John R. Houk
© April 5, 2014
Dougindeap left a comment on the post “The Truth about Separation of Church and State” at NCCR which is a cross post of an Alliance Defending Freedom (ADF) brochure that provides reasons for the concept of Separation of Church and State as SCOTUS has set in stone today is and was not a correct interpretation of the U.S. Constitution.
It is my habit to usually post my perspective on a comment then place the comment below my thoughts. Since Dougindeap divided his comment into eight parts to refute the ADF points. So as I initially began to respond to Dougindeap’s original comment which resulted in various parts with the title “Disputing Separation Church/State” (which as of this writing is up to six parts). You can read an edited version of that comment at the end of my thoughts at SlantRight 2.0 or the NCCR blog. You can read Dougindeap’s unedited comment version at NCCR HERE. I am bucking my typical course and take a valiant effort to briefly take each of Dougindeap’s points to put in my two-cents. I say briefly because I can tell that the six parts of “Disputing Separation Church/State” could go on much longer than I desire to devote to the subject. I have to say something though because I disagree with Dougindeap as much as he disagrees with me. Sadly the slant of the reader’s politics will line the reader with Doug or myself.
So here we go.
[Blog Editor: Dougindeap uses the abbreviation “ALF” when I suspect he was thinking Alliance Defending Freedom which would “ADF”. I mention this for clarity’s sake because we all post comments hurriedly in which typos or missing words occur and not as a criticism of Dougindeap.]
You have succeeded in gathering quite a collection of arguments about separation of church and state, nearly all of which I’ve seen and seen debunked many times. I won’t attempt to touch on every one of the many points, but will take the ALF items one by one.
1. While Jefferson’s first use of the term “separation of church and state” may have been in his letter to the Danbury Baptists, he hardly was the first to use the term.
Certainly Jefferson’s letter had nothing to say about limiting public religious expression. ALF contends against a strawman. No one contends that Jefferson said any such thing.
It is important to distinguish between "individual" and "government" speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square--far from it. Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views--publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. (Students also are free to exercise and express their religious views--in a time, manner, and place that does not interfere with school programs and activities.) If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.
I believe Dougindeap has correctly expressed the meaning of the First Amendment until he gets to the part I took the liberty to highlight with bold print.
When Doug says the government can only act through the individuals comprising its ranks, he is correct to the extent those individuals are under the direct mandate of the government. The problem is the Left Wing assumption that all instruments of the government are representative of the Federal government. THIS WAS NOT THE ORIGINAL INTENT of the First Amendment.
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.
Just as Doug points out the First Amendment prevents the U.S. Congress to establish a State Church or to make any laws that prohibits the free exercise of religion. The Tenth Amendment brings specificity in that the State government or “the people” (implying local government such as Counties or cities) can define how individuals working as instruments of government are defined on the State and Local level. Hence the Federal government did not end Established Churches on the State level. The States individually disestablished State Churches as it became obvious the State Established Churches were slipping into the minority among Christian denominations in the various States. Ironically Massachusetts one of the most Liberal States in the American Union today was the last State to disestablish their State Church in the 1833. States’ Rights ended the Established Church in the USA and not the enforcement of the Federal government. In the same manner of Original Intent each State has the power of the law to limit or encourage government instruments such as employees from sharing their individual faith.
2. Justice Hugo Black was not the first to “insert” separation of church and state into American jurisprudence. Not by a long shot. A unanimous U.S. Supreme Court first used that term in 1878 in Reynolds v. United States, where it quoted Jefferson’s letter to the Danbury Baptists while interpreting the First Amendment.
In Reynolds v. United States Dougindeap fails to mention the reason for the unanimity of SCOTUS in the 1878 religious Liberty case before them. George Reynolds a citizen of the then Territory of Utah was a Mormon that married more than one wife. Reynolds was convicted of bigamy. Reynolds demanded his First Amendment rights of Religious Liberty. The 1878 SCOTUS officially was more concerned about social norms than Religious Freedom. In Christian America in 1878 bigamy was not only illegal it was also a heinous sin. The reality of the 1878 SCOTUS decision was upholding traditional Christian values over the cult of Mormonism (Church of Jesus Christ of the Latter Day Saints). Mormons then and now believe in the supremacy of the Book of Mormon and certain so-called Mormon prophetic pronouncements (Book of Mormon; Doctrine and Covenants and Pearl of Great Price) over the traditional Christian values of the Holy Bible. SCOTUS upheld the conviction of George Reynolds in 1878 unanimously. I have no doubts Mormons consider themselves Christians however their theology is so divergent from the orthodox practices of Christianity an intelligent evaluation even today would come to the conclusion Mormonism at best is its own religion and at worst a cult spin-off Christianity. It should be noted the powers that be in Mormonism had the remarkable revelation that marriage is between one man and one woman in order for the Utah Territory could become the sovereign State of Utah in 1890.
