"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 & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties." (Emphasis Added).
Jefferson succinctly summarized the tension between the Establishment Clause and the Free Exercise Clause as a wall of separation. If Christine O'Donnell cannot wrap her mind around this important construct of American liberty then she does not have the smarts to provide the independent judgment necessary to be a United States Senator.
In 1947 the Supreme Court opened the modern line of Establishment Clause cases with Everson v. Board of Education. In that case a New Jersey statute authorized parents of parochial school students to be reimbursed for the expenses of school bus fees. Associate Justice Hugo Black said Jefferson got it correct and that the Establishment Clause was intended to erect a wall of separation between church and state. Neither the state or federal government, said Black, could establish a religion. The New Jersey law was upheld because the law applied to all citizens equally, the secular purpose of the law was to provide the safe transportation of children, and the payments went to the parents of the children instead of to the Church.
Chief Justice Warren Burger wrote the opinion in Lemon v. Kurtzman. In 1968 Pennsylvania passed a law reimbursing religious (typically Roman Catholic) schools for the salaries of teachers who taught secular subject matter, books and supplies for non-religious schools. The net result was that parochial schools were being subsidized by the state in contravention of the Establishment Clause. Without the reimbursements the parochial schools would not be able to provide for these teachers, books, and materials. Associate Justice William Douglas offers a good brief history of recent Establishment Clause cases in his concurrence.
The majority opinion was written by Associate Justice Bryon White. Associate Justice Scalia wrote a concurring opinion in which he said:
"As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."
"I cannot join for yet another reason: the Court's statement that the proposed use of the school's facilities is constitutional because (among other things) it would not signal endorsement of religion in general. What a strange notion, that a Constitution which itself gives "religion in general" preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The Attorney General of New York not only agrees with that strange notion, he has an explanation for it: "Religious advocacy," he writes, "serves the community only in the eyes of its adherents and yields a benefit only to those who already believe." That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." 1 Stat. 52 . Unsurprisingly, then, indifference to "religion in general" is not what our cases, both old and recent, demand. See, e. g., Zorach v. Clauson, 343 U.S. 306, 313-314 (1952) ("When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions"); Walz v. Tax Comm'n of New York City, 397 U.S. 664 (1970) (upholding property tax exemption for church property); Lynch, 465 U. S., at 673 (the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions . . . . Anything less would require the `callous indifference' we have said was never intended" (citations omitted)); ("our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action"); Marsh, supra; Presiding Bishop, supra (exemption for religious organizations from certain provisions of Civil Rights Act)."
The song is called All Er Nothin: With me it's all er nuthin'. Is it all er nuthin' with you? It cain't be in between It cain't be now and then" With Scalia and O'Donnell no half and half decision will do.