Separation of Church and State: a response to David Ivester

bibleOn Monday, I posted a blog titled “Separation of Church and State: Jefferson Got It All Wrong.”  In it, I proposed the idea that the policy of “separation of church and state” is not and cannot be linked to the First Amendment, which prohibits our government from establishing religion and which allows for the free exercise thereof.  In my opinion, Jefferson, in responding to the Danbury Baptists in Connecticut, wrongly interpreted the First Amendment as providing “a wall of separation” between church and state.  Since then, our nation, specifically our courts and judges, have used the pseudo-law “separation of church and state” to make any number of rulings which limit, among other things, prayer in schools, religious displays in the public square, and, most notably, the decisions of the voting public.

On Tuesday, David Ivester responded to my post.  It is quite lengthy and thorough (as compared to the usual commentary), but is helpful to discuss this issue.  You can go here to read his response. I appreciate Mr. Ivester’s comments, and I am honored that he took the time to comment.  Dialogue is both helpful and good, and while we may disagree on some matters, it can be done with respect and with courtesy.  With that in mind, there are a few comments made by Mr. Ivester where I feel I must push back a bit.  I encourage you, too, to add your discussion.

[For the purpose of clarity, I’ll quote Mr. Ivester’s comment, followed by my point of disagreement.  Let me also establish that I’m not an attorney, nor am I an authority on interpreting law and judicial decisions.]

1.  Hamburgers’ 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. It is rather a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances.  

I’ve read the Constitution and can find no place where it explicitly addresses separation of church and state.  As a constitution2matter of fact, in no place does the original body of the Constitution address religion.  It is a document that establishes the operational framework of the legislative, executive, and judicial branches along with their unique powers and responsibilities.  In establishing the responsibilities and unique powers of the branches of government, in no way does that imply a parallel separation of church and state.  I find that a difficult argument to understand.

While amendments were added later that do, indeed, address church and state, these were established to protect the rights of states and citizens.  Many of our founding fathers felt that the original Constitution was inadequate in that regard, and thus lobbied for amendments.  James Madison, at times begrudgingly, helped our early legislators accomplish this.

2.  …establishing a secular government on the power of “We the people” (not a deity)…

“We the people” is a great beginning to a governing document.  That statement in and of itself speaks volumes.  Yet, if we look at the Declaration of Independence, a sister document to the Constitution and necessary in the birth of our nation, we see that the “Laws of Nature and of Nature’s God” gave our country the right to seek independence to become a sovereign nation.  As one writer says, the fifty-six signers of the Declaration of Independence claim divine authorization to pursue the right to govern themselves, and that the purpose of government is to protect the rights that are given to people by God.  So, while the Constitution is a document that is by the “People”, I think it’s fair to say that leaders of those “People” intended for God to be included.

One might say that the Declaration of Independence has no real bearing in a discussion of the purpose and intent of the Constitution.  I would respond in saying, though, that the rights endowed by God of “life, liberty, and the pursuit of happiness” (found in the Declaration) are the same rights the Bill of Rights sought to establish and protect.

3.  They later buttressed this separation of government and religion with the First Amendment…

I’ve yet to see where separation of government and religion had already been established, before the writing of or within the Constitution or in the First Amendment. So, how can it be “buttressed”?

James Burgh_128x128The idea of keeping church and state separate came not from Jefferson, but from the 17th century English political reformer, James Burgh.  Jefferson admired Burgh – his ideas and his writings – and recommended them to others, specifically James Madison and John Adams.  He also encouraged Congress to read Burgh.

Burgh (1714-1775) urged that “an impenetrable wall of separation between things sacred and civil” be maintained.  His concern was not that religion would taint government, but that government would corrupt religion.  He did not trust men associated with government to perform the holy and spiritual duties that were ordained by God and churches.

