Separation of Church and State; Fact or Fallacy?
Separation of Church and State;
Fact or Fallacy?
S A Campbell
It is often claimed when there is a controversy involving religion and a public institution that there is a violation of the separation of church and state. Many liberals claim that there is some kind of constitutionally ordained separation of church and state. That somehow displaying any kind of religious artifact or symbol is unconstitutional and therefore illegal. Is this argument correct? Just what exactly is this ‘separation of church and state’? Is it contained in the United States Constitution? Is it based on a legal decision? Does it really have any legal basis? Or is it a misunderstanding or distortion, deliberate or honest misunderstanding, of something? The truth may be surprising as to its origin and its true intent. Further could the reverse apply to the probation banning any display of religious articles at the workplace; could such bans, in fact, be a violation of certain definite Constitutional provisions?
A Constitutional Basis?
Since the United States Constitution is the basis for our laws we should first see what, if anything, the Constitution says about religion. Does the Constitution state that there is to be no display of religious objects in public (i.e. government) buildings? Does the Constitution give the Federal government the right or power to regulate religion and/or religious expression? Is there a ‘separation of church and state’ as proclaimed by many liberals?
The First Amendment deals directly with religious freedom and the government’s powers relating to it. Many can, somewhat accurately, quote the first part of the amendment which says, “Congress shall make no law respecting an establishment of religion…” This is the only direct reference to religion and the Federal government’s relation to it in the Constitution. Strangely if one looks at what it says and what it doesn’t say, one is strained to find the smallest parcel of support for the argument that the Constitution forbids any display of any religious items. What exactly does it establish or prevent?
An examination of the wording may reveal what this part of the First Amendment intends. Specifically, the words ‘respecting’ and ‘establishment’; these two words have a couple of different meaning, each of which could affect ones interpretation.
The first word, respecting, has two meanings; they are ‘in view of’ (i.e considering) and ‘with respect to’ (i.e. concerning). Although either meaning could be correct, it would seem that the second meaning is the meaning intended. In other words this part of the First Amendment could be rendered that Congress shall not make any laws concerning an establishment of religion.
The next word under consideration, ‘establishment’ has three definitions which could, depending on the one selected, potentially make or break the liberal’s argument. The three definitions are; first, something established : as a : a settled arrangement; especially : a code of laws b : established church c : a permanent civil or military organization d : a place of business or residence with its furnishings and staff e : a public or private institution. Second; an established order of society: as a often capitalized : a group of social, economic, and political leaders who form a ruling class (as of a nation) b often capitalized : a controlling group <the literary establishment. Third;a : the act of establishing b : the state of being established.
It would seem at first glance that any of the above definitions could be used. A look at the historical context may help in deciding what is intended. Recall that one of the underlying motives for people to come to the New World was religious freedom; the right to worship as one thought right and proper. In fact religious freedom was, according to President Thomas Jefferson, one of the primary objects of the rebellion.
Unlike today’s society, religion was very prevalent in the Revolutionary period, although not as powerful as it had been in the Middle Ages. Further England had an official religion, the Church of England. The newly formed country did not want to replicate the mistakes and weaknesses or abuses that existed in the English monarchy. They did not want a strong central government with almost dictatorial powers. One of the reasons for the formation of the Bill of Rights was to enumerate the rights of the citizens; the rights and liberties along with the limitations placed upon the Federal government regarding these liberties.
So it would seem that what the beginning of the First Amendment is referring to is a limit or prohibition of the Federal Government’s ability to control religious organizations; to control or direct religious teaching and/or practices. That this is the intent can be found in the writings of Thomas Jefferson.
Among the most inestimable of our blessings is that...of liberty to worship our Creator in the way we think most agreeable to His will; a liberty deemed in other countries incompatible with good government and yet proved by our experience to be its best support.
In fact President Jefferson said that our freedom of religion is one of the most “inalienable and sacred of all human rights."He later amplified his thoughts about religious freedom;
The rights [to religious freedom] are of the natural rights of mankind, and... if any act shall be... passed to repeal [an act granting those rights] or to narrow its operation, such act will be an infringement of natural right.
For further confirmation of his strong belief on restricting, if not denying, governmental control over religion one need only read his proposal for religious freedom that he submitted to the Virginia legislature in 1779. Although too lengthy to reproduce here entirely, we need to cite portions of it to show why Mr. Jefferson was so adamant about keeping the government out of controlling religion. In the first section of the proposal he states;
…that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time:
A little later he explains one of the dangers in allowing the government to control religious thought and teachings;
…yet neither are those innocent who lay the bait in their way; that the opinions of men are not the object of civil government, nor under its jurisdiction; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own;
Finally, it is within the second section of the proposal that we find confirmation of our argument that the intent of the First Amendment is in prohibiting the Federal Government from dictating what a religion is or how it is to operate;
…that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
Obviously there was a valid concern that if the government was able to regulate religions they (i.e. the churches) would soon be more concerned about being ‘politically correct’ then being religiously correct. Thomas Jefferson stated that this, religious freedom, was the most inalienable and sacred of all human rights." Further, Mr. Jefferson believed that the “…government of the United States 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 United States. Certainly, no power to prescribe any religious exercise or to assume authority in religious discipline has been delegated to the General Government…”
This is quite clearly enumerated in the second part of the opening line of the First Amendment; “or prohibiting the free exercise thereof…” It’s strange that a lot of people claiming there’s a constitutionally declared separation of church and state fail to recall this part of the First Amendment. It is quite clear in its meaning. It is a violation of the Constitution to restrict the exercise of ones religious beliefs; in other words, it’s against the law! It would seem that there is little room for argument of the legality of laws prohibiting the display of religious symbols or items. It would also raise serious questions about the validity of suits demanding that displays of the Ten Commandments or crosses must be removed from public places. It would seem that one could claim that such action is a clear violation of the First Amendment.
