Separation of Church and State
On February 10, 1947, the Supreme Court of the United States made a landmark decision in a case concerning taxpayer-funded busing of parochial school students, known as Everson v. Board of Education. It was Chief Justice Hugo Black who authored the opinion that would later send shockwaves through all our state and federal institutions. In it he wrote, “The First Amendment has erected a wall between church and State. That wall must be kept high and impregnable. We could not approve of the slightest breach.” Since this ruling, the Supreme Court, along with lower courts and liberal organizations such as the ACLU and Americans United for the Separation of Church and State, have relied on the “separation of church and state” clause to strike down almost two hundred years of religious expression, previously within our rights. Since then at least five of the nine unelected justices of the Court have placed a vast amount of restrictions on our religious expression, restrictions which were absent for most of our history. In recent years the phrase has become so common that many Americans believe it is in the Constitution, right alongside abortion and gay rights.
Since the Everson decision, the eradication of our religious freedom has come fast and furious. In Engle v. Vitale (1962) the Court ruled that a voluntary, twenty-two word student prayer was unconstitutional because it acknowledged “Almighty God.” In Abington v. Schempp (1963), the Court abolished Bible reading in school, while in Reed v. Van Hoven (1965) the Court prohibited students from praying over their lunch in a manner others could hear. In Ohio v. Whisner (1976) the Board of Education was prohibited from using the word God in any of its official material, while in 1979, Florey v. Sioux Falls School District, the Court restricted a kindergarten student from asking whose birthday is on Christmas. The Court ruled in County of Allegheny v. ACLU (1989) that a nativity scene on public property was unconstitutional unless surrounded by secular displays. In Stone v. Graham (1980) the Court found it unconstitutional for students to see the Ten Commandments, and despite the fact that the Ten Commandments are engraved on the Supreme Court building and are the basis of our civil law, the Court in Harvey v. Cobb County (1993) ruled against them being displayed on public courthouses.
These decisions by our contemporary Court along with many others are a serious departure from previous interpretations and rulings. Here’s the irony: on September 25, 1789, the day the First Amendment was adopted, Congress recommended “a day of public thanksgiving and prayer to Almighty God.” Our Supreme Court today would likely find that unconstitutional as well.
In today’s debate, conservatives come down on the side of strict constructionists who seek to interpret the original meaning of the First Amendment. On the other side of the debate, liberals defend these drastic legal and social changes on the grounds that they are in fact the intent of the founding fathers. Some go as far as declaring the Constitution means different things at different times. So let’s start with a little historical background and then take a closer look at the Amendment which has been the source of so much contention in recent times.
As we all know many of the early colonists came to America to avoid religious persecution in England. Under the British monarchy, King George III was not only head of state, he was also head of the Church of England, which was often hostile towards dissenting religions and denominations. The church was established in 1529 by an act of Parliament under pressure from King Henry VIII, who wanted to divorce Catherine of Aragon but was unable to by the Catholic Church. It was an established national religion which all of our founding fathers were weary of.
The Bill of Rights, which contains the first ten amendments to the Constitution, was a negotiated settlement between the states, which had just ratified the Constitution and wanted to retain much of their autonomy, and the Federalists, who were in favor of a strong central government. The states at the time of the ratification were rather segmented by differing Christian denominations. Supreme Court Justice Hugo Black himself noted in his 1962 opinion, “As late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five.” The states wanted assurances that the federal government would not interfere in these state-sponsored religions, and they would find the assurances in the First Amendment.
In 1791 the First Amendment was ratified by Congress, stating: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof….” Prior to 1947 the Court rightly interpreted the “establishment of religion” as requiring an act of “Congress,” which the wording clearly and unmistakably sets forth. All the historical evidence left by the framers—including public statements, the Federalist Papers, acts of Congress, and previous Supreme Court rulings and opinions—supports the idea that the intent of the amendment was to protect the states from federal encroachment on their religious freedom.
In fact, in 1789 while the First Amendment was being drafted, the Northwest Ordinance was ratified by the newly formed Congress and signed by President Washington into law. It defined the terms future territories would have to meet in order to gain admission into the newly formed union. It also acknowledged the existing practices of the states. It required under Article III that: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” That’s right, it required of new states the encouragement of schools that taught religion and morality. It’s hard to think they would draft an amendment that under today’s interpretation contradicts the ordinance they had just signed into law.
