Separation of Church and State versus removing Religion from the State

Author:Ken Wolf

While Progressive Democratic Socialists shout “Separation of Church and State” from their pulpit, what they are really after is the removal of religion from the State.

Did the Constitution of the United States inhibit public displays of faith? The answer to that question is NO. Truth is our new Republic welcomed public worship. Church services were held in our U. S. Capitol Building and Treasury Department every Sunday up until after the Civil War.

Our Founding Fathers did not intend to remove religion from government.  Prayer in Congress is alive and well for now.

The First Prayer in Congress     “O Lord our Heavenly Father, high and mighty King of kings, and Lord of lords, who dost from thy throne behold all the dwellers on earth and reignest with power supreme and uncontrolled over all the Kingdoms, Empires and Governments; look down in mercy, we beseech Thee, on these our American States, who have fled to Thee from the rod of the oppressor and thrown themselves on Thy gracious protection, desiring to be henceforth dependent only on Thee. To Thee have they appealed for the righteousness of their cause; to Thee do they now look up for that countenance and support, which Thou alone canst give. Take them, therefore, Heavenly Father, under Thy nurturing care; give them wisdom in Council and valor in the field; defeat the malicious designs of our cruel adversaries; convince them of the unrighteousness of their Cause and if they persist in their sanguinary purposes, of own unerring justice, sounding in their hearts, constrain them to drop the weapons of war from their unnerved hands in the day of battle!

Be Thou present, O God of wisdom, and direct the councils of this honorable assembly; enable them to settle things on the best and surest foundation. That the scene of blood may be speedily closed; that order, harmony and peace may be effectually restored, and truth and justice, religion and piety, prevail and flourish amongst the people. Preserve the health of their bodies and vigor of their minds; shower down on them and the millions they here represent, such temporal blessings as Thou seest expedient for them in this world and crown them with everlasting glory in the world to come. All this we ask in the name and through the merits of Jesus Christ, Thy Son and our Savior.

Amen.”

Reverend Jacob Duché Rector of Christ Church of Philadelphia, Pennsylvania September 7, 1774, 9 o’clock a.m.

 “Lord Jesus, as Thou dost move amoung people and see what men are doing today, how sore must be Thy heart.  Thou whose head was cradled in straw must often reflect that straw was not as coarse as man’s selfishness. Thou whose hands were spread upon a cross and fastened with nails much often reflect that nails were never so sharp as man’s ingratitude. Hear us as we pray for this poor blundering world, in which the nations never seem to learn how to live as brothers.  They resort again and again to methods that produce only more bitter tears, methods that only add to misery and subtract nothing from problems.

Heal them that need healing, make strong the wavering, guide the perplexed, befriend the lonely, give faith and courage to those whose spirits are low. Lift up our heads, put a new light in our eyes and a new song in our hearts, and we will do better and be better for the sake of Thy love.

Amen.” Rev. Peter Marshall, D.D.     Chaplain of the U.S. Senate     Opening daily session of Congress, May 27, 1948

While two Island County Commissioners find prayer in public inappropriate, the United States Supreme Court had this to say on the subject:

“The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom… In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.”  Marsh v. Chambers, 463 U.S. 783, 787, 792 (1983).

The phrase “Separation of Church and State” originated from the Baptists striving for religious tolerance in Virginia. Virginia’s official state religion at the time was Episcopalian. Notice that the phrase was addressing the establishment of, and the endorsement of one religion over another. This phrase is now convoluted to mean religion has no role in government or society.

Few people know about The Northwest Ordinance of 1787 which states in part: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Unfortunately in today’s climate reciting the Pledge of Allegiance or prayer in school is illegal, and one can forget about religion being “necessary to good government.”

Today religion itself is under attack. The assault of religion itself is perpetrated by those who wish to eliminate all religious reference, influence, and its role in government and society. The movement today is known as Freedom from Religion. How is it that Freedom of Religion is overruled by a small minority that dictates religious suppression and intolerance?

You can thank Progressive Democratic Socialists both in the legislature, and those sitting on the bench for this turn of events.  Remember to hide your faith when going out in public because you might offend or make others “uncomfortable.”

As for me… “this little light of mine, I’m going to let it shine…”

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27 comments

  1. avatar

    Fair enough. Looking forward to a Mullah leading the next public prayer at a government forum.

    1. avatar

      Are there any mullahs on Whidbey Island / in Island County?

  2. avatar

    I disagree, vehemently Mr. Wolf.

