The BIG Lie: "Separation of Church and State" (Part 5)

Author: Andy Woods
Date Written: February 28, 2024
From the archive of thewordonpolitics.com

In the last four posts, we began a series on the "separation between church and state" supposedly found in the First Amendment. It is because of this phrase, which was first introduced into the fabric of our culture through errant Supreme Court decisions of the early 1960’s, that city councils are sued for placing manger scenes on the steps of city hall, public schools are prohibited from teaching scientific creationism alongside evolution, copies of the Ten Commandments are stricken from government walls, teacher-led prayer and Bible reading is prohibited in public schools, and Christianity has generally been purged from public life.   When did all of this insanity begin? We noted that we can trace the origin of the modern understanding and application of separation between church and state to the following two Supreme Court decisions of the early 1960’s: Engle v. Vitale and School District of Abington Township v. Schempp. Yet, an honest appraisal of these decisions shows them to be out of harmony with the vision of the Constitution’s authors. The founders would have been horrified at the prospect of removing the influence of Christianity from the functioning of public schools and government. The purpose of this series of posts is to show how out-of-step these decisions are with the express wishes of America’s founding fathers. This purpose will be accomplished through a consideration of nine historical and legal facts. First, we observed that the words “separation between church and state” never appear in the actual wording of the First Amendment. The so-called "separation between church and state" terminology was not part of America's foundation and was never even used to limit Christian expression in government until after most of our nation's history had already transpired. Second, we noted that Jefferson used the phrase “wall of separation of church and state” as a one-way wall preventing the government from interfering with Christianity rather than preventing Christianity from influencing government. Third, the legal test that is used today to completely separate God from government is inconsistent with the beliefs of the founding fathers whose legislative record demonstrates that they contemplated no such separation. We now move on to our fourth point.

Fourth, the Engle and Schempp courts applied the First Amendment’s prohibition of a government-established religion to religious activity taking place at the state level. Such an application contradicts the express wording of the religion clauses of the First Amendment, which say, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (italics added). The First Amendment places the prohibition of establishing a religion on Congress rather than upon the state governments. The American political system has at least two levels of government: federal government and then the many state governments. This unique governmental structure creates multiple layers of government (national, state, and local) operating over the same geographical expanse. Mansfield explains the rationale behind such a deliberately inefficient system. “When the founding generation of Americans turned to the business of creating a country, they had just fought a war against a centralized and controlling government. They had no intention of creating an American version of the same evil.” [See Mansfield, Ten Tortured Words: How the Founding Fathers Tried to Protect Religion in America...And What Has Happened Since, 38].   Based upon the specific language of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of”) the founders only intended the First Amendment to apply to the federal government rather than the many states and localities. In fact, Chief Justice John Marshall, America’s third Supreme Court Chief Justice, spoke for a unified court on this matter in 1833. He noted, “The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.” Therefore, the Bill of Rights “…contain no expression indicating an intention to apply them to the state governments.” [See Barron v. Baltimore, 32 U.S. 243, 247, 250 (1833). For similar statements from early American jurisprudence showing that the Constitution, Bill of Rights, and the First Amendment applied only to the national government rather than to the state governments, see Permoli v. Municipality No. 1 of the City of New Orleans, 44 U.S. 589, 609 (1845)].   However, it is worth noting that the Engle and Schempp courts were able to apply the First Amendment to the activities of state governments because fifteen years earlier the court in Everson v. Board of Education in 1947 had made the First Amendment applicable to the states through the due process clause of the Fourteenth Amendment. The Fourteenth Amendment was passed in 1868 to guarantee rights to recently emancipated slaves. Unlike the First Amendment, the Fourteenth Amendment's expressed wording makes it binding upon state government. It reads:

After this amendment was passed, over time the Supreme Court used it as the vehicle to gradually make the Bill of Rights, which were originally intended to be binding only upon the federal government, binding upon state governments as well. Legal scholars call this legal maneuver the doctrine of incorporation.

Thus, the Everson decision was ground breaking in two respects. First, it associated the Jeffersonian “wall of separation between church and state” from his 1802 letter with the First Amendment’s prohibition against an establishment of religion. Earlier courts that cited Jefferson’s 1802 letter in full did not connect this “wall of separation of church and state” to the First Amendment’s establishment clause prohibiting a state establishment of religion but rather used it only in connection with the issue of how much government could regulate the free exercise of religion. [See Reynolds v. United States, 98 U.S. 145, 164 (1878)]. The Everson court declared, “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’.…The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” (See Everson v. Board of Education) Second, the Everson court made the separation of church and state concept supposedly found in the First Amendment applicable to the individual state governments despite the fact that the actual wording of the First Amendment indicates that it applies only to Congress at the federal level. Thus, Everson laid the essential groundwork for the eventual separation between God and government well over a decade in advance of the Engle and Schempp rulings. The Engle and Schempp courts simply took the precedent and sweeping language already established in Everson and merely used it to officially remove Bible reading and prayer from state government public schools. Why did the Everson court make such a radical move? Justice Hugo Black wrote the majority opinion in Everson. According to Mansfield, Black struggled early on as a Supreme Court justice after being appointed to the bench by Franklin Roosevelt in 1937. “His opinions sounded like Senate speeches and were unevenly reasoned. Justice Harlan Fiske Stone complained openly about Black to members of the press and even wrote Felix Frankfurter at Harvard Law School suggesting that he give Black some needed tutoring.” (See Mansfield, Ten Tortured Words: How the Founding Fathers Tried to Protect Religion in America...And What Has Happened Since, 59-60). Another interesting feature of Black’s background includes his former membership in the Ku Klux Klan, [Ibid., 55-60; William A. Donohue, Secular Sabotage: How Liberals Are Destroying Religion and Culture in America (NY: Faith Words, 2009), 119.] which is a racist organization known for its hostility against blacks, Jews, and Catholics. Everson involved the Constitutionality of a New Jersey law that required school boards to reimburse parents for the transportation expenses that they incurred in sending their children to Catholic schools. Although the court ultimately upheld this arrangement, Black’s Klan background and resulting hostility against the Catholic Church may explain the sweeping “separation of church and state” language that he chose to incorporate into his majority opinion. In sum, the Everson, Engle, and Schempp courts applied the First Amendment’s prohibition of a government-established religion to religious activity taking place at the state level in spite of the fact that the express wording of the religion clauses of the First Amendment are only a limitation on state power rather than federal power.

(To Be Continued...)