What does the U.S. Constitution — specifically the First Amendment — really say about the separation of church and state?

This question has been at the center of public debate for decades, as atheist activists, in particular, have advanced the notion that the nation’s founders envisioned a particularly fervent imposition of the segregation of God and government. But is this really the case?

Dr. John Eastman, a distinguished law professor at Chapman University, told TheBlaze that he believes these non-believers have their story wrong.

“They think the phrase separation of church and state is the First Amendment,” he said, going on to note that these words don’t appear anywhere in the U.S. Constitution.



Just in case you need a refresher, the amendment reads:

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.

The first line creates the most contention, as it involves two separate religious articles — the Establishment and Free Exercise Clauses. It is the former that most atheist activists tend to focus on, and according to Eastman, their assessments are generally wrong-headed.

Rather than a decry waged against any inclusion of faith in the public square, the professor claims that this portion of the document speaks against a state-imposed faith.

“It tells us that you don’t want a national religion — a state-coerced national religion, a one-size-fits-all, everybody-has-to-join [system],” he said of the Establishment Clause, going on to highlight a bit of history. “[The Founders] were concerned that with a strong national government there would be a national religion … they wanted to allow the states a free hand to collaborate [with] religion in their important work of fostering a citizenry.”

Eastman called the provision one that was rooted in federalism. Over the past 50 years, he charged the U.S. Supreme Court with misunderstanding the Establishment Clause to mean that religion must be removed entirely from public life. Atheist activists have seized upon this interpretation as well.

“We’re on the threshold of success,” he said, though, of reversing the trend.

As far as nativities on courthouse lawns and other similar religious imagery goes, Eastman said that communities should be allowed to express their views so long as citizens are not being coerced by the government to subscribe to specific ideologies.

The professor recently recorded a short course on this very subject for Prager University. The video was released earlier this week and TheBlaze spoke with Eastman in conjunction with the clip.

Here’s the clip:



http://www.theblaze.com/stories/2013/05/...urch-and-state/

Eastman offers but a compact collection of common canards.

Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

That the phrase "separation of church and state" does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, and only after concluding its analysis did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion.

Perhaps even more than Jefferson, James Madison influenced the Court’s view. 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 even as new principles are proclaimed, 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 these 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.”

John Jay's statement does not conflict with separation of church and state. While the religious views of various founders are subjects of some uncertainty and controversy, it is safe to say that many founders were Christian of one sort or another and held views such Jay's regarding religion. In assessing the nature of our government, though, care should be taken to distinguish between society and government and not to make too much of various founders’ individual religious beliefs. Their individual beliefs, while informative, are largely beside the point. Whatever their religions, they drafted a Constitution that establishes a secular government and separates it from religion as noted earlier. This is entirely consistent with the fact that some founders professed their religiosity and even their desire that Christianity remain the dominant religious influence in American society. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion. It is entirely possible for thoroughly religious folk to found a secular government and keep it separate from religion. That, indeed, is just what the founders did.

Lest there be any doubt on this score, note that shortly after the founding, President John Adams (a founder) signed, with the unanimous consent of the Senate (comprised in large measure of founders), the Treaty of Tripoli declaring, in pertinent part, “the Government of the United States of America is not, in any sense, founded on the Christian religion.” No need to resort to reading tea leaves to understand that. This is not an informal comment by an individual founder, but rather an official declaration of the most solemn sort by the United States government itself. Note that the Constitution provides that treaties, apart from the Constitution itself, are the highest law of the land.

It is instructive to recall that the Constitution's separation of church and state reflected, at the federal level, a "disestablishment" political movement then sweeping the country. That political movement succeeded in disestablishing all state religions by the 1830s. (Side note: A political reaction to that movement gave us the term "antidisestablishmentarianism," which amused some of us as kids.) It is worth noting, as well, that this disestablishment movement was linked to another movement, the Great Awakening. The people of the time saw separation of church and state as a boon, not a burden, to religion.

This sentiment was recorded by a famous observer of the American experiment: "On my arrival in the United States the religious aspect of the country was the first thing that struck my attention. . . . I questioned the members of all the different sects. . . . I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet a single individual, of the clergy or the laity, who was not of the same opinion on this point." Alexis de Tocqueville, Democracy in America (1835).

At the time of the Founding, Europe had been engaged with war, more or less continually, for about 200 years. And it was about religion.