    I am conservative in many ways, but not here.

    Religion has no place in politics – other than support of freedom of religion.

    1. avatar

      Please define what “support of freedom of religion” means when you say that, and could you provide some examples as to how your zero tolerance applies in politics?

      Are there political customs which are presently followed that you would exclude? If so, due to what justification would you exclude them? Your “belief” that they are wrong, or….?

    2. avatar

      “Religion has no place in politics – other than support of freedom of religion.”

      Thou shall not kill.
      Thou shall not steal.
      Thou shalt not bear false witness against thy neighbor.

      Are those three items not God’s laws or three of the 10 Commandments? If they are God’s laws, then murder, theft, and perjury should be legal under the laws of men since religion has no place in politics.

  3. avatar

    Separation of church and state 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) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), 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, 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 constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who mistakenly supposed it was there and, upon learning of their error, reckon they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor 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.

    To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. 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.”

    It is important to distinguish between the “public square” and “government” and 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. 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.

    Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

    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

    1. avatar

      Very well written, well sourced document on this issue. This should be required reading for anyone wanting to reasonably discuss the issue.

      Here is a link to the source of that document from Wake Forest University School of Divinity:

      http://divinity.wfu.edu/religion-and-public-affairs/joint-statement/

      Thanks for the comment and the link to the article.

    2. avatar

      One cannot deny the existence of those among us, operating under the banner of “Separation of Church and State,” who are carefully working to marginalize other religions, and in so doing they are promoting one religion superior to all.

      Reading the First Amendment to the Constitution of the United States,

      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,”

      one could argue that while Congress is prohibited from acting, yet nowhere is it written that the court system is prevented from “establishing” or “prohibiting.”

      One could argue that our national religion may soon be Atheism which was brought to us in part, by… lawyers.

      1. avatar

        “one could argue that while Congress is prohibited from acting, yet nowhere is it written that the court system is prevented from “establishing” or “prohibiting.””

        The 14th Amendment has been interpretated to mean that most of the Bill of Rights has been “incorporated” into state and local laws.

        Cantwell v. Connecticut, 310 U.S. 296 (1940)[1], was a United States Supreme Court decision that incorporated or applied to the states, through the Due Process Clause of the Fourteenth Amendment, the First Amendment’s protection of religious free exercise.
        http://en.wikipedia.org/wiki/Cantwell_v._Connecticut

        Everson v. Board of Education, 330 U.S. 1 (1947)[1][2] was a landmark decision of the United States Supreme Court which applied the Establishment Clause in the country’s Bill of Rights to State law . Prior to this decision the First Amendment words, “Congress shall make no law respecting an establishment of religion”[3] imposed limits only on the federal government, while many states continued to grant certain religious denominations legislative or effective privileges.
        http://en.wikipedia.org/wiki/Everson_v._Board_of_Education

        1. avatar

          Cliff, how do these two cases apply? Cantwell v. Connecticut deals with a legislative act pertaining to licensing, and Everson v. Board of Education relates to reimbursements for busing school kids.

          In Everson v. Board of Education, what is really interesting is this statement: Both Justice Hugo Black’s majority opinion and Justice Wiley Rutledge’s dissenting opinion defined the First Amendment religious clause in terms of a “wall of separation between church and state”.[7][8]

          How is it possible that two opposing conclusions could exist within our court system, in this case the US Supreme Court, using the same “wall of separation between church and state?”

          1. avatar

            There really is not 2 opposing conclusions when it comes to whether or not our Constitution and specifically the 1st Amendment applies to the judicial branch of government both local and Federal. The examples above are the decisions made by the SCOTUS in regards as to whether or not these clauses in the Bill of Rights apply to state and local governments or only the Federal government.
            These decisions also applies to the local court systems and local governments so it is “written” that the court system is prevented from “establishing” or “prohibiting.”

            1. avatar

              Cliff, granted the examples provided pertain to state and local governments. The point being made regarding two opposing conclusions was not framed in the context of “whether or not our Constitution and specifically the 1st Amendment applies to the judicial branch of government both local and Federal.”

              The question is twofold: How can a lower court make a ruling pertaining to subject X be interpreted as constitutional yet during the appeal the higher court overturns the lower court’s decision interpreting subject X to be unconstitutional not be considered as two opposing interpretations of the law?

              Secondly, how can a 5/4 Supreme Court decision over the constitutionality of subject X not be considered two opposing views pertaining to the constitutionality of subject X especially when both viewpoints are using the same “wall of separation between Church and State” argument?

