Those among us who, with good intentions, want their religious beliefs spread among society with the help of, or complete absence of, government intervention and who believe the Establishment Clause of the First Amendment does not require the federal government to restrict religious activities from government property have a fundamental misunderstanding of the Thomas Jefferson’s intent in creating the foundation of the Establishment Clause.
While the First Amendment does not explicitly say that there must be a “wall of separation,” its underlying foundation is quite clear. There must be a wall and it must be untraversable in both directions.
In order to understand that this was Jefferson’s intent, it may be necessary for reader to read “The Virginia Act for Establishing Religious Freedom. This document lays out what Jefferson meant by the term “religious liberty.” Secondly, one should read his Letter to the Danbury Baptists, where he states that the Establishment Clause has established a wall of separation between church and state. I have provided the texts of both documents below:
Thomas Jefferson, 1786
Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind; that our civil rights have no dependence on our religious opinions, more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to the offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.
Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.
And though we well know this Assembly, elected by the people for the ordinary purposes of legislation only, have no powers equal to our own and that therefore to declare this act irrevocable would be of no effect in law, yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.
The Final Letter, as Sent:
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.
The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.
Jan. 1. 1802.
Thus, the intent underlying the Establishment Clause and the Religious Freedom Clause is clear; the government must remain neutral in matters of religion.
But, how does this create the right of government to restrict religious activities from public property?
In 1971 the Supreme Court of the United States (SCOTUS) handed down its decision in Lemon v. Kurtzman. In that decision, the Lemon Test was established. I will not go into details of the case or the decision, but simply restate the test:
1. The government’s action must have a secular legislative purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
3. The government’s action must not result in an “excessive government entanglement” with religion.
In a debate recently, my interlocutor implied that the Establishment Clause does not prevent government from establishing “a governmentally endorsed Church.” I pointed out that this assertion flies in the face all three parts of the Lemon Test.
Too, it is argued that the law should not be applied to the states.
The 14th Amendment says that no state may deny any citizen “equal protection under the law.”
Were a State or local government to establish/recognize a particular religion, then it is by that act recognizing an establishment of religion and raising its public status above all others. As well, the government would not be providing its citizens who adhere to other religions (or adhere to no religion at all), equal protection under the law and thus, the government is entangling itself in matters of religion. This has been upheld by the SCOTUS time after time and this is what establishes the government’s obligation to protect the right of all U.S. citizens to have their religious beliefs viewed as equal to all by any governmental organization. Otherwise their status would be unlawfully diminished in their community.
The logic behind disallowing any particular religion to have government endorsement has been established since America was first settled. Our schools tend to leave out certain aspects of this country’s history, leaving students with the impression that when settlers came to this continent to escape religious persecution, they found it. Omission of the details leaves students with a false sense of American Religious history.
Here is probably the first bloody religious conflict on the North American Continent:
Long before the Mayflower sailed, the French, Protestant Huguenots settled in Florida seeking religious freedom. The Catholic Spanish, already there, were incensed. They attacked, overcame the Fort Caroline French colony and then proceeded to hang every person left alive. The reason? As the Spanish commander wrote to King Philip II, “they were scattering the odious Lutheran doctrine in these Provinces.”
This was an example of bloody religious intolerance on this continent and there was much more as the centuries past, but I will spare the reader. Such factual history can easily be found online.
Still, even though such warfare no longer occurs in the U.S. (barring radical Islam, of course) there is an incessant cold war fought by Christian fundamentalists against those who understand the Establishment and Religious Freedom clauses of the First Amendment.
Most fundamentalists are open about their desire to promote Christianity in schools, and even Christian creationism in science classes. Many want to eradicate the teaching of evolution altogether. Some fundamentalist teachers impose their views on their students. But do we really want our schools divided, where Christian students and teachers tease and bully the obviously non Christian students (evidence of this can be found online)? Do fundamentalists really believe Christians have a right to proselytize and coerce non Christian students? Do we want non Christians to remain silent and “go along to get along?” If you are protestant, would you want a Catholic teacher indoctrinating your child or vise versa? How about Wicca or Islam? The Establishment Clause protects all citizens and their children against such insensitivity and intolerance.
Parents of other religions (or no religion) have the right to bring their children up according to the dictates of their conscience without government interference, but with government protection.
Finally, secularism can indeed be carried too far by officials who don’t understand what expressions students are allowed with respect to their religion. I don’t object to–and I don’t think there is any law against–religious clubs in schools holding the same status as philosophy clubs. Such students cannot, however, in any way foster their beliefs on other students and teachers cannot show support for any particular religious club. This means, as well, that Muslim, Wiccan, and atheists students may have their clubs, and all of society may worship in their holy places or not worship at all, according to the dictates of their conscience.
This is true religious freedom, and this is empathy for every citizen’s beliefs in matters of religion, brought to us courtesy of Thomas Jefferson’s Wall of Separation–the Establishment Clause and the Religious Freedom Clause of the First Amendment to the Constitution of the United States of America.
–Max T. Furr is author of The Empathy Imperative–