Not Christianity vs. some other religion, but between factions (denominations) of Christianity. Serious stuff. Spain was Catholic. England was Anglican. Germany was both.

Our Founders wanted to avoid a nation tied to a religious faction, and the postential that held for conflict. Hence no state-established faction.

The modern leap that America was founded based on "Separation of Church and State" is simply not there. Nor is the claim that God does not have a place in the affairs of the state.

But there was a healthy concern that the affairs of the state not be put in jeopardy over religious matters. As well as a wise protection that the state wouldn't wield power over the religious affirs of citizens and religions.

Quote: Doug Indeap wrote in post #4

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John Jay's statement does not conflict with separation of church and state. While the religious views of various founders are subjects of some uncertainty and controversy, it is safe to say that many founders were Christian of one sort or another and held views such Jay's regarding religion. In assessing the nature of our government, though, care should be taken to distinguish between society and government and not to make too much of various founders’ individual religious beliefs. Their individual beliefs, while informative, are largely beside the point. Whatever their religions, they drafted a Constitution that establishes a secular government and separates it from religion as noted earlier. This is entirely consistent with the fact that some founders professed their religiosity and even their desire that Christianity remain the dominant religious influence in American society. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion. It is entirely possible for thoroughly religious folk to found a secular government and keep it separate from religion. That, indeed, is just what the founders did.

Lest there be any doubt on this score, note that shortly after the founding, President John Adams (a founder) signed, with the unanimous consent of the Senate (comprised in large measure of founders), the Treaty of Tripoli declaring, in pertinent part, “the Government of the United States of America is not, in any sense, founded on the Christian religion.” No need to resort to reading tea leaves to understand that. This is not an informal comment by an individual founder, but rather an official declaration of the most solemn sort by the United States government itself. Note that the Constitution provides that treaties, apart from the Constitution itself, are the highest law of the land.

It is instructive to recall that the Constitution's separation of church and state reflected, at the federal level, a "disestablishment" political movement then sweeping the country. That political movement succeeded in disestablishing all state religions by the 1830s. (Side note: A political reaction to that movement gave us the term "antidisestablishmentarianism," which amused some of us as kids.) It is worth noting, as well, that this disestablishment movement was linked to another movement, the Great Awakening. The people of the time saw separation of church and state as a boon, not a burden, to religion.

This sentiment was recorded by a famous observer of the American experiment: "On my arrival in the United States the religious aspect of the country was the first thing that struck my attention. . . . I questioned the members of all the different sects. . . . I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet a single individual, of the clergy or the laity, who was not of the same opinion on this point." Alexis de Tocqueville, Democracy in America (1835).

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You would make much, it seems, of Justice Brewer's statement in Holy Trinity that "this is a Christian nation," apparently even thinking the Court made a "holding" to that effect. The Court held that a statute restricting importation of any alien under contract to perform labor or service did not preclude a church from contracting with an alien to come to this country and serve as its pastor. The Court based this holding on its finding that Congress intended simply to stay the influx of cheap, unskilled labor and did not intend to address circumstances such as the church's contract with an alien pastor. It supported this finding, in dictum (i.e., a statement not essential to its holding), with the further thought that as this is a Christian nation, Congress would not have intended to restrict the church in this situation.

Brewer later clarified that he meant simply to observe that the nation's people are largely Christian and not that the nation's government or laws are somehow Christian: "But in what sense can [the United States] be called a Christian nation? Not in the sense that Christianity is the established religion or the people are compelled in any manner to support it. On the contrary, the Constitution specifically provides that 'congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.' Neither is it Christian in the sense that all its citizens are either in fact or in name Christians. On the contrary, all religions have free scope within its borders. Numbers of our people profess other religions, and many reject all. [...] Nor is it Christian in the sense that a profession of Christianity is a condition of holding office or otherwise engaging in public service, or essential to recognition either politically or socially. In fact, the government as a legal organization is independent of all religions. Nevertheless, we constantly speak of this republic as a Christian nation – in fact, as the leading Christian nation of the world." D. Brewer, The United States: A Christian Nation (1905) 12.

As for your assertion that separation of church and state is a relatively recent secular deception, I tire at the thought of reiterating Jefferson's and Madison's and de Tocqueville's part in this deception and suspect, in any event, that offering further evidence of their and other co-conspirators' acts would be unavailing.

