PART II – THE LEGAL COMPASS

Chapter 6 - Legal Compass: The Establishment Clause and Separation of Church & State

[Working draft, November 23, 2009]

   Two questions. First, did President Geoerge Washington, the First Congress and the Supreme Court know where the country was headed with respect to religious freedom in 1789? And, second, and does the current Supreme Court have the foggiest idea the “true” meaning of the Establishment Cluase? [1]

   This chapter will attempt to answer those questions, and in so doing, provide the legal compass that is so desparately needed in the area of the proper relationship between church and state.

   I will start with the religionist/Christian Right view that the Establishment Clause should be interpreted in light of the United States being a Christian Nation in 1789 when the First Congress passed proposals for the Bill of Rights that the First Congress NEVER intended church and state to be separate.

   Then I will discuss what I believe to be the better view that in 1789, the country was firmly in the midst of “disestablishment,” that the Establishment Clause was intended to prevent governtment promoting or assisting religious establishments and, given how pluralistic the nation is today, that separation of church and state best serves all the people.

Justice Scalia’s View of the Founder’s “Original Intent”

   Justice Antonin Scalia, in his dissenting opinion in McCreary County [__], attempts to prove the “original intent” of our Founders by providing numerous examples in which government and religion were fused:

1. George Washington added to the form of Presidential oath prescribed by Art. II, §1, cl. 8, of the Constitution, the concluding words “so help me God.”
2. President Washington opened his Presidency with a prayer.
3. The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.”
4. The First Congress instituted the practice of beginning its legislative sessions with a prayer. Marsh v. Chambers, 463 U.S. 783, 787 (1983). The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate.
5. The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.”
6. President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the American people “ ‘to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be,’ ”
7. The First Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
8. The First Amendment itself accords religion (and no other manner of belief) special constitutional protection.

   Summaring, Justice Scalia said: “These actions of our First President and Congress and the Marshall Court were not idiosyncratic; they reflected the beliefs of the period.   

   The examples that Scalia cites can neither be denied nor ignored. I will address them in due course.

Jeffersons Myth of “Separation of Church and State”

   Religionists argue that Jefferson's famous metaphor — “wall of separation between church and state” — originated in 1802, 13 years after the Establishment Clause was written and, no less, by a person who was not even a member of Congress at the time (or at any other time for that matter). While both statements are true, they grossly ignore Jefferson’s influence on the First Congress and his contribution to religious freedom in America. I will also discuss this issue in due course.

And Then Along Came the 1940’s and 1950’s

   Until the 1940’s, the religion clauses of the U.S. Constitution had not been applied to the states. Coming out of the Great Depression and the new stresses of World War II, religion was reasserting itself. Public schools in New York and Illinois, for example, started bible study programs to help teach our youth moral values. Similarly, Judge E.J. Ruememer, as we will see in the next chapter (Chapter 3 - The Ruegemer Fable), started distributing tens of thousands of Eagles Ten Commandments posters to schools and courts for the same purpose.

   With the evils of Communism at our doors — those ungodly atheists — Congress added “under God” in the Pledge of Allegiance in 1954 and made “In God We Trust” our national motto in 1956.

   Finally, as we will see in Chapter 4, the Eagles, initially in conjunction with Cecil B. De Milles 1956 movie the Ten Commandments (1956), donated more than 150 granite Ten Commandment tombstones to cities and states.s

The Separationists Response to Scalia and Religionists

   To answer Scalia’s charge, I believe that there is a substantially stronger argument to be made for the separationists view that the both the original intent best practices for today is best served by the principle of separation of church and state as the proper meaning of the Establishment Clause. For starters, Scalia and the Christian Right ignore the distinct trend of disestablishment. This is very significant and relevant.

Early Influences on the Principle of Separation of Church and State

   Some might say that the principle of separation of church and state originated with Jesus of Nazareth quote:

Render unto Ceasar the things which are Ceasar’s, and unto God the things which are God’s.

   Properly construed, that biblical quote was about paying taxes, not separation of church and state. [__] [Matthew 22:17-21 Legally due taxes is Ceasars and they are breaking laws by not paying it. Scripture says to be submission to the government over you. Romans 13:1-7 Titus 3:1 Are they in submission or rebellion? Rebellion because they are stealing from the Government.]

