On 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 matter 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”?
The 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. 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.”