As to the 1878 SCOTUS unanimous opinion referencing the Jefferson to Danbury Baptists letter WallBuilders provides the actual intent of that Court opinion:
Earlier courts long understood Jefferson's intent. In fact, when Jefferson's letter was invoked by the Supreme Court (only twice prior to the 1947Everson case – the Reynolds v. United States case in 1878), unlike today's Courts which publish only his eight-word separation phrase, that earlier Court published Jefferson's entire letter and then concluded:
Coming as this does from an acknowledged leader of the advocates of the measure, it [Jefferson's letter] may be accepted almost as an authoritative declaration of the scope and effect of the Amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. (emphasis added)
That Court then succinctly summarized Jefferson's intent for "separation of church and state":
[T]he rightful purposes of civil government are for its officers to interfere when principles break out into overt acts against peace and good order. In th[is] . . . is found the true distinction between what properly belongs to the church and what to the State. 
With this even the Baptists had agreed; for while wanting to see the government prohibited from interfering with or limiting religious activities, they also had declared it a legitimate function of government "to punish the man who works ill to his neighbor."
That Court, therefore, and others (for example, Commonwealth v. Nesbit and Lindenmuller v. The People), identified actions into which – if perpetrated in the name of religion – the government did have legitimate reason to intrude. Those activities included human sacrifice, polygamy, bigamy, concubinage, incest, infanticide, parricide, advocation and promotion of immorality, etc. (Excerpted from - The Separation of Church and State; By David Barton; WallBuilders.com; January 2001)
3. First, ALF tries to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is a red herring.
Second, it is ALF that has confused its history. Contrary to its assertion, Justice Black did not write that the Danbury letter may be accepted “almost as an authoritative declaration of the scope and effect” of the First Amendment.” Rather Chief Justice Waite wrote that in Reynolds v. United States. Black, moreover, did not repeat that statement in Everson.
Finally, the further notion, suggested by ALF and advanced by some, that the Supreme Court's recognition of the constitutional separation of church and state in Everson is all Justice Black's doing is laughable. It bears noting that all nine justices in the Everson case read the Constitution to call for separation of church and state, and indeed all of the parties and all of the amici curiae (including the National Council of Catholic Men and National Council of Catholic Women) did as well; no one disputed the principle, they differed only in how it should be applied in the circumstances of the case.
Actually Hugo Black equally emphasized Jefferson and Madison together. Doug fails to mention that Black’s Majority Opinion included both Jefferson and Madison’s efforts on a State level in Virginia to disestablish any Church to receive tax support because such taxation would be discriminatory toward non-established Christian denominations. Hence Jefferson and Madison were not arguing the removal of recognized Christian Morality but rather the removal of taxpayers’ paying the salary of a State established Clergy. AND so yes, Hugo Black misappropriated the work of Jefferson and Madison use of a States’ Rights issue to apply to Federal authority. Hugo Black attempts to solidify the Church/State separation by adopting Jefferson’s letter to the Danbury Baptists. How did Black connect a States’ Rights issue to Federal authority? Then Black used the presumption that the Fourteenth Amendment which officially ended Slavery in all the States by Federal rule of law, then by extension Black presumed the Fourteenth Amendment nullified the Tenth Amendment which in turn pertained to individual State sovereignty bowing to the will of the Judicial and Executive branches of government. This interpretation had the effect to keep the influence of Christianity outside the scope of State level and local level government parameters in the rule of law.
4. That the words "separation of church and state" do not appear in the text of the Constitution assumes much importance, it seems, to some who once mistakenly supposed they were there and, upon learning of their error, fancy they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphorical phrase commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
Contrary to ALF’s supposition, separation of church and state rests on much more than just the First Amendment. It is a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions.
