The Truth about Separation of Church and State


1st Amendment

 

I have been several parts of a series entitled Disputing Separation Church/State (Parts 1, 2, 3, 4, 5 and 6). As of this writing I am up to Part Six and there is more to come. In doing the reading for these posts I came across a PDF designed as a brochure to dispute the Leftist influence that has move American Courts to stretch the interpretation of the First Amendment beyond the scope of its original intent. As I said I am still continuing my series on the subject; however below is an excellent to the point and relatively brief synopsis of reasons the present exploitation of the rule of law pertaining to the separation of Church and State is not a legal concept in the U.S. Constitution.

 

JRH 3/31/14

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The Truth about Separation of Church and State

Contrary to popular opinion, the term “separation of church and state” is found nowhere in the United States Constitution.

 

From PDF Brochure:

Alliance Defending Freedom

 

While the First Amendment clearly forbids the creation of a national denomination, it says nothing about the so-called “separation of church and state.”

 

§  The term “separation of church and state” was first used by Thomas Jefferson in a letter to the Danbury Baptists in 1801, when he responded to their concerns about state involvement in religion. Jefferson’s letter had nothing to say about limiting public religious expression, but dealt with government’s interference in the public expression of faith.

 

 

§  It was U.S. Supreme Court Justice Hugo Black who first inserted the term “separation of church and state” into American jurisprudence in his majority opinion of Everson v. Board of Education (1947). He wrote: “The First Amendment has erected a wall between church and state. The wall must be kept high and impregnable. We could not approve the slightest breach.”

 

 

§  Black’s opinion was based on a previous misreading of Jefferson’s 1801 letter in the U.S. Supreme Court decision Reynolds v. United States (1878). Black also confused his history. In the opinion, he wrote that the Danbury letter was “almost as an authoritative declaration of the scope and effect of the First Amendment.”

 

 

§  The First Amendment states: “Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” No mention is made of a “wall between church and state.”

 

 

§  The true purpose of the First Amendment was to prohibit the federal government from establishing a national church, like the Church of England, or require that sectarian policy be forced on an individual state or on the federal government. While the amendment does recognize a “differentiation between church and the government, it does not mean that they could not cooperate with each other.”

 

 

§  In 2001, Daniel Dreisbach, Associate Professor of Justice, Law and Society at American University, wrote that Black was wrong to apply the term “separation of church and state” to the First Amendment. The danger of Black’s argument, according to Dreisbach, is that it gives constitutional reasons to “separate religion, religious values, and religious organizations from public life.” He continues: “If we can’t talk about religion in any meaningful way in public schools, religious citizens can’t communicate their faith in public life. [The public square] must be ‘sanitized’ of religious messages, and we are left with a strictly secular public life.”

 

 

§  The American Civil Liberties Union (ACLU) and its allies, along with other groups hostile to religious freedom, have used Black’s wording to:

 

o   Deny churches the right to rent public school facilities for Sunday worship services.

 

o   Have public displays of the Ten Commandments removed from public buildings.

 

o   Prohibit students from praying at graduation ceremonies or football games.

 

o   Threaten fixed income housing project residents with eviction for displaying signs about prayer in their apartment windows.

 

o   Tell an eight-year-old girl that she cannot pass out handmade Valentines that read “Jesus Loves You.”

 

o   Tell pastors that they do not have the right to speak freely from their pulpits applying Scripture and church teaching to candidates and elections.

 

 

§  In 2005, the U.S. Court of Appeals for the Sixth Circuit, in ruling in favor of a public display of the Ten Commandments, wrote: “The ACLU’s argument contains…fundamental flaws… [It] makes repeated reference to ‘the separation of church and state.’ This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.”

 

 

For almost four decades, the ACLU’s distortion of the “separation of church and state” went nearly unchallenged. Since 1994, Alliance Defending Freedom has taken the ACLU and its allies head-on to expose this distortion and restore the original intent of U.S. Constitution with regard to religious freedom. Since its inception, Alliance Defending Freedom has helped to win many groundbreaking cases in defense of religious freedom and expression. The result is that the so-called “wall of separation,” erected by Hugo Black and others, is slowly starting to crumble. With your prayers and support, Alliance Defending Freedom will continue to tear down the “wall of separation.”

