Why I don’t support separation of church and state
It has been quite a while since I wrote anything about my strong belief that the doctrine of "separation of church and state" is a fallacy. So complete has been the indoctrination that a recent poll about which I read said a full 69 percent of people incorrectly believed the phrase "separation of church and state" actually existed in the First Amendment. The only constitution of which I am aware containing that phrase is the constitution of the old Soviet Union, because it most assuredly does not appear in our U.S. Constitution.
The applicable part of the First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof." Simple enough.
So, where did the phrase separation of church and state come from and why is it wrong? Before we get to that, let’s take a look at the origination of our Constitution and its meaning on this issue.
At the time of ratification people clamored for amendments guaranteeing government’s non-interference in certain matters of the people’s rights, religion being first among them. Madison and Hamilton in the Federalist Papers argued there was no need for such amendments as the proposed Constitution delegated no powers to government to interfere in certain rights. However, it was a promise to address a so-called "bill of rights" that eventually led to ratification.
Perhaps this is a timely place to discuss an up-and-coming young politician’s pursuit of his first election to Congress in Virginia after his enemies in the legislature had used their power to draw very hostile boundaries in his district. He was trapped in four districts adamantly opposed to his efforts at drafting political reform.
The young candidate knew the result of the election would hinge on the Christian right who were incurable proselytizers.
The cultural elites in the district saw these fundamentalists as wild-eyed fanatics and dangerous political allies. So he met with their leaders to listen to their concerns about his reforms. They pressed hard for one change he previously opposed.
In fact, he was so proud of his reform plan he opposed any changes to it at all, but he realized in order to win his race he would have to have the support of the fundamentalists, so he agreed to make the changes they wanted. He captured the fundamentalist vote and won his seat in Congress.
This story could be cut from today’s headlines, couldn’t it? Think again. The race I just described happened in 1788, the young politician was James Madison and the great reform he helped fashion was the Constitution.
His concession was to add a bill of rights with the addition of an amendment guaranteeing religious freedom for all citizens of the new nation.
It became a part of the First Amendment.
It is recorded in the Annals of Congress: "Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience."
The question then becomes what it means to "establish" a religion or have an "establishment of religion?"
From usages outside the Constitution, including writings of Jefferson, a church or religion was established when it enjoyed official status in political society or was granted authority, privileges and support by the government not granted or shared by other churches or religions.
Government often paid its officials and church policy became official government policy. Established churches were often responsible for poverty relief.
At the time of the Constitution, some states had officially established churches or religions – like Protestantism.
Many early immigrant groups traveled to America to worship freely, particularly after the English Civil War and religious conflicts in France and Germany. There were such groups as the Puritans, Catholics, Dutch Reformed and Church of England to be found in the various colonies.
Plymouth Colony and Massachusetts Bay Colony had established churches since they were founded by Puritan, Calvinist Protestants while the colonies of New York, Virginia, North Carolina, South Carolina and Georgia had the Church of England as their established church. States simply would not tolerate a central government dictating to them on matters of religion.
Why I don’t support separation of church and state – Part 2
Bearing in mind the caliber of men who wrote and ratified the Constitution it is impossible to accept the notion they prohibited Congress from encouraging religion. In other words, they preferred religion to non-religion; the Christian religion to all others.
The spirited debates that took place over the wording of the First Amendment show the reverence these men held for religion. Madison put it simply: "nor shall any national religion be established."
The Senate, on the other hand, considered various motions forbidding Congress to establish "one religious sect or society in preference to others," or "any particular denomination or religion to others," or "religion," or "articles of faith or a mode of worship." In all these cases, the intent of the formulators was to not single out any particular church, sect or religion and giving it official preference.
In the same year Congress was debating the Bill of Rights it passed the Northwest Ordinance of 1787, by which federal lands were to be set aside for schools that would bring "religion, morality and knowledge" to the youth of the territory. Obviously, no neutrality or hostility toward religion is evident in this action. It would stand to reason, therefore, these same men would not prohibit the central government from assisting or encouraging religion.
When Thomas Jefferson was elected President he received a letter from the Danbury Baptist Association of Danbury, Connecticut, expressing their pleasure at his election and their concerns about a rumor another denomination was to become the official, national denomination. To quiet their concerns President Jefferson wrote them a letter in which he included the now infamous phrase metaphorically declaring the "wall" and assuring them the national government would not establish any denomination as the official religion as it was constitutionally barred from doing so.
His letter read, in part, "I contemplate with solemn reverence that act of the whole American people which declared 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." So, as Jefferson saw the wall, and explained it subsequently, it was a one-way wall protecting the church from the government. In his second inaugural address in 1805 he said, "In matters of religion I have considered its free exercise is placed by the Constitution independent of the powers of the General [federal] Government."
In 1947, in the Everson v. Board of Education case the Court overturned 150 years of established law and decided it did have the power to rule on a state’s decisions regarding the exercise of religion. Prior to then the Court had done as Jefferson indicated and left matters of the free exercise of religion entirely to the states. States had enacted laws allowing the free exercise of religious practices in schools and public affairs: voluntary prayer, Bible reading, exhibiting the Ten Commandments, etc. These laws were duly passed with consent of the governed. Note the word "allowing," not "mandating."
