogative in deciding practical and beneficial arrangements for the society. The national motto "In God We Trust" has been challenged as a violation, but the Supreme Court has ruled that ceremonial deism is not religious in nature. A circuit court ruling in 2001 affirmed Ohio's right to use as its motto a passage from the Bible, "With God, all things are possible", because it displayed no preference for a particular religion.

Jeffries and Ryan (2001) argue that the modern concept of separation of church and state dates from the mid-twentieth century rulings of the Supreme Court. The central point, they argue, was a constitutional ban against aid to religious schools, followed by a later ban on religious observance in public education. Jeffries and Ryan argue that these two propositions—that public aid should not go to religious schools and that public schools should not be religious—make up the separationist position of the modern Establishment Clause.

Jeffries and Ryan argue that the no-aid position drew support from a coalition of separationist opinion. Most important was "the pervasive secularism that came to dominate American public life," which sought to confine religion to a private sphere. The ban against government aid to religious schools was supported before 1970 by most Protestants (and most Jews), who opposed aid to religious schools, which were primarily Catholic at the time.

Originalist critics of the modern concept of the "separation of church and state" argue that it is contrary to the conception of the phrase as the Founding Fathers understood it. But society and the law have changed. In the case of Locke v. Davey (2004), briefs before the Supreme Court, including by the U.S. government, argued that some state constitutional amendments relating to the modern conception of separation of church and state (Blaine Amendments) were motivated by and intended to enact anti-Catholicism.

J. Brent Walker, executive director of the Baptist Joint Committee, has said:

"The fact that the separation of church and state has been supported by some who exhibited an anti-Catholic animus or a secularist bent does not impugn the validity of the principle. Champions of religious liberty have argued for the separation of church and state for reasons having nothing to do with anti-Catholicism or desire for a secular culture. Of course, separationists have opposed the Catholic Church when it has sought to tap into the public till to support its parochial schools or to argue for on-campus released time in the public schools. But that principled debate on the issues does not support a charge of religious bigotry"

Steven Waldman says, "The evangelicals [sic, Baptists and Methodists] provided the political muscle for the efforts of Madison and Jefferson, not merely because they wanted to block official churches but because they wanted to keep the spiritual and secular worlds apart." Frank Lambert wrote "Religious freedom resulted from an alliance of unlikely partners. New Light evangelicals such as Isaac Bachus and John Leland joined forces with Deists and skeptics such as James Madison and Thomas Jefferson to fight for a complete separation of church and state."

James Madison was influenced by the struggle of Baptists in Virginia before the Revolution, where young men were jailed for preaching without a license from the Anglican Church. As a young lawyer, Madison defended such men in court. Both Madison and Jefferson incorporated religious freedom into the state constitution of Virginia.

Judge Charles C. Haynes wrote an OpEd in 2013 in The Washington Post, saying:

For James Madison, Thomas Jefferson and other early supporters of church-state separation, authentic religious liberty requires that government remain neutral toward religion while simultaneously upholding the right of religious people and institutions to participate fully in the public square of America. Ignoring the role of religion ... is hardly "neutral." On the contrary, such exclusion sends a message of government hostility to the religious. The First Amendment does not guarantee atheists or anyone else "freedom from religion." Frequent exposure to religious symbols and messages is inevitable in our religiously diverse society. The First Amendment does, however, guarantee “freedom from government-imposed religion” – a core condition of liberty of conscience.

Politics and religion in the United States

Robert N. Bellah has written that, although the separation of church and state is grounded firmly in the U.S. Constitution, this does not mean that there is no religious dimension in U.S. political society. He used the term "civil religion" to describe the specific relation between politics and religion in the U.S. His 1967 article analyzes John F. Kennedy's inaugural speech: "Considering the separation of church and state, how is a president justified in using the word 'God' at all? The answer is that the separation of church and state has not denied the political realm a religious dimension."

In 2013, the House of Representatives voted overwhelmingly to retain "In God We Trust" as the official motto of the United States. Only nine members of Congress, eight Democrats and a Republican, voted against the resolution.

A May 2022 study found that the strongest support for declaring the U.S. a Christian nation comes from Republicans who identify as Evangelical or born-again Christians. Of this group, 78% favor formally declaring the U.S. a Christian nation, versus only 48% of Republicans overall. Age is also a factor, with over 70% of Republicans from the Baby Boomer and Silent Generations supporting the United States officially becoming a Christian nation. According to Politico, the polling also found that sentiments of white grievance are highly correlated with Christian nationalism: "White respondents who say that members of their race have faced more discrimination than others are most likely to embrace a Christian America. Roughly 59% of all Americans who say white people have been discriminated against ... favor declaring the U.S. a Christian nation, compared to 38% of all Americans."

Justice Clarence Thomas has disputed that the Establishment Clause applies to the States, believing it constitutional for states to establish a state religion.

In 2013, North Carolina politicians proposed a bill that could have seen North Carolina establish an official religion for the state. A 2013 YouGov poll found that 34% of people favored establishing Christianity as the official state religion in their own state, 47% opposed it, and 19% were undecided.

In June 2022, Representative Lauren Boebert told a church audience, "The church is supposed to direct the government. The government is not supposed to direct the church. That is not how our Founding Fathers intended it. And I am tired of this separation of church and state junk. It's not in the Constitution."

In June 2024, Louisiana Governor Jeff Landry signed into law Louisiana House Bill 71, mandating schools that receive public funding to display a copy of the Ten Commandments. Several organizations, such as the American Civil Liberties Union, have sharply criticized this policy, and multiple lawsuits have been filed against the bill.