Doug mistakenly equates the lack of the words “Wall of Separation of Church and State” in the Constitute is the same as other civics terms not being the Constitution such as “Bill of Rights, separation of powers (i.e. in branches of government), checks and balances, fair trial, religious liberty” and so on. The reason Doug is mistaken because all those other terms are specifically spelled out in the Constitution BUT the term “Wall of Separation of Church and State” is not spelled out AT ALL The First Amendment ONLY spells out that Congress cannot make a law to Establish a State Church and that Congress cannot prohibit the free exercise of religion.
5. While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is hardly a new invention of modern courts. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.
Dougindeap quotes James Madison’s first writing of a proposed First Amendment: “no religion shall be established by law, nor shall the equal rights of conscience be infringed”. I suspect Doug is implying Madison’s influence spoke for all the Congressmen in constructing religious freedom as imputed by Federal government authority en toto as opposed to States’ Rights. That is DEFINITELY not the case because of House deliberation the First Amendment’s form ratified as law is what was sent to the States for ratification. Hence States’ Rights coupled with the Tenth Amendment became the actual Original Intent of the First Amendment which included the individual States upholding the primacy of the values of the Christian religion by which all Denominations upheld regardless of varying theological dogma.
Since the Declaration of Independence led to the Articles of Confederation which were then superseded by the U.S. Constitution in 1789 shows that the Founding Fathers bowed to the will of ‘We the People’ in the promotion of the very least the promotion of Christianity as what will maintain the general welfare of the people of the new USA.
Here’s an abbreviated list of the Continental Congress pushing Christian Morals and Values for the General Welfare (1774 – 1789):
1. Congress' First Act: A Resolution to Pray - September 6, 1774
2. Congress Ordered Purchase and Printing of Bibles - September 11, 1777
3. Congress Expressly Promoted Religion - October 12, 1778:
Whereas true religion and good morals are the only solid foundations of public liberty and happiness: Resolved, That it be, and it is hereby earnestly recommended to the several States to take the most effectual measures for the encouragement thereof.
4. The Declaration of Independence - formally adopted it on July 4, 1776, and signed it August 2, 1776. The Declaration directly appeals to God at least four times
5. Congress Appointed Days Of Prayer, Thanksgiving, and Repentance - In the approximately fifteen years of its existence, the Continental Congress approved at least fifteen proclamations calling on the states to appoint days of special worship or honor to God. Dates enumerated from 1777 through 1787.
The above lists remarkable does not contain the Northwest Ordinance enacted by the Continental Congress under the Articles of Confederation July 13, 1787. The legislation has 14 Sections and the Fourteenth Section has Six Articles. The purpose for the Northwest Ordinance was to establish a Central government rule of law for expansion westward from the Original 13 States and a method of admitting new sovereign States to the United States of America (then under the Articles of Confederation). Christianity and Religious Freedom combined are expressly part of the designs of the Northwest Ordinance.
Sec. 13. And, for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory: to provide also for the establishment of States, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest: (Bold emphasis Blog Editor’s)
Sec. 14. It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit:
Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.
Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. …
The two bills James Madison vetoed was done correctly. The bills’ goals were to Establish the Episcopalian Church in the city of Alexandria within the District of Columbia and provide public funds to buy land for a Church in the Territory of Mississippi. On a Federal basis the First Amendment specifically states that Congress can make no law establishing a Church. AGAIN this has nothing to do with the laws enumerated to the several States not in the U.S. Constitution (Tenth Amendment).
My above thoughts on the history of the Courts and Church Establishment already refute the Doug’s claim that Church/State Separation issues is “hardly a new invention of modern courts.”
6. Dreisbach’s fundamental error is his largely unspoken and unexamined presumption that the Constitution’s separation of church and state is merely a First Amendment textual matter. As noted above, however, it is rather a bedrock principle of our Constitution, resting on much more than the First Amendment.
Already proved this line of thinking is in error by Dougindeap.
