Friday, May 27, 2005

There Is No "Wall Of Separation Between Church And State"

When the history of the 1st Amendment is reviewed and the decisions on 1st Amendment cases by the courts are considered, reasonable people can only conclude that the obvious goal of many atheists and progressives—the complete elimination of all religious symbols, traditions, and references from government—has no legal foundation.

Here in southern California, a cross located in a war memorial on formerly city-owned property at the top of Mt. Soledad in San Diego has lead to a protracted legal battle pitting atheists against those who believe the cross is an appropriate symbol in a war memorial. Recently in Georgia the placement of the Ten Commandments in the state house lead to their removal via federal court order. However, the display of religious symbols in and around government property is nothing new and continues widely today.

In recent decades, however, the concept of “the separation of Church and State” has been increasingly used by atheists and their allies to undermine the religious underpinnings of our traditional holidays and to remove all references to religion from public schools and curricula, government facilities and documents, and all religious symbols from public property.

What was the intent of the behind the drafting of the 1st Amendment, and what were the Framers of the Constitution attempting to ensure? A look at the history of the 1st Amendment is a good start at answering this question:

James Madison, 4th president of the United States, and often referred to as “The Father of the Constitution” originally drafted, in June of 1789, what eventually became the 1st Amendment to the Constitution:

“Fourthly. [Madison’s proposed 4th amendment] That in article 1st, section 9, between clause 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”

The House Select Committee reported for debate on July 28th, 1789:

"Art. 1, Sec. 9--Between Par. 2 and 3 insert, No religion shall be established by law, nor shall the equal rights of conscience be infringed."

On August 24th, 1789, the House of Representatives passed the amendment that read like this:

Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.”

The US Senate passed the amendment on September 9th, 1789 in this form:

Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for a redress of grievances.”

On September 25th, 1789, after the reconciliation of the House and Senate versions of the amendment, the Congress of the United States passed the amendment in these words, which were then referred to the States for ratification:

“Article the third . . . Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

(Of the twelve articles originally referred to the States for ratification, ten were ratified, which caused the renumbering of the Amendments such that the 3rd Article became the 1st, etc.)

It was thirteen years later that the phrase “separation of church and state” was coined by Thomas Jefferson (then president of the United States) in a letter to a Baptist congregation in Connecticut, wherein he sought to assuage their concerns over rumors that Congregationalism was about to be named the National Religion. In it, he wrote,

“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, and 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 and state."

It is clear from the operative passage above when considered in context that Jefferson’s primary intent was to illustrate that he believed that the 1st Amendment was written to protect religion from government, not government from religion. He believed that religion was a matter between “man and his god [sic]”, and believed that government cannot and shall not impose religion and religious rules and restrictions on the people.

In addition to protecting religion from governmental interference, and the prevention of the establishment of a national religion, he wanted to be sure that it was also clear that government cannot and shall not interfere in any way with the right of the people to practice whatever religion they chose.

These two concepts have come to be known in legal parlance as the Establishment clause and the Free Exercise clause of the 1st Amendment.

The Establishment clause, therefore, simply prohibits the federal government from enacting laws which would establish a national religion. Nowhere does the Establishment clause, nor did the foundational principles behind the Establishment clause suggest that religious activity and government are incompatible. Indeed, the courts have routinely held that government and religion can co-mingle under certain closely defined circumstances, as described in some detail below.

We can gain further insight into what the author of the 1st Amendment, James Madison, intended for the Establishment clause in reading his veto message to Congress in 1811 for a bill to incorporate a protestant church:

“The bill enacts into and establishes by law sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the minister of the same, so that no change could be made therein by the particular society or by the general church of which it is a member, and whose authority it recognizes. This particular church, therefore, would so far be a religious establishment by law, a legal force and sanction being given to certain articles in its constitution and administration.”

Likewise the Free Exercise clause prohibits government from enacting laws which would prevent the free exercise of religion, and nowhere does it, nor the foundational principles supporting it, suggest that religious activity and government are incompatible.

It is important to remember that at the time of the adoption of the 1st Amendment, and indeed one of the primary reasons for many of the original settlers in North America to brave a treacherous North Atlantic passage was the pursuit of religious freedom. Whether it was the Church of England or the Catholic Church, or one of the other state religions of Europe, all of which were extremely powerful forces at the time—arguably more powerful than the European governments with whom they were so closely intertwined—most of the people who came to America prior to the Declaration of Independence came because of the promises of personal and religious freedom that the New World held. That they and their progeny sought to prevent the establishment of a national religion and to prevent the government from interfering with the free exercise of religion and religious activity in the enacting of the 1st Amendment should surprise no one. They wanted no part of a national religion, and wanted to ensure that all could practice freely whatever religious faith—or no religious faith—they so chose. The 1st Amendment guarantees these freedoms. This sentiment is also noted in decisions (2) of the Supreme Court.

The Supreme Court has issued numerous rulings on the application of the 1st Amendment, too many, in fact, to recite here. However, there are several themes that emerge while reviewing these decisions.

In Walz v. Tax Commissioner of the City of New York the court outlined in Section I of its decision some of the history and meaning behind the 1st Amendment, including,

“It is sufficient to note that, for the men who wrote the Religion Clauses of the First Amendment, the "establishment" of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.”

The Court's Opinion in Walz further declared,

"The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference."

In its decision in Lemon v. Kurtzman, Chief Justice Burger, writing for the majority, wrote in Section III,

“Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Zorach v. Clauson, 343 U.S. 306, 312 (1952); Sherbert v. Verner, 374 U.S. 398, 422 (1963) (HARLAN, J., dissenting). Fire inspections, building and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt property was, in fact, being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” [Emphasis added]

Most Supreme Court decisions on Establishment rely on the Lemon Test, a three-part test developed by the Court over time to determine whether a statute violates either the Establishment or Separation clauses of the 1st Amendment. In Lemon, the court held that,

“Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); [p613] finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.”

Obviously, the Lemon test is open to interpretation, but the key issue here is that the Court has clearly shown that the lynchpin of the argument of the anti-religion crowd—the “wall of separation between church and state” argument—is clearly invalid. The idea that there should be no interaction between church and state is completely wrong and has no Constitutional support. Interaction and even “entanglement” is allowed so long as it is not “excessive”.

Therefore, is a cross placed by private individuals on public land (since sold to private entity) excessive entanglement? Does it “advance” or “inhibit” religion? Given the facts laid out above, I don’t think anyone would successfully argue that to reasonable people.

This post also appears on Blogger News Network.

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