Separation of Church and State

[FredFlash]

Separation of Church and State: A First Amendment Primer

Violations of the Separation of Church and State

Supreme Court Justice Hugo Black best expressed the purpose and function of the Establishment Clause when he said that it rests "on the belief that a union of government and religion tends to destroy government and degrade religion." Some Americans reject this dictum, promoting the idea that the government should endorse the religious values of certain members of the community to the exclusion of others. In fact, such violations of the separation of church and state take place with disturbing frequency in American government, at local, state and Federal levels. Recent incidents include the following:

* An Alabama judge regularly opens his court sessions with a Christian prayer. Further, he has refused to remove a plaque containing the Ten Commandments from his courtroom wall. Alabama Governor Fob James has threatened to call in the Alabama National Guard to prevent the plaque's removal.

* Local municipalities have erected nativity scenes, crosses, menorahs and other religious symbols to the exclusion of those of other faiths.

* The Board of Aldermen of a Connecticut city has opened its sessions with a prayer that beseeches citizens to "elect Christian men and women to office so that those who serve will be accountable . . . to the teachings of Jesus Christ . . . ."

* A variety of religious groups are demanding that their faith-based social service programs receive public funding although these programs engage in aggressive proselytizing and religious indoctrination.

* On the "National Day of Prayer," local authorities acting in their official capacities have led citizens in sectarian prayer.

[FredFlash]

Ads for Separation of Church and State: Presidential Campaign Call For Protection Of Religious Freedom

Friday, January 4, 2008

On Eve Of New Hampshire And South Carolina Primaries, New Ads Press Presidential Candidates On Role Of Religion and Government

For the first time in a presidential election and on the eve of the New Hampshire and South Carolina primaries a new series of television and newspaper ads is being launched to urge presidential candidates to protect religious freedom.

At a time when presidential candidates in both political parties are injecting religion into their campaigns at unprecedented levels, the new ads are designed to help provide a clearer understanding of where candidates stand on key issues at the intersection of religion and politics. The ads are scheduled to lead up to the New Hampshire and South Carolina primaries later this month.

First Freedom First, a joint project of Americans United for Separation of Church and State and The Interfaith Alliance Foundation, is launching the new print and TV ads to encourage voters to ask presidential candidates their positions on a wide range of issues, from end-of-life options to protecting the right of all Americans to worship...or not.

The first advertisements feature legendary actors Jack Klugman and James Whitmore and are designed to remind candidates and voters that religion has a place in American life, but not as a political tool.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, noted, "The separation of church and state is what makes America a great nation. At their core, the ads are designed to prompt important conversations about where candidates stand on the critical issue of religious liberty as enshrined in the First Amendment."

Lynn continued, "All Americans, whether religious or not, have a right to know where candidates stand on issues that have a real, direct impact on their lives, such as sound science, academic integrity and protections against religious discrimination. The ads and related questions on the First Freedom First Web site are designed to help start the discussion between voters and candidates."

The Rev. Dr. C. Welton Gaddy, president of The Interfaith Alliance Foundation, said, “Religion has played an unusually large role in the 2008 election, and unfortunately, it has been used as a gimmick or a divisive tool rather than a unifying force. First Freedom First focuses on important issues that are at the intersection of religion and public policy issues that our next president must be prepared to deal with.”

In the TV and print ads, Jack Klugman and James Whitmore raise such questions as, "Who will decide my end of life care: politicians and religious right leaders, or my doctor and me?" The ads also ask candidates what they will do to protect the right of all Americans to worship...or not.

The First Freedom First Web site features ten sample questions for voters to ask candidates, such as "Do you think public schools should sponsor school prayer or, as a parent, should this choice be left to me?" and, "Do you think my pharmacist should be allowed to deny me doctor-prescribed medications based on his or her religious beliefs?"

Klugman noted that he volunteered to participate in the ad campaign, saying, "I think these ads speak for a lot of people, both believers and non-believers, who understand that this country is founded on a basic respect for everyone's right to believe whatever they want. It's time we got back to principles that have always made America a great democracy."

The ads, produced by Progressive Media Agency, will run up to the primaries in New Hampshire and South Carolina.

Americans United: Ads In Presidential Campaign Call For Protection Of Religious Freedom

[FredFlash]

The Constitution of Iran recognizes Christianity. The Constitution of the United States doesn't. So, why isn't Iran considered by the religious right to be a Christian Nation?

Article 13
Zoroastrian, Jewish, and Christian Iranians are the only recognized religious minorities, who, within the limits of the law, are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education.

--Constitution of Iran

[FredFlash]

Here's an interesting essay on the subject of separation of church and state. The author makes the mistake of interpreting the Constitution according to his subjective analysis of history rather than objectively according to the common law "rules of interpretation."

