I have heard the phrase “separation of church and state” used over and over to justify restrictions on prayers in schools, Bibles in courthouses, public nativity scenes, and references to God in various public documents. Invariably, the implication is that the Constitution mandates “separation of church and state.”
In fact, it does not.
The beginning of the First Amendment to the Constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” That’s all the Constitution or the Amendments say about religion, but it’s enough.
The men who drafted the Constitution and the Bill of Rights were less than ten years removed from British citizenship, and the British Empire had a long and bloody history of religious conflicts. They began in 1534, when Henry VIII separated the Church of England from the Catholic Church and declared himself to be its head. For the next several centuries there was an official state church in England, but depending on the monarch currently in power, the official church might be Anglican or Catholic. At any given point in that history, members of the out-of-favor church were persecuted.
Even worse, there were other religions in England, such as the Puritans and the Quakers. Regardless of which of the major churches was currently in power, members of these minor religions were always persecuted. Many of them migrated to the New World to escape that persecution.
So the first words of the First Amendment were, “Congress shall make no law respecting an establishment of religion…” This is referred to by Constitutional scholars as the “Establishment Clause.” It prohibits for all time the establishment of an official state religion in the United States.
The second phrase is what guarantees Americans the oft-touted freedom of religion. It says, “…or prohibiting the free exercise thereof…” That phrase, the “Free Exercise Clause,” prohibits the Congress from putting any qualification on what can be considered a religion.
In my opinion, that’s another example of the genius of the men who wrote our Constitution and Bill of Rights. Without it, some future Congress might have circumvented the establishment clause by passing a law that said something like, “We’re not proclaiming Christianity to be the official religion of the United States, but any religion practiced in the United States must use the Old Testament and the New Testament and teach that Jesus is the Son of God.”
The free exercise clause says that anything a person says is his religion is, in fact, a religion. It doesn’t even have to involve the worship of a deity. In 1963 the infamous American atheist Madalyn Murray O’Hair registered the American Atheist Society as a religion, with herself as the “presiding bishop,” and thereby avoided the payment of income taxes on her and the Society’s income.
Some people have made the argument that the First Amendment doesn’t just guarantee freedom of religion—it also guarantees freedom from religion. In a very limited sense, that’s true. An early Supreme Court case involved a school district that required its students to recite a Christian prayer every morning, without regard to the students’ religious affiliation or lack thereof. The Supreme Court ruled that the practice was coercive of a single religion, Christianity, and therefore not Constitutional.
Once the Court started down that slippery slope, however, things got out of hand quickly. In civil rights cases the Supreme Court had already ruled that while it’s possible for a majority to discriminate against a minority, it’s not possible for a minority to discriminate against a majority. Now they applied that same philosophy to religion. They decided that since Christianity was the dominant religion in the United States, it wasn’t possible for Christians to be offended by the beliefs or practices of minor religions. It was possible, though, for members of minor religions to be offended by Christian beliefs or practices.
In short order they were restricting or banning a multitude of Christian things: prayers in schools or at sporting events, displays of Bibles or the Ten Commandments in courthouses or other public buildings, nativity scenes in stores, malls, and other public places, and the designation of holidays as being for the celebration of Christmas or Easter.
So if it’s not in the Constitution or the Bill of Rights, where did this “separation of church and state” idea come from? It actually comes from a letter written in 1802 by then-President Thomas Jefferson to the Danbury Baptist Association of Danbury, Connecticut.
The Danbury Baptists were a minority religion in Connecticut. They wrote to Jefferson expressing concern that the Connecticut State Constitution didn’t guarantee freedom of religious worship. They worried that larger, more powerful religions in the state might contrive to pass laws that would limit or prohibit the practice of their religion.
Remember, this was at a time when the persecution of minority religions in Europe was still rampant.
Jefferson replied that in ratifying the Bill of Rights in 1791 the American people had built “a wall of separation between church and state.”
The letter languished in obscurity, known only to a few Jeffersonian scholars, until 1878, when it was quoted in a Supreme Court decision. It then returned to obscurity for another 69 years, until 1947. Since then it has been quoted in more than 25 Supreme Court decisions, usually as justification for limiting the free exercise of the Christian religion, in direct contradiction to the First Amendment. That led to the widespread belief that the phrase appears in the Constitution or the Bill of Rights—but it does not.
Now we come to the scary part. On October 19, 2010, Delaware Republican Senate candidate Christine O’Donnell debated her Democrat opponent, Chris Coons. The debate took place at the Widener School of Law.
During the debate the subject came up of whether Delaware’s public schools should be allowed to teach intelligent design or be required to teach only Darwinian evolution. Coons argued that the public schools could not legally teach intelligent design because it was a religious doctrine, and the Constitution explicitly required the separation of church and state.
“Excuse me,” Ms. O’Donnell said. “Where in the Constitution is the separation of church and state required?”
“The First Amendment,” Coons replied. “Government shall make no establishment of religion.”
There are several problems with that answer. First, the phrase “government shall make no establishment of religion” isn’t what the First Amendment says. It doesn’t even make sense. O’Donnell didn’t allow herself to get distracted by that nonsense phrase, but it might have been an amusing conversation.
Second, the sentence he offered says nothing about separation of church and state. To imply that “government shall make no establishment of religion” equates to “separation of church and state” is to stretch the syntax of the English language beyond the breaking point.
Finally, a candidate for the United States Senate who, if he’s elected, will take an oath to protect and defend the Constitution of the United States, clearly doesn’t know what he’s supposed to protect and defend—which tells me he plans to promote laws that enforce what he thinks the Constitution should say, without being too concerned with what it does say.
The scariest part, which you’ll have to listen to the sound bite to hear, is that when O’Donnell asked her original question, the assembled law school students snickered. They were obviously thinking, “This woman is so dumb she doesn’t even know what’s in the Constitution.” They, too, thought that separation of church and state was mandated by the Constitution.
If history is any guide, some of those future lawyers will become politicians who will make our laws. Others will become judges who will interpret our laws. We sometimes wonder how our politicians and judges can make laws and rulings that are so clearly not in accordance with the Constitution. I think this single incident answers that question.
Our lawyers, politicians, and judges don’t know what’s in the Constitution—and many of them don’t care. They have their opinion about what should be in the Constitution, and that’s really all they’re concerned with.
I realize that our Congress has never established English as the official language of the United States. Nonetheless, the Constitution and the Bill of Rights are written in English, and English is a fairly concise language. There are few cases in which “black” can be interpreted to mean “white.” So let’s look at what the specific words of the First Amendment mean.
- The Establishment Clause, “Congress shall make no law respecting an establishment of religion…” means that the Congress is prohibited from designating any particular religion as the “official” religion of the United States. That is really a non-issue. To my knowledge, no one has ever suggested that the United States should have an official state religion.
- The Free Exercise Clause, “…or prohibiting the free exercise thereof…” is where all the problems have been created. The words clearly say that the Congress is prohibited from making any law that prohibits the free exercise of any religion. It doesn’t say “…or prohibiting the free exercise of any religion except Christianity.” So laws that prohibit the public display of Bibles, the Ten Commandments, nativity scenes, crosses, or any other Christian symbol, are clearly unconstitutional. Period, end of discussion.
“Ah,” I heard someone say, “but many of those laws are state or local laws, not federal laws. What about that?” That’s an easy one. Several Supreme Court decisions over the past 222 years—the most recent being McDonald vs. City of Chicago earlier this year—have established that state or local governments may not deprive us of rights that are guaranteed us by the Constitution of the United States.
We are one nation, under God. In God we trust. God bless America.