The Wall of Separation
So there is no solid Constitutional basis for prohibiting the display of religious articles or symbols, so where does one find this separation of church and state that many liberals espouse? Is it from some legal decision or some subsequent law passed by Congress? The ‘wall of separation’ that many erroneously attribute to the US Constitution is nothing more than a statement in a letter responding to a certain religious minority.
The letter was written in 1802 by President Jefferson to the Danbury Baptist Association. The Danbury Baptists were a religious minority in the State of Connecticut and they were writing the President for advice on an issue concerning them and their religious freedoms. Essentially they were wanting the President to enlighten them as to whether their religious freedoms were “immutable rights” or "favors granted” by the State legislator.
President Jefferson was careful not to address the situation directly; instead his response dealt with the Federal Government’s restrictions. It should be pointed out that at the time the Federal Government was not the all-powerful behemoth it is today. States right’s was a very volatile subject and something that was fiercely defended by the States. The Federal Government really was unable and/or unwilling to interfere. It is in President Jefferson’s reply that one finds the ‘wall of separation’ clause. An examination of his response will show that he is not proclaiming what the liberals are claiming.
Following is the part of President Jefferson’s response where is found the ‘wall of separation’ clause;
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.
One is hard pressed to find any type of support for the argument that having a copy of the Ten Commandments displayed in a courthouse is somehow violating the separation of church and state clause. The wall of separation that President Jefferson mentions is the Constitutional prohibition on the Government being able to regulate or control religious thought or practices. In simpler terms; the First Amendment.
He further reinforces this idea with his next sentence;
Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.
It is quite clear that President Jefferson is not speaking of a ban of religion in the public domain or official places, but instead he reiterates the position that he has consistently maintained, that the Federal Government is forbidden to regulate religious organizations. Nowhere does President Jefferson express a belief, directly or indirectly, that religion should or could be banned from government property. He continuously expressed his belief that the Government is banned from meddling in religion; that the legitimate powers of the legislators are to regulate the actions of the people and not their opinions. It would appear that he never diverted from this belief;
I consider the government of the United States 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 United States. 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.
While it is apparent that President Jefferson did not suggest a separation of church and state, but instead believed that the US Government was prohibited by the Constitution from meddling in the beliefs, practices and doctrines of religions in this country. Mr. Jefferson did not however believe in allowing religious organizations free run of their protected status.
Mr. Jefferson believed that as long as religious organizations and their leaders stuck to preaching the Gospel and teaching their followers the tenets of their faith there was no problem. However, when they strayed from teaching of the Bible and into the field of politics or the conduct of the administration it was a “…breach of contract, depriving their audience of the kind of service for which they are salaried.” He appeared to believe that when ministers began to lecture their congregations on such topics it was, in a sense, an abuse of their power.
President Jefferson did advocate a restriction on an aspect of religious freedom and that is in regard to religious organizations being able to teach in public schools; “No religious reading, instruction or exercise, shall be prescribed or practiced [in the elementary schools]…” This was not an outright ban of any religious teaching in the public schools as the later part shows; “…inconsistent with the tenets of any religious sect or denomination."
So there is no Constitutional declared separation of church and state as many liberals claim. That the wall of separation of church and state is actually a statement of a President’s belief of a legal situation and not a actual law. So their claim that displaying a copy of the Ten Commandments or a cross in a government facility is a violation of the Constitution is clearly erroneous. That in fact the opposite may apply; that any statute that prevents the displaying of such items is a violation of the First Amendment.
It is vital that the citizens of this country be knowledgeable about our Constitution; about what it says and doesn’t.
 Thomas Jefferson to Baltimore Baptists, 1808
 Thomas Jefferson, Reply to Baptist Address, 1807
 Thomas Jefferson: Virginia Board of Visitors Minutes, 1819. ME 19:416
 Thomas Jefferson: Statute for Religious Freedom, 1779. (*) ME 2:303, Papers 2:546
 Thomas Jefferson: Virginia Board of Visitors Minutes an inalienable right
 Thomas Jefferson to Samuel Miller, 1808
 The address of the Danbury Baptists Association in the state of Connecticut, assembled October 7, 1801. To Thomas Jefferson, Esq., President of the United States of America.
 Thomas Jefferson, Jan.1.1802.
 Thomas Jefferson to Samuel Miller, 1808
 Thomas Jefferson to P. H. Wendover, 1815
 Thomas Jefferson: Elementary School Act, 1817