Who here believes US law specifies separation of church and state?

Question

I was disappointed today to read the (to me, ignorant) cacophony from answerers on another question invoking the constitution and its "law of separation of church and state." I submit that there is no, nor has there ever been, such law.

The first amendment to the constitution does state that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". A US Judge in Missouri has today declared unconstitutional and "scolded" a school board for allowing an outside group (the Gideons) to distribute bibles to public schoolchildren, in violation of the amendment stated above.

How can this constitutional amendment have been violated when congress has made no law? I'm sure nobody in congress was even aware of the actions (or, technically, inaction) of this school board before the case was brought by the ACLU.

Anyway, I'm not looking for a lot of back-and-forth name-calling here ... I'd be interested in seeing some intelligent discourse.

I really only noted the MO case as a point of reference - it turns out that only an injunction was issued: a decision is not expected for "months." My interest was simply piqued by the multiple exhortations of answerers in that thread about the "law of separation of church and state."

Thank you, Will, for sending me scurrying back to the article for a link to the (non-existent) ruling.

carole & Garrett - You miss my point: I'm not making the "audacious" statement that the constitution (and its amendments) aren't law ... simply that neither law NOR the constitution actually specify the oft-referenced separation.

le fou (et al) - I understand you to say separation is law because the judiciary has interpreted it to be law. Perhaps this is the "legislating from the bench" we hear so much about these days. Good luck on the insanity thing (his name, people).

Several have said, essentially "I think it should be that way, so it should." *credero ergo lex*?

more to follow if I can ...

andrea - I'm happy with the common understanding and interpretation of the sixth amendment, even if it doesn't include the phrase "fair trial." I hope you are.

Several of you have inferred in me a non-existent religious bent. I am a Christian, but also a student of religion, and believe strongly that each person is entitled to and responsible for his or her own beliefs or lack thereof. I am therefore unswayed by arguments, either for or against, Christianity or any other religion in this discussion.

Shades - I'm pretty sure you meant to reference "cojones" instead of hawiian holy men.

Mark M - You may have me pegged ... I suppose I'm a strict constructionist: If you're going to have a law - especially one which elicits such acrimony - then you damned well better write it down somewhere so it's not so open to (mis-)interpretation.

Garrett - You might be surprised at just how closely Jefferson's missive to his nephew might match one of my own.

Thank you all for the discussion.

Answer 1

It's not a law, so you are correct.

Thomas Jefferson used the phrase in 1802 in his response to the Danbury Baptist Association, which had written to the president to congratulate him on his electoral victory. He wrote, “…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.”

Jefferson’s acknowledgement of this federalist structure is evident in his conduct in office: he refused to proclaim federal days of prayer or fasting while president, breaking with the tradition of his predecessors; on the other hand, he drafted resolutions in support of such days of prayer while in the Virginia House of Burgesses and as governor of Virginia. Jefferson, Dreisbach shows, held a jurisdictional view of the First Amendment.

Despite Jefferson’s nuanced thought on the relationship between church and state, jurists have seized on one phrase in his letter, presenting a caricature of Jefferson’s views to promote their secularization of the U.S. government—which Dreisbach suggests Jefferson might have found objectionable.

see the whole book review:
http://www.catholicleague.com/research/dreisbach.htm

Answer 2

Unlike some who say there is no separation of church and state, you do know how the First Amendment begins, but do you really understand it? In an 1892 letter, Thomas Jefferson said this was meant to build "a wall of separation between church and state". You are saying that the Constitution isn't law. How audacious! How ruthless some people are in trying to force their beliefs upon everyone! I see all too many trying to justify violations of that part of the First Amendment. Some even deny it exists. Thomas Jefferson would spin in his grave if he could know of such doings. He did not want the Bible taught in public schools, and that is a fact that can be found in his biographies. He told his nephew in a letter to study the Bible as he would any other book, i.e. critically, and that after such a study, one might conclude that there is no God. Jefferson said he wouldn't disagree with such a conclusion. George Washington, John Adams and other Founding Fathers said things that indicate they would disagree with you.

Answer 3

Today, when laws are passed, they are accompanied (on file) by 'Articles of Consideration', which clarify the intent of the law, and the reasoning and precedents that are behind it. However, this was not always the case, and Jurists and legal scholars must often look deeper for clarification of intent and legal precedent pertaining to older legislation. In the case of 'seperation of church and state', the intent of the legislation is derived from correspondence by Thomas Jefferson... he being the chief architect of the First Amendment... to the Danbury Baptist Association in 1802 to answer a letter from them written in October 1801. It included this sentence:

"...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 AND STATE." This is known as the 'Establishment Clause', and is taken as a clear statement of the intent of the First Amendment, and forms the basis for evaluating and interpreting whether or not laws comply with the intent of the First Amendment.

