Contrary to popular belief – including my own for much of my life, notably during the 2008 elections – separation of church and state is not explicitly mandated in the Constitution. We have the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
We have Thomas Jefferson interpreting this Amendment in a letter to the Danbury Baptist Association in 1802: “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”
When you look at these, particularly the former, you’ll notice that the law places a greater burden on government to stay out of religion (the State to separate from the Church) rather than religion to stay out of government. In fact, religion is rather clearly (in my opinion) invited to be a part of government, in that each individual has a right to “free exercise” of his or her religion.
This is a problem. Now, like with freedom of speech, there are limits to the freedom of religious expression. In Reynolds v. United States, the court said: “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.” So, to clarify: “free exercise” of religion applies to beliefs, but not necessarily to religious practices.
This is the first thing to keep in mind. More to come.