Jefferson used Burgh’s phrase in his response to the Danbury Baptists, yet it is clear by his actions that he never intended government (or society) to be free from the influence of religion and it’s accompanying morality.  Jefferson allowed for worship to take place in civil buildings, and even permitted the military band to participate.  As a matter of fact, after Baptists presented Jefferson with a huge wheel of cheese made from over 900 cows, Jefferson invited the pastor to preach in the Hall of the House of Representatives.

4.  To those familiar with the Constitution, the absence of the metaphor 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, federalism) used to describe other undoubted Constitutional principles.

I suppose that those of us who are not “familiar with the Constitution” reckon that it is, indeed, of consequence.  At some point along the way, the metaphor “separation of church and state” has been wrongly associated with the First Amendment.  Even more, this metaphor has never been adopted by the American people.

Examples would be the Supreme Court decisions Everson v. Board of Education (1947) and Lemon v.gavel Kurtzman (1971), which effectively excluded all religion from the public square.  The Supreme Court made these decisions, not the American people.  In both decisions, use of the metaphor was given legitimacy and legal status, though it is never mentioned in the Constitution or the First Amendment.

While it may be a commonly used metaphor, it is not a legitimate interpretation.  And, raw judicial power does not make it so.

5.  The constitutional principle of separation of church and state does not, as is sometimes complained, 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. Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions. 

This is where I disagree most.  The current climate in our society disallows many actions and decisions that are deemed based on religious belief.  For example, in Varnum v. Brien (2009), the Iowa Supreme Court decided to impose same-sex marriage on the state of Iowa, even though only 28% of Iowans supported it.  The court commented that society rejects same-sex marriage due to sincere, deeply ingrained – even fundamental – religious belief.”  In other words, maintaining the views of traditional marriage is the equivalent of “establishing” a religion.

In another example, when California Proposition 8 was challenged, it was stated that the Establishment Clause means that the majority (in this instance, 52% who voted for the proposition) cannot impose its religious beliefs on the minority.  Those representing the plaintiffs allowed for the discussion of the religious beliefs of various sects to show that their beliefs are bigoted and, therefore, unconstitional.  In my mind, determining the conscience of voters in regard to religious beliefs is wrong – it, in itself, is unconstitutional because it limits the “free exercise thereof.”

So, the statement Mr. Ivester makes saying that the metaphor separation of church and state “assures that each individual is free to exercise and express his or her religious views” is overgeneralized.  Recent cases regarding business owners and same-sex marriage continue to prove that.

As I conclude, let me clarify that while I firmly support and believe in the First Amendment right that government shall not “establish” religion nor prohibit the “free exercise thereof”, I do not in any way see where this builds “a wall of separation” between church and state.  That metaphor was presented by Jefferson as more of an attack on his political adversaries, and gained momentum in more recent court decisions.  It was never the intent of the Founding Fathers to exclude religion from the affairs of the nation or its people.

In his book Founding Faith: How Our Founding Fathers Forged a Radical New Approach to Religious Liberty, Steven Waldman gives account of the comments of Peter Sylvester, the first representative from the state of New York who stated in 1789 while debating the language of the First Amendment, that he “feared it might be thought to have a tendency to abolish religion altogether.”

I do not fear that religion will be abolished.  I do fear, however, that our society has so far removed itself from biblical morality and the influence of the Church that we will no longer be a “city on a hill.”



Filed under Commentary, Politics

2 responses to “Separation of Church and State: a response to David Ivester

  1. Jan Hubbard

    I agree with you, Mark.

  2. dougindeap

    I appreciate your thoughtful reply to my perhaps overly long comment. I appreciate too your invitational manner, and offer these further thoughts on the five points you drew from my comment.

    1. While the original Constitution does not explicitly address separation of church and state (or, frankly, any number of other constitutional principles we now take for granted, e.g., separation of powers, checks and balances, federalism), it does effectively separate the two through the five aspects listed in my earlier comment. While you say that you don’t see anything in the Constitution’s separation of powers to imply a parallel separation of church and state, you don’t really address the foregoing aspects of the Constitution that, I think, reflect a separation of church and state.

