Friday, March 12, 2010

Separation of Church and State




 Thomas Jefferson

These are some of the most powerful words NOT found in the United States Constitution. What makes them so powerful? The complete and utter misconception that they are law. For those of you who are not familiar with the concept of separation, follow along as I show it's beginnings and the latest, twisted example of Thomas Jefferson's promise.

Before we get started, I want to put up some reference material which will be important to the blog post. It is the First Amendment to the Constitution of the United States. It reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
James Madison is the man who actually penned the first ten amendments to the Constitution, however, it is Jefferson who is primarily responsible for the concept of the separation of church and state that we know today. During 1801 and 1802, Thomas Jefferson was corresponding with a group of Baptists in Danbury, CT named Nehemiah Dodge, Ephraim Robbins and Stephen S. Nelson. The Baptists, concerned with political interference in the practice of their religion (i.e. the reason they left Europe) and with the fact that the Constitution did not specifically list freedom of religion as an 'inalienable right,' just as a freedom not to be prohibited, wrote a letter to President Thomas Jefferson expressing their concerns. It should be emphasized that their concern was for the free practice of religion, not the protection from religion.

In his return letter to the Danbury Baptists, Jefferson reaffirmed the protection granted by the Bill of Rights for the free practice of religion and declared that the First Amendment in essence buil[t] a wall of separation between Church & State. Jefferson's intent, as well the pleadings of the Baptists are crystal clear. The First Amendment of the United States was written to protect the ability to practice an individuals religion of choice without interference from the Government. It is not implied nor intended to provide freedom from religion, but instead freedom of religion. However, early in the 20th century as progressives established themselves within the power structure of the United States government, they began to slowly redefine the very definitions of ideas and statutes given in the Constitution and Bill of Rights. Separation of church and state shifted from a protection of the church to a protection for the state.

Fast forward to the 2000's. An attorney, emergency physician and atheist named Michael Newdow filed a lawsuit attempting to remove the phrase 'Under God' from the pledge of allegiance as it was alleged to be a violation of the separation of church and state. In an initial ruling on Newdow vs. United States Congress, Elk Grove Unified School District, et. al., the Ninth Circuit Court of Appeals ruled that the phrase 'Under God' constituted an endorsement of religion and therefore violated the First Amendment's prohibition of respecting religion, also known as the Establishment Clause. Michael Newdow brought the lawsuit on behalf of his daughter, of whom he did not have primary custody. When the ruling of the 9th Circuit was appealed to the Supreme Court, the USSC ruled that Newdow did not have primary custody of his daughter and therefore did not have standing to allege that the recitation of the Pledge was a violation of the Establishment Clause.

In 2005 a new lawsuit was filed in US District Court on behalf of three unnamed families, challenging the legality of the 'Under God' phrase within the Pledge. From Wikipedia:
Judge Karlton issued an Order stating that, upon proper motion, he will enjoin the school district defendants from continuing their practices of leading children in pledging allegiance to "one Nation under God." The case was later appealed to the Ninth Circuit under Newdow v. Carey...
Which brings us to today... er, more specifically, yesterday.
A federal appeals court in San Francisco upheld the use of the words "under God" in the Pledge of Allegiance and "In God We Trust" on U.S. currency, rejecting arguments on Thursday that the phrases violate the separation of church and state.

The 9th U.S. Circuit Court of Appeals panel rejected two legal challenges by Sacramento atheist Michael Newdow, who claimed the references to God disrespect his religious beliefs.