   But the concept of separation of church and state predates Jefferson. In fact, the concept of separating church and state is often credited to the writings of the British philosopher John Locke. According to his principle of the social contract, Locke argued that the government lacked authority in the realm of individual conscience, as this was something rational people could not cede to the government for it or others to control. For Locke, this created a natural right in the liberty of conscience, which he argued must therefore remain protected from any government authority. These views on religious tolerance and the importance of individual conscience, along with his social contract, became particularly influential in the American colonies and the drafting of the United States Constitution. [From Wikipedia; to be revised]

Disestablishment — Roger Williams, Thomas Jefferson & James Madison

   The concept was implicit in the flight of Roger Williams from religious oppression in Massachusetts to found what became Rhode Island on the principle of state neutrality in matters of faith.

More on Disestablishment

Madison and the First Amendment

   On June 8, 1789, James Madision, then a representative of Virginia, introduced in the U.S. House of Representatives proposals for a bill of rights. His proposal for religious freedom was:

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. [1]

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise
thereof . . . [2]

   There are four key points.

   First, the religion clauses reflect the fact that Madison's proposal went through a number of iterations -- that is, it was the result of political compromises. For example, though not apart of the proposal above, Madison wanted to apply it to the states. That proposal was defeated.

National Religion?

   Second, others wanted to limit Congress's authority only to establishing a national religion. Note that the word “national” appears in the Madison's original but not in what was adopted. This is compelling evidence that the Establishment clause was not intended sole to prevent Congress from establishing a national religion.

Absolute

   Third, the First Amendment is written in the absolute: “Congress shall make no law . . .” We know that there are exceptions to every rule, but the important point is that pass an “exception” Congress must have a compelling justification.

Original Intent

   Fourth, using the dictionary to help determine “original intent” of the Founders is a worthless endeavor. The phrase “an establishment of religion” is unique to the Constitution. Moreover, there are no contemporaneous committee, House or Senate reports explaining the “intent of Congress.” In all honest, the best we can say is that Congress established a fundamental “general” principle, leaving it to each generations to define.

Federal Goverment Given Limited Powers

   And fifth, the national government was intended to be one of “limited powers.” For example, Article III, Section 8 gave Congress certain enumerated powers. The powers not given to Congress that Section 8 or elsewhere, are reserved by the states or the people. [4]

Period of Disestablishment

   This being said, we are not with major guides. Three stand out. Most significant is the time period. The colonies having obtained independence from Great Britian, the new country was undergoing “disestablishment,” that is, repeal of official state religions, including taxpayer support for churches and ministers. Dissestablishment was completed by 1830's [chart or quote].

Jefferson’s 1802 Letter to the Danbury Baptist Assoc.

   President Thomas Jefferson penned his famous “wall of separation” metaphor in an 1802 letter to the Danbury Baptist Association. It reads in part:

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 & State. (Empahsis added.)

   Some in the Christian Right are quick to point out that Jefferson was never a member of Congress and the Danbury letter was written 13 years after Congress proposed the Bill of Rights — suggesting that the Jefferson's view is not a credible explanation of the meaning of the religion clauses. Of course, this ignores that the fact that Madison was a protege of Jefferson and the two shared the same view that church and state should not mix.

The Christian Right, either out of ignorance of history or extreme denial because the principle of separation of church and state is antithetical to evangelistic methods, argues that the term separation of church and state is no where to be found in the Constitution or the First Amendment.

   The literal truth is not dispositive here. There are many “rights” protected by the Constitution and its amendments that are not specifically spelled out therein. For example, “freedom of religion, the “right to marry,” the “right to bear children,” the “right to travel ”and the “presumption of innocence until proven guilty” are not mentioned in the Constitution or its amendments yet I am aware of no one who disputes these rights of the people.

   The Supreme Court has weighed in a number of times finding the principle of separation of church and state embodied in the First Amendment. Reynolds v. United States [5] and then in McCollum v. Board of Education. [6] The Court used the phrase again by Justice Hugo Black in 1947 in Everson.

   Thus the case supporting the principle of separation of church and state is overwhelming. But, in addition to outright denial, an alternative tactic by Christian Right leaning judges is simply to ignore the principle and grant exceptions based on phone secular purposes — most notably Van Orden. This is done in three ways: (1) Deny the scope (Justice Scalia), (2) deny the First Amendment prohibitions apply to the states (Justice Thomas) or (3) accept bogus secular purposes or bogus defenses (e.g., tradition, museum/library defense, no one's complained for thirty years, ceremonial deism, acknowledgment of the Ten Commandments role as the foundation of American law).