    I think perhaps my reference to separation of powers misled you as to my meaning. I did not mean to suggest that separation of church and state somehow arises out of the Constitution’s separation of the powers of the respective branches of government. I alluded to separation of powers simply to illustrate that a fundamental constitutional principle may be established by and recognized from the structure and function of the Constitution and its constituent parts, without being spelled out explicitly, e.g., by using the words “separation of powers” or “separation of church and state.”

    The five aspects of the Constitution I mentioned earlier separate church and state essentially by creating a government founded on the power of the people and not on the power of god(s), providing that government only with limited enumerated powers, refraining from giving that government any powers with respect to god(s) or religion, and saying nothing to associate that government with god(s) or religion contrary to the longstanding custom to do just that. The only textual reference to religion in the original Constitution precluded any religious test for holding public office, which is consistent with the overall principle of separating church and state.

    James Madison, for one, understood the original Constitution to separate church and state in this manner. He thought no amendments were needed for that end, and initially resisted any such amendments lest they suggest that the Constitution somehow invested the government with some powers regarding religion. Given the persistent desires of others, he relented and led the effort in the First Congress to draft the Bill of Rights.

    2. While some also draw meaning from the variously phrased references to god(s) in the Declaration of Independence (references that could mean any number of things, some at odds with contemporary Christian ideas of God) and try to connect that meaning to the Constitution, the effort is largely baseless. Important as the Declaration is in our history, it did not operate to bring about independence (that required winning a war), nor did it found a government, nor did it even create any law, and it certainly did not say or do anything that somehow dictated the meaning of a Constitution adopted twelve years later. The colonists issued the Declaration not to do any of that, but rather to politically explain and justify the move to independence that was already well underway. Nothing in the Constitution depends on anything said in the Declaration. Nor does anything said in the Declaration purport to limit or define the government later formed by the free people of the former colonies. Nor could it even if it purported to do so. Once independent, the people of the former colonies were free to choose whether to form a collective government at all and, if so, whatever form of government they deemed appropriate. They were not somehow limited by anything said in the Declaration. Sure, they could take its words as inspiration and guidance if, and to the extent, they chose–or they could not. They could have formed a theocracy if they wished–or, as they ultimately chose, a government founded on the power of the people (not a deity) and separated from religion.

    3. The primary purpose of the First Amendment religion clauses is neither to protect religion nor government from one another, but rather to protect individuals’ religious freedom. The free-exercise clause does this directly by constraining the government from prohibiting individuals from freely exercising their religions. The establishment clause does this indirectly by constraining government from promoting or otherwise taking steps to establish any religion, thus assuring that individuals are free to exercise their religions without fearing the government will favor the religions of others and thus disfavor theirs.

    While Jefferson plainly thought the federal government was and should be separate from religion (and for that reason he refused to issue presidential proclamations regarding religion), he did not, as you correctly observe, advocate that the government or society should be free from the influence of religion or morality. Nothing I said suggests otherwise. Indeed, as I said, the principle of separation of church and state does not purge religion from the public square; individuals are free to express and exercise their religious views publicly and privately. Nor does it prevent citizens from making decisions or voting based on principles derived from their religions. Nor does it prevent the religious beliefs of government officials from informing their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion.

    Caution should be exercised in assessing historical evidence, since some are motivated to make more of things than may be warranted or even stretch the truth about them. ) True enough, Jefferson attended religious ceremonies in the Capitol building. (That does not in the least contradict his expressed views on religion.) The Speaker of the House did indeed announce in 1800 that the chaplains had proposed holding religious ceremonies in the House chamber on Sundays, the reason initially being that at the time there simply were no churches or other suitable buildings in all the Capitol. Such ceremonies were held and Jefferson attended some of them, and they continued for decades after churches had been built and thus the need to use the House chamber had passed. Contrary to many accounts, neither the Senate nor President Jefferson had a hand in the Speaker’s decision. Not mentioned in some accounts as well is that the ceremonies often were as much social as religious in nature (at a time when Washington otherwise lacked much social life).

