Friday, May 13, 2011

The Establishment Clause

In 1802, Thomas Jefferson sent a letter to the Danbury Baptist Association in response to a query from that body. In the following Library of Congress transcript, Jefferson's spelling and punctuation have been retained as well as the bracketed material which ultimately he deleted before sending.
Mr. President
To messers Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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 & State.

[Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from prescribing even those occasional performances of devotion, practiced indeed by the Executive of another nation as the legal head of its church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.]

Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association assurances of my high respect & esteem.

(signed) Thomas Jefferson


An anonymous writer claims that Jefferson's remarks echo those of Roger Williams, the founder of the first Baptist church in America, who wrote in 1644 of the need for "[A] hedge or wall of separation between the garden of the church and the wilderness of the world." Whatever the case, Jefferson's expression of "a wall of separation between church and state" led to the shorthand phrase "Separation of church and state."

Although the phrase does not appear in our Constitution, the idea it embodies is a governing principle of our culture. The phrase represents the essentialized meaning of the opening passage of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." This is known as the Establishment Clause.

From the beginning of our nation, Americans recognized the principle of separation of church and state as a safeguard against religious intolerance and protection of one's right to choose to believe, or not. Our courts followed suit.

In its 1879 Reynolds v. United States decision, the court allowed that Jefferson's comments "may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment."

In the Everson v. Board of Education 330 U.S. 1, 8 decision, Justice Hugo Black wrote, "In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state."

Supreme Court Justice Harry A. Blackmun wrote: "When the government puts its imprimatur on a particular religion it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some."

Another court stated that "A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws, which compelled them to support and attend government-favored churches."

Because of the many different religions and the many different convictions of atheists and agnostics that comprise our American culture, the separation of state and church assures that no one elected to office can lawfully impose his particular views as "the state religion." To further deflect such a danger, Article VI of the Constitution specifies that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Today, however, some commentators question the validity of the separation of church and state, claiming "It's not in the Constitution; so, we can disregard it." But a brief look at man's history underscores the need for such a separation.

The first forms of governments among men---Sumer and Ancient Egypt (c. 5000 BCE)---were both centralized authorities, in which the ruler held both powers of king and priest. The Pharaohs of Ancient Egypt, for instance, claimed they were the embodiment of "god-kings," or "priest-kings." They held both titles absolutely, sometimes appointing a priest class to perform various tasks, but always retaining the prerogative of supreme authority over men's beliefs and actions.

For millennium nothing changed---except in Ancient Athens. Pericles (c. 495 - 425 BCE), for example, was an elected ruler whose leadership did not usurp that of Athenian priests. But in all other nation-states around the world and throughout time, absolute authority over both secular and religions affairs remained exclusively in the hands of the ruler.

For instance, during the Roman Empire, (c. 31 BCE - c. 284/313 AD) emperors were treated as divinities and some declared themselves gods. During the Medieval period (c. 313 AD to c.1265 AD) the church dominated both secular and religious affairs. Even the great, enlightened Elizabeth I (1533-1603)---alone among monarchs finally to break with the Pope---while granting wider freedom to her subjects nonetheless retained absolute control of her powers which included being the spiritual head of the Church of England.

Cromwell (1599-1658) justified his religious intolerance, the use of force, massacres and cruelty as necessary to hold together the body politic. Louis 14th (1638-1715) the "Sun King," imposed religious uniformity, persecuted the Huguenots and revoked the Edict of Nantes, which led to the exodus of many Protestant merchants and skilled artisans, accelerating economic decline. Napoleon crowned himself at his coronation (1804), thereby declaring that as emperor of France he was to be considered supreme ruler over both secular and religious affairs.

Similarly, the Emperors of Japan and China were considered direct descendents of the Gods, thus empowered as divine ruler on earth, supreme over all men's actions and beliefs. The sheiks, caliphs, and ayatollahs of Arabia, India and Asia were no different.

And so it went. With few exceptions, leaders claimed total authority over both religious and secular affairs---most clearly exemplified by "the divine right of kings" and "the infallibility of the Pope." The result was fines, imprisonment, torture and/or death levied on any that dared oppose the ruler's edicts and beliefs. The Inquisition was only one expression of such crimes against the mind of man. The slaughter and mayhem of the Crusades was another. The arbitrary beheading, dismemberment, disfigurement and proscribed suicides of dissenters or the disrespectful, was characteristic of the rulers of Africa, India and Asia.

Then came the United States of America, an extraordinary achievement that broke with all precedent and stunned the world with its Declaration of Independence and its Constitution, which are the fountainhead of the wealth that cascaded from the minds and efforts of free men.

The Declaration of Independence identified man's individual rights. The Bill of Rights---the first ten Amendments of the Constitution---secured those rights in specific actions. But it was the formulation of the Establishment Clause that addressed the difficult and complex issue of protecting man's convictions and beliefs without intruding upon his right to believe as he chose, or not. The governing principle of "a wall between church and state" was a stroke of genius that protected the American citizen from the deadly juggernaut of combined political and religious power.

The Founding Fathers gave us this nation, a child of the Enlightenment, Ancient Athens surely being our grandparent. As beneficiaries of such a gift, let us not allow our nation to fall to barbarians---either foreign or domestic---by ignoring the lessons of undivided absolute power over our lives and nation.

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At May 13, 2011 at 3:26 PM , Blogger Joseph Kellard said...

This comment has been removed by the author.

At May 13, 2011 at 3:27 PM , Blogger Joseph Kellard said...

At May 14, 2011 at 1:50 PM , Blogger Doug Indeap said...

Good points well put.
The principle of separation of church and state is derived from 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) 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 and the First Amendment provisions constraining the government from undertaking to establish religion or prohibit individuals from freely exercising their religions.

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.”

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 recently published a short, objective Q&A primer on the current law of separation of church and state. I commend it to you.

At July 12, 2018 at 3:13 PM , Blogger Thomas Sheppard said...

I think the point of the First Amendment is not to protect government from the influence of religion. Rather, it is to protect religion from the government. As noted in the blog post, the problem comes when government co-opts religion, which has been the pattern of history. Perhaps the current government of Iran is the outlier here, where religion co-opted the government (although the Islamic model is to establish caliphates, where the supreme governmental ruler is also the supreme religious leader).

The government need not be protected against the religious mores of its various peoples. Rather, the people need to be protected from having a government embrace a religious sect and promote that sect, its practices and beliefs over all others, and make the rules of that sect the qualifiers for government service.

The mores that are common to all the major religions of the world are the very same which make civilization and the rule of law possible. Respect for property, respect for conscience, respect for freedom of movement, and respect for differing practices.

I grant that, historically, when one specific religious sect has prevailed at co-opting the government, the result has been the persecution of all other sects and faiths. That does not mean we should throw out the baby with the bath water and disallow the freedom of religious expression relative to our laws, under the false mantle of protecting religion from the state and protecting the state from religion.

Tom Sheppard
Author of Godvernment: Government as God


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