by Jacob Crump
Professor Mark Goldfeder, Director of Law and Religion Student Program and Spruill Family Senior Fellow in Law and Religion, Emory University School of Law, presented on the topic of “What Does the Separation of Church and State Really Mean?” during the first day of the Religious Freedom Annual Review. Prof. Goldfeder began with an examination of both the Establishment and Free Exercise clauses in the First Amendment to the US Constitution. These clauses, Prof. Goldfeder explained, have very different aims and can occasionally be in tension with each other.
First, Prof. Goldfeder posed the question “How do you define religion?”. This question, though seemingly simple, is actually incredibly nuanced and complex, especially in the legal realm. How one defines “religion” has significant impact on the interaction that government and law will have with that religion. Prof. Goldfeder’s claimed that “it is literally impossible to define religion” in a single way. This has contributed to the sometimes confusing First Amendment jurisprudence from the United States Supreme Court.
Prof. Goldfeder then traced some important Free Exercise and Establishment jurisprudence from the Supreme Court. Beginning with early cases about public buses being used to transport children to religious schools, Prof. Goldfeder pointed out that the Supreme Court’s jurisprudence in this arena seems contradictory and sometimes confusing. While the Court often appears to take a separationist stance, it has also frequently adopted accommodationist principles in order to attempt to balance religion and government. Prof. Goldfeder’s conclusion is that “the Court does what it wants to do” by attempting to reach outcomes that are most beneficial for society in general.