              1. avatar

                Now I understand the question.

                On an issue that does not have a clear decision by the SCOUTUS as to the Constitutionality of the issue it has to work it’s way though the courts to get to that final body for a ruling. (Or be rejected by the SCOTUS to leave the last decision final). Our courts are made of people not machines and those judges make decisions on what they feel may be Constitutional or right and that are not based on sound Constitution principles and if so we hope those decisions will be overturned on appeal. If all of our judges used a strict interpretation of the Constitution we would still see differences or opposing decisions by different judges. That is just the way the system works. Is it 100%? absolutely not. Is it fair? Absolutely not. Are all court decisions based strictly on our Constitution? Absolutely not. Does it mean that there may be 2 opposing conclusions from different courts over the same issue? It certainly does mean that. In fact if there are NOT 2 opposing decisions over an issue the SCOTUS rarely steps to weigh in on an issue.
                When we speak of whether or not a certain issue may be against our Constitutional principles we look to those decisions made by the highest court in the land and whether or not they have rendered a decision on it or let a prior decision stand. I only consider the higher court decisions when speaking of Constitutional issues and do not consider the decisions of the lower courts that have been part of the process or even consequential.
                We rarely have a decision out of the SCOTUS that overturns a previously decided issue so afaic a decision by them is the law of the land. In that respect it is clear that we do not have a lot of decisions from them that contradict themselves. We may have dissenting opinions in a single court but afaik there is no legal gives them no legal basis for anything besides giving solace to the loser to have his word.

                So…you are correct in stating that there are “two opposing conclusions could exist within our court system”.

                But…I do not believe you would not be correct in saying there are 2 Constitutional opposing conclusions that exist in our court system. Until the SCOTUS makes a decision it is not, to me, considered Constitutional and after the SCOTUS makes a decsion there isn’t really any more “system” left…and that is why we have the Second Amendment…

                1. avatar

                  “But…I do not believe you would not be correct in saying there are 2 Constitutional opposing conclusions that exist in our court system.”

                  Cliff, what I am referring to is a 5/4 SCOTUS decision. Five justices interpreted subject X to be (constitutional) while the remaining disagree (unconstitutional) therefore, that in itself constitutes two opposing interpretations.

                  Keep in mind that the majority could have interpreted subject X to be (unconstitutional) and the remaining (constitutional.)

                  We both agree that our legal system is fallible including SCOTUS.

                  Doug Indeap provided a very useful document however, even within the document itself it mentions ongoing debate and litigation and this document reflects what is CURRENT law. We both know that law is constantly changing.

                  1. avatar

                    On another note: “These decisions also applies to the local court systems and local governments so it is “written” that the court system is prevented from “establishing” or “prohibiting.”

                    Cliff one could argue that a lower court could be prevented from “establishing” or “prohibited” only if their interpretation is challenged through the appeal process. If the decision is not appealed then they do have the ability to establish or prohibit.

                    1. avatar

                      It would certainly be nice if that was the way it works. But it doesn’t. Even though our Constitution and Bill of Rights is very clearly written in simple words that even a mentally challenged person can understand it is still open to interpretation by judges. The only way for a court to be prohibited from “establishing” or “prohibited” is to take that decision to a higher court.

                      How would you propose that we prevent the lower courts from making decisions that at that time have not been proven to be Constitutional by a higher court?

                  2. avatar

                    While there may be 2 opposing interpretations there is only one decision. The dissenters opinion in court decisions carry no (or very little) weight. These decisions are made by men not machines and men are fallable. That is why we have 9 SCOTUS judges instead of one.

                    Until we have judges throughout the legal world that follow one set of “rules” that is the way it is. Of course with those rules being open to interpretation until a final decision is made how would that work?

                    We could change our system to be like Iran’s where the courts can be overuled by the religious leadership but then what would that give us?

                    I agree that it is troubling that we have judges that make clearly unconsitutional decisions, especially in the lower courts. We already make judges (and politicians) swear to uphold the Constitution and the Bill of Rights but who is to judge the judges? The only answer that I can see would be to change our laws to remove judges who’s decisions are overturned at a higher court but what would that lead to?

      2. avatar

        Ken, I’m not sure what you would make of the First Amendment referring only to “Congress.” Do you suppose the Amendment leaves the President free, by proclamation, to establish a national religion? Or could the Executive declare the views of a particular sect of Christianity to be true, but stop short of officially declaring that sect to be our national religion? Or could the Executive direct all federal agencies to use stationery bearing statements touting the virtues of Scientology? Simple semantics may lead one astray.

