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Posted by on Oct 26, 2010 in Law, Politics, Religion, Society | 0 comments

The Right’s Uninformed Position on Church-State Separation

Steve Benen takes up the subject of the hostility displayed by numerous Republican candidates — and on the right generally — toward the constitutional principle of church-state separation, and he asks perhaps the central question:

But putting aside the fact that these unhinged Republicans simply have no idea what they’re talking about, I have a related concern: what is it, exactly, they’d replace church-state separation with?

What we’re seeing is, to a certain extent, the rise of the Taliban wing of the Republican Party — the Taliban rails against secularism, and insists that the law must mirror and be based on their interpretation of a religious text. Buck, O’Donnell, Angle, Limbaugh, and Palin have all argued something eerily similar. Thomas Jefferson said the First Amendment built “a wall of separation between church and state,” and these Republicans are anxious to tear it down.

Let’s say, for the sake of conversation, they succeed. What then? Once the foundation for religious liberty in America is gone, what does Ken Buck suggest we replace it with? There are some countries that endorse Buck’s worldview and intermix God and government — Iran and Afghanistan under Taliban rule come to mind — but they’re generally not countries the United States tries to emulate.

So what do Buck and his ilk have in store for us? A European-style official church? A theocracy along the lines of Saudi Arabia? Are conservatives who want the government to shrink also telling us they want the state to play a larger role in promoting and “helping” religious institutions?

A week ago, Steve wrote this about the same issue:

One can obviously read the Constitution and see that the literal phrase “separation of church and state” isn’t there, but a basic understanding¬†of history and the law makes clear that the phrase is a shorthand to describe what the First Amendment does — it separates church from state.

Indeed, a variety of constitutional principles we all know and recognize aren’t literally referenced in the text. Americans’ “right to a fair trial” is well understood, but the exact phrase isn’t in the Constitution. “Separation of powers” is a basic principle of the U.S. Constitution, but it isn’t mentioned, either. More to the point, you can look for the phrase “freedom of religion” in the First Amendment, but those three words also don’t appear.

This point is explored at greater length in the article to which Steve links in the above quote (emphasis at the end of the quote is in the original):

Of course it’s true that the actual phrase “separation of church and state” is not in the constitution. But then neither are the phrases “separation of powers” or “checks and balances”, yet no one would argue that the concepts are not there, embodied in numerous specific provisions. Just as the founders used those phrases to describe the intent of the constitutional provisions for power to be divided between three branches of government, they also used the phrase “separation of church and state” to describe the intent of the religion clauses of the first amendment. When the courts go about applying constitutional law, one of the primary ways they do it is to look for the “legislative intent” – the purpose that those who wrote the law had in mind, the goal they wanted to accomplish. When the men who wrote it say in several places, as they did, that the goal of the religion clauses of the first amendment was to erect a wall of separation between church and state, that is about as authoritative as it gets when you’re trying to determine legislative intent.

So, from where does this phrase originate? Most people know about Jefferson’s letter to the Danbury Baptists, which is the first place in which it appears in a writing by one of the founders. One of the most commonly used arguments by the religious right is that Jefferson intended the wall to be “one directional” – that it was intended only to protect the church from the intrusions of the state. But this is absolutely false. The Danbury Baptists had written Jefferson a letter congratulating him on his election to the presidency and to ask for his assistance in getting rid of the official church establishment in Connecticutt. Connecticutt had an official religion of Congregationalism and all citizens in that state were required to pay a tax that supported the church. Thus, the issue at hand was not a violation of free exercise, but a violation of the ban on establishments (though technically it was neither, since the first amendment only applied to federal laws, not state laws – this was changed with the passage of the 14th amendment). …

[…]

Some have also replied to Jefferson’s letter by saying that it is irrelevant, since Jefferson was in France at the time of the writing of the bill of rights and not a part of their framing. While true, this is a weak argument. Jefferson was in constant contact with several of the men who were there and it was his Religious Freedom Act in Virginia that was the model for the first amendment. He was particularly influential on James Madison, who chaired the committee that wrote the amendment and was the primary intellectual force behind the bill of rights. But at any rate, even without Jefferson’s letter we have ample reason to use the phrase because it was used by those who actually were involved in framing the amendment directly, particularly Madison. For instance, in a letter to Robert Walsh in 1819, he discussed the benefits of the religion clauses of the first amendment and referred to them as requiring, “the total separation of the Church from the State”. …

[…]

Here we have a variation on the phrase, “separation between religion and government”. As this quote also points out, Madison was clearly not in favor of a uni-directional wall that only protects church from state and not state from church, as he speaks of the “danger of encroachment by ecclesiastical bodies”. Furthermore, Madison makes it clear that the goal of the first amendment was not merely to prevent the establishment of an official church, as many on the religious right claim today, but to prevent anything close to such an establishment. …

[…]

Another very common argument that you hear is that the purpose of the first amendment was only to prohibit the establishment of an official national church, or to prevent the establishment of a specific denomination of Christianity over another. The history of the framing of the religion clauses shows this argument to be false. Congress proposed and rejected numerous wordings that would have limited the prohibition only to those two things. The first wording to be rejected was:

“The civil rights of none shall be abridged on account of religious belief, nor shall any national religion be established”

A later wording that was proposed and rejected was:

“Congress shall make no law establishing any particular denomination in preference to another”

If they had intended only to prevent those de jure establishments of official churches or denominations, then why did they reject multiple wordings that would have done exactly that and vote instead for the much broader wording of “respecting an establishment of religion”? Because, as Madison noted, the purpose was to prevent¬†everything like an establishment of religion – not merely a de jure establishment, but de facto establishments as well.

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