The Separation of Church and State and Criminal Law

Even though a separation between the church (meaning all religions) and the state (meaning all government bodies, federal as well as local) is a fundamental building block of America, it appears nowhere in the United States Constitution.

Sure, the First Amendment of the Constitution states that there “shall be no law respecting an establishment of religion or prohibiting the free exercise thereof”, but this delineation between church and state that is so consistently referenced is not actually framed itself within the Constitution, but instead woven into the very fabric of the American legislative process itself.


Understanding the American separation of church and state

Though there are a variety of different interpretations regarding the separation between church and state, including some that have been adopted by other nations based upon the policy established by the US government, at the end of the day the overwhelming majority of people agree that this “clause” is rather simple and straightforward.

Though the country’s policy may be informed by the religious beliefs of particular members of the legislative body, and acknowledging that it would be absolutely patently impossible to keep all religions and the impact that they have morally, ethically, and spiritually out of the US governing body complete, there must be a clear separation between the laws of the nation and the “rules” of the church – any church – and that no American is be forced to comply with laws that would in any way whatsoever inhibit or restrict the practicing of his particular form of religion.

There is definitely some nuance in this definition, and certainly some subjectivity to it all, but it’s one of those circumstances where “you know it when you see it”.

Why was the separation put into place to begin with?

Thomas Jefferson himself, the third president of the United States and one of the architects of the Constitution as well as some of its amendments, was a major proponent of the separation between church and state.

He believed that the matter of religion laid only between a man and his particular God, and that there was no business for any religion to insert itself for inject itself into the governing of a country built upon the back of religious tolerance and religious acceptance.

He believed that there should be no law respecting a particular establishment of religion or the prohibition of free exercise of any other religion – and that’s been the “law of the land” ever since.

How well does this separation work in practice?

The separation between church and state is rather difficult to “police” in practice, if only because most of the attacks against it is clearly outlined and described policy is more subtle, more nuanced, and are usually woven in a fabric of moral objectivity as opposed to religious beliefs.

For example, rather than attack a specific religion and go after any of their core beliefs, legislators who were trying to circumvent this separation try to find ways to go after beliefs tangentially, trying to protect tenants of the belief itself that would make it impossible to practice certain aspects of it were outlawed.

These kinds of attacks were quite common in nearly days of the American government, and though they have certainly died off in recent times, they still remain a constant threat to the First Amendment.

Could it be argued that laws in regards to drugs and alcohol are policy morality, and thus void because of the separation of church and state?

Some today argue that the laws in regards to drugs and alcohol are much closer to policing morality – the world of religion – as opposed to policing the populace, though again (as we have mentioned above) the attacks made against these behaviors are made tangentially.


A priest recently arrested in San Diego, California is an interesting example. A leader at the Our Lady of Refuge (living in the building next door) tried to move his car when he jammed down the accelerator and crashed into a building.

He was arrested on a DUI charge, according to Yuba City DUI Lawyers, he claimed that he had only consumed a bit of alcohol based off of a mass that he had given – further blurring the lines between the separation of church and state. However, that would not be a legal defense.

It will certainly be interesting to see how everything shakes out in this case and all future ones. But one must make sure to guard against the criminalization of one set of morals as opposed to others.