Since the Everson case in 1947 the Court’s rulings have been increasingly hostile to the free exercise of religion. In 1962, the Court decided in Engle v. Vitale to dismantle entirely the original intent of the First Amendment declaring a 22-word prayer violated the "establishment clause" of the Constitution. The prayer simply said, "Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers and our Country." The Court, in a later case, even described it as a "to-whom-it-may-concern" prayer.
Yet, in Engle, they specifically said that "a union of government and religion tends to destroy government and degrade religion;" a decision that did not exactly agree with the intent of the Framers. George Washington, presiding officer at the Constitutional Convention, said, "True religion affords to government its surest support." Or, how about John Adams who said, "Religion and virtue are the only foundations of … republicanism and of all free government." Then, there is James Madison, the father of the Constitution, who said, "Religion … [is] the basis and foundation of government." Justice Joseph Story was appointed to the U.S. Supreme Court by James Madison and said concerning the First Amendment, "We are not to attribute this prohibition of a national religious establishment to an indifference to religion (which none could hold in more reverence than the framers of the Constitution) …" These statements are vastly different than the current Court’s interpretations and statements.
Why I don’t support separation of church and state – Part 3
How could they arrive at such an absurd decision? Part of the answer must stem from the fact most of the justices came to the Court with a political rather than a judicial background. Chief Justice Earl Warren – who President Eisenhower called his biggest mistake – had been Governor of California for ten years before arriving on the Court. Justice Hugo Black had been a U.S. Senator for ten years, Justice Felix Frankfurter had been an assistant to the Secretary of Labor and co-founder of the ACLU, Justice Arthur Goldberg had been Secretary of Labor and Ambassador to the United Nations, and Justice William O. Douglas had been Chairman of the Securities and Exchange Commission.
So, let me make it perfectly clear: I do not support a theocracy. I am a Constitutional originalist. It is my firm belief the Framers of our Constitution never intended religion to be altogether shut out of the public sphere. And, it has been. The Constitution does not demand government hostility to religion, and there is.
For example, in Texas, officials denied a Christian woman’s request to use an annex to the county courthouse for a local chapter meeting of the Christian Coalition. In Alabama, federal judge Ira DeMent issued a 20-page injunction ordering the public schools not to permit various religious practices including prayer before or during football games, prayer during or after graduation, prayer during or after school assemblies, and no teachers were to lead any prayers. In Houston, Texas, federal judge Samuel Kent issued an order that included stationing a federal marshal at a school ceremony just in case some student should use the name of "God" or "Jesus" so they could be arrested and incarcerated up to six months in the Galveston County jail for contempt of court.
At the time of ratification the federal Bill of Rights served a dual purpose: to assure citizens the federal government would not encroach upon the civil and religious liberties of individuals and to guarantee the states the federal government would not usurp their authority over civil and religious liberties. The Bill of Rights was a federalist document and embodied state’s rights. Strange as it may seem today, the First Amendment was not only a guarantee to the individual that Congress would not establish a national religion, but also a guarantee to the states they would remain free to determine the meaning religious establishment and free exercise within their jurisdictions, and to newly establish, maintain or disestablish religion as they saw fit.
What the First Amendment forbids is a law mandating someone must pray at football games, it does not forbid voluntary prayer. If a community wants prayer at graduation ceremonies that’s OK, but a state law requiring prayer at graduations is not permissible.
What about those who don’t like prayer or feel uncomfortable when others pray or are of a different religion? I’ve read and re-read the Constitution and I find no clause protecting someone from being offended or getting his or her feelings hurt. In reality, being subjected to a prayer does no one any real harm; it only lasts less than a minute usually.
If a city wants to allow the placement of a crèche in a public park, so what? If they pass an ordinance requiring it, that’s an entirely different matter.
Since Engle, the Supreme Court has issued decisions that have been costly, both constitutionally and politically, to our society. They have stood in the way of identifiable social benefits, perpetrated avoidable social ills and bred confusion, anger and dismay.
Above all they have weakened the notion of objective law, including the Constitution, which judges must apply and understand in accordance with original intent rather than creating on their own fiat.
The philosophy of the Founders must not be casually discarded as was suggested by Justice Oliver Wendell Holmes when he said, "Everyone instinctively recognizes that in these days the justification of a law for us cannot be found in the fact that our fathers have always followed it. It must be found in some help which the law brings toward reaching a social end."
In an uncanny observation of the current state of religious freedom in America, Johnny Hart’s comic strip "B.C." once showed a caveman standing on the beach with a wood tablet on which he had written the question: "Is it true that over there you have freedom of religion?" Then he throws the tablet into the ocean and watches the current carry it off. Finally, it comes back and when he lifts the tablet out to read the answer, it says, "Yes – and if the hotshots in the black robes have their way, we’ll soon be free of it altogether."