_______________________________

About – ALLIANCE DEFENDING FREEDOM: FOR FAITH. FOR JUSTICE.

 

Alliance Defending Freedom is a servant ministry building an alliance to keep the door open for the spread of the Gospel by transforming the legal system and advocating for religious liberty, the sanctity of life, and marriage and family.

 

Recognizing the need for a strong, coordinated legal defense against growing attacks on religious freedom, more than 30 prominent Christian leaders launched Alliance Defending Freedom in 1994. Over the past 18 years, this unique legal ministry has brought together thousands of Christian attorneys and like-minded organizations that work tirelessly to advocate for the right of people to freely live out their faith in America and around the world.

 

Building an Alliance for Victory

 

Unlike any other legal organization, Alliance Defending Freedom employs a unique combination of strategy, training, funding, and litigation to empower its allies and READ THE REST

4 thoughts on “The Truth about Separation of Church and State

  1. Being Christian themselves for the great most part the Founding Fathers had no Idea things would come to this current debacle with atheists, Satanist’s, Islamist’s and other godless heathens seeking to negate Christianity altogether. It sickens me the Christian Right does little to nothing to become more Vocal about this debauchery. Evil proliferates when good people do nothing.

  2. You have succeeded in gathering quite a collection of arguments about separation of church and state, nearly all of which I’ve seen and seen debunked many times. I won’t attempt to touch on every one of the many points, but will take the ALF items one by one.

    1. While Jefferson’s first use of the term “separation of church and state” may have been in his letter to the Danbury Baptists, he hardly was the first to use the term.

    Certainly Jefferson’s letter had nothing to say about limiting public religious expression. ALF contends against a strawman. No one contends that Jefferson said any such thing.

    It is important to distinguish between “individual” and “government” speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. (Students also are free to exercise and express their religious views–in a time, manner, and place that does not interfere with school programs and activities.) If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

    2. Justice Hugo Black was not the first to “insert” separation of church and state into American jurisprudence. Not by a long shot. A unanimous U.S. Supreme Court first used that term in 1878 in Reynolds v. United States, where it quoted Jefferson’s letter to the Danbury Baptists while interpreting the First Amendment.

    3. First, ALF tries to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is a red herring.

    Second, it is ALF that has confused its history. Contrary to its assertion, Justice Black did not write that the Danbury letter may be accepted “almost as an authoritative declaration of the scope and effect” of the First Amendment.” Rather Chief Justice Waite wrote that in Reynolds v. United States. Black, moreover, did not repeat that statement in Everson.

    Finally, the further notion, suggested by ALF and advanced by some, that the Supreme Court’s recognition of the constitutional separation of church and state in Everson is all Justice Black’s doing is laughable. It bears noting that all nine justices in the Everson case read the Constitution to call for separation of church and state, and indeed all of the parties and all of the amici curiae (including the National Council of Catholic Men and National Council of Catholic Women) did as well; no one disputed the principle, they differed only in how it should be applied in the circumstances of the case.

    4. That the words “separation of church and state” do not appear in the text of the Constitution assumes much importance, it seems, to some who once mistakenly supposed they were there and, upon learning of their error, fancy they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphorical phrase commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    Contrary to ALF’s supposition, separation of church and state rests on much more than just the First Amendment. It is a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions.

    5. While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is hardly a new invention of modern courts. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.

    6. Dreisbach’s fundamental error is his largely unspoken and unexamined presumption that the Constitution’s separation of church and state is merely a First Amendment textual matter. As noted above, however, it is rather a bedrock principle of our Constitution, resting on much more than the First Amendment.

    7. The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

    Wake Forest University has published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx

    8. While some, including myself, grow tired of the semantic wrangling over the phrase commonly used to describe or name one of the Constitution’s fundamental principles, that principle—by whatever name—remains central and essential to the Constitution and our way of life.

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