American Minute with Bill FedererJAN. 19 – Wall of Separation of Church and State – Justice William O’Douglas
William Orville Douglas died JANUARY 19, 1980.He taught law at Yale and Columbia University, then was nominated by Franklin Roosevelt to be a Justice of the U.S. Supreme Court.
He served the longest term in the Court’s history – 36 years.
Justice William O. Douglas wrote the majority decision in the 1952 case ofZorach v. Clauson:
“The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State…
Otherwise the state and religion would be aliens to each other – hostile, suspicious, and 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 Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment.
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…'”
Justice Douglas continued:
“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.”
Justice William Douglas concluded:
“We find 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…
We cannot read into the Bill of Rights such a philosophy of hostility to religion.”
OTHER OPINIONS ON THE ‘WALL OF SEPARATION OF CHURCH AND STATE:
Justice Potter Stewart wrote in his dissent of Engle v Vitale, 1962:
“The Court…is not aided…by the…invocation of metaphors like the ‘wall of separation,’ a phrase nowhere to be found in the Constitution.”
Justice Stanley Reed wrote in his dissent of McCullum v Board of Education, 1948:
“Rule of law should not be drawn from a figure of speech.”
Judge Richard Suhrheinrich wrote inACLU v Mercer County, 2006:
“The ACLU makes repeated reference to ‘the separation of church and state.’ This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. Our nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion.”
Justice William Rehnquist wrote in his dissent of Wallace v Jaffree, 1984:
“The ‘wall of separation between church and State’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. It is impossible to build sound constitutional doctrine upon a mistaken understanding of Constitutional history…
The establishment clause 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…
The recent court decisions are in no way based on either the language or intent of the framers…But the greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.”
Chief Justice Warren E. Burger wrote inLynch v Donnelly, 1984:
“The concept of a ‘wall’ of separation between church and state…is not an accurate description of the practical aspects of the relationship that in fact exists.
The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.
Anything less would require the ‘callous indifference’ (Zorach v. Clauson), that was never intended by the Establishment Clause…
Indeed, we have observed, such hostility would bring us into ‘war with our national tradition as embodied in the First Amendment’s guaranty of the free exercise of religion. (McCollum)…
Chief Justice Warren E. Burger added inLynch 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 creche in the display, as part of a celebration of an event acknowledged in the Western World for 20 centuries, and in this country by the people, the Executive Branch, Congress, and the courts for 2 centuries, would so ‘taint’ the exhibition as to render it violative of the Establishment Clause…
To forbid the use of this one passive symbol while hymns and carols are sung and played in public places including schools, and while Congress and state legislatures open public sessions with prayers, would be an overreaction contrary to this Nation’s history and this Court’s holdings…”
Chief Justice Warren E. Burger continued in 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.
In 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 neither the 17 draftsmen of the Constitution who were Members of the First Congress, nor the Congress of 1789, saw any establishment problem in the employment of congressional Chaplains to offer daily prayers 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 Warren E. Burger continued:
“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 religious holiday to give thanks for the bounties of Nature as gifts from God.
President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, 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 Christmas lost its religious significance…
Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms.
And, by 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…”
Chief Justice Warren E. Burger wrote further in Lynch v Donnelly:
“Thus, it is clear that Government has long recognized – indeed it has subsidized – holidays with religious significance.
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 our currency, 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.
The 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 Christian themes and messages.
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 chapels in the Capitol for religious worship and meditation.
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 God in prayer and meditation at churches, 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 concluded by quoting Justice William O’Douglas’ decision inZorach v Clauson:
“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 Zorach.
Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none.
Through this accommodation, as Justice Douglas observed, governmental action has ‘follow[ed] the best of our traditions’ and ‘respect[ed] the religious nature of our people.'”
