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Understanding or Misunderstanding? Church and State

Bertram Halbruner

By Bertram Halbruner

Allow me to begin by saying that it is not my intent to persuade the readers to accept my point of view. Rather I hope to stimulate thought and conversation. In presenting information, perhaps the reader will be inspired to do a bit of research or reflection on the topic at hand. Perhaps gaining some insight and thereby a better understanding of the subject. 

What exactly does the Constitution say with respect to the church? It says nothing. The Constitution instead addresses “Religion.” The First Amendment’s only reference to religion reads as follows: “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.”  

Historically, as a colony of England, America was subject to a state religion, The Church of England, headed, of course, by King George. As the Pope is head of the Roman Catholic Church, so King George was head of the Church of England. As a result, worship, etc. was governed by the state. The King could levy taxes to support the church, priests/pastors could be appointed or removed by state edict, making the church and its ministers instruments of the state. Possibly becoming a Pandora’s box of corruption.  

Our forefathers wanted no part of this, believing that a free people should be free to worship as they pleased.  They addressed the issue in the Bill of Rights.  

So, where exactly are we to draw the line or erect the wall between the church or faith and the government. At what point does “the free exercise thereof” end? At what point does government regulation or oversight cross the line? At what point is government establishing a religion? These are questions debated almost from 1791 to the present.  

It may be understood that the First Amendment wording, declaring that Congress not make laws respecting the establishment of religion, does not simply prohibit a state religion. It may also prohibit Congress from enacting laws that prevent or limit the establishment of certain religions that they may feel are contrary to the collective good. 

In the past, we have all heard of incidents where a court judge has been ordered to remove a copy of the Ten Commandments from their office. Officials in higher courts ruled that having them on display violated the “separation of church and state.” Since modern law is based upon the Code of Hammurabi, circa 1750 BC, and the Ten Commandments, circa 1500 BC, it is understandable that legal professional would display a copy of such in their office. Since a judge is an instrument of the state, does this action constitute the establishment of a state religion or imply the endorsement of a particular belief system or could it be deemed one individual’s “free exercise thereof?” At what point does an individual in service to the state relinquish their constitutional rights? 

A person serving in the military is an instrument of the government. In fact, if you have ever served in the military, you will remember that while enlisted you are considered “government property.” Yet, we have the Chaplains Corps within the military itself. “Divine Hours “are observed on military bases when religious services are taking place. On board a U.S. Navy vessel, a “church pennant” is flown above the American flag when religious services are underway aboard the vessel. It is the only flag allowed to fly above the American flag, but only while services are underway. 

On May 15, 2020, according to shorenewsnetwork.com, during the Covid pandemic, Lakewood Rabbi Yisrael Knopfler was arrested for conducting a religious service in his backyard. Police said he was in violation of Gov. Phil Murphy’s executive order banning such gatherings. In previous lawsuits resulting from orders issued during emergencies, the courts have ruled that one’s constitutional rights are not suspended or vacated because an emergency exists. In this incident, did the state violate the “free exercise thereof? 

In Washington state, high school football coach Joe Kennedy was forced out of his position because he routinely knelt on the 50-yard line and said a prayer following each game. Many times, some of the players and coaches joined him. Opposing team members and coaches often joined him. This, however, was strictly voluntary. No one was compelled to participate.  

A classroom situation where students were a “captive audience is a different scenario. The case, Kennedy v. Bremerton, was recently decided by the Supreme Court, ruling in favor of coach Kennedy. The Court ruled that the coach’s prayers were “free exercise” and since participation was voluntary it did not violate the “establishment” clause of the First Amendment. 

So, where do we draw that line? Since the Constitution states, “Congress shall make no law respecting the establishment of religion,” it could be argued that until Congress does, there is no violation of the separation clause. Likewise, it can be argued, perhaps, that government has absolutely no authority to prevent or limit religious gatherings whatsoever, even in a pandemic or emergency, without violating the “free exercise” clause. 

Should the government have any jurisdiction over religion at all? Does a government employee expressing their faith constitute the states endorsement of that faith? Where and when is either over the line? 

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