IT'S TIME to get this straight: The phrase, “separation of church and state,” does not appear anywhere in the Constitution of the United States. What does appear in the Constitution, in the First Amendment, is this: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
So where does that pervasive phrase, “separation of church and state,” come from? It comes from a personal letter Thomas Jefferson wrote on Jan. 1, 1802, in response to the Danbury Baptist Association of Connecticut. But over the last 40 years Jefferson’s phrase has been extricated from its context, stood on its head and then brazenly cited as if it were immutable constitutional law.
The truth is Jefferson applied the “separation” phrase in his personal letter to reassure the Danbury Baptists that there would never be a “Church of America” as there had been a Church of England. And he also wished to reassure the Baptists that freedom of religion – like all fundamental human rights – is God-given, not government-issued. And that being true, the right to free expression of religion could never be revoked in the United States. Jefferson’s clear belief was that “a wall of separation” is necessary to prevent government from meddling in or restricting religion, not to prevent the free exercise of religion in public life: “I contemplate with solemn 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.”
And yet an Oct. 8, 2004, report by the Jacksonville Times-Union’s Jeff Brumley reconfirmed the inability of the current members of the U.S. Supreme Court to do their jobs, which is to interpret the Constitution, not to rewrite it, and to consult pertinent historical documents – including the personal letters of Thomas Jefferson – in their historical contexts, not to reinvent them. The Court had been asked to hear an appeal by the chief justice of the Alabama Supreme Court, Roy Moore. You may remember Moore’s dastardly deed: He stood up for the Ten Commandments.
That’s right. Moore was deemed unfit to serve the people of Alabama because he believes that displaying the Ten Commandments in a state courthouse is a good – and constitutional – act. He, of course, is right.
Moore is right – and the ethics panel that expelled him, the federal judge who upheld that expulsion, and the U.S. Supreme Court that refuses to hear his appeal – are wrong.
But don’t take my word for it. Instead, consider these words from the late U.S. Supreme Court Justice William O. Douglas, writing not in a personal letter, but for the majority in Zorach v Clauson (1952):
“We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary… When the state encourages religious instruction or cooperates with religious authorities…it follows the best of our traditions… We find no constitutional requirement which makes it necessary for government to be hostile to religion or to throw its weight against efforts to widen the effective scope of religious influence.” That is Jeffersonian.
Moore, by placing a Ten Commandments monument in the Alabama state courthouse, attempted to “widen the effective scope of religious influence.” Douglas would have been proud of Moore but embarrassed by the midgets who have succeeded him on the nation’s highest court. For these justices, swayed not by bedrock constitutional principles but by the revisionist whims of contemporary sociopolitics are, at best, unwitting accomplices to the dismantling of those moral and ethical principles upon which the United States was founded and that are required for the survival and success of American democracy. And so a justice placing a 5,300-pound Ten Commandments monument in the Alabama state courthouse, a city council sponsoring a nativity scene on a courthouse lawn in Iowa, or Gov. Jeb Bush providing Torahs, Korans and Bibles for visitors to the statehouse in Tallahassee, are exercising their constitutionally guaranteed right of free religious expression under the First Amendment – and under Jefferson’s “separation” concept.
It’s time to get that straight.
-- Mike Kielkopf
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