Tuesday, December 9, 2008

Is There Separation of Church and State?

subtitle: Did the Founding Fathers Create a More Perfect Christian Union?

Oh god, there's a new meme floating around the religious right: there is no separation of church and state in the US. This fits nicely with the meme that the Founding Fathers intended to create a Christian Nation, they just wrote the first article of the Constitution wrong, apparently.

First, we will examine the how the Constitution was written.

Congress shall make no law respecting an establishment of religion. That is referred to as the Establishment Clause. This combines with the Free Exercise Clause . . . or prohibiting the free exercise thereof to create what is generally called the Separation of Church and State.

Equally as important as the words on the page themselves is how the Supreme Court has chosen to interpret those words. (As an aside, if you see "SCOTUS" somewhere, that is the Supreme Court of the US. Took me a while.) Let's examine a little case law, shall we?

The Supreme Court first considered the question of financial assistance to religious organizations in Bradfield v. Roberts (1899). The federal government had funded a hospital operated by a Roman Catholic institution. In that case, the Court ruled that the funding was to a secular organization—the hospital—and was therefore permissible. In other words, the Court felt that what the federal government was funding was not Catholicism, but rather care for the sick and injured, a decidedly nonreligious activity. After all, if I go my local Catholic hospital, I will surely be denied an abortion, or even the morning after pill, but I won't be required to pray or read the bible. It's a fine line.

In the twentieth century, the Supreme Court more closely scrutinized government activity involving religious institutions. In Everson v. Board of Education (1947), the Supreme Court upheld a New Jersey statute funding student transportation to schools, whether parochial or not. Justice Hugo Black held,

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

Ok, this couldn't be more clear. The US government is not allowed to prefer one religion, all religons or one over the other. The US government cannot make me go to church or keep you away from a church. I can't be punished for not going to church, nor can you be punished for going to church. Religious organizations cannot secretly participate in affairs of the government. (Which, if you have been paying attention at all, has been happening for the last 8 years.) What could be more separate? The Supreme Court has declared unequivocably that the affairs of religions and the affairs of government are to be entirely separate, apart and distinct.

And what about that last sentence? In the words of Jefferson . . . In the words of a founding father. Law contains two layers, the letter and the intent. The letter of the law is the words on the page. The intent of the law is what the writer of those words had in mind when they wrote them. Courts decide interpretation based on both layers. So, let's see what the intent of the founding fathers was. (This goes back to the meme that the US is a christian nation and that the founding fathers intended to create a theocracy, and managed to accidentally create a representational democracy instead.)

The Jefferson quotation cited in Black's opinion is from a letter Jefferson wrote in 1802 (yeah, this meme has been floating around since the beginning, apparently) to the Baptists of Danbury, Connecticut , that the establishment clause erected "a wall of separation between church and state." In the words of the founding father himself: SEPARATION. Still feel like arguing that the founding fathers intended to create a christian nation? Well, ok.

Critics of Black's reasoning (most notably, former Chief Justice William H. Rehnquist) have argued that the majority of states did have "official" churches at the time of the First Amendment's adoption and that James Madison, not Jefferson, was the principal drafter. However, Madison himself often wrote of "total separation of the church from the state" (1819 letter to Robert Walsh), "perfect separation between the ecclesiastical and civil matters" (1822 letter to Livingston), "line of separation between the rights of religion and the civil authority... entire abstinence of the government" (1832 letter Rev. Adams), and "practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States" (1811 letter to Baptist Churches).

It doesn't even matter which founding father you pick, they were all for SEPARATION.

Sorry, fundykids, we weren't meant to be a christian nation, we never were one, and we never will be. Get over it.

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