By MIKE MANNO
During the last couple of years we’ve heard a lot about walls and whether one is going to be built along our southern border. But as we settle into the confirmation fight over the appointment of another Supreme Court justice, we’re likely to hear about another wall, the wall between church and state.
This will be especially so as there is a continuing national divide over the concept of religious liberties following the attack on them during the eight years of the Obama administration, as well as the noise from the “progressive” left, which tries to subordinate religious liberty and conscience rights to the latest leftist whim. This takes place over abortion, same-sex marriage, and, more recently, the right to demand that a physician assist a patient in killing himself.
And put that into the context of a battle over replacing the court’s swing vote by the left’s enemy Number One, Donald Trump, and the stage is set for a battle royale, complete with mud-slinging and anti-religious and anti-Christian bias, especially since the current court term ended with several major setbacks for the progressives.
So we need to brace ourselves for the coming onslaught, which, I believe, will be unlike any confirmation battle since the 1987 nomination of Robert Bork by President Reagan.
While the confirmation process can be unpredictable, there is one legal concept that will be tossed around by politicians and media pundits: “the wall of separation” between church and state. And you’ll be led to believe that the Constitution mandates that wall. It doesn’t. In fact the phrase “wall of separation” appears nowhere in the Constitution.
It actually comes from the early religious reformer Roger Williams (1603-1683). Williams was best known as the founder of Rhode Island and as a fierce advocate for the separation of church and state.
That position put him at odds with many of his co-religionists who supported state-sponsored churches; it even got him banished from a few places. His basic argument was that the church should not concern itself with civil matters, nor the state with the “first table” of the Ten Commandments, those dealing with our relationship with God, but only with the remaining Commandments which deal with our relations with one another.
He considered it forced worship when the civil government promoted a religious practice or belief. Thus he used the term “wall of separation” to encapsulate his position in his most famous work, The Bloudy Tenent of Persecution for Cause of Conscience, published in 1644. In that work, and in many others, Williams interpreted numerous biblical passages as calling for a limitation on government’s interference in religious matters.
Our Founding Fathers incorporated Williams’ concept of separation into the Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”
It should be noted that at the time of its adoption, the Constitution did not contain the language of the First Amendment; indeed, several colonies did have established churches that were supported by the state. The language of the amendment and of the entire Bill of Rights (the first ten amendments) was only added after the ratification debates produced a reluctance to accept the Constitution without a statement of rights.
Then in 1801 the Danbury Baptist Association, concerned that as a religious minority there did not appear any protection against the establishment of a state church in Connecticut, raised its concerns in a letter to President Thomas Jefferson, stating “that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in the name, person, or effects on account of his religious opinions.”
In his reply, Jefferson sought to console the Baptists and wrote back, adopting Williams’ phrase: “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 worship, that the legislative powers of government reach actions only, and not opinions . . . thus building a wall of separation between Church and State.”
We should note that the “wall” envisioned by Williams and Jefferson was to protect the church and the religious beliefs of individuals from the power of the state.
Anyway, there it stood with little note until 1947 when the term was resurrected in a Supreme Court case, Everson v. Board of Education, challenging a New Jersey statute that authorized reimbursements to parents who used public transportation to send their children to school.
The lawsuit claimed that 96 percent of the funds went to parents of students in Catholic schools; thus it was a violation of the First Amendment. The majority held that the reimbursements, since they went to all parents, were “separate and so indisputably marked off from the religious function” that they did not offend the Constitution.
The decision is noteworthy in two respects. Until that time, many states and communities made certain grants to religious denominations. This was the first case in which the Supreme Court applied the provisions of the Establishment Clause to the states. Additionally, the court resurrected Williams’ phrase in stating that “the clause against the establishment of religion by law was intended to erect ‘a wall of separation between Church and State’.”
In doing so, the court took the phrase out of Jefferson’s letter to suggest that the government could disqualify some religious activities from governmental assistance or protection.
Nowadays the phrase is used to misconstrue use of the word “wall,” suggesting that it creates a complete separation of church and state, and that any deference given to religious beliefs or places of worship is completely barred by the Constitution.
Thus it becomes permissible to compel persons and religious institutions to act against their beliefs when laws of general applicability, such as public accommodations, are involved.
That, of course, is not true as recent Supreme Court decisions have attested; but the argument will be made. So be prepared, you will hear a lot about this wall, as well as Mr. Trump’s wall, in the upcoming debates. Don’t be misled by the flawed use of the phrase. It protects us from overreach by the government; it doesn’t protect the government. But, some will still argue otherwise.
(You can contact Mike at DeaconMike@q.com.)
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