    4. The Everson and Lemon decisions of the Supreme Court, in keeping with the foregoing, did not remotely exclude all religion from the public square. While statements to that effect may be discounted as but rhetorical flourish, it nonetheless is important to recognize that it just ain’t so. 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.

    5. Finally, you “disagree most” with my description of the current law on the separation of church and state. I admit to being surprised at this, since that description, I think, is largely beyond dispute. Wake Forest had a group of scholars with diverse views prepare the foregoing paper for the very purpose of objectively summarizing the current law, so that people who may disagree on what the law should be can at least predicate their discussions on the common ground of what the law currently is, rather than the misconceptions that abound.

    Your impressions in this regard are most influenced, it appears, by recent cases regarding same sex marriage. For several reasons, I think you misread those cases and their effect. First, while some commentary about the cases is cast in terms of separation of church and state, it is important to recognize that the courts decided the cases based on the constitutional guarantee of “equal protection” of the law. That guarantee requires generally that the government must have a “rational basis” for creating classifications that treat citizens differently and, in some “suspect” circumstances (e.g., those involving race), the government must demonstrate a closer relationship, e.g., that the classification is narrowly tailored to serve a compelling governmental interest.

    In Varnum and the Prop 8 cases, the courts held that the governments had not shown an adequate basis for treating unions of same sex couples differently than those of opposite sex couples. The principle of separation of church and state figured only tangentially in these cases; it precluded the governments from offering as their justification a desire to conform to a religious view.

    The court in the Prop 8 case did not decide, as you put it, that certain “beliefs are bigoted and, therefore, unconstitutional.” People can freely believe whatever they want, and they can vote on the basis of their beliefs—bigoted or otherwise. The government, though, when it creates classifications and treats citizens differently, must do so consistent with the equal protection of the laws. And in that respect, while an individual citizen can vote a certain way because he thinks his religion commands or demands it, the government needs a justification other than religion to treat its citizens differently.

    Confusion understandably arises because the constitutional principle of separation of church and state is sometimes equated with a widely supported political doctrine that goes by the same name and generally calls for political dialogue to be conducted on grounds other than religion. The underlying reasons for that political doctrine are many, but three primary ones are that (1) it facilitates discussion amongst people of all beliefs by predicating discussion on grounds accessible to all and (2) it avoids, in some measure at least, putting our respective religious beliefs directly “in play” in the political arena, so we’re not put in the position of directly disputing or criticizing each other’s religious beliefs in order to address a political issue and (3) since the government cannot make laws or decisions with the predominant purpose or primary effect of advancing religion, it makes little sense to urge the government to do just that. This political doctrine, of course, is not “law” (unlike the constitutional separation of church and state, which is), but rather is a societal norm concerning how we can best conduct political dialogue in a religiously diverse society. Reasonable people can disagree about whether the doctrine is a good idea or not and whether or how it should influence us in particular circumstances.

    In the end, I can join you in agreeing that the founders did not intend “to exclude religion from the affairs of the nation or its people.” Our disagreement, it seems, is that you think the constitutional separation of church and state does that and I think it does not remotely do so and, instead, fosters individual religious freedom. Christians dominate American society and politics. Christians of all sorts comprise about 78% of the population; Catholics comprise about 24%. Christians comprise 87% of members of Congress; Jews 6%; the remainder claim a smattering of other faiths or decline to state; the one openly atheist (former) member lost his last primary. Six justices of the Supreme Court are Catholic; three are Jewish. The President is Christian, as was the one before him, and before him, etc. The official national motto is “In God we trust.” The government prescribes a pledge of allegiance declaring that our nation is “under God.” Presidents and other politicians close their speeches with the obligatory “God bless America.” Federal and state laws naturally reflect the views of the religious electorate for the most part. Even though Christianity remains by far the dominant religious influence in our society, Christians no doubt have occasionally confronted disappointment and dislike regarding this or that government decision. It should hardly be supposed, though, that they experience anywhere near as much of that as other smaller, less influential groups.

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