        Congress itself cannot make any law whatsoever without the approval of the President, except in the instance of overriding a President’s veto, so to read the language simplistically and literally would actually do violence to the intent of the Amendment. As laws in the ordinary course are “made” by actions by both Congress and the Executive, the establishment clause is reasonably understood to constrain both branches of government. An overly literal reading would, I suppose, only stop Congress from overriding a veto to make a law establishing a religion–a manifestly silly result.

        Moreover, as the Constitution designs the Executive to carry out laws that have been passed by Congress and does not give the Executive any independent power to establish religion, the establishment clause is reasonably understood to constrain the Executive in its carrying out of laws that Congress passed. That is the way James Madison understood the clause; in his Detached Memoranda, he explained that “[r]eligious proclamations by the Executive recommending thanksgivings and fasts” are not consistent with it. If the clause were interpreted to leave the Executive free, by proclamation or some such, to establish a religion, what really would be the point of the clause? No, such an interpretation would enable the Executive to eviscerate the purpose of the clause.

        It should not be supposed that the government, by remaining separate from and neutral toward religion in keeping with the Constitution, somehow thereby favors atheism over theism. There is a difference between the government (1) remaining neutral in matters of religion and leaving individuals free to choose, exercise, and express their religious views without government intrusion and (2) taking sides in matters of religion and promoting one view (whether theism [in one, any, or all its various forms], atheism, or whatever) to the detriment of others. It is one thing for the government to endorse the idea that god(s) exist or, alternatively, endorse the idea that god(s) do not exist; it is quite another for the government to take no position on the matter and respect the right of each individual to freely decide for himself.

        1. avatar

          You covered Legislative and Executive branches extensively, and left out the Judicial branch. Why?

          1. avatar

            Well, the judicial branch merely interprets and declares and applies the law as adopted by the two political branches. It does not (apart from gripes about judicial activism and such) have the authority or occasion to affirmatively promote this or that religion.

            1. avatar

              Given the opposing interpretations of the court system one can still argue that if an anti-religious group, who did not believe in religion and who believed in absolute separation of church and state, were to go before the court about subject X, and the courts ruled in their favor then by that action of “prohibiting” other religions the court system advanced the belief of the anti-religious group.

              In the case of Everson v. Board of Education, 330 U.S. 1 (1947) both majority opinion and Justice Wiley Rutledge’s dissenting opinion defined the First Amendment religious clause in terms of a “wall of separation between church and state.”

              How is it possible that two opposing conclusions could exist within our court system, in this case the US Supreme Court, using the same “wall of separation between church and state” argument?

              Given the right mix of Supreme Court members the case could have gone the other way therefore, it is conceivable that in the case currently before the Supreme Court regarding prayer at public meetings could favor the anti-religious group by finding the practice unconstitutional. As for authority… who is going to stop them?

              Who is to say that the Supreme Court’s interpretation is the correct one? We both know that only ten Supreme Court cases were overturned since our country was founded.

              1. avatar

                Doug Indeap,

                Along the theme, “There is a difference between the government (1) remaining neutral in matters of religion and leaving individuals free to choose, exercise, and express their religious views without government intrusion and (2) taking sides in matters of religion and promoting one view (whether theism [in one, any, or all its various forms], atheism, or whatever) to the detriment of others.”

                Please explain how a 5/4 Supreme Court decision is NOT taking sides?

                1. avatar

                  Ken,

                  I think you are shifting focus. Certainly, when two opposing sides present a case to a court, and the court decides which side wins, the court is “taking sides.” Indeed, in that respect, taking sides is a necessary, inherent aspect of judging.

                  I used the phrase “taking sides” in a quite different context, i.e., to make the point that a basic aim of separation of church and state is to protect the religious liberty of individuals, in part, by generally keeping the government from favoring or disfavoring religion (or taking sides) and leaving such matters to individuals.

                  The fact that judges and courts sometimes disagree on how to apply the basic principles to particular cases is hardly surprising. Nor does that fact undercut the validity of the basic principle. It just means that figuring out where to draw the line is not always obvious or easy, and reasonable people wanting to apply the principle may yet disagree on where to draw the line in a particular case.

                  1. avatar

                    Doug,

                    No shift in focus.