On March 27, 1854, after a one-year study brought about by a “separation” suit, the House Judiciary Committee published its report, which stated, “At the time of the Constitution and the Amendments, the universal sentiment was that Christianity should be encouraged….”
So where did the term “separation of church and state,” which has now become the foundation of religious legal precedence, come from? The statement is found in a letter President Thomas Jefferson wrote on January 1, 1802, to the Danbury Baptists in response to their concern over the prospect of losing the religious freedom they enjoyed to the power of the new federal government. He notes in the letter, “Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and not opinion, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting the establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.” As we can see, Jefferson was assuring them that the federal government under the limits of the First Amendment is powerless to interfere in religious matters.
In other words, the First Amendment would not in any way limit religious activity; rather it would limit the government, specifically the federal government, from interfering in religious matters. Yet today the courts have taken those five words to mean just the opposite of what Jefferson clearly spelled out. Well, since Jefferson has become the authority on the First Amendment, what else did he say about the matter? In 1789 he wrote, “No power over the freedom of religion …is delegated to the United States by the Constitution.” In 1805 he said, “In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the general government.”
Consequently in Reynolds v. United States (1878), the Supreme Court reviewed Jefferson’s letter and in its opinion published it in its entire content. Of course they came to a different conclusion than that of the 1947 Court. In summarizing Jefferson’s intent the Court wrote, “The rightful purpose of civil government are for its officers to interfere when principles break out into overt acts against peace and order. In this…is found the true distinction between what properly belongs to the church and what to the states.” In other words, the state is only to interfere in religious matters when the people break out into acts that disrupt the peace.
So why, with these clear statements of intent along with an abundant historical record, did the 1947 Court simply rely on a personal letter to set legal precedence? Because there was no previous legal precedent limiting religious expression. In 1962 the Court struck down voluntary school prayer. That was the first time in 170 years prayer was ever restricted, and therefore the Court was incapable of sitting previous cases. In fact it was the first time ever that the Supreme Court ruled without citing previous court cases. In contrast, when the 1892 Supreme Court ruled in favor of public expression of religion in Church of the Holy Trinity v. United States, it provided 87 historical precedents and noted that it could cite more but felt that was sufficient.
It is incomprehensible to think that although the First Amendment unmistakably links Congress making laws to the establishment of religion, none of the cases recently decided by the Supreme Court actually consists of Congress making laws. So how did the courts manage to apply this clear wording to, say, a nativity scene, school prayer, or the display of the Ten Commandments, which have always been considered religious expressions? In the Engel case the Court claimed that voluntary school prayer would establish an “official state religion” and therefore was prohibited by the First Amendment. That’s the same First Amendment that was written to protect religion from government intrusion. Since that misguided decision, courts have reinterpreted religious expression to mean religious establishment, subsequently censoring our religious freedoms much like the Church of England had done centuries before.
So would the framers agree with this rethinking? David Barton in Original Intent goes to great lengths to document the fact that the founding fathers encouraged religious expression at every level of our government institutions, yet the issue of “establishment” was not raised until the 1962 ruling. Here’s what Gouverneur Morris, the penman and a signer of the Constitution, said: “Religion is the only solid basis of good morals, therefore education should teach the precepts of religion and the duties of man towards God.”1 George Washington noted, “Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle…. Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge.”2 Benjamin Franklin, who was the least religious among the framers, had this to say: “History will also afford frequent opportunities of showing the necessity of public religion…and the Excellency of the Christian religion above all others, ancient or modern.”3 No separation of church and state and no establishment of religion were ever at issue. Barton notes, “Since the Founders who prohibited the establishment of religion also encouraged religion, it is clear – contrary to the Court’s assertion in this case – that the Founders did not equate encouraging or endorsing religion as an establishment of it.”
Think about that for just a minute. Under the current interpretation, a nativity scene is not considered “the free exercise thereof”; rather it is associated with “Congress shall make no law respecting an establishment of religion.” This kind of illogical rationale has created a Supreme Court which, in the opinion of Justice Kennedy, resembles a “national theology board,” all the while creating a trail of confusion and contradictions few could follow.
