Who's right about church and state, Kennedy or Santorum?

Much has been written and said recently about the First Amendment and freedom of religion in the context of the current political atmosphere. Many of the most provocative comments have been about contraception, abortion rights and health insurance. Some politicians and pundits claim that President Barack Obama is attacking religion or religious institutions. Presidential hopeful Rick Santorum stoked the fires by criticizing the 1960 speech given by John F. Kennedy when he ran for president. Kennedy, trying to become the first Roman Catholic president, said that he favored the "absolute" separation of church and state. (Unsuccessful Catholic candidate Al Smith had given a similar speech in 1928.)

What is the history and current state of the law on separation of church and state? Was Kennedy correct that the separation is or should be absolute? How high is that wall of separation, and are there cracks in it? Reviewing what the Supreme Court has had to say over the years may offer us some guidance — but then again, it might not.


In the 20th century, the schoolhouse was where much of the debate over church and state played out. In 1947, the Supreme Court ruled in favor of New Jersey, which was using tax funds to pay for bus transportation for parochial school students. Since there was nothing inherently religious about riding a bus, the Supreme Court held that this appropriation did not breach the wall of separation of church and state.

The next year, however, the Supreme Court decided McCullom v. Board of Education, holding 8-1 that the First Amendment forbids religious instruction on public school properties.


In 1952, in Zorach v. Clauson, the court held that public schools could release students during the school day to get religious instruction on off-school locations. The majority opinion said that the First Amendment "does not say that in every and all respects there shall be a separation of Church and State." (Does that sound like more candidate Rick Santorum or candidate John Kennedy?)

A decade later, in 1962, the court — in a decision that has been much reviled by religious conservatives — held that a public school could not institute daily prayers, even if the prayer is nondenominational and even if the prayer is voluntary. Justice Potter Stewart dissented, saying: "Constitutional adjudication is not responsibly aided by the uncritical invocation of metaphors like the "wall of separation.'"

The debate over religion in the public arena has not been restricted to schools. In 1984, the Supreme Court (5-4) said that the city of Pawtucket, R.I., could have a display of a creche in Christmas decorations at a public place. Since then, Chabad, a Hasidic sect in Judaism, has erected large menorahs in public places during Hanukkah.

And then, in 2011, the Supreme Court let stand a lower court decision forbidding the display of a cross at a location where a Utah police officer had died in the line of duty. Justice Clarence Thomas dissented and commented that prior Supreme Court decisions had left the lower courts in a state of confusion.

What about when religious practices are in direct violation of the law? As far back as 1878, in Reynolds v. U.S., the Supreme Court held that religious duty was not a defense to a criminal indictment for bigamy. Having more than one wife can be made a crime by state law, and a Mormon could not defend himself by saying that the First Amendment protects his behavior.

Some American Indians use peyote in a ritual observance. A man named Alfred Smith did so and was fired for drug use by his employer and denied unemployment benefits; his case went to the Supreme Court. Mr. Smith said his use of peyote was an exercise of constitutionally protected freedom of religion. He lost. In the 1990 ruling, Employment Division of Oregon v. Smith, the Supreme Court held that the First Amendment's guarantee of free exercise of religion does not protect the sacramental use of peyote in the bona fide practices of traditional Indian religions.

But along came Congress, which passed the American Indian Religious Freedom Act of 1994. This law makes the use, possession and transportation of peyote — by Indians, for religious purposes — legal in all 50 states and Washington, D.C. So the Supreme Court was clearly saying that there are limits to "separation of church and state," and Congress was saying that it could intervene to protect what it felt was appropriate religious behavior.

Churches hold political events, with pastors endorsing candidates and exhorting their members to vote a certain way (though they may risk their tax-exempt status in doing so). The federal government is preparing to compel all employers — including Catholic organizations that purchase health insurance for their employees — to pay for endorsements in the policies covering contraception of various kinds, which is anathema to the church (though not to all of its followers). Maryland has passed a law permitting same-sex marriages, though this is clearly prohibited by many religions. In San Francisco last year there was a proposal to ban the circumcision of babies, a practice in Judaism that is perhaps the oldest practice of that religion still in wide use, and a practice in Islam as well. The proposed law failed due to concern about interfering in religious practices.


What to make of all of this? "Separation of church and state" is a nice phrase. But in practice, church and state are intertwined in many ways, and clashes are bound to occur. The freedom to believe something seems to be quite broad; the freedom to carry out what you believe, however, is more limited.

We have a complex society. It is hard to make rules that satisfy everyone. Justice Stewart famously said of pornography that while he had trouble defining it, he knew it when he saw it. The lines we establish to create appropriate separation of church and state are hard to draw, and we all have our own gut reactions to when the wall is breached and when it isn't.

Let us turn down the rhetoric and try to understand each others' sensitivities. For me, the rule should be that the government should make essentially secular decisions, in the light of what is best for the population, without cramming religious dogma down a citizen's throat. A presidential candidate who says that his religion is so important to him that he will base his executive decisions, budget and policies on his religious beliefs is campaigning for a particular religion, and this is offensive to me. A candidate who has personal religious beliefs that are important to him, but which he does not desire to foist upon the population at large, is more appealing.

Thus, although John F. Kennedy was wrong when he advocated that the separation of church and state should be "absolute," I stand with Kennedy's ideal of not permitting his religious beliefs to interfere with (and indeed, rule) his public policy objectives and pronouncements.

Irwin E. Weiss is an attorney in Towson. His email is