Religion and the Courts by David Barton
In recent years, clashes over religious expressions have been among the most frequent controversies decided by federal courts, with the U. S. Supreme Court having issued numerous rulings on the subject (a previously unprecedented practice in American history). Consequently, a body of nine unelected Justices now exercises more control over how, when, where, or if public religious activities will occur than any other entity in America. In fact, one Justice describes the Court as “a national theology board.”
The modern Court largely amassed its control over religion first by discarding the traditional limitations of the religion clauses of the First Amendment, and then by adopting the phrase “separation of church and state” as the modern measuring stick for judging the propriety of a challenged religious expression. By imputing a non-historic meaning to this celebrated historic phrase, the modern Court began declaring unconstitutional many long-standing religious practices and expressions.
The subsequent overzealous application by state and local officials of these court decisions (and of the “separation” phrase in general) produced even greater restrictions. Because of the current widespread coupling of “separation of church and state” with First Amendment controversies, many Americans now believe that the phrase is part of the First Amendment. Yet concerning religion, the First Amendment only states: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
For generations after its ratification, the courts relied solely on the clear and unambiguous wording of the First Amendment; the reliance on the “separation” metaphor is a recent judicial trend. For example, in the Supreme Court’s first 150 years, the separation idiom was invoked by the Court in only two cases; it has since been cited in seemingly countless cases. In fact, in actual cases filed under the First Amendment’s religion clauses in recent decades, the First Amendment was cited by courts in less than three thousand cases while the separation metaphor was cited in over four thousand. Strikingly, in examining First Amendment controversies, courts are more likely to cite the separation metaphor than they are the First Amendment itself.
That metaphor became the contemporary standard for judicial policy in 1947 in Everson v. Board of Education when the Court proclaimed: 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. 4 Relying on this phrase rather than the First Amendment, courts began striking down religious activities and expressions that had long been constitutional.