"The Pledge is constitutional," Judge Carlos Bea wrote for the majority in the 2-1 ruling. "The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded."
Atheist blogger Allahpundit sums up the opinion in his post:
Where, as here, compulsion to recite is absent, government action respects an establishment of religion only if the government coerces students to engage in a religious exercise. Coercion to engage in a patriotic activity, like the Pledge of Allegiance, does not run afoul of the Establishment Clause. The Supreme Court recognized this distinction in the earliest of the school prayer cases, Engel v. Vitale, 370 U.S. 421 (1962). In Engel, the Court considered a school’s policy directing children to say aloud a prayer written by state officials. The Court found this policy violated the Establishment Clause because “[the] program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious.” Id. at 424-25. The Court was also careful, however, to distinguish the prayer in Engel from a ceremonial reference to God in a footnote…
In other words, the Establishment Clause is violated only if (a) you’re forced to praise God or (b) forced to listen to someone else praise God in the context of a prayer. No prayer + no compulsion = no problemo!
I'll save you from the dissenting opinion by Judge Stephen Reinhardt, but you can read it here if you are so inclined, all 130 pages of it.

The flaw in the reasoning of 'Under God' dissenters is and always has been that some how the recitation of God's name makes you religious or constitutes the practice of religion. Saying God's name no more makes you religious than saying the word plane makes you a pilot. Reciting the phrase 'Under God' no more constitutes the practice of religion than looking at a plane makes you a passenger on that plane.

However, this and every issue of the recitation of God's name along with every public Christmas display would be a non-issue for evermore if people truly understood the origins of the separation between church and state. I would argue that James Madison and Thomas Jefferson would grieve and openly weep were they able to see how their words have been twisted into a justification for the war being waged on religion in this nation today.

What's your opinion? Is the phrase 'Under God' in the pledge of allegiance unconstitutional? Is 'Under God' controversial? Let me know in the comments!

Please take the time to comment! Click the Comment Link adjacent to the Post Title.

9 People Have Had Their Say:

Doug Indeap on March 14, 2010 at 6:22 PM said...

The government's inscription of the phrase "In God we trust" on coins and currency, as well as its addition of the words "under God" to the pledge of allegiance in 1954 and adoption of the phrase "In God we trust" as a national motto in 1956, were mistakes, which should be corrected. Under our Constitution, the government has no business proclaiming that "we trust" "In God." Some of us do, and some of us don't; each of us enjoys the freedom to make that choice; the government does not and should not purport to speak for us in this regard. Nor does the government have any business calling on its citizens to voice affirmation of a god in any circumstances, let alone in the very pledge the government prescribes for affirming allegiance to the country. The unnecessary insertion of an affirmation of a god in the pledge puts atheists and other nonbelievers in a Catch 22: Either recite the pledge with rank hypocrisy or accept exclusion from one of the basic rituals of citizenship enjoyed by all other citizens. The government has no business forcing citizens to this choice on religious grounds, and it certainly has no business assembling citizens' children in public schools and prescribing their recitation of the pledge--affirmation of a god and all--as a daily routine.

This has nothing to do with whether recitation of the pledge "makes you religious or constitutes the practice of religion." The point is that, under our Constitution, the government should not promote or otherwise take steps to establish religion. When the government calls on its citizens to show their patriotism by reciting a pledge that wraps belief in god(s) and country into one, though, the government is doing just that.

classicaliberal on March 14, 2010 at 10:30 PM said...

Doug-
First, thank you for taking the time to read the post and respond. We live for comments!! Secondly, we love it when we receive a dissenting opinion, as it fosters true conversation and challenges the positions we hold.
I do not necessarily disagree that placing “In God we trust” on the currency and adding “Under God” to the pledge was wrong. That is a question for historians to ponder as they examine the times, people and circumstances of the mid 50’s. I do, however, disagree that by acknowledging God both on currency and in the pledge is a promotion of or the establishment of religion. If it is as you say, and these phrases are the establishment and promotion of religion, then shouldn’t the Declaration of Independence be changed as well? After all, the Declaration mentions a higher being no less than three times:

…to which the Laws of Nature and of Nature’s God entitle them…
…all men are created equal…
… that they are endowed by their Creator with certain unalienable Rights…


Instead, I believe that these phrases added to the currency and the pledge are in the traditions of the founding of this great nation, acknowledging that the rights and freedoms we have are granted us by a higher power. They are not granted us by other men, as men can become twisted and remove (or attempt to remove) these rights, but that we are granted them naturally. The founders were very clear, that the freedoms and rights they sought to express and practice were not from other men but instead derived from some higher being or more supreme power.