Quote: Doug Indeap wrote in post #8

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You would make much, it seems, of Justice Brewer's statement in Holy Trinity that "this is a Christian nation," apparently even thinking the Court made a "holding" to that effect. The Court held that a statute restricting importation of any alien under contract to perform labor or service did not preclude a church from contracting with an alien to come to this country and serve as its pastor. The Court based this holding on its finding that Congress intended simply to stay the influx of cheap, unskilled labor and did not intend to address circumstances such as the church's contract with an alien pastor. It supported this finding, in dictum (i.e., a statement not essential to its holding), with the further thought that as this is a Christian nation, Congress would not have intended to restrict the church in this situation.

Brewer later clarified that he meant simply to observe that the nation's people are largely Christian and not that the nation's government or laws are somehow Christian: "But in what sense can [the United States] be called a Christian nation? Not in the sense that Christianity is the established religion or the people are compelled in any manner to support it. On the contrary, the Constitution specifically provides that 'congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.' Neither is it Christian in the sense that all its citizens are either in fact or in name Christians. On the contrary, all religions have free scope within its borders. Numbers of our people profess other religions, and many reject all. [...] Nor is it Christian in the sense that a profession of Christianity is a condition of holding office or otherwise engaging in public service, or essential to recognition either politically or socially. In fact, the government as a legal organization is independent of all religions. Nevertheless, we constantly speak of this republic as a Christian nation – in fact, as the leading Christian nation of the world." D. Brewer, The United States: A Christian Nation (1905) 12.

As for your assertion that separation of church and state is a relatively recent secular deception, I tire at the thought of reiterating Jefferson's and Madison's and de Tocqueville's part in this deception and suspect, in any event, that offering further evidence of their and other co-conspirators' acts would be unavailing.

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I did not ignore Brewer's recitation of facts, but rather placed it in the context of the opinion (a context you disregarded) revealing it to be dictum, not a holding, and in any event entirely unrelated to any issue about the Constitution. In discussing this “Christian nation” issue, it is important to define terms and, in particular, to distinguish between “society” and “government.” To the extent one equates “nation” with “society,” whether it is legitimate and appropriate to label our nation “Christian” may be debated on various grounds, e.g., the demographic makeup of the population, as Brewer mentioned. To the extent one equates “nation” with “government,” it is an entirely different matter that calls for analyzing the legal nature of our government, as I observed above.

With respect to the items mentioned in the link you offered, that covers more ground than can be easily be addressed in one comment. I'll try to do it justice.

First, these sorts of things serve to reveal that the historical evidence presents a complex picture mixed with a good measure of uncertainty. This is hardly surprising since the founders were not a monolithic bunch and the available evidence may be seen to point in various directions. To the extent events such as you mention reveal government taking actions regarding religion, they can be viewed in at least two ways. One is to surmise, as you seem to do, that those then running the government (including many founders) must have thought such events were consistent with the Constitution. The other is to recognize that it is only human to announce new principles and intentions, yet imperfectly implement them and persist (for a time anyway) in some old, contrary habits.

Madison discussed just this point in his Detached Memoranda. As it happens, he not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation 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].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

Recall, for instance, that Congress failed to conform to the Constitution on at least two other occasions during Madison's presidency, resulting in his vetoes of two bills neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. The government has made many such mistakes during our history, and continues to make them to this day.

Second, caution should be exercised in assessing the historical evidence, since some are motivated to make more of things than may be warranted or even stretch the truth about them. The commonly heard stories about religious ceremonies in the House chamber are illustrative. The Speaker of the House did indeed announce in 1800 that the chaplains had proposed holding religious ceremonies in the House chamber on Sundays, the reason initially being that at the time there simply were no churches or other suitable buildings in all the Capitol. Such ceremonies were held and Jefferson attended some of them, and they continued for decades after churches had been built and thus the need to use the House chamber had passed. Contrary to many accounts, neither the Senate nor President Jefferson had a hand in the Speaker's decision. Not mentioned in some accounts as well is that the ceremonies often were as much social as religious in nature (at a time when Washington otherwise lacked much social life). Chris Rodda does a good job setting these and other common misconceptions straight in Liars for Jesus: The Religious Right's Alternate Version of American History (2006) (available free on line http://www.liarsforjesus.com/); yeah, you have to get past the title, which puts off some, but it's worth it.

