Cultural Amnesia and the Separation of Church and State

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One of the sadder aspects of Christmastime in America is the display of ignorance on the part of so many Americans regarding the constitutional tradition of our country.  Why at Christmas? Because it is at this time of year that we hear the whining call of “that song” or “that play” or “that display” violates “the separation of church and state.”

Christmas brings out this self-righteous amnesia because it is a time when people who want to pretend they should answer to no one but themselves for their actions have more trouble than usual pretending that there is no God, and that they do not live in a society with deep roots in the Christian religion.  Public displays of faith must be struck down, even as public displays of contempt for religion are posted on billboards, including one in Times Square, on which you currently can see a picture of Santa, captioned “Keep the Merry!” on top of a picture of a suffering Christ, labeled “Dump the Myth!”  How’s that for good public neutrality?

Meanwhile, the Governor of Kansas was pilloried, recently, for daring to promote and appear at a prayer rally.  As for nativity displays, we all know that the Supreme Court (in what I’ve always called “the interior decorating cases”) rigorously polices what kinds of religious symbols can be placed where, and how many Santas it takes to cleanse the impact of a baby Jesus.  So, a number of municipalities have gone the way of Santa Monica, which opened its Christmas display area to everyone on a first come, first served basis.  (Sure.  That worked out well.  “Yes, Virginia, there we have the baby Jesus in a manger.  Over there?  That’s a nasty sign telling us we are morons for believing Jesus is Lord … Oh, look, there’s Rudolph.”)  The atheists took most all the spots, of course, and that was that—no more Christmas displays on public property in Santa Monica.

Even a good number of people who genuinely regret this marginalizing of religion today accept it as dictated by “the Constitution.”  And perhaps I shouldn’t be so hard on people who’ve been fed this myth, so prevalent on the public airwaves and in our schools over the last several decades.  But it’s important for us to remember that it just ain’t so.

It’s been said thousands of times before, but the strength and pervasiveness of the myth require that it be constantly repeated:  “separation of church and state” appears nowhere in the Constitution.  A few decades ago, the Supreme Court lifted that phrase from a letter written by then-President Thomas Jefferson to the Danbury Baptist Association.  The letter, quite obviously, has no status whatsoever as a statement of constitutional law.  Opponents of public professions of faith have latched onto it, however, because Jefferson claimed that separationism was somehow established by the actual words of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  But not only are the courts (and local officials) wrong to cite this letter as constitutional doctrine, they get the letter’s meaning wrong as well.

Jefferson borrowed the phrase “wall of separation” from Roger Williams, the heterodox religious (and civil) leader of what would become Rhode Island.  The phrase refers to the need, felt particularly strongly by Calvinists who had suffered under laws punishing their faith in Great Britain, for their religious communities to be protected from penalties and draconian restrictions imposed by the Anglican Church.  Of course, the Anglican Church was a truly established Church, whose leader was the King.  Remember Henry VIII?  Remember him executing St. Thomas More for refusing to promise his loyalty to Henry as Head of the Church?  THAT’s establishment.

The phrase “separation of church and state” already was anomalous at the time of our Constitution’s drafting because the United States had neither any single, established, national Church, nor a single national state, instead being split up into a variety of geographical, political, and religious units.  But one can see its limited truth in its time:  by preventing federal laws setting up a national church or punishing members of minority religions for worshiping in their accustomed fashion, the First Amendment established a wall protecting religious communities from federal government coercion.

This is all well and good—and applicable only at the federal, national level.  But what does this tell us about school plays, community nativity scenes, and Governors at prayer rallies?  That they are none of the federal government’s business, one way or the other.

Evidence?  Take a look at the Constitution of Massachusetts, written by John Adams and still, theoretically, in effect to this day.  Article II of the First Part of that document states:

It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.

Could it be made clearer than this, in the state constitution that more than any other influenced our national constitution, that our states were formed as religious communities, defending the freedom of conscience understood as the choice of the proper means to worship God?

If you need more clarity, how about this, taken from the very next article of that same Constitution:

As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

For those of you who have troubles with the old-fashioned phrasing, let me translate:  “Massachusetts shall have publicly-funded religious teachers and worship, of the Protestant variety, administered and funded at the local level.”

Massachusetts (and several other states) kept these state-level establishments well into the nineteenth century.  And why, constitutionally-speaking, shouldn’t they have done so?  All the First Amendment to the federal Constitution says is Congress shall make no law respecting establishment of religion.  The states, according to our Constitution, may do as they wish in this regard—including taxing Catholics and Baptists to pay the salaries of Congregationalist ministers to tell everyone that Catholics and Baptists are going to Hell.

I’ve intentionally stated that in a provocative way to show how little respect Americans of an earlier, better generation would have for the claim that atheists and others are “injured” by public prayers and displays with which they happen to disagree.  No society can be “neutral” on issues of religion.  They can be ecumenical, but to attempt neutrality is, as we have seen, to establish non-religion as the new civil religion.