You may call this power, God. You may call it, Buddha, Mohammed, Hare Krishna, Mother Earth, or you might even claim to be ignorant as to who or what the power is. The fact is that since the founding of this nation, a higher or more supreme power was acknowledged as bestowing us with the rights and freedoms we claimed. Adding “Under God” and “In God we trust” were an extension of those original expressions.

Doug Indeap on March 15, 2010 at 10:01 PM said...

classicaliberal,

With respect to the constitutionality of the references to a god, there are, I think, two critical distinctions between those in the Declaration of Independence and those in the pledge of allegiance and currency.

First and most obvious, there is simply no way anything in the Declaration of Independence can be unconstitutional because the Declaration preceded the Constitution by more than a decade and the First Amendment by fourteen years. The Constitution and First Amendment constrain the United States government. That government did not issue the Declaration of Independence.

The references to God in the pledge and currency, on the other hand, were made by the United States government after adoption of the Constitution and First Amendment imposing constraints on that government.

Second, the references to a god in the Declaration are statements by those who signed the Declaration. They, of course, have the freedom to say what they want.

The references to a god in the pledge, on the other hand, appear in a statement that the government has prescribed for individual citizens to recite in order to pledge their allegiance to their nation. The pledge is not a statement by others free to say whatever they want. It is a statement designed to be said by each individual citizen on his or her own behalf. The references to a god in our currency appear in a statement by our government--a statement, moreover, in which our government explicitly proclaims to speak on our behalf: "In God we trust."

These modern-day references, moreover, are not mere reminders of past events in our nation's history. They plainly purport to be current statements by individual citizens (in the government-prescribed pledge) and by the government (in the currency) affirming the existence of a god. Sounds like establishment of religion to me.

Important as the Declaration of Independence is in our nation's history, care should be taken not to make too much of it in interpreting the Constitution. The colonists did not issue that document to effect their independence, but rather to explain and justify the move to independence that was already well underway. Recall that several of the former colonies adopted constitutions establishing themselves as states independent of Great Britain before July 4, 1776; the independence of the former colonies was not dependent on the Declaration. In any event, the fact that independence first needed to be achieved and that the Declaration of Independence was an important step in that process does not lead to a conclusion that the government ultimately founded by the free people of the former colonies somehow draws its authority or its nature from the Declaration. Once independent, the people of the former colonies could choose whatever form of government they deemed appropriate. They were not somehow limited by anything said in the Declaration. Sure, they could take it as inspiration and guidance if they chose--or they could not. They could have formed a theocracy if they wished--or, as they ultimately chose, a secular government founded on the power of the people (not a deity) by a Constitution that says nothing substantive of god(s) or religion except in the First Amendment where the point is to confirm that each person enjoys religious liberty and that the government is not to take steps to establish religion and another provision precluding any religious test for public office.

classicaliberal on March 16, 2010 at 12:08 AM said...

Thanks for writing back Doug. You're comments are forcing me to reaffirm what I believe, and why, as well as requiring me to learn more about the law surrounding the Establishment Clause.

I don't want to get to sidetracked by the Declaration point, as it's really secondary to the crux of this case, but in the opinion, the court found that the Declaration should be considered. As such, the wording, regardless of having been authored before the legal founding the country, is considered a source for interpreting law.

What is at the base of this case is whether or not the government promoted or established religion with the phrase "Under God." This court, and several others found that it did not. Since, under Federal law, there exists no requirement to recite the pledge there is no coercion and as such no one is forced to say the phrase "Under God." Also, under California law students are allowed to skip over the offending portion of the pledge, or skip the pledge altogether. Again, without being compelled, there is no coercion.

To take exception with the phrase "Under God" is to strip away all context and history.
"[The] Congress had two primary purposes in including the phrase "one nation under God" in the Pledge: (1) to underscore the political philosophy of the Founding Fathers that God granted certain inalienable rights to the people which the government cannot take away; and (2) to add the note of importance which a Pledge to our Nation ought to have and which ceremonial references to God invoke. The Supreme Court has instructed us to do otherwise: “Focus exclusively on the religious component of any [governmental] activity would inevitably lead to its invalidation under the Establishment Clause.”"

