The Blessing of Separating Church and State

– Alan Garfield

Why would we want to separate church and state? Isn’t religion a positive force in society? Doesn’t it foster ethical behavior and encourage charity? Just think of all the church-run soup kitchens or the moral leadership provided by the Rev. Martin Luther King Jr.

So why would the framers build a wall separating church and state? Why not unite the two and combine their power for good?

Prof. Alan Garfield.

Prof. Alan Garfield.

Of course, the Constitution never explicitly says that there must be a wall separating church and state. But the First Amendment does say that “Congress shall make no law respecting an establishment of religion.” In a landmark 1947 decision, the Supreme Court explained that this clause was “intended to erect ‛a wall of separation between church and State’” and that this wall “must be kept high and impregnable.”

What were the framers thinking? Were they opposed to religion? Were they at war with Christmas?

Certainly not. Most were religious themselves.

The framers merely knew their history. And history taught them that combining church and state produces a volatile brew that is good for neither church nor state. [Read more…]

The Limits of Freedom of Religion

Since the Supreme Court pronounced that a corporation can have religious rights, a number of new cases have been emerging, seeking to stake out broad additional territory.

In the Hobby Lobby case, the Court found that a closely held business corporation had religious rights, and could deny its employees contraceptive health insurance coverage called for under the Affordable Care Act. But that ruling may be only the beginning of a new chapter in the law of religious freedom under the First Amendment.

A few years ago the Pennsylvania Department of State, the agency that processes incorporation papers, refused to accept an application for the title “I Choose Hell Productions LLC” because it contained blasphemy. The Department rested its refusal on a law against blasphemy in corporate names, and argued in support of the law that the public should not be exposed to inflammatory language. The federal court hearing the case ruled that the law was an unconstitutional effort to advance religion.

But what about a law that is entirely neutral – that does not deal with religion at all? Polygamy is unlawful across the board, even though a few religions allow it. A law against cruelty to animals will be effective against animal sacrifice if the law is conceived and worded neutrally, and not as a reaction to a particular religion.

Simons Looking back by Stevie

A Jewish lesbian wedding in Colorado. Photo by Steve Crecilius.

However, in Hobby Lobby, the Supreme Court ruled that a corporation for profit could avoid complying with a provision of a totally neutral law – the Affordable Care Act – to provide insurance that includes benefits for contraceptives, if the owners of the business have a religious scruple against use of the abortifacient medicines at issue. Since then, it has been open season on religious exemption claims.

Several states have extended to gays the protection of their laws against discrimination in employment, housing and commerce. In Colorado, a cake baker refuses to prepare wedding cakes for LGBT weddings. The baker justifies his refusal on grounds of his religious beliefs. A gay couple challenged the refusal before the state human relations agency and won. The baker is appealing to a court from agency’s the ruling against him.

In New York, a catering hall that usually handles weddings refuses to rent out for gay weddings. A gay couple who were refused a booking complained to the New York State human relations agency and were successful. The wedding hall is appealing to the state courts.

What is the right answer to these cases? The traditional response is rendering up to Caesar: Those who engage in commerce must accept the burden of the laws that cover matters such as trade and employment. The newly emerging answer may be that individual religious scruples are protected, even in the commercial marketplace.

As a minority, Jews might prefer the new and enlarged version of the First Amendment protection of religion. Maintaining our religious practice without any accommodation is certainly very difficult at times.

Or we might conclude the opposite. Consider that the baker might have anti-Semitic “scruples” along with his belief against gay marriage. The wedding hall could prefer not to accept events that bless a marriage without mentioning the Christian sacraments.

Large urban centers have plenty of bakers and wedding halls, but other areas, where few Jews live, may also have few of these services. Should the views of such services’ owners – even the sincerely held religious views — exempt the businesses from the anti-discrimination laws of their states or of the federal government?

As the new cases move along, we will find out.