So why should we care if a kindergarten student is prohibited from giving out Christmas cards or if a school library is prohibited from supplying Christian books? Well, for starters this kind of censorship reverses the religious freedom our forefathers fought so hard for. Second, it disregards so much of our rich heritage as religion was not only a huge source of inspiration for our founders but the pillar of so many of our institutions, including education, law, and freedom itself.
The biggest danger this kind of censorship poses is that it undermines democracy itself. When the Court handed down the Engel ruling banning prayer, only 3 percent of the nation proclaimed to have no religion. In a democracy, drastic decisions like these and so many others like it should be left for the people to decide, not a few activist judges. This of course is the idea of a “living, breathing” Constitution the liberals embrace.
Our forefathers left us the mechanism of amendments to deal with changing times, not judges’ edicts. Listen to the prophetic words of John Adams: “Our Constitution was made for a moral and religious people. It is wholly inadequate to the government of any other.” The decline of Bibles and prayer in our public institutions has precipitated the freefall of SAT scores and the alarming increase in school violence and teen suicide. Violent crime alone has increased 560 percent since 1960 while the teen suicide rate has gone up 300 percent per hundred people.4 Meanwhile the relationship between religious faith and the birth of our nation goes ignored by our intellectual elites. The fraud of “separation of church and state” in the hands of liberals acts as a device to sterilize our public institutions of any trace of God and morality and stands as the most egregious example of censorship in our nation’s history.
Think I’m kidding? In Texas U.S. District Judge Samuel B. Kent decreed that any student uttering the word “Jesus” at the school’s graduation ceremony would be arrested and face six months in the Galveston County Jail. Judge Knucklehead went as far as dispatching U.S. marshals to enforce his ruling. But make no mistake about it—when your argument can’t survive logical scrutiny, the only alternative is to silence dissenters. The Islamic world has made an art of this, imprisoning those who oppose the state religion. In Communist China and Cuba, dissenters are banished or killed. The liberals, aware of the massive flaws in the arguments, have taken to the same kind of suppression to the tune of a police state. And it arrives fresh from the bowels of the “tolerant” left whose intellectual strength lies in its intellectual neglect.
Articles
Establishment of Religion John Baker
Religious Liberty and Expression Under Attack: Restoring America’s First Freedoms Jay Alan Sekulow
Since the Everson decision, the eradication of our religious freedom has come fast and furious. In Engle v. Vitale (1962) the Court ruled that a voluntary, twenty-two word student prayer was unconstitutional because it acknowledged “Almighty God.” In Abington v. Schempp (1963), the Court abolished Bible reading in school, while in Reed v. Van Hoven (1965) the Court prohibited students from praying over their lunch in a manner others could hear. In Ohio v. Whisner (1976) the Board of Education was prohibited from using the word God in any of its official material, while in 1979, Florey v. Sioux Falls School District, the Court restricted a kindergarten student from asking whose birthday is on Christmas. The Court ruled in County of Allegheny v. ACLU (1989) that a nativity scene on public property was unconstitutional unless surrounded by secular displays. In Stone v. Graham (1980) the Court found it unconstitutional for students to see the Ten Commandments, and despite the fact that the Ten Commandments are engraved on the Supreme Court building and are the basis of our civil law, the Court in Harvey v. Cobb County (1993) ruled against them being displayed on public courthouses.
These decisions by our contemporary Court along with many others are a serious departure from previous interpretations and rulings. Here’s the irony: on September 25, 1789, the day the First Amendment was adopted, Congress recommended “a day of public thanksgiving and prayer to Almighty God.” Our Supreme Court today would likely find that unconstitutional as well.
In today’s debate, conservatives come down on the side of strict constructionists who seek to interpret the original meaning of the First Amendment. On the other side of the debate, liberals defend these drastic legal and social changes on the grounds that they are in fact the intent of the founding fathers. Some go as far as declaring the Constitution means different things at different times. So let’s start with a little historical background and then take a closer look at the Amendment which has been the source of so much contention in recent times.
As we all know many of the early colonists came to America to avoid religious persecution in England. Under the British monarchy, King George III was not only head of state, he was also head of the Church of England, which was often hostile towards dissenting religions and denominations. The church was established in 1529 by an act of Parliament under pressure from King Henry VIII, who wanted to divorce Catherine of Aragon but was unable to by the Catholic Church. It was an established national religion which all of our founding fathers were weary of.