The Separation of Church and State

By Gary L. Graham

No metaphor in American letters has had greater influence on law and policy that Thomas Jefferson’s “wall of separation between church and state.” For many Americans, this metaphor has supplanted the actual text of the First Amendment to the U.S. Constitution, and it has become the standard explanation of the notion that the First Amendment separated religion and the civil state, thereby mandating a strictly non-religious government.

The judiciary has embraced this figurative language as a virtual rule of constitutional law and as the organizing theme of church-state jurisprudence. Writing for the U.S. Supreme Court in 1948, Justice Hugo L. Black asserted that the justices had “agreed that the First Amendment’s language, properly interpreted, had erected a wall of separation between Church and State.” The continuing influence of this wall is evident in the Court’s most recent church-state pronouncements.

The Rhetoric of church-state separation has been a part of western political discourse for many centuries, but it has only lately come to a place of prominence in American constitutional law and discourse. What is the source of the “wall of separation” metaphor so frequently referenced today? How has this symbol of strict separation between religion and public life become so influential in American legal and political thought? What are the policy and legal consequences of the rise of separationist rhetoric and of the transformation of “separation of church and state” from a much-debated political idea to a doctrine of constitutional law embraced by the nation’s highest court?

On New Year’s Day, 1802, President Jefferson penned a missive to the Baptist Association of Danbury, Connecticut. The Baptists had written the new president a “fan” letter in October 1801, congratulating him on his election to the “chief Magistracy in the United States.” They celebrated his eager advocacy for religious liberty and chastised those who had criticized him “as an enemy of religion, Law and good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ.” At the same time, the Congregationalist Church was still legally established in Connecticut and the Federalist Party controlled New England politics. The Danbury Baptists were a beleaguered religious and political minority in a state where a Congregationalist-Federalist party establishment dominated public life. They were drawn to Jefferson’s political cause because of his celebrated advocacy for religious liberty.

The president allied himself with the New England Baptists in their struggle to enjoy the right of sharing their beliefs as an inalienable right. Jefferson wrote:

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 legitimate powers of government reach actions only, & 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 & State.

The conventional wisdom is that Jefferson’s wall represents a universal principle concerning the prudential and constitutional relationship between religion and the civil state. This wall had less to do with the separation between religion and all civil government than with the separation between the national and state governments on matters pertaining to religion (such as official proclamations on days of prayer, fasting, and thanksgiving).

Jefferson’s wall separated the national government on one side from state governments and religious authorities on the other. This construction is consistent with a virtually unchallenged assumption of the early constitutional era: the First Amendment in particular and the Bill of Rights in general affirmed the fundamental constitutional principle of federalism. The First Amendment, as originally understood, had little substantive content apart from its affirmation that the national government was denied all power over religion matters. Jurisdiction in such concerns was reserved to individual citizens, religious societies, and state governments.

The phrase “wall of separation” entered the lexicon of American law in the U.S. Supreme Court’s 1878 ruling in Reynolds v. United States. The Reynolds Court was drawn to the passage, not to advance a strict separation between church and state, but to support the proposition that the legitimate powers of civil government could reach men’s actions only and not their opinions.

Nearly seven decades later, in the landmark case of Everson v. Board of Education (1947), the Supreme Court “rediscovered” the metaphor and elevated it to constitutional doctrine.

Metaphors are a valuable literary device. They enrich language by making it dramatic and colorful, rendering abstract concepts concrete, condensing complex concepts into a few words, and unleashing creative and analogical insights. The problem with metaphors is that their uncritical use can lead to confusion and distortion. A metaphor compares two or more things that are not identical. A metaphor’s literal meaning is used non-literally in a comparison with its subject. While the comparison may lead to useful insights, the dissimilarities between the metaphor and its subject can distort one’s understanding of the subject. Distortions perpetuated by the metaphor can be sustained or even magnified. This is the case with the “wall of separation” metaphor.

The judiciary’s reliance on an extra-constitutional metaphor as a substitute for the text of the First Amendment almost inevitably distorts constitutional principles governing church-state relationships. While the “wall of separation” may very well express some aspects of First Amendment law, it seriously misrepresents or obscures others, and has become a source of much mischief in modern church-state jurisprudence.

The “high and impregnable” wall constructed by the modern Court has been used to inhibit religion’s ability to inform the public ethic, to deprive religious citizens of the civil liberty to participate in politics armed with ideas informed by their faith, and to infringe the right of religious communities and institutions to extend their prophetic ministries into the public square. Today, the “wall of separation” is the sacred icon of a strict separationist dogma intolerant of religious influences in the public arena. It has been used to silence religious voices in the public marketplace of ideas and to segregate faith communities behind a restrictive barrier.

