Separation of Church and State: A History

Kaitlyn Rentala
​Kaitlyn Rentala is a freshman in the College of Arts and Sciences at the University of Pennsylvania studying Philosophy, Politics and Economics (PPE).

Every person has been told the common maxim to never talk politics or religion at the dinner table. While maybe best avoided at a dinner party, the intersection of politics and religion is in fact a critical topic in American history that requires thoughtful discourse. From the establishment of “separation of church and state” in the First Amendment, religious liberty has long been a highly debated issue in the legal realm. To fully examine the history of religious liberty in the United States, one must look at the landmark Supreme Court cases that established the parameters in which religion interacts with government today.

With the establishment of freedom of religion as a basic tenet of American society, the United States became a pioneer among nations. The First Amendment, drafted by Virginia statesman James Madison, became a watershed act and affirmed constitutional protection for individual liberties. Adopted in 1791, the First Amendment prevented the federal government from making any law “respecting an establishment of religion.” [1] Furthermore, in 1868, the 14th amendment extended freedom of religion by preventing any state from making a law that discriminated or inhibited religion. [2] While this set the constitutional basis for religion’s relationship to the state, the years following the 14th amendment have seen a constant slew of cases that deal with religion and its place in government.

The first of these cases was Cantwell v. Connecticut (1941), which was the first case to be influenced by the Free Exercise Clause of the 14th amendment. [3] In this specific incident, the Court considered whether a Connecticut statute that required permits to solicit for religious activities was constitutional. The Court ruled unanimously against state, arguing that the statute required the state define which causes were religious and which were not, a violation of the First Amendment’s Free Exercise rights. Importantly, the Court also noted that the idea that the federal government is prevented from meddling in religious freedom also applies to the state.

Arguably the most important case dealing with religion is Lemon v. Kurtzman (1971). This case for the first time set out definite parameters for the constitutionality of state laws involving religion. [4] In this case, the Court considered whether a Pennsylvania law reimbursing religious schools for textbooks was deemed excessive government entanglement with religion. In what is now known as the Lemon test, the Court decided that there must be a primary secular purpose, no aid or inhibition of the advancement of religion, and no excessive entanglement of government and religion. [5] Based on the Lemon test, the Court ruled that the Pennsylvania law was, in fact, unconstitutional. The Lemon test would serve as a barometer for almost every subsequent religion case facing the Supreme Court.

Finally, in the critical case Edwards v. Aguillard (1987), the Court used the Lemon test to determine the constitutionality of a Louisiana law that forbid the teaching of evolution theory in public schools unless “creation science” was taught in conjunction. [6] In a 7-2 decision, the Court ruled that the law violated the Establishment clause of the First Amendment and its application to states by the Fourteenth Amendment. The Louisiana law also failed all parts of the Lemon test as it used government funding to advance a clearly religious objective. This is a good example of the Lemon test in action and set a precedent for a narrower reading of the First and Fourteenth Amendment. 

Religion as it interacts with the state today is a pressing matter. Recently, religion and its constitutionality have come to the forefront of the national debate, especially with recent cases involving abortion. There are at least 20 cases regarding abortion in the pipeline to the Supreme Court, with experts hypothesizing that any one of them could overturn Roe v. Wade. [7] The history of Supreme Court cases involving religious freedom will certainly come into play in upcoming abortion cases. Religion has always been a major part of American society and will continue to affect American society and government for years to come.

The opinions and views expressed through this publication are the opinions of the designated
authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our
staff, or our clients.

UReferences
[1] LII Staff. “First Amendment.” Legal Information Institute, Legal Information Institute, 10 Oct. 2017, www.law.cornell.edu/constitution/first_amendment.
[2] Editors, History.com. “Freedom of Religion.” History.com, A&E Television Networks, 7 Dec. 2017, www.history.com/topics/united-states-constitution/freedom-of-religion.
​[3] “Religious Liberty: Landmark Supreme Court Cases.” Bill of Rights Institute, billofrightsinstitute.org/cases/. 
[4] Ibid.
[5] Linder, Doug. Lemontest, law2.umkc.edu/faculty/projects/ftrials/conlaw/lemontest.html. 
[6] “Religious Liberty: Landmark Supreme Court Cases.” Bill of Rights Institute, billofrightsinstitute.org/cases/.
[7] Cha, Ariana Eunjung. “At Least 20 Abortion Cases Are in the Pipeline to the Supreme Court. Any One Could Gut Roe v. Wade.” The Washington Post, WP Company, 15 Feb. 2019, www.washingtonpost.com/health/2019/02/15/least-abortion-cases-are-steps-us-supreme-court-any-one-could-gut-roe-v-wade/. 
​Image Source: Unsplash