As Philip Hamburger shows in his excellent Separation of Church and State, the real drive to “secularize” public life began with the battle to keep Catholics from receiving funding for their own schools, which competed with “public” schools that openly taught the Protestant religion.  It’s too bad we didn’t follow the path of religious variety and competition through open public funding for which many then were fighting.  The result of rejecting that path has been secularization of our schools and, increasingly, all our public spaces.  It’s too bad, too, that the myth of the Fourteenth Amendment (designed to protect freed slaves from certain forms of overt oppression) has been twisted to justify “incorporating” every half-baked judicial opinion of what we should want into the constitution—but that’s a story for another post.

Even the retailers have decided to take the Christ out of Christmas, no doubt for fear of offending against our new “separation of religion from all public life.”  My wife was in a big box store the other day.  Among other things, she was looking for Three Kings wrapping paper.  She couldn’t find any.  In fact, she couldn’t find any religious wrapping paper at all.  Puzzled, she started looking for religious items in general.  After fifteen minutes, all she could find was an angel ornament and some angel wrapping paper (angels having been reduced to the level of fairies in our culture).  A worker asked if my wife needed help.  She told him she couldn’t find anything religious in the Christmas section.  He was surprised and helped her look, eventually finding a couple of boxes of religious Christmas cards at the bottom of a stack on the bottom shelf.  My wife then spoke with the manager and, God bless her, she let him have it.  Why no Christ in the Christmas section?  The manager was surprised at the question, and had no answer.  My wife left a cart full of items sitting in the Christmas section as she walked out.

It will take decades, if it ever happens, to de-sanctify the myth of “separation of church and state.”  But you and I can fight the separation of Christ from Christmas by letting a few more managers have it, and by leaving a few more carts full of items sitting there in the no-Christ Christmas aisle.  It helps, you can think of it as a penitential Advent act to find those items at a store in which Christ still has a presence in Christmas.

This essay first appeared December 19, 2012 on the Imaginative Conservative website and is reprinted with permission.

Bruce Frohnen

By

Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source.

  • Michael Paterson-Seymour

    Part of the problem is the ambiguity around the word, “public,” which can refer to the sphere of the state and its administration and public services, but which can also mean the public space, the domain of social existence and civil society.

    Likewise, the “private domain” does not mean “behind closed doors,” but includes the whole framework of civil society, the domain not only of individuals, but of groups and associations (and thus of churches and religious communities).

    The most extreme proponents of laïcité, whilst they would exclude religious symbols from the law courts or the town hall, would not seek to exclude them from the street or the public square.

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  • crakpot

    It is interesting to note that while the 1st Amendment acknowledges a [God-given] right to peaceably assembly and petition government (what could be wrong with that?), it does not acknowledge a right to practice whatever religion you want or say whatever you like. It just prohibits the use of Federal power in these matters.

    We think of America as the first free nation, but actually Exodus is the first story of true freedom, and it was made obvious why there can be no freedom without law – God’s law. Three Commandments prohibit false beliefs, and another prohibits speech that takes the name of the Lord in vain. The Americans empowered government to enforce Commandments against murder, stealing, etc., but wisely prohibited it from enforcing belief or speech. The result of that prohibition being ignored by our ruling class minority is apparent today.

  • Prof_Override

    Mathew 6:5-8

    5 “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full. 6 But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you. 7 And when you pray, do not keep on babbling like pagans, for they think they will be heard because of their many words. 8 Do not be like them, for your Father knows what you need before you ask him.

    Shhhhhhhhh………

    • enness

      I believe I know what your point is (or at least, what you think it is), but would you mind spelling it out for those who would like to provide rebuttal? Or, if there is interest in not going off on an endless tangent, keeping it to yourself, difficult as I am sure that is?

      • Prof_Override

        I thought it was a pretty good article up until the last couple of paragraphs. When a Christian falls down to the level of their antagonists, particularly when it isn’t even an antagonist they are taking it out on (the poor manager of the big box – he had nothing to do with store selections), you may win a battle or two, but you will lose the war by becoming like them.

  • http://www.facebook.com/jcschlicher Jeannette Case Schlicher

    Hobby Lobby has Three Kings wrapping paper! O:-)

  • DougIndeap

    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 may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving 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. 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 were 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.”

    While the First Amendment limited only the federal government as you note, you leave unmentioned that the Constitution was later amended to protect from infringement by states and their political subdivisions the privileges and immunities of citizenship, due process, and equal protection of the laws. The courts naturally have looked to the Bill of Rights for the important rights thus protected by the 14th Amendment and have ruled that it effectively extends the First Amendment’s guarantees vis a vis the federal government to the states and their subdivisions. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments could extend the Bill of Rights’ constraints to state and local governments.

    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.

    As for your irritation with retailers, billboards, and such that say or don’t say things to your liking, that has nothing to do with the constitutional separation of church and state, which constrains government, not individuals.

    Nor should it 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.

    • Chris Hitchens

      Yet, we now have a gubmint that says some religious dogma is beyond the pale and cannot be tolerated. No, not snake handling by kids, but opposition to contraception/abortion. The Holy One Himself, Lord Obama, has decreed that contraception and abortion are sacraments in the Church of America. And all shall pay for these sacraments.