Federal and state courts have used the “wall of separation” concept to justify censoring private religious expression in public (such as Christmas displays), to deny public benefits (such as education vouchers) for religious entities, and to exclude religious citizens and organizations (such as faith-based social welfare agencies) from full participation in civic life on the same terms as their secular counterparts. The systematic and coercive removal of religion from public life not only is at war with our cultural traditions insofar as it promotes a callous indifference toward religion but also offends basic notions of freedom of religious exercise, expression, and association in a pluralistic society.

Believing that religion and morality were indispensable to social order and political prosperity, the founders championed religious liberty in order to foster a vibrant religious culture in which the beneficiaries of religious freedom would inform the public ethic and to promote an environment in which religious and moral leaders could speak out boldly, without restraint or inhibition, against corruption and immorality in civic life. Religious liberty was not merely a benevolent grant of the civil state; rather, it reflected awareness among the founders that the very survival of the civil state and a civil society was dependent upon a vibrant religious culture. The unfortunate consequence of 20th-century jurisprudence is that the First Amendment, designed to protect and promote a vital role for religion in public life, has been replaced with a wall of separation that, in the hands of the modern judiciary, has restricted religion’s place in government.

Jefferson’s figurative language has not produced the practical solutions to real world controversies that its apparent clarity and directness led its proponents to expect. This wall has done what walls frequently do—it has obstructed the view, confusing our understanding of constitutional principles governing church-state relationships. The rhetoric of “separation of church and state” and “a wall of separation” has been instrumental in transforming judicial and popular constructions of the First Amendment from a provision protecting and encouraging religion in public life to one restricting religion’s role in civic culture. This transformation has undermined the “indispensable support” of religion in our system of republican self-government. This fact would have alarmed the framers of the Constitution, and we ignore it today at the peril of our political order and prosperity.

[FredFlash]

Originally Posted by Gary Graham

The article begins by saying that no metaphor in American letters has had greater influence on law and policy that Thomas Jefferson’s “wall of separation between church and state.”

What exactly has been the influence of the metaphor on the law, other than as a secondary authority for the Supreme Court's view in 1878 that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order?"

BTW, where in the hell did the Supreme Court ever get the idea that Congress had general power over our social duties?

Originally Posted by Gary Graham

For many Americans, this metaphor has supplanted the actual text of the First Amendment to the U.S. Constitution, and it has become the standard explanation of the notion that the First Amendment separated religion and the civil state...

The First Amendment didn't separate religion from the authority of the U. S. Government because it never had any to begin with. Religion was excluded from the powers granted by the Constitution to the Federal Government.

Originally Posted by Gary Graham

...thereby mandating a strictly non-religious government.

I don't know what Graham means by a "religious government" but I'm pretty sure the founders did want any civil authority over their religion(s).

Originally Posted by Gary Graham

The judiciary has embraced this figurative language as a virtual rule of constitutional law and as the organizing theme of church-state jurisprudence.

Show me where the Supreme Court ever said Separation between Church and State was a rule of law.

BTW, a rule that says there must be "Separation between Church and State" is totally useless until the words "Church" and "State" are defined.

Originally Posted by Gary Graham

Writing for the U.S. Supreme Court in 1948, Justice Hugo L. Black asserted that the justices had “agreed that the First Amendment’s language, properly interpreted, had erected a wall of separation between Church and State.” The continuing influence of this wall is evident in the Court’s most recent church-state pronouncements.

Anyone who thinks separation of church and state was put into the Constitution by the establishment clause, including Hugo Black and Thomas Jefferson, is wrong. The First Amendment didn't separate religion from the authority of the U. S. Government because it never had any to begin with. Religion was excluded from the powers granted by the Constitution to the Federal Government.

BTW, Jefferson did a much better job of explaining the exemption of religion from civil authority in 1808 when he wrote to Samuel Miller.

I have duly received your favor of the 18th and am thankful to you for having written it, because it is more agreeable to prevent than to refuse what I do not think myself authorized to comply with. I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority. But it is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U.S. an authority over religious exercises which the Constitution has directly precluded them from. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion. And does the change in the nature of the penalty make the recommendation the less a law of conduct for those to whom it is directed? I do not believe it is for the interest of religion to invite the civil magistrate to direct it's exercises, it's discipline, or it's doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting & prayer are religious exercises. The enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, & the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it.

I am aware that the practice of my predecessors may be quoted. But I have ever believed that the example of state executives led to the assumption of that authority by the general government, without due examination, which would have discovered that what might be a right in a state government, was a violation of that right when assumed by another. Be this as it may, every one must act according to the dictates of his own reason, & mine tells me that civil powers alone have been given to the President of the U S. and no authority to direct the religious exercises of his constituents.

I again express my satisfaction that you have been so good as to give me an opportunity of explaining myself in a private letter, in which I could give my reasons more in detail than might have been done in a public answer: and I pray you to accept the assurances of my high esteem & respect.

