OTHER OPINIONS ON THE 'WALL OF SEPARATION OF CHURCH AND STATE:
Justice Potter Stewart wrote in his dissent of Engle v Vitale, 1962:
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 in ACLU v Mercer County, 2006:
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:
'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
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...
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 in Lynch v Donnelly, 1984:
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
Anything less would require the 'callous indifference' (Zorach v. Clauson), that was never intended by the Establishment Clause...
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 in Lynch v Donnelly:
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...
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
Chief Justice Warren E. Burger continued in Lynch v Donnelly:
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:
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
Executive Orders and other official
announcements of Presidents and of the Congress have proclaimed both
Christmas and Thanksgiving National Holidays in religious terms.
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
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.
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.
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.
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.
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.'
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 in Zorach v Clauson:
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.
pervasive is the evidence of accommodation of all faiths and all forms
of religious expression, and hostility toward none.
accommodation, as Justice Douglas observed, governmental action has
'follow[ed] the best of our traditions' and 'respect[ed] the religious
nature of our people.'"