Public schools, as a government entity, carry behind them the coercive power of the state. Permitting bibles to be passed out at school would constitute a tacit approval and, thus, promotion of, a particular religion. It should most definitely be prohibited.

Answer 4

I knew that the words you have here are the words in the constitution, but they form, literally, a separation between religion and the state.
Passing out Bibles, with no connection to the school work, does advocate (a translation of "respect" in the quote to what it means in modern day English) a religion, Christianity. If you are talking about excuses for slavery and you read a quote from the Bible about Ham (the Hammeric Curse deal) you are not breaking that separation. The Bible is being used as a resource, and is connected to the subject, not as an instrument to force Christianity down the students' throats.
Congress has made a law, an Amendment even. Whether or not Congress knew about the case has nothing to do with the subject at all. There are hundreds of cases on free speech, and freedom of the press, congress doesn't know about all of those. Perhaps the congressman or woman from that state knows of it, but it doesn't matter. That is what our governmental system is made for. Only the people who are responsible need to know, so everyone can do their job, instead of the president solving every single problem in the country.

Answer 5

You're right. There is no constitutional separation of church and state. That concept originated in a letter by Thomas Jefferson, but was never part of our Constitution. What we are seeing in the courts today is part of the ACLU's plan to secularize the country. They know where all the 'friendly' judges are, so they file these "separation of church and state" lawsuits in these judges' home states. Basically, these people are perpetuating a lie. Then, once they win in court, they can point to that victory in future cases, arguing that there is judicial precedence. It's very dangerous, and this is one of the reasons Bush complains about "activist judges".

You're also right that the establishment clause in the First Amendment states that CONGRESS shall make no law establishing an official religion. It says nothing about a local judge displaying the 10 Commandments in the courthouse, etc.

Unless more people are made aware of this, the lie that is the "separation of church and state" will continue to progress. The fact that these people are so ignorant of the Constitution is astounding.

Answer 6

People today are stuck on the verbiage of the law and not the intent. The first amendment was specifically intended to prevent the government from establishing a national religion or enforcing a particular sect of a religion. By promoting such actions as banning all religion, this judge is actually violating the law by enforcing Atheism!

Our Constitution was drafted by Christians, with Christianity in mind (have you ever been in a courtroom and swore on a Christian bible to tell the truth?). I doubt the writers of the Constitution could ever envisioned a day when their own words would be used against them.

This is not say that we should discriminate against other religions. The law intends that all should be free to worship (or not) as they choose.

Answer 7

You're getting into the loose vs. strict constructionalist argument here. A strict constructionist (as you seem to be) looks at the words of the amendment literally. A loose construction gives the judge more leeway to interpret the intent of the language of the Constitution when rendering a judgement. Does a group of people handing out books sponsored by and supporting a particular religious view to kids in a publicly funded facility being educated by public funds relate to "establishment of a religion"? I'd say so, but that's me, the loose constructionist.

Answer 8

Who says judges actually consider the Constitution when making rulings? If this one goes to the Supreme Court, it could and SHOULD be struck down as prohibiting the free exercise of religion.

The first clause, as I understand it, has to do with the government establishing one church as the official, state church, the way the Anglican church is the state church of England, or the Presbyterian of Scotland. To the framers of the Constitution, this was not only desireable in view of the state-and-church conflicts in Europe, but also because virtually all of these denominations were represented in America by the time the Constitution was written, along with any number of new splinter groups. To have allowed the government to choose one church as official would have destroyed the union they were trying to create.

Note to Andrew w: if the churches WERE running the government no judge would be banning church related activities, the posting of the 10 commandements in courthouses or prayer in school. Wake up.

Answer 9

You are correct, the law never uses the words "Separation of Church and State." However it is generally acknowledged that that is what the First amendment meant. And the Supreme Court decided that it along with the some other parts of the Bill of Rights were binding on state and local levels by the 14th Amendment, so it is a law.

Obviously it is still debated, but there is legal precedent for it being used as law and acts gong against it being unlawful.

Answer 10

I'm glad someone else finally understands that the words "separation of church and state" are not in constitution. To me all the constitution is say is that the government can't hold any religion higher then any other religion and people can worship whatever they want. It is meant to protect the church from what heppened in England. This has nothing to do with people handing out Bibles. Thank you for possibly removing some ignorance from a few people's lives.

Answer 11

I think you're misunderstanding how US law works. Law is not simply legislation. If it was, you'd be right--there is no written legislation declaring a "separation of church and state." However, the role of the judicial branch is to interpret the laws that do exist, and these interpretations become part of our legal system in and of themselves. The judiciary interpreted the constitutional protections against government imposition of religion as requiring a separation of church and state, and as such, it is law until it is either reinterpreted by the judiciary later, or specifically changed by the legislature.