Jefferson's reference to "that [amendment] also which reserves to the states the powers not delegated to the U.S." was a reference to the Tenth Amendment which reserved to the people power over their religion, unless they had been stupid enough to surrender it to their state government, like the fools in New England did.

In his letter to Samuel Miller Jefferson also pointed out that "no power" over "any religious exercise" as well as no "authority in religious discipline" had "been delegated to the general government." Jefferson should have pointed out the government was granted no power over religious opinions, as he did in his letter to the Danbury Baptists. However, Reverend Miller had only asked Jefferson to explain why he didn't issue executive recommendations regarding religious exercises.

[Pete]

You do realize that if your post is over 3 lines and does not have a reference to a pecker, a vagina or sex of some sort it does not get read right?

That being said, when did you become a Religiophobe?

[FredFlash]

Originally Posted by Pete

You do realize that if your post is over 3 lines and does not have a reference to a pecker, a vagina or sex of some sort it does not get read right?

Nope. But, thanks for telling me.

That being said, when did you become a Religiophobe?

I'm not. However, civil authority over religion scares the hell out of me.

[Pete]

Originally Posted by FredFlash

Nope. But, thanks for telling me.



I'm not. However, civil authority over religion scares the hell out of me.

You mean religious control of civil authority scares the hell out of you?

[This_person]

Originally Posted by Pete

You mean religious control of civil authority scares the hell out of you?

To Pete:

CAUTION You are not debating with JPC with a law degree.

[FredFlash]

Originally Posted by Gary Graham

The judiciary has embraced this figurative language as... the organizing theme of church-state jurisprudence.

The judiciary merely assigned the same handle to the Constitution's exemption of religion from civil authority that the American people had assigned to it as of 1878.

Writing for the U.S. Supreme Court in 1948, Justice Hugo L. Black asserted that the justices had “agreed that the First Amendment’s language, properly interpreted, had erected a wall of separation between Church and State.” The continuing influence of this wall is evident in the Court’s most recent church-state pronouncements.

Black was wrong. The First Amendment did nothing but poorly clarify the Constitution's total exemption of religion from the authority of the U. S. Government. However, the court was dealing with the defendant's argument that the First Amendment prohibited Congress from making laws that prohibited plural marriages. The defendant should have argued that the U. S. Government had no authority to prohibit plural marriages if it was a religious duty.

The closest thing, prior to 1878, to a judicial decision regarding the U. S. Government's authority over religion was the 1830 report of the House of Representatives Committee on the Post-offices and Post-Roads,

to whom had been referred memorials from inhabitants of various parts of the United States, praying for a repeal of so much of the post-office law as authorizes the mail to be transported and opened on Sunday, and to whom had also been referred memorials from other inhabitants of various parts of the United States, remonstrating against such an appeal, made the following report:

That the memorialists regard the first day of the week as a day set apart by the Creator for religious exercises, and consider the transportation of the mail and the opening of the post offices on that day the violation of a religious duty, and call for a suppression of the practice. Others, by counter memorials, are known to entertain a different sentiment, believing that no one day of the week is holier than another. Others, holding the universality and immutability of the Jewish decalogue, believe in the sanctity of the seventh day of the week as a day of religious devotion; and, by their memorial now before the committee, they also request that it may be set apart for religious purposes. Each has hitherto been left to the exercise of his own opinion; and it has been regarded as the proper business of government to protect all, and determine for none. But the attempt is now made to bring about a greater uniformity, at least in practice; and, as argument has failed, the government has been called upon to interpose its authority to settle the controversy.

Congress acts under a constitution of delegated and limited powers. The Committee look in vain to that instrument for a delegation of power authorizing this body to inquire and determine what part of time, or whether any, has been set apart by the Almighty for religious exercises. On the contrary, among the few prohibitions which it contains is one that prohibits a religious test; and another which declares that Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof.

The Committee might here rest the argument, upon the ground that the question referred to them does not come within the cognizance of Congress; but the perseverance and zeal with which the memorialists pursue their object seems to require further elucidation of the subject. And, as the opposers of Sunday mails disclaim all intention to unite church and state, the committee do not feel disposed to impugn their motives; and whatever may be advanced in opposition to the measure will arise from the fears entertained of its fatal tendency to the peace and happiness of the nation. The catastrophe of other nations furnished the framers of the constitution a beacon of awful warning, and they have evinced the greatest possible care in guarding against the same evil. "

The House Committee found that "Congress acts under a constitution of delegated and limited powers" and was delegated no power to resolve religious controversies such as "what part of time, or whether any, has been set apart by the Almighty for religious exercises." The House Committee obviously shared James Madison's 1788 view that the U. S. Government was granted "not a shadow of a right" to authority over religion.

The Reynolds Court probably shared the same view. However, the defendant did not raise the issue of whether the Constitution granted the government power over religion. Maybe his lawyer was a Federalist who believed that the Constitution granted Congress general unlimited power over the general welfare of the people.