                    We both agree “that a basic aim of separation of church and state is to protect the religious liberty of individuals, in part, by generally keeping the government from favoring or disfavoring religion (or taking sides) and leaving such matters to individuals.”

                    Second, current law is changing, and hopefully the basic aim of separation of church and state remains intact.

                    Third, our court system including SCOTUS is fallible.

                    One final observation,

                    Americans United for Separation of Church and State’s position on this issue: Americans United believes there should be no official prayers before government meetings.

                    Americans United for Separation of Church and State is representing Galloway and Stephens in the pending case before SCOTUS.

                    The reality is many officials, at all levels of government, are looking at this prayer before public meetings and saying, “It’s not worth it,” because A. the volatility of the subject, and/or B. the threat of a lawsuit depletes valuable resources (tax dollars.) Therefore, the anti-religious group wins simply by default. If you want Separation of Church and State then use coercion and intimidation as your primary weapons. Use them until the other side eventually gives up.

  4. avatar

    “Absolute Separation of Church and State” is NOT protecting the religious liberty of individuals. It is NOT a “neutral” concept when this “absolute” is the agenda of American Atheists and several other organizations.

    Absolute removes ALL religious reference. “In God We Trust,” “one nation, under God,” prayer in public, re-writing the Declaration of Independence, etc.

    Freedom from Religion is NOT protecting the religious liberty of individuals. It is NOT a “neutral” concept when it is the agenda of the Freedom From Religion Foundation. “The Foundation is the nation’s largest association of freethinkers (atheists, agnostics and skeptics) with over 19,000 members.”

    Americans United for Separation of Church and State is NOT protecting the religious liberty of individuals. It is NOT a “neutral” concept when this organization “believes there should be no official prayers before government meetings.”

  5. avatar

    Separation of church and state, as applied by the courts, is hardly absolute (whatever that might mean in this context).

    On principle, the government’s inscription of the phrase “In God we trust” on coins and currency, as well as its addition of the words “under God” to the pledge of allegiance in 1954 and adoption of the phrase “In God we trust” as a national motto in 1956, were mistakes, which should be corrected. Under our Constitution, the government has no business proclaiming that “we trust” “In God.” Some of us do, and some of us don’t; each of us enjoys the freedom to make that choice; the government does not and should not purport to speak for us in this regard. Nor does the government have any business calling on its citizens to voice affirmation of a god in any circumstances, let alone in the very pledge the government prescribes for affirming allegiance to the country. The unnecessary insertion of an affirmation of a god in the pledge puts atheists and other nonbelievers in a Catch 22: Either recite the pledge with rank hypocrisy or accept exclusion from one of the basic rituals of citizenship enjoyed by all other citizens. The government has no business forcing citizens to this choice on religious grounds, and it certainly has no business assembling citizens’ children in public schools and prescribing their recitation of the pledge–affirmation of a god and all–as a daily routine.

    But that’s just me talking. The courts, on the other hand, have sometimes found ways to excuse such things, for instance with the explanation that they are more about acknowledging tradition than promoting religion per se. Draining the government’s nominally religious statements or actions of religious meaning (or at least purporting to do so) and discounting them as non-religious ritual–sometimes dubbed “ceremonial deism”–is one way the courts have sometimes found them not to conflict with the First Amendment. Ordinary folks, though, commonly see things quite differently; when most read “[i]n God we trust,” they think the Government is actually declaring that “we” as a people actually “trust” the actual “God” they believe in. If they truly understood it as merely a ritualistic phrase devoid of religious meaning, as the courts suppose, they would hardly get as exercised as they do about proposals to drop it. As you can imagine, those more interested in championing their religion than the constitutional principle of separation of church and state sometimes seek to exploit and expand such “exceptions” even if it requires they fake interest only in tradition.

    Madison also touched on just this point in his Detached Memoranda. He not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

    In its jurisprudence, the Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass, on one or another theory, to the appointment of chaplains for the house of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion, including opening prayers by legislatures. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).

    In the upcoming Town of Greece v. Galloway case, the Supreme Court will have a chance to conform the town’s actions to the principle of separation of church and state or to develop another exception to the principle. I don’t view it as a hooray-for-our-side contest between religionists and atheists (who, by the way, are hardly the only or even primary ones seeking to uphold the principle). Rather, I see it as a vehicle for deciding whether the constitutional separation of church and state will be enforced or sidestepped.

  6. avatar

    James Madison + Detached Memoranda= One man’s opinion.

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