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Doctrines that creep in: Separation of church and state

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There are doctrines and beliefs that creep into foundational, religious practices that are based neither on fact nor Scripture. Some of them are relatively harmless – relegating their negative impacts to heated quarrels between those of opposing views. Others can lead to an eternity without God and being cast into the lake of fire – such as the view point that all religions are like separate roads up a mountain; they may go a different way, but in the end they all lead to the same place.

Though not in religious doctrine, there is a general belief today that “separation of church and state” is in the U.S. Constitution and thus, any recognition of religion in public, whether that be a prayer, display of the Ten Commandments, or a manger scene display on public property, is unconstitutional. The reality is “separation of church and state” is not found anywhere in the U.S. Constitution or its Bill of Rights.

The principle of “separation of church and state” as a judicially determining factor was first cited in Everson v Board if Education decided on February 10, 1947. This case was not about prayer in school or the Ten Commandments in a courtroom or even manger scenes. In this case, a New Jersey taxpayer challenged the validity of the district to use tax payer revenues to reimburse parents for the fares they paid to transport their children to Catholic schools.

In this decision, Justice Hugo Black wrote the majority opinion in which he cited another U.S. Supreme Court case, Reynolds v. United States (1878). In Reynolds v United States, George Reynolds, a resident of the Utah territory and a Mormon was convicted of polygamy. Reynolds' defense was that his religion required him to marry multiple wives and if he did not, he would faced eternal damnation and thus the law against polygamy violated his religious freedoms and was therefore, unconstitutional. Chief Justice Morrison Waite wrote the opinion in a unanimous decision that “the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

“So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? [98 U.S. 145, 167] To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

What made Reynolds v United States of such interest is that Chief Justice Waite made the following observation, “Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: 'Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and 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 and 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 man to all his natural rights, convinced he has no natural right in opposition to his social duties.' Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”

The Danbury Baptist Association was concerned that the government might enact laws that would punish men for their religious beliefs. So, they wrote a letter to then President Thomas Jefferson expressing their concern. Jefferson's entire response then became part of Reynolds v United States. But in Justice Black's opinion of Everson v Board of Education (where he cited Reynolds v United States), the only part of Jefferson's letter he quoted were the eight words “a wall of separation between church and State,” thus leaving out the Danbury Baptist Association's and Jefferson's entire context.

Interestingly, Justice Black also commented, “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 form 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 …” So, he is acknowledging the First Amendment's intent is to keep the government out of religion.

In TOWN OF GREECE, NEW YORK v. GALLOWAY ET AL. (decided by the U.S. Supreme Court in May 2014), citizens who attend meetings to speak on local issues filed suit, alleging that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.” Supreme Court Anthony Kennedy wrote for the majority stating, “Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Marsh v. Chambers, 463 U. S. 783, 792. In Marsh, the Court concluded that it was not necessary to define the Establishment Clause’s precise boundary in order to uphold Nebraska’s practice of employing a legislative chaplain because history supported the conclusion that the specific practice was permitted. The First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses have maintained the office virtually uninterrupted since then. See id., at 787–789, and n. 10. A majority of the States have also had a consistent practice of legislative prayer. Id., at 788–790, and n. 11. There is historical precedent for the practice of opening local legislative meetings with prayer as well. Marsh teaches that the Establishment Clause must be interpreted“by reference to historical practices and understandings.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 670 (opinion of KENNEDY, J.). Thus, any test must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.”

Justice Kennedy also wrote, “463 U. S., at 786. Dictum in County of Allegheny suggesting that Marsh permitted only prayer with no overtly Christian references is irreconcilable with the facts, holding, and reasoning of Marsh, which instructed that the 'content of the prayer is not of concern to judges,' provided 'there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.'” So, Justice Kennedy is saying prayers have long been a part of various U.S. Government practices and are allowable as long as there is no intent to actively promote one form of religion over another and as such, is constitutional.

The reality recognized by the courts is that historically, oppressive governments have employed mandated religions to punish those of no faith or of differing faiths. The first amendment was designed to protect citizens from government mandated religion.

During the very first presidential inauguration, President George Washington and members of the Congress attended a service at St. Paul's Chapel in New York City. Many of those were responsible for the Bill of Rights. Furthermore, in his first inaugural address, President Washington said, “... it would be peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe, who presides in the Councils of Nations, and whose providential aids can supply every human defect, that his benediction may consecrate to the liberties and happiness of the People of the United States, a Government instituted by themselves for these essential purposes: and may enable every instrument employed in its administration to execute with success, the functions allotted to his charge. In tendering this homage to the Great Author of every public and private good I assure myself that it expresses your sentiments not less than my own; nor those of my fellow-citizens at large, less than either. No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency.” Would our founding fathers have violated their fundamental beliefs on such a historic day if they believed that separation of church and state meant all government affairs had to be secular?

The U.S. Constitution itself contains the words, “Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven.” I suppose if references to Christianity were not allowed in U.S. government, then the U.S. Constitution would itself be unconstitutional, which of course is ridiculous. It is obvious to me that the founding fathers, the writers of our Constitution, did not consider public prayer or profession of God a violation of the Constitution.

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