The Bill of Rights, which contains the first ten amendments to the Constitution, was a negotiated settlement between the states, which had just ratified the Constitution and wanted to retain much of their autonomy, and the Federalists, who were in favor of a strong central government. The states at the time of the ratification were rather segmented by differing Christian denominations. Supreme Court Justice Hugo Black himself noted in his 1962 opinion, “As late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five.” The states wanted assurances that the federal government would not interfere in these state-sponsored religions, and they would find the assurances in the First Amendment.
In 1791 the First Amendment was ratified by Congress, stating: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof….” Prior to 1947 the Court rightly interpreted the “establishment of religion” as requiring an act of “Congress,” which the wording clearly and unmistakably sets forth. All the historical evidence left by the framers—including public statements, the Federalist Papers, acts of Congress, and previous Supreme Court rulings and opinions—supports the idea that the intent of the amendment was to protect the states from federal encroachment on their religious freedom.
In fact, in 1789 while the First Amendment was being drafted, the Northwest Ordinance was ratified by the newly formed Congress and signed by President Washington into law. It defined the terms future territories would have to meet in order to gain admission into the newly formed union. It also acknowledged the existing practices of the states. It required under Article III that: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” That’s right, it required of new states the encouragement of schools that taught religion and morality. It’s hard to think they would draft an amendment that under today’s interpretation contradicts the ordinance they had just signed into law.
On March 27, 1854, after a one-year study brought about by a “separation” suit, the House Judiciary Committee published its report, which stated, “At the time of the Constitution and the Amendments, the universal sentiment was that Christianity should be encouraged….”
So where did the term “separation of church and state,” which has now become the foundation of religious legal precedence, come from? The statement is found in a letter President Thomas Jefferson wrote on January 1, 1802, to the Danbury Baptists in response to their concern over the prospect of losing the religious freedom they enjoyed to the power of the new federal government. He notes in the letter, “Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and not opinion, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting the establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.” As we can see, Jefferson was assuring them that the federal government under the limits of the First Amendment is powerless to interfere in religious matters.
In other words, the First Amendment would not in any way limit religious activity; rather it would limit the government, specifically the federal government, from interfering in religious matters. Yet today the courts have taken those five words to mean just the opposite of what Jefferson clearly spelled out. Well, since Jefferson has become the authority on the First Amendment, what else did he say about the matter? In 1789 he wrote, “No power over the freedom of religion …is delegated to the United States by the Constitution.” In 1805 he said, “In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the general government.”
Consequently in Reynolds v. United States (1878), the Supreme Court reviewed Jefferson’s letter and in its opinion published it in its entire content. Of course they came to a different conclusion than that of the 1947 Court. In summarizing Jefferson’s intent the Court wrote, “The rightful purpose of civil government are for its officers to interfere when principles break out into overt acts against peace and order. In this…is found the true distinction between what properly belongs to the church and what to the states.” In other words, the state is only to interfere in religious matters when the people break out into acts that disrupt the peace.
So why, with these clear statements of intent along with an abundant historical record, did the 1947 Court simply rely on a personal letter to set legal precedence? Because there was no previous legal precedent limiting religious expression. In 1962 the Court struck down voluntary school prayer. That was the first time in 170 years prayer was ever restricted, and therefore the Court was incapable of sitting previous cases. In fact it was the first time ever that the Supreme Court ruled without citing previous court cases. In contrast, when the 1892 Supreme Court ruled in favor of public expression of religion in Church of the Holy Trinity v. United States, it provided 87 historical precedents and noted that it could cite more but felt that was sufficient.
It is incomprehensible to think that although the First Amendment unmistakably links Congress making laws to the establishment of religion, none of the cases recently decided by the Supreme Court actually consists of Congress making laws. So how did the courts manage to apply this clear wording to, say, a nativity scene, school prayer, or the display of the Ten Commandments, which have always been considered religious expressions? In the Engel case the Court claimed that voluntary school prayer would establish an “official state religion” and therefore was prohibited by the First Amendment. That’s the same First Amendment that was written to protect religion from government intrusion. Since that misguided decision, courts have reinterpreted religious expression to mean religious establishment, subsequently censoring our religious freedoms much like the Church of England had done centuries before.