      All you stupid Roman Catholics shall submit or you shall be taxed into submission.

      (Get with the program, it’s the 21st century, for chrissakes!)

      • DougIndeap

        I think you misapprehend the scope of free expression of religion. Like all our freedoms, it is not absolute and boundless. Law, by its nature, involves an element of compulsion. Confronted by questions about the government requiring or prohibiting something that conflicts with someone’s faith, the courts have generally ruled that under the Constitution the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or broad classes of people (e.g., laws concerning pollution, contracts, torts, crimes, discrimination, employment, etc.) and can require everyone, including those who may object on religious grounds, to abide by them. (E.g., http://supreme.justia.com/cases/federal/us/494/872/case.html) When the legislature anticipates that application of such laws may put some individuals in moral binds, the legislature may, as a matter of policy and grace (not constitutional compulsion), provide exemptions or otherwise accommodate conscientious objectors.

        • enness

          It’s also on the government to prove that its concern outweighs that of those individuals, is it not?
          As for the idea that directives like the HHS contraceptive mandate do not target certain religions, I may not be a lawyer but I do not buy it. Really, why the need for compulsion to uniformity unless some major group could be counted upon to object, and what other major group could have been expected to object to every aspect of it but the Catholic Church?

          • DougIndeap

            If a statute is challenged as contrary to the Constitution, the government need not justify a rule of general applicability that burdens an individual’s free exercise of religion by showing that it furthers a compelling government interest. If a statute is challenged as contrary to the Religious Freedom Restoration Act of 1993, the government may need to make such a showing.

            Reasonable people may differ, I suppose, about whether the HHS contraceptive mandate targets certain religions. Generally, though, if a legislature states a plausible purpose for a rule of general applicability, courts are loathe to find that the legislature is trying to pull a fast one and really has an invalid purpose in mind. Just because a law does burden some individuals’ free exercise of religion is generally not enough to prove that that is the very purpose the legislature had in mind.

    • enness

      Believe it or not, I was eager to see what such a response would look like. Thank you.

  • Sacred Library

    “Remember Henry VIII? Remember him executing St. Thomas More for refusing to promise his loyalty to Henry as Head of the Church? THAT’s establishment.”

    America seems well on its way toward this very thing. Following Obama’s speech at a high school in Sandy Hook, Conn., where people of different faiths attended, the media gave Obama much attention and called it an “interfaith service” as though Obama is the minister of new kind of mongrelized American religion. There was even an article on the so called “CNN belief blog” by a “religion scholar” who portrayed US Presidents as “pastors in chief” and near about swooned over Obama’s speech and at the end hailed him as “pastor in chief” of America. No one voted for Henry VIII, but this country actually voted for this. May God grant us the grace to refuse to call Obama or any president our “pastor in chief”. St. Thomas More, pray for us.

    The article hailing presidents and Obama as pastor in chief is here: http://religion.blogs.cnn.com/2012/12/17/my-take-obamas-newtown-remarks-show-presidents-as-pastors-in-chief/

  • Tony

    Doug mistakes the meaning of “people” in the first sentence of the Constitution. It refers to the people in their capacity as a governing body, not to individuals. The Constitution is meant to be a blueprint for the establishment of a certain mechanism of government — by-laws, we might say — adjudicating among different zones of authority and responsibility. It was not meant to establish a state, but to establish a more perfect union among already established states. Therefore there was no reason to include in THAT Consititution the more specific language regarding religion and governance that we find in the state constitutions; in fact, that would have been seen as an encroachment upon both the state and the “people,” again, not individuals, but the populus, the people in their public roles. All of this has been inverted, now; the “people” are accorded no rights at all, none. Had anyone at the time foreseen that the Great Blueprint for State Interrelationships would become a bludgeon against the people and their folkways, much less against the public (I mean, BY THE PEOPLE) expression of devotion to God, they would have cast their lot with the more distant King George. That splash you are hearing is from the shades of the men at Boston Harbor — retching over the side of the boat.

    • DougIndeap

      No mistake at all. Nothing I said supposes a meaning of “people” such as you posit. Nor does anything I said suppose that the Constitution establishes a state; indeed, it does not; it does, though, establish a government. Moreover, that the government established by the Constitution is one of limited, enumerated powers (with all other powers being reserved to the states and the people) does not in the least conflict with the intent of the founders to separate that government and religion. Indeed, some founders were motivated to take that position in order to leave such matters to the individual states, most of which then had established religions as you note.

      Nor does the separation of church and state somehow deprive the “people” of rights. 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.

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  • Robert

    The church should control the state in an ideal situation. But with the rise of the liberal state it becomes necessary for the church to oppose the state. However, the state still contains the vestiges of the old state which was controlled by conservatives and Christians. If this state is completely destroyed by anarchy then a situation such as occured in the French revolution could happen again.

  • Pat

    Tocqueville explained that to the Americans “government meant rights” so “he never obeys another man, but justice, or the law”.
    Churches have no role in government because they are not voted by THE PEOPLE to pass legislation. Any action by churches to sway public opinion on political issues should be discouraged since it is disrespectful to the “rule of law”.

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