Monday, May 11, 2009

‘Separation of Church and State’ is a Lie

Bill Wilson had an excellent commentary last Friday (May 8, 2009) in his Daily Jot on the so-called ‘separation of church and state’ concept or interpretation. The following is an excerpt from article, “Constitutional Freedom and This Present Darkness.”

“. . . The Founding Fathers of America were very precise in their writing of the Constitution. Their words were direct in that they did not want to be misinterpreted, but like those who misinterpret the Bible, there have been gross misinterpretations of the Constitution. One such misinterpretation is separation of church and state.

“The First Amendment to the Constitution reads: “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.” This specifically means that government is “hands off” on anything that restricts religion, freedom of speech, the right to assemble peaceably and to petition the Government for grievances. It means that religion and free speech have free reign—it can be practiced anywhere, anytime, especially on public property, because Congress cannot restrict it and if the other branches try they are violating the Constitution . . .

· Laws that restrict speech, such as hate crimes;
· laws that restrict establishment of religion and the free exercise thereof such as
. . . hate crimes,
. . . prayer in public places, at government functions, at public school athletic events;
· those that prohibit displays of Christianity in public places
are unconstitutional by the very definition of the Constitution. They were not changed by an explicit and authentic act of the whole people, as Washington suggests is the only way to change the Constitution. It is time for Christian Americans to stand up and say no to this overreaching government of might makes right . . .”


  1. Our Constitution establishes government and limits that government's power with respect to religion in two primary ways. First, it guarantees to each individual freedom to express and practice his or her religious views. Second, it precludes the government from taking steps to establish religion. These Constitutional principles have been described with the metaphor "separation of church and state." Whatever one thinks of the metaphor, the principles are real and well established in our law and culture. No amount of hand waving about lies or myths will dislodge these bedrock principles.

    This post also illustrates one of the most common misconceptions about separation-of-church-and-state issues, i.e., the conflation of the "public square" with government. It is important to distinguish between government and individual speech. Under the First Amendment, individuals are free to express and practice their religious views publicly as well as privately. The government, though, is constrained under the First Amendment not to promote or otherwise take steps toward establishment of religion. When an individual acts in an official capacity on a government matter (e.g., a public school teacher teaching students in a classroom), he or she should conform to the First Amendment constraints on government. When an individual participates in an official event as an individual rather than as a government agent, he or she presumably has the freedom to express religious views. While figuring out whether someone is acting in an official or private capacity in any given circumstance can be complex, recognizing the distinction is critical.

    The First Amendment thus 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.

    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 transform our secular government into some form of religion-government partnership should be resisted by every patriot.

  2. You are the one who has the misconception. The first amendment says CONGRESS (not government) shall make no law. A school teacher, a judge, or city council is NOT Congress and the founding fathers never intended for it to be interpreted that way.

    You wrote:

    While figuring out whether someone is acting in an official or private capacity in any given circumstance can be complex, recognizing the distinction is critical.

    The problem in our country is that we have too many people "acting in an official capacity". The complexity of the problem goes away when government obeys the other parts of the Constitution and stops meddling in areas (such as education) that it shouldn't.

  3. Matt,

    If you understand law, you understand that simple semantics will not cut it in the real world. Courts confronted with applying the law in the real world have wisely interpreted the First Amendment to constrain actions of the Executive Branch as well as the Legislative Branch, otherwise the Executive could promote this or that religion and effectively “establish” it as a matter of fact, eviscerating the intent of the amendment. The Executive, in any event, is supposed to act according to acts of the legislature. The courts also interpret it to constrain not just legislation, but any governmental actions (which also must ultimately be predicated on legislation) that promote (i.e., take a step toward establishing) religion as a matter of fact or law. They also interpret the 14th Amendment’s guarantee of privileges and immunities of citizenship, due process, and equal protection of the laws to effectively extend the First Amendment’s guarantees vis a vis the federal government to the states and their subdivisions--hence the law does reach the city councils and public school teachers. (While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments, e.g., the 14th, could extend the First Amendment's constraints to state and local governments.)

    With respect to whether too many people today act in official capacities, I suppose the most forthright answer is to welcome you to the twenty-first century and agree with you that it isn't as simple as the eighteenth century that the founders experienced. Fortunately, they were acutely aware that circumstances change over time and they drafted the constitution with the thought and hope that it would endure for many years through all sorts of circumstances beyond their experience and imagination.

  4. I agree with you that the Executive and the courts are constitutionally prohibited from from the same things as Congress is by the first amendment. But this is because they have no right under the constitution to do ANY legislation. So resorting to a stretching of the 14th amendment beyond its original scope is not necessary to prove this point. The 10th amendment says "United States" not "Congress", so it is understood that this limits the authority of all three branches to that which is explicitly written into the constitution. I'm not playing semantics.