Separation of Church and State
|May 8, 2007||Posted by Dave S. under Constitution, Culture, Religion|
This is for ForTheKids (FTK) to discuss separation of church and state. An important topic IMO. I deleted her opening separation comment on the DCA Update II thread as well as responses because I wanted that thread to remain topical. Our blog software has no option for relocating comments. FTK has been so gracious to me on her blog when I go off topic I felt bad about it so here’s the venue. I’ll open it with links to a couple relevant articles I wrote last year, some verbatim quotes of relevant constitutional amendments, and some historical facts regarding use of the phrase by founders and the US Supreme Court:
This is all the constitution has to say on religion.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
A wall of separation between church and state is a synthesis that doesn’t appear in the constitution. Thomas Jefferson coined the phrase “wall of separation” while president in a letter to the Danbury Baptists assuring them that the federal government would not establish a state church nor be biased in any way for or against Danbury Baptists. It wasn’t until 75 years later it came into legal parlance when the supreme court in 1878 used it in deciding Reynolds, where (of all things) the court defended marriage as institution between one man and one woman, holding against the “free exercise” claim of Mormons in Utah who wanted polygamy legalized. It was yet another 75 years before it was quoted a second time where in 1947 in Everson the USSC held that (of all things again) state funded transportation of children to and from parochial schools was constitutional. It was used by the USSC 23 more times after that until in 1970 the court backed away from it for setting a tone too hostile towards religion.
Moreover the 1st amendment didn’t apply to state governments until the 14th amendment was ratified in 1868 which included an extension of federal constitional rights to all citizens. Prior to the 14th amendment states weren’t forbidden from making laws regarding an establishment of religion. The relevant portion of the 14th:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So you see, when Jefferson and a few other founders talked about a wall of separation they were only talking about a wall between federal government and churches. State governments could do whatever they wanted with laws regarding religion. I mention the 14th because it adds crucial context to the early use of the phrase Jefferson coined i.e.; it was only about federal laws at that time. None of them were arguing that state and local governments couldn’t do as they saw fit and this ties neatly back into the articles I wrote about preambles in state constitutions. States weren’t nearly as bashful about God and government as the federal government was in the early days.