Our flawed perception of separating church and state

By Max Nelsen

The City Council of Yakima has recently found it­self in trouble over one of its long standard proce­dures: opening meetings with prayer. According to an article by Chris Bristol in the Yakima Herald, “a lawyer for the Freedom From Religion Foundation, based in Madison, Wis., accused the council of vio­lating the constitutional principle of separation be­tween church and state.”

According to the article, the lawyer, Rebecca Markert, contends that “the Council is illegally and inappropriately imposing its religious beliefs on the citizens of Yakima who attend the Council’s meet­ings for public business.”

The Freedom from Religion Foundation threatened to sue the City of Yakima unless they ceased praying in Jesus’ name.

As far as I’m concerned, this reaction should cause general outrage, seeing as it relies on a poor reading of the Constitution. Instead, many Americans falsely believe that separation of church and state is a principle enshrined in the Constitu­tion. It is this principle upon which groups like free­dom from religion operate. It is also a principle that I believe has been misconstrued at best, and com­pletely fabricated and corrupted at worst.

To begin with, separation of church and state is found nowhere in the U.S. Constitution. Indeed, the First Amendment is the only part of the Constitu­tion that specifically deals with matters of religion. It dictates that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” Thus it contains two clauses: the establishment clause and the free exercise clause.

Read straightforwardly, the establishment clause simply prohibits a state-sponsored religion. The founding fathers were well aware of the problems that having a unified church and state had caused in Europe, and sought to avoid that in America. How­ever, decades of reinterpretation and Supreme Court cases have been used to justify removing any ap­pearance of a connection between government and religion, from preventing students from praying at school events to removing religious references from public buildings. Now, the modern construction of the separation of church and state is being used in an attempt to prevent the individual members of the Yakima City Council from engaging in public prayer.

The current interpretation has created a situation in which the government, to avoid an establishment of religion, is forced to violate the rights of citizens to freely exercise their religious beliefs. The problem is, these are the very rights the First Amendment is supposed to protect. In essence, the Supreme Court and society at large have adopted a view in which these two clauses inherently conflict; in almost any situation, either the establishment clause (equated to separation of church and state) or the free exer­cise clause will be compromised. The only question left for the Court is which clause to uphold in each situation.

I would argue, however, that this approach to the issue of separation of church and state is inherently flawed.

First, the founders were too smart to put two con­tradictory directives in the same sentence. Further­more, I think most reasonable people would agree that the primary purpose of these clauses is to pro­tect the ability of the citizens to exercise whatever religious beliefs they see fit. Even the establishment clause exists for this purpose. Banning an es­tablished religion is not valuable in its own right; it is important because doing so helps ensure freedom of religion.

Cornell University Law School, referencing the Annals of Con­gress 1789, points out that, “dur­ing House debate [over the first amendment], [James] Madison told his fellow Mem­bers that ‘he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.’”

Consequently, any interpretation of the First Amendment that actually limits individual freedom of religion, as the current interpretation does, runs contrary to the entire purpose of the amendment.

I realize that I am not a legal scholar. I also admit that few legal scholars are likely to agree with me.

But common sense should make it clear that the modern conception of the separation of church and state is self-contradictory and oppressive to indi­vidual liberties. In the case of the Yakima City Coun­cil, its prayers might be offensive to some, but since when did going through life without being offended become a right, and a right superior to the public profession of one’s faith?

One of the most important protections in our Constitution has been perverted into a tool used to silence religious expression. This should be the true cause of offense.

2 Replies to “Our flawed perception of separating church and state”

  1. Yeah, I’m sorry about that. A good deal of our city councilmen are Christians, so they begin and end meetings with prayer. Some people are annoyed by this, but I applaud them. I know some of them personally, and it would take more than a lawsuit for them to abandon their beliefs. They’re good people, and I’m glad you wrote a piece in their defense. Keep it up. :)P.S.: I think your reading of the Constitution is right on and logically sound. That is exactly what the founding fathers were going for. Any honest legal scholar should agree with you if they value their own credibility and personal morality.

  2. I applaud the thoughtful manner with which you approach this subject, but think you’ve reached some mistaken conclusions along the way.
    The phrase “separation of church and state” is but a metaphor to describe the principle reflected by the Constitution (1) establishing a secular government on the power of the people (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) and, indeed, saying nothing substantive about god(s) or religion at all except in the First Amendment where the point is to confirm that each person enjoys religious liberty and that the government is not to take steps to establish religion and another provision precluding any religious test for public office. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to describe 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.

    Some try 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 is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    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. In keeping with the Amendment’s terms and legislative history and other evidence, e.g., Madison’s statements above, 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 Congress and/or the Executive doing all sorts of things to promote this or that religion–stopping just short of a ribbon-cutting ceremony for its new church.

    Madison spoke the words you quote during the proceedings of the First Congress to describe his understanding not of the First Amendment, but rather of the narrower precursor (quoted above) then under consideration. He proposed adding the term “national,” thinking that would address the expressed concerns of some. Following his motion, others expressed misgivings about the wording and scope of the proposal. Mr. Livermore suggested that it be altered to state “Congress shall make no laws touching religion, or infringing the rights of conscience.” Madison withdrew his motion, and the House then considered and passed Livermore’s motion. The Annals of Congress reveal little more other than that over the next several weeks, the proposal went through several more iterations and emerged as what we now know as the First Amendment. As noted above, in his Detached Memoranda, Madison offered a detailed discussion of his understanding of the First Amendment as actually adopted.

    It is important to distinguish between the “public sphere” and “government” and between “individual” and “government” speech about religion. The principle of separation of church and state does not purge religion from the public sphere–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. 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.

    Wake Forest University recently 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

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