Thursday, September 3, 2009

“Separation of Church and State”, Part I

I’ve been reading Original Intent, The Courts, The Constitution, & Religion, by David Barton. It is interesting reading.

Since this is Constitution Month (and September 17 is Constitution Day, followed by Freedom Week), I thought I’d share one aspect of the Constitution and Bill of Rights from the book.

The First Amendment states: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”

According to Barton,

“The current application of the “separation of church and state” metaphor actually represents a relatively recent concept rather than the enforcement of a long-standing constitutional principal. This is demonstrated by the fact that the separation idiom appeared in only two cases in the Supreme Court’s first 150 years; yet over the past 50 years, it has been cited in seemingly countless numbers of Court decisions.”
Many of our citizens think that the phrase “separation of church and state” appears in the Constitution.

It does not.

The 1947 Supreme Court 5-4 decision in Everson v. Board of Education established the contemporary standard for this phrase. In that decision the court announced:

“The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

After this declaration, the Supreme Court, as well as many lower courts, began striking down religious activities and expressions which had been constitutional for the previous 150 years.

The phrase “separation of church and state” actually first appeared in an exchange of letters between President Thomas Jefferson and the Baptist Association of Danbury, Connecticut.

Jefferson was the first Anti-Federalist President, who was also a champion of the rights of minority religions (in this case Baptists) in Virginia, and an advocate of clear limits on the centralization of government powers.

The Danbury Baptists wrote to Jefferson on October 7, 1801 – nearly seven months after his first inauguration as President. In their letter of congratulations to the new President, the Danbury Baptists also expressed their concern over the entire concept of the First Amendment. They wrote:

“Our sentiments are uniformly on the side of religious liberty: that religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific…. Therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights.”
Jefferson wrote a short reply to the Danbury Baptists on January 1, 1802, in which he assured them that the free exercise of religion would not be interfered with by the national government. He wrote:

“Gentlemen, - the affectionate sentiments of esteem and approbation which you are so good as to express towards me on behalf of the Danbury Baptist Association give me the highest satisfaction. Believing with you that religion is a matter which lies solely between man and his God; that he owes account to no other for his faith or his worship; that the legislative 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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious associations assurances of my high respect and esteem.”
Jefferson believed that religious liberties were inalienable rights and that the issue of religious expression was above federal jurisdiction.

Basically, it turns out that the Supreme Court in the Everson case rested its decision not on the Constitution, but on an interpretation of a letter to a Baptist organization by a President – who was reaffirming religious liberties. The Supreme Court went on to continually use this phrase in its decisions since the landmark 1947 case. Part II of this blog entry will explore some of those decisions.


The US Supreme Court building
The Bill of Rights