Separation of Church and State part I

This started as a research paper for an English Composition class. The focus of the paper was to pick a topic that could be debated and may even stir up controversy. (I think i succeeded there…)
There is so much ground to cover on this one subject. So I focused on the origin of phrase “Separation of Church and State”(SCS) and how it has been (incorrectly) linked to our Constitutional Amendments.

At some other time I may decide to delve into the actual impact of the amendments and what they mean, our position and duties as followers of Jesus, or the myriad other possible topics related to SCS.  So with that in mind, I labeled this “part I” but I don’t know when I will be prompted for the follow ups.

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Separation of Church and State:
an Analysis of Historical Context

Gary A. Cartagena

Colorado Christian University – Student

Abstract

In case after case, the policy of ‘Separation of church and state’ has been cited as a mandate from the founders of the constitution. In this document I will discuss the origination of the policy. I will share how it came to be associated with the First Amendment and I will uncover errors in interpretation of the original words.

Keywords: Separation of Church and State, Establishment Clause, Free Exercise Clause

Separation of Church and State:
an Analysis of Historical Context

In the last 20 years, I have seen the phrase “separation of church and state” used to both fight and defend different discriminatory practices.  There is no difficulty finding examples on the internet of lawsuits to remove religious displays from public view.  Another Google search can quickly locate lawsuits filed to challenge policies that suspend students’ right to gather and pray in public schools.  A third look through recent court cases easily displays cases where the rights of students are violated as they are forced to participate in a religion based programs against the wishes of the parents or student.  At the core is the policy referred to as the “separation of church and state.”  Where does this policy come from and has it been correctly attributed to its source?  Is this concept of separation even in our constitution? I suggest that the link between the phrase and the U.S. Constitution is not in agreement with the source of the phrase nor the author.

 

Legal Basis

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (U.S. Constitution)

In the United States, the citizens’ rights of freedom of speech and the freedom to peaceably assemble are affirmed by the first amendment of the United States Constitution.  Two other rights are affirmed by this amendment. The first is the Establishment Clause which guarantees that Congress cannot make any law that establishes, promotes or prohibits any given religion.  The second is the Free Exercise clause which states that Congress cannot make any law that prohibits the activities of any given religion.  In combination these clauses prevent government organizations from promoting or regulating any specific faith or faith based group as it relates to how it functions.  However, these clauses also provide us with the freedom to form churches and share faith. For Christians like myself, this means we are free to spread the gospel of Jesus Christ as written in the Holy Bible.

* A friend pointed out that “There are five freedoms outlined in the First Amendment: Freedom of speech, the press, religion, assembly, and petition. You listed only three.”  I did not forget the other two.  Only three of the five relate to the SCS issue as discussed. *

Although the First Amendment guarantees our freedoms to practice and share our faith, in our history the Supreme Court, has construed the text to mean more than was written.  Cornell University Law School Legal Information Institute wrote: “The First Amendment has been interpreted by the [Supreme] Court as applying to the entire federal government even though it is only expressly applicable to Congress.” (n.d.)   The First Amendment has been used to defend our rights to practice religion.  It has also been used to suppress our rights through the contradictions in interpretations of different courts and judges.  Rulings have gone back and forth on where we can worship, or erect displays of our history as part of our faith.  There have even been discordant rulings on whether or not we can pray, sing, and how we share our faith with others.  Even with these contradictions and stretched interpretations, there is no evidence of a true separation of church and state in the text of the First Amendment.  The rights protected are those specific to freely practice your faith and the freedom from a state established or endorsed religion.  We will have to go the origin of the phrase to see how it was connected to our Constitutional rights.

 

Origin of the Policy

Like every epic idea, the policy of separation of church and state (the Policy), has a convoluted origin story.  While many people believe that the Policy is cradled within the words of our Constitution, the concept predates the Constitution as a means to keep religion free from oppressive rule. (E. Pearson, n.d.)  In 1649 the Maryland Toleration Act allowed Maryland colonists to worship however they deemed appropriate.  The Policy had primordial prototypes in many colony formations, the laws and acts themselves where targeted at granting religious freedoms to individuals.  Even with early progenitors in these Acts, the phrase “separation of church and state” was first penned in a political letter by Thomas Jefferson in 1802. (E. Pearson, n.d.)  This letter was sent to the Danbury Baptist Association in Connecticut, and was focused on calming rising anxieties over possible interference of Danbury church practices by a proposed appointment of a state church. (J. Hutson, 1998)

 

Errors of Interpretation

Was Jefferson’s the correspondence to the Danbury Baptist Association intended to expound on foundational principles of the Constitution?  It seems unlikely.  In closing his letter Jefferson ended with a statement of mutual faith, “I reciprocate your kind prayers for the protection & blessing of the common father and creator of man” (1802).  If this were intended to be a communication written by a government official, citing the official position of a separation policy, the closing statement would be contradictory to that theme.  Additional findings put the letter in its correct context.  In 1998, Mr. James Hutson, Chief of the Manuscript division of the Library of Congress, published findings of the FBI that contained drafts of the letter and which clarified its intent. In this article Hutson wrote, “for the Danbury Baptist letter was never conceived by Jefferson to be a statement of fundamental principles; it was meant to be a political manifesto, nothing more.” (J. Hutson, 1998).  With these findings it seems that Jefferson’s letter to the Danbury Baptists Association was a communication authored by a politician seeking approval of his constituents.

How did the Policy and the First Amendment get so entangled?  It was in a bigamy case in the Utah territory Supreme Court, Reynolds v. U.S. that the letter was first quoted and has been erroneously linked Jefferson’s metaphor to the First Amendment and thus U.S. Policy for over a century.  In Everson v. Board of Education, Justice Black once again quotes the text of Jefferson’s letter out of context as part of his decision.  As is common in cases of law, one case became precedent for another case and the link became an assumption of facts.  I propose, based on the FBI findings in 1998, that in each of the cases where Jefferson’s letter to Danbury is quoted that those words have been misinterpreted.

References

Cornell University Law School, Legal Information Institute (n.d.). First Amendment: an overview. Retrieved

March 13, 2015 from: https://www.law.cornell.edu/wex/first_amendment

Hutson, J. (1998).  A Wall of Separation – FBI helps restore Jefferson’s obliterated draft.  Retrieved March 15, 2015

from:  http://www.loc.gov/loc/lcib/9806/danbury.html

Jefferson, T (1802) Personal Communication. Retrieved March 15, 2015 from:

http://www.loc.gov/loc/lcib/9806/danpre.html

Pearson, E. (n.d.). Separation of Church and State. Retrieved March 13, 2015 from:

http://teachinghistory.org/history-content/ask-a-historian/24441

Everson v. Board of Educ. of Ewing, 330 U.S. 1, 15-16 (1947). Retrieved from Cornell

University Law School, Legal Information Institute website:

https://www.law.cornell.edu/supremecourt/text/330/1

Reynolds v. U.S. 98 U.S. 145, 164 (1878). Retrieved from FindLaw website:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=98&invol=145

May Jesus have His way with your day

  – Gary C –

Gary Cartagena is a dedicated husband and father.
He is Founder and consultant for Tek Management,
Founder of the Men’s Leadership site: CalebStrong.org,
Co-Founder of the online Bible study app: BibleCounts

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