Third, in any event, the very fact that evidence and arguments can be advanced in support of both sides of issues like this is one of the reasons we have courts and call on them to resolve such issues. In this instance, the Supreme Court has done just that--decisively, authoritatively, and, in the most important respects, unanimously. In its jurisprudence, the Supreme Court has, in effect, followed Madison’s approach--confirming the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the house of Congress and army and navy and the issuance of religious proclamations, as well as some governmental statements or actions about religion on one or another theory, e.g., ceremonial deism. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not). In any event, the Court's rulings confirming the Constitution's separation of church and state have long since become integral to the law and social fabric of our nation--not the sort of decisions to be overruled lightly.

Quote: Doug Indeap wrote in post #10

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I did not ignore Brewer's recitation of facts, but rather placed it in the context of the opinion (a context you disregarded) revealing it to be dictum, not a holding, and in any event entirely unrelated to any issue about the Constitution. In discussing this “Christian nation” issue, it is important to define terms and, in particular, to distinguish between “society” and “government.” To the extent one equates “nation” with “society,” whether it is legitimate and appropriate to label our nation “Christian” may be debated on various grounds, e.g., the demographic makeup of the population, as Brewer mentioned. To the extent one equates “nation” with “government,” it is an entirely different matter that calls for analyzing the legal nature of our government, as I observed above.

With respect to the items mentioned in the link you offered, that covers more ground than can be easily be addressed in one comment. I'll try to do it justice.

First, these sorts of things serve to reveal that the historical evidence presents a complex picture mixed with a good measure of uncertainty. This is hardly surprising since the founders were not a monolithic bunch and the available evidence may be seen to point in various directions. To the extent events such as you mention reveal government taking actions regarding religion, they can be viewed in at least two ways. One is to surmise, as you seem to do, that those then running the government (including many founders) must have thought such events were consistent with the Constitution. The other is to recognize that it is only human to announce new principles and intentions, yet imperfectly implement them and persist (for a time anyway) in some old, contrary habits.

Madison discussed just this point in his Detached Memoranda. As it happens, he not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation 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].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

Recall, for instance, that Congress failed to conform to the Constitution on at least two other occasions during Madison's presidency, resulting in his vetoes of two bills neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. The government has made many such mistakes during our history, and continues to make them to this day.

Second, caution should be exercised in assessing the historical evidence, since some are motivated to make more of things than may be warranted or even stretch the truth about them. The commonly heard stories about religious ceremonies in the House chamber are illustrative. The Speaker of the House did indeed announce in 1800 that the chaplains had proposed holding religious ceremonies in the House chamber on Sundays, the reason initially being that at the time there simply were no churches or other suitable buildings in all the Capitol. Such ceremonies were held and Jefferson attended some of them, and they continued for decades after churches had been built and thus the need to use the House chamber had passed. Contrary to many accounts, neither the Senate nor President Jefferson had a hand in the Speaker's decision. Not mentioned in some accounts as well is that the ceremonies often were as much social as religious in nature (at a time when Washington otherwise lacked much social life). Chris Rodda does a good job setting these and other common misconceptions straight in Liars for Jesus: The Religious Right's Alternate Version of American History (2006) (available free on line http://www.liarsforjesus.com/); yeah, you have to get past the title, which puts off some, but it's worth it.

Third, in any event, the very fact that evidence and arguments can be advanced in support of both sides of issues like this is one of the reasons we have courts and call on them to resolve such issues. In this instance, the Supreme Court has done just that--decisively, authoritatively, and, in the most important respects, unanimously. In its jurisprudence, the Supreme Court has, in effect, followed Madison’s approach--confirming the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the house of Congress and army and navy and the issuance of religious proclamations, as well as some governmental statements or actions about religion on one or another theory, e.g., ceremonial deism. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not). In any event, the Court's rulings confirming the Constitution's separation of church and state have long since become integral to the law and social fabric of our nation--not the sort of decisions to be overruled lightly.

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Hmm, as you simply dismiss my extensive offering of evidence and analysis as mere table pounding and present nothing worthy of further comment, I gather my earlier suspicion was spot on and we're at an end. Have a nice day.

Zitat

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What does the U.S. Constitution — specifically the First Amendment — really say about the separation of church and state?

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Nothing.