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Cause for Concern (Church/State)

What Jefferson intended as an explanation of the First Amendment's protection of the free exercise of religion was misapplied by the Supreme Court to the Establishment Clause, a mix-up that has resulted in the very interference with religious free exercise that Jefferson argued against.

The so-called "wall of separation between church and state" has done more damage to America's religious and moral tradition than any other utterance of the Supreme Court. While the First Amendment was originally intended to prevent the establishment of a national religion and thus ensure religious liberty, the Supreme Court's misuse of the "separation of church and state" phrase has fostered hostility toward, rather than protection of, religious freedom.

This phrase has been used by the Court to outlaw Ten Commandments displays in public buildings, prayer and Bible reading in schools, clergy and even student invocations at school events, and other public acknowledgements of God. Such decisions clearly negate the Founding Father's presupposition of America's Christian identity. It is time to return the First Amendment back to its original meaning and revive the rich faith-filled heritage of America's public life.

National Religion

Many of the state legislatures that ratified the Constitution conditioned their approval on the further inclusion of a guarantee of individual liberties such as the freedom of religion. Some of those states already had taxpayer-supported "establishments" of religion. The new Congress took up these calls for action and drafted the Bill of Rights for further approval by the states. James Madison, a major participant in the debate and drafting of what ultimately became the First Amendment, introduced the initial draft on June 8, 1789 as discussions began in the House:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

After further discussion, other versions of the amendment were offered, including: "no religion shall be established by law," "no religious doctrine shall be established by law," "no national religion shall be established by law" and "Congress shall make no laws touching religion." Finally, the House sent back to the Senate this version: "Congress shall make no law establishing religion." The Senate took the House version under advisement, but then offered its own version: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." When the House and Senate met to resolve their differing versions, they settled on the ultimate version of "Congress shall make no law respecting an establishment of religion."1

What is clear from the records of the First Amendment debates, as well as Jefferson's own "wall of separation" language, is the Founders' aversion to Congress establishing a national religion, not the religion-scrubbing tool the Supreme Court has made of it over the last 60 years.

A few Supreme Court justices have resisted the current perversion of Jefferson's "wall" metaphor and its effect on the Establishment Clause. In his 1985 dissent from yet another Supreme Court decision invoking Jefferson's "wall" to strike down Alabama's "moment of silence" statute, Chief Justice Rehnquist had this to say:

"It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years."

In another by-product of the Everson decision, the Supreme Court decreed that the First Amendment, which begins "Congress shall make no law …," would henceforth apply to the states as well as the federal government. That's how the Supreme Court gained authority over religious expression in local schoolrooms, graduation ceremonies, football games, courthouses, city councils and thousands of other state and local venues. Although that particular issue is too large to address here, it is further evidence of the Supreme Court's massive power grab in the Everson decision.


1See generally, Wallace v. Jaffree, 472 U.S. 38, 92-98 (1985), Justice Rehnquist, dissenting.
 

 
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