If you haven't already, I suggest you take a look at the opinion rendered by the court in this circumstance. They go over each of the methods that they used to discern whether or not this was a violation of the Establishment Clause.

One such method for testing whether or not the Establishment Clause was violated was the "Lemon Test."
"Under the Lemon test, to be constitutional (1) the challenged governmental action must have a secular purpose; (2) “its principal or primary effect must be one that neither advances nor inhibits religion”; and (3) it “must not foster an excessive government entanglement with religion.”"
The court found that the recitation of the pledge serves a secular purpose, that it neither advances nor inhibits religion, and that it does not foster excessive government entanglement with religion.

The court finds that the phrase "Under God" is not the establishment of a religion and that under state and Federal law no one is required to recite the pledge. As such, there is no coercion and people who do not assert a belief in God are not required to acknowledge a being in which they do not believe.

Doug Indeap on March 17, 2010 at 7:05 AM said...

classicaliberal,

James Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to "[s]trongly guard[] . . . the separation between Religion and Government." Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., "the appointment of chaplains to the two houses of Congress" and "for the army and navy" and "[r]eligious proclamations by the Executive recommending thanksgivings and fasts"), he considered the question whether such actions were "consistent with the Constitution, and with the pure principle of religious freedom" and responded: "In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion." He further considered what should be made of various actions (e.g., appointment of chaplains and thanksgiving proclamations) already taken in the nation's then "short history" that were, in his view, inconsistent with the Constitution. Ever practical, his answer was not to demand these actions be undone, but rather to circumscribe their ill effect: "Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature]." He concluded it was "[b]etter to disarm in [this] way, the precedent of [such actions] than erect them into a political authority in matters of religion."

In its jurisprudence, the Supreme Court has, in effect, followed Madison's advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to some governmental statements or actions, e.g., the appointment of chaplains, sometimes with the explanation that they are more about tradition than religion per se. Draining nominally religious statements or actions of religious meaning (or at least purporting to do so) and discounting them as non-religious ritual--sometimes dubbed "ceremonial deism"--is one way to find them not to conflict with the First Amendment. As you can imagine, those more interested in championing their religion than the constitutional principle of separation of church and state sometimes seek to exploit and expand such "exceptions" even if it requires they fake interest only in tradition.

Justice Bea's conclusion is unsurprising (though, in my opinion, erroneous) since other courts have treated the references to God in the pledge and on currency as ceremonial deism. His opinion is considerably more radical, though, in that it appears to accept David Barton's revisions of history.

You quote Bea's statement of Congress' supposedly nonreligious purposes. Do you truly believe that is what Congress intended? Do you truly believe that is how Americans understand the references to God in the pledge and our currency? As if Congress' true intent was not plain, Reinhardt puts the lie to that in his dissent. Check out http://www.truthout.org/pledging-allegiance-god57732

classicaliberal on March 17, 2010 at 11:32 PM said...