   We live in a sad time when religionist defenders denythe religious purpose of placing Ten Commandment tombstones on government property in order to circumvent the religious purpose prong (of the Lemon test) used by the courts to determine whether a governmental act violates the Establishment Clause.

   This pervision extends to President George Bush's faith-based initiatives, teaching religion in public schools (e.g., bible study courses and creationism), taxpayer support for religious schools (e.g., textbooks, transportation, special ed teachers, vouchers), “In God We Trust” as a nation motton and on our coins and currency, “under God” in the Pledge of Allegiance, military bands playing God Bless America, Congressiona chaplains, proselytization in the military, institutionalized persons and military personnel forced to attend faith based-based alcohol or drug treatment programs — the list of tolerated Establishment Clause violations is long.

   Each of these examples is an obvious violation of the Establishment Clause and represents tyranny of the majority. Judges and justices who uphold these violations commits an impeachable offense of violating their oath of office to “defend and uphold the Constitution of the United States of America.”[verify oath]

   Summarizing, federal, state and local governments have no religious role to play in our society. The Christian Right has met with some success largely because the majority of people in the United States self-identify themselves as Christians and they brand anyone who gets in their way of trying to make the United States a “Christian Nation” as anti-Christian. We must constantly be vigilant to withstand the natural propensity for people to use government for their selfish purposes and, thereby, defeat encroachments to our Liberty.

ENDNOTES:

1. No disrespect of the Supreme Court is intended here. However, on June 27, 2005, the Court held in Van Orden v. Perry, 545 U.S. 677 (2005) that a display of the Ten Commandments on public property did not violation the Establishment Clause while, on the same day in McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), held that a display of the Ten Commandments on public property violated the Establishment Clause. Altho the facts and circumstances were different, the distinctions do not seem sufficiently different to this author and other scholars of constitutional law to merit opposite conclusions.
2. Steven Waldman, in Founding Faith, Random House, 2008, page 150, explains the final language of the proposed Bill of Rights this way: “Apparently, horse trading [in the House Senate conference committee] ensued.” “It is a sign of the importance that Madison placed on freedom of religion, press, and speech that led the House accepted the Senate's language on sixteen different amendments in order to get the stronger language on the First Amendment.”
3. Constitution, Amend. I.
4. Constitution, Amend. X — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Source: National Archives, http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html, webpage visited November 29, 2008.
5. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878).
6. McCollum v. Board of Education, 333 U.S. 203 (1948).

"We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683-84, 96 L.Ed. 954 (1952).

The text of the Clause and the deliberations of the framers indicate that the Establishment Clause was designed to prevent Congress from establishing a national religion--that is, from officially preferring one religious sect over others. Wallace, 472 U.S. at 99, 105 S.Ct. at 2511-12; Lee v. Weisman, 505 U.S. 577, 639-41, 112 S.Ct. 2649, 2683, 120 L.Ed.2d 467 (1992) (Scalia, J., dissenting).

"In the very week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states, it enacted legislation providing for paid Chaplains for the House and Senate." Lynch v. Donnelly, 465 U.S. 668, 674, 104 S.Ct. 1355, 1359-60, 79 L.Ed.2d 604 (1984).

President Washington and his successors proclaimed Thanksgiving--a religious holiday for giving thanks to God for the gifts of Nature--a day of national celebration, and Congress made it a National Holiday more than a century ago. Id. [Lynch] at 675, 104 S.Ct. at 1360. Additional examples of accommodation include our statutorily prescribed national motto "In God We Trust," and the "One nation under God" language of our Pledge of Allegiance. Id. at 676, 104 S.Ct. at 1360-61.

While the City's argument has a great deal of merit, Allegheny nevertheless compels the conclusion that the City's display of the cross is unconstitutional. Under the Allegheny analysis, the Establishment Clause "prohibits government from appearing to take a position on questions of religious belief...." Id. at 593-94, 109 S.Ct. at 3100-02. Though the cross has a secular purpose as a war memorial, observers might reasonably perceive the City's display of such a religious symbol on public property as government endorsement of the Christian faith. 12 Further, the City's use of a cross to memorialize the war dead may lead observers to believe that the City has chosen to honor only Christian veterans. [Separation of Church and State Committee v. City of Eugene of Lane County, State of Or. 93 F.3d 617 (C.A.9 (Or.), 1996) ]