Thursday, January 7, 2010

Separation of FACT and Fiction

Posted By on Thu, Jan 7, 2010 at 11:00 AM

click to enlarge cornerchurchandstate.jpg
​You'll want to be sure to mark your calendar for Historical Fiction Day coming up this Sunday, Jan. 10, brought to you by those paragons of ignorance and bigotry, the Family Action Council of Tennessee (FACT). Actually they're calling it Religious Freedom Sunday in Tennessee, but a quick read of the day's manifesto shows it up for the exercise in religious right historical revisionism that it really is. "The importance of this day," writes FACT's David Shelley, "is driven home by just how much we, as Americans, have forgotten about our heritage." Shelley goes on to make the tiresome observation that the phrase "separation of church and state," coined by Thomas Jefferson in an 1802 letter, appears nowhere in America's founding documents. The simpleminded mistake that FACT and other organizations comprising the Jesus-Industrial Complex make is assuming that the absence of the "separation" phrase in the Constitution means that the doctrine of separation has no legal value in our constitutional system. The First Amendment's Establishment Clause, says Shelley, "only prohibited the U.S. Congress from establishing a national religion; it said nothing about the states." Shelley goes on to note that the signers of the Declaration of Independence and the framers of the Constitution were all adherents of "the Christian religion in some form or fashion," as though the particular beliefs of those who founded the republic somehow exempts their religion from the secular principles on which they chose to craft its government. It's true, of course, that Jefferson's "separation" phrasing isn't in the constitution and that the Bill of Rights originally applied to the federal government and not to the states. But Shelley and FACT conveniently ignore the fact that the application of the First Amendment and the Establishment Clause to the states is longstanding, legally legitimate, and widely accepted in constitutional law. Even the Scalias and Thomases of the world understand that seeking original meaning in the Constitution doesn't render subsequent amendments and precedents meaningless. Shelly points to a 1947 Supreme Court decision that used the phrase "separation of church and state" as a basis for hoodwinking the public, which "has erroneously been led to believe that the 'separation of church and state' somehow requires the church...to stay out of matters of the public policy." It's worth taking a quick look at that case, which involved a challenge to public funding for transportation of children to private religious schools in New Jersey. There are three things to know about the case, Everson v. Board of Education. First, religion won in this case: a 5-4 majority held that the funding for transportation of kids to Catholic schools did not violate the Establishment Clause. Second, the majority opinion written by Justice Hugo Black, in upholding the funding, nonetheless paired the outcome with as clear an explanation of what the Establishment Clause means as you could hope for:
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
And third, the justices who disagreed with the outcome (in a dissent by Justice Wiley Rutledge) saw the facts in this case differently, but judged the meaning and reach of the Establishment Clause in a way that was strikingly similar to the majority's:
The Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.
Between the Fourteenth Amendment, subsequent cases on "incorporating" the Bill of Rights into state law, and decisions like this one revealing Supreme Court unanimity on the underlying meaning of the Establishment Clause, it is painfully evident that the church-state separation, although not articulated in those words in the Constitution, is a bedrock principle of American legal history and constitutional law. FACT concludes: "We have allowed irreligion to become the dominant religion. So, let's take the opportunity given us by Religious Freedom Sunday to 'correct' this deficiency and proclaim the truth about America's history." An alternative suggestion: Try reading some history before you proclaim the truth about it.

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