So would the framers agree with this rethinking? David Barton in Original Intent goes to great lengths to document the fact that the founding fathers encouraged religious expression at every level of our government institutions, yet the issue of “establishment” was not raised until the 1962 ruling. Here’s what Gouverneur Morris, the penman and a signer of the Constitution, said: “Religion is the only solid basis of good morals, therefore education should teach the precepts of religion and the duties of man towards God.”1 George Washington noted, “Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle…. Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge.”2 Benjamin Franklin, who was the least religious among the framers, had this to say: “History will also afford frequent opportunities of showing the necessity of public religion…and the Excellency of the Christian religion above all others, ancient or modern.”3 No separation of church and state and no establishment of religion were ever at issue. Barton notes, “Since the Founders who prohibited the establishment of religion also encouraged religion, it is clear – contrary to the Court’s assertion in this case – that the Founders did not equate encouraging or endorsing religion as an establishment of it.”
Think about that for just a minute. Under the current interpretation, a nativity scene is not considered “the free exercise thereof”; rather it is associated with “Congress shall make no law respecting an establishment of religion.” This kind of illogical rationale has created a Supreme Court which, in the opinion of Justice Kennedy, resembles a “national theology board,” all the while creating a trail of confusion and contradictions few could follow.
So why should we care if a kindergarten student is prohibited from giving out Christmas cards or if a school library is prohibited from supplying Christian books? Well, for starters this kind of censorship reverses the religious freedom our forefathers fought so hard for. Second, it disregards so much of our rich heritage as religion was not only a huge source of inspiration for our founders but the pillar of so many of our institutions, including education, law, and freedom itself.
The biggest danger this kind of censorship poses is that it undermines democracy itself. When the Court handed down the Engel ruling banning prayer, only 3 percent of the nation proclaimed to have no religion. In a democracy, drastic decisions like these and so many others like it should be left for the people to decide, not a few activist judges. This of course is the idea of a “living, breathing” Constitution the liberals embrace.
Our forefathers left us the mechanism of amendments to deal with changing times, not judges’ edicts. Listen to the prophetic words of John Adams: “Our Constitution was made for a moral and religious people. It is wholly inadequate to the government of any other.” The decline of Bibles and prayer in our public institutions has precipitated the freefall of SAT scores and the alarming increase in school violence and teen suicide. Violent crime alone has increased 560 percent since 1960 while the teen suicide rate has gone up 300 percent per hundred people.4 Meanwhile the relationship between religious faith and the birth of our nation goes ignored by our intellectual elites. The fraud of “separation of church and state” in the hands of liberals acts as a device to sterilize our public institutions of any trace of God and morality and stands as the most egregious example of censorship in our nation’s history.
Think I’m kidding? In Texas U.S. District Judge Samuel B. Kent decreed that any student uttering the word “Jesus” at the school’s graduation ceremony would be arrested and face six months in the Galveston County Jail. Judge Knucklehead went as far as dispatching U.S. marshals to enforce his ruling. But make no mistake about it—when your argument can’t survive logical scrutiny, the only alternative is to silence dissenters. The Islamic world has made an art of this, imprisoning those who oppose the state religion. In Communist China and Cuba, dissenters are banished or killed. The liberals, aware of the massive flaws in the arguments, have taken to the same kind of suppression to the tune of a police state. And it arrives fresh from the bowels of the “tolerant” left whose intellectual strength lies in its intellectual neglect.
- Jared Sparks, The Life of Gouverneur Morris (Boston: Gray and Bowen, 1832), Vol. III, 483
- George Washington, Address of George Washington: Preparatory to His Declination, (Baltimore: George and Henry S. Keatinge, 1796), 22-23
- Benjamin Franklin, Proposals Relating to the Education of Youth in Pennsylvania (Philadelphia, 1749), 22 as quoted by David Barton, Original Intent, (Aledo TX: WallBuilder Press, 2004)
- Judge Robert Ulrich, Chief Justice, Missouri Court of Appeals, First Family Church and International Ministries
Articles
Establishment of Religion John Baker
Religious Liberty and Expression Under Attack: Restoring America’s First Freedoms Jay Alan Sekulow