Debbie & K.C. Jones

FIRST AMENDMENT COMMENTARY

Commentary on First Amendment Issues


Originally published July 4, 1999

WHAT IF THE WALL OF SEPARATION BETWEEN CHURCH AND STATE FELL?

By CHARLES LEVENDOSKY
Casper Star-Tribune

As the controversy over funding religious schools with tax dollars heats up, some citizens are claiming that the concept of "separation of church and state" is only a myth. While it is true that the phrase does not literally appear in the U.S. Constitution or the Bill of Rights, the principle of the wall of separation is imbedded in the two religious clauses of the First Amendment and Article VI of the Constitution.

The First Amendment states, in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ..." The Establishment Clause means that government cannot support or endorse one or all religions. It also means that government must be neutral in regard to religion.

The Free Exercise Clause means that the government should not interfere with religious worship unless it has a compelling reason to do so for public safety or because of societal mandates or laws. The Free Exercise Clause does not protect human sacrifices, incest, or polygamy as a part of religious worship.

Article VI of the Constitution states, in part: "no religious test shall ever be required as a qualification to any office or public trust under the United States." This clause is a further barrier to mixing church and state. It doesn't matter what a person's religious beliefs are, that person can run for office. A person's religious beliefs cannot be used to disqualify that person from sitting on a jury.

The Founders were well aware they were creating a secular state. There is no mention of God or a Supreme Being in the Constitution or in the Bill of Rights. The Founders and their parents and grandparents had witnessed the persecution and civil unrest in England and Europe because of unholy marriages between church and state. The colonies became home to those who were escaping religious persecution.

The Founders knew the evil promulgated when government can enforce religious doctrine or religious beliefs. The separation of church and state was very much on their minds as they crafted our Constitution and our Bill of Rights.

The separation of powers is also a principle that isn't literally named in the Constitution, but is implied by the very structure of the Constitution. The document spells out the powers of Congress, of the president, and of the courts. The phrase "fair trial" cannot be found in the Constitution or the Bill of Rights, but it is implied in those documents.

But let us suppose for argument's sake that the principle of separation of church and state does not exist, that it is an erroneous reading of James Madison and Thomas Jefferson. What would be the ramifications if that wall suddenly fell?

Law professor Douglas Laycock of the University of Texas at Austin, who is an expert in church-state law, said flatly that such a supposition is a mistake, that it gives support for the recent rhetoric that dismisses the principle of the separation of church and state. That principle, he said, is imbedded in the religious clauses of the First Amendment. "Separation of church and state" is merely the slogan for what those clauses mean.

But, Laycock said, if you want to make the supposition, then put it this way: "Without separation you can't get to free exercise. The government would be free to meddle and eliminate free exercise for everybody."

Barry Lynn, executive director of Americans United for Separation of Church and State, gave a list of ramifications that would be the result of denying or eliminating the wall of separation: Churches would vie for public money and it is likely that minority religious groups would always lose in the competition. Schools, businesses and public offices could start their day with prayers of the majority religion. There could be a renewal of the Bible riots that plagued our nation after the Civil War. Blasphemy laws might be enacted and enforced.

Melissa Rogers, associate general counsel of the Baptist Joint Committee, added to the list. It is likely we would see violence against minority religions, she said. Religious entities would then be treated by the government in the same manner as any secular organizations -- that is, there would be conditions tied to any public funds given to churches; religious groups would have to hire and fire according to federal law; religious organizations could not discriminate based upon religion when hiring.

Elliot Mincberg, legal director of People for the American Way, summed it up this way: "If the doctrine of separation of church and state fell, religious freedom, religious practice would be much less free." The autonomy of religion from state powers disappears, he said. Government could promote religion. Some states could endorse one religion and discriminate against others. Courts could get involved with deciding church issues. He also noted that where religion and state are bound together, there is religious conflict -- as in Kosovo and Northern Ireland.

Professor emeritus of humanities Robert Alley of the University of Richmond, Va., speaking of the Bible riots in the 1800s, said: "The [separation] principle in the First Amendment may have been violated in the short run, but there it was, nevertheless, as a guardian that righted the ship and now we don't have the kinds of religious persecution that were fairly common in communities in the 19th century. I genuinely believe that without the First Amendment interpreted in a strict way, this country would quickly find itself in the throes of serious religious conflict between religious groups. And that can only get worse as more and more different religious groups take on the character of numbers sufficient to have weight. We have a growing diversity. The First Amendment is far more important to us now than it has been in any point in our history. We've avoided what Europe has gone through, what's going on in the Balkans right now."

Edwin Gaustad, professor emeritus of history at the University of California at Riverside, was emphatic about what would happen if the principle of separation of church and state were ignored: "The most horrifying but most obvious example is religious warfare -- because that was true of England in the 17th century, of the continent in the 16th century. Any time you put the power of the state, which is to say the power of the sword, behind conformity and religion, you're calling for religious persecution, you're calling for religious martyrdom, you're calling for religious warfare. All you have to do is look at the history of the Western world to find example after example after example. From our relaxed point of view in 1999, we say, 'Oh that could never happen.' But the fact is it happened over and over again."

Those who argue that the wall of separation between church and state has made us a godless nation ignore the reality. Our country has a growing religious diversity, thousands of vital and active religious groups, and a religious liberty on a scale never known before in the history of humankind. We should be grateful to Madison and Jefferson for the wall of separation that protects us all.

(Charles Levendosky is the editorial page editor of the Casper (Wyo.) Star-Tribune. His commentary has won numerous national First Amendment awards and is now distributed by the New York Times wire service.)

Copyright Casper Star-Tribune
July 4, 1999


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