Doug,

I appreciate your willingness to go back and forth on this issue. As I said before, it allows me to investigate court cases which I might not otherwise explore. You ask if I truly believe that Congress’ intention to add the phrase ‘Under God’ to the pledge was nonreligious. My initial answer would be that it does not matter what I believe, but what the stated intentions were. The origins of the phrase ‘Under God’ being recited as part of the pledge can be traced back to President Lincoln and the Gettysburg Address. The speech was transcribed by 3 separate reporters who listened to the oration and recorded Lincoln’s words as “that the nation shall, under God, have a new birth of freedom." Louis Bowman, a member of the Son’s of the American Revolution is the first recorded to include the phrase “Under God” in a recitation of the pledge, citing Lincoln’s Gettysburg Address.
From there, the Knights of Columbus (a Catholic fraternal organization) began including the phrase “Under God” extensively. The ultimate credit, however, is given to George Docherty who in a sermon based upon the Gettysburg Address titled “A New Birth of Freedom” stated that the Pledge was amorphous in national origin and that the Pledge should be amended to distinguish a definitive factor in the American way of life. Docherty cited Lincoln’s Gettysburg Address and the words “Under God” as the definitive factor, some that that separated the United States from specifically the Soviet Union. I fully believe, and it was alleged by many within the United States Government that the primary motivation for adding “Under God” to the pledge was to distinguish the United States and it’s freedoms (including freedom of religion) from the Soviet Union and it’s prohibition of the practice of religion and compelled atheism.
As you can see, I do not contest that the first usages of the phrase are attributed to religious organizations, but the adoption of the phrase by the US government was not religious in nature. It was instead patriotic.
In Marsh v. Chambers, the court considered the much more overtly religious practice of the Nebraska Legislature beginning each session with a prayer by a chaplain paid by the State. In it’s ruling, the court found:
“The practice of opening sessions of Congress with prayer has continued without interruption for almost 200 years ever since the First Congress drafted the First Amendment, and a similar practice has been followed for more than a century in Nebraska and many other states. While historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress. In applying the First Amendment to the states through the Fourteenth Amendment, it would be incongruous to interpret the Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government. In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.”

(continued)

classicaliberal on March 17, 2010 at 11:33 PM said...

And again in Allegheny County v. Greater Pittsburgh ACLU, the court found:
“In Marsh, the Court relied specifically on the fact that Congress authorized legislative prayer at the same time that it produced the Bill of Rights. See n. 46, supra. JUSTICE KENNEDY, however, argues that Marsh legitimates all "practices with no greater potential for an establishment of religion" than those "accepted traditions dating back to the Founding."

“[o]ur previous opinions have considered in dicta the motto and pledge [of allegiance], characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief”

In Memorial and Remonstrance, Madison argued most specifically against the levying of taxes for the “establishing a provision for Teachers of the Christian Religion.” I believe that it was this same passion that inspired the authoring of Detached Memoranda. Madison was concerned with the use of public monies to hire chaplains. I cannot find, however, that Madison was concerned with the act of prayer itself. It should also be noted that the first congress, in which James Madison and 17 other founders served as a members, did not find issue with the recitation of a daily prayer, and if (as is most likely) James Madison was opposed to this behavior, he was unsuccessful in attempting to sway his colleagues against the endorsement of this action.

The reality is that I am not a constitutional scholar, nor a historian. I am, however, reasonably content to find myself on the side of several precedents from various district and appellate courts, as well as the SCOTUS in believing that the national motto and the ‘under God’ phrase are not violations of the Establishment Clause.

Doug Indeap on March 18, 2010 at 7:54 PM said...

I appreciate the thoughtful manner in which you approach this subject.

Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state. I commend it to you. http://www.adl.org/religious_freedom/WFU-Divinity-Joint-Statement.pdf

Notwithstanding sometimes lofty rhetoric about an "absolute" or "high and impregnable" wall, courts and commentators have developed various limitations and exceptions to the principle of separation of church and state (more, I suspect, than many of the founders, particularly Madison, would approve). I've often thought that some troubled by the so-called wall of separation may be reacting more to the rhetoric than the reality and may be pleasantly surprised to find that the courts have rendered it lower and leakier than they realized.

classicaliberal on March 18, 2010 at 9:33 PM said...

I want to again take the opportunity to thank you, Doug for taking the time to respond to the post and speak openly your opinions, as well as those of James Madison. Too often, I feel that the political issues which the founders held dear are being left along the wayside in the name of advancement and progress.

This exchange has caused me to dive deeper than I ever had into the issue of the Establishment Clause and it's beginnings as well as significant court history. You've been a great sport, and you've provided me with even further reading material on the subject. For that I am in your debt, sir.

I do hope that you will stop by and visit the site again, and that my posts are sufficiently substantive as to be worth your time. I look forward to diving deeper into the truthout site, as well as the anti-defamation league site.

Again, I appreciate your willingness to participate in this exchange!

 

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