7. The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.
Wake Forest University has published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx
The only contention I can agree with Dougindeap is that the First Amendment prevents the Federal Congress from Establishing a State Church and that the Federal Congress cannot enact laws prohibiting the free exercise of religion. Everything else not forbidden by the U.S. Constitution is the purview of each State in the Union of the United States of America. The tiny url posted by Doug does not work or at least not in my Chrome or Internet Explorer browsers. When I Googled ‘Wake Forest Q&A primer on Separation of Church and State’ I discovered Dougindeap has been posting link since at least 2010. I can find no such document online from Wake Forest. Perhaps the closest thing I can find is a PDF document entitled, “Religious Expression in American Public Life: A Joint Statement of Current Law”. I found two links for this document: One by Wake Forest and another posted on the Anti-Defamation League website but both are the same document. Both documents are dated January 2010. The document is a collective work by a bunch of people that are on opposite sides of the Church/State Separation issues. The document is anything but definitive. The closest section talking about the First Amendment and Church Establishment is Chapter Two of the roughly 32 page document with End Notes longer if you include acknowledgements by Wake Forest’s (at least then) Director of Wake Forest University Divinity School and the Center for Religion and Public Affairs. The Chapter Two title is “Is the First Amendment the only constitutional or legal provision that affects these issues?”
Chapter Two clearly expresses the First Amendment is functional as a Federal law in which there is a large degree of discretion on the State level of law in which the First Amendment does not address.
In connection to this PDF document (Religious Expression in American Public Life: A Joint Statement of Current Law), the “diverse” committee that truly consisted of representation of both sides of the political spectrum on Church/State issues was led by Melissa Rogers as the Director of Wake Forest University Divinity School's Center for Religion and Public Affairs during the PDF document’s 2010 publication. Melissa Rogers is hardly neutral a person that looks equally on both sides of the coin on Church/State issues. Rogers is a downright and overt proponent of the revisionist Left Wingers choosing to exclude the merits of Original Intent of the Constitution in relation to the opinions of the Founders on how Christianity effects the general welfare of a good society. Even the Founding Fathers in James Madison (See also HERE) and Thomas Jefferson that were closer to the secularist Enlightenment discrediting of orthodox theology of Christianity agreed that Christian Morals and Values promoted a good society.
8. While some, including myself, grow tired of the semantic wrangling over the phrase commonly used to describe or name one of the Constitution’s fundamental principles, that principle—by whatever name—remains central and essential to the Constitution and our way of life.
Doug says he is getting weary of wrangling that Separation of Church and State is a fundamental principle of the Constitution. I myself am frustrated about Leftists trying so hard to prevent the historical nature of Christianity of being such a huge influence on the development of our nation. It is my belief that the Leftist efforts at historical revisionism is to transform America into a society that abandons Christianity as a Moral Foundation. Then replace Christianity with a Secular Humanist perspective as a foundation for societal morality. Such a humanist morality places the created on a pedestal above the Creator. No matter how lofty the ideals of man being inherently good, actual history shows that man is inherently evil. That inherent evil exists in human nature because God’s first created human being – Adam – betrayed God the Creator by agreeing with the serpent Satan and partook of the fruit of the tree of knowledge of good and evil. Why did Adam consume the fruit? Satan told Eve, who Adam did not rebuke, believed the serpent that the fruit would make her and Adam like God knowing the difference between good and evil. Adam’s act of disobedience of God voluntarily sold his nature to the dominion of Satan. Since Adam was made the perpetual steward of God’s created Earth. That meant the earth also came under Satan’s control. Adam’s disobedience led to the punishment of being separated from God which is spiritual death. Humanity and Earth became cursed to a Fallen nature explaining an inherent evil nature. The inherent evil nature of man will inevitably lead to unwholesome if not downright wicked choices in which selfish desires overrule the general welfare of humanity.
The good news for humanity God the Creator promised a way out for Adam choosing Satan’s lie as truth rather than God’s holy union.
14 So the Lord God said to the serpent:
“Because you have done this,
You are cursed more than all cattle,
And more than every beast of the field;
On your belly you shall go,
And you shall eat dust
All the days of your life.
15 And I will put enmity
Between you and the woman,
And between your seed and her Seed;
He shall bruise your head,
And you shall bruise His heel.” (Bold Emphasis Blog Editor - Genesis 3: 14-15 NKJV)
Verse 15 is God’s first Promise of a Redeemer to bring humanity back into right standing with God Almighty. Then and only then will humanity not need laws of a government to curb the inclination of a Fallen human nature. Secular Humanism is wrong, humanity is not essentially good.