Posted by: jefriesen | November 9, 2010

Prison Wall or Farmer’s Fence?

Three weeks ago, Delaware candidate for the United States senate Christine O’Donnell, who lost in last Tuesday’s election, was roundly criticized for making the statement that the phrase “separation of church and state” is not found in the constitution.  The crowd, made up of law students at Widener University Law School tittered in reaction to O’Donnell’s apparent ignorance of such a basic premise of U.S. law.

 The thing is, O’Donnell is right.  The phrase “separation of church and state” is not found in the constitution.  It is instead found in a letter that Thomas Jefferson wrote on January 1st, 1802 to a committee of the Danbury Baptists in Connecticut.  It is in this letter that Jefferson penned the words that have now become famous.  It wasn’t until 1947 that the U.S. Supreme Court first invoked these words in a court case involving public funding to transport children to religious schools.  So, we might ask, how has a private letter written to a group of churches become so important to our country in the past 60 years, from when it was first cited as a legal precedent? 

 The answer is intent.  The courts regularly look at the issue of intent when helping to establish the boundaries of the laws enacted.  The question that the courts seek to answer is ‘how did the lawmakers intend a given law to be understood?’  For the answer to this question, judges and attorneys look beyond the written code to the statements of lawmakers themselves about what they intend a law to do.  Usually, looking at the intent of lawmakers brings a bit of common sense into the court proceedings.    In the case of Jefferson’s letter to the Danbury Baptists, Jefferson’s words help to establish the intent of the founding fathers behind the establishment clause of the first amendment.  Here is Jefferson’s statement:

 “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.”

 Here Jefferson clearly ties the establishment clause of the first amendment (Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof) with the intent of the founders, to build “a wall of separation between Church and State.”  The question is, what does it mean to have a wall of separation between church and state?  I would submit that Jefferson’s ‘wall,’ as originally intended, was not a high prison wall, but more of a low-slung farm fence of the type that used to crisscross the New England landscape.  This type of wall allowed for a friendly chat between neighbors while clearly defining the boundaries, allowing influence, but not control. 

 During the past 60 years, however, Jefferson’s wall has grown tall.  In practice court rulings have prevented not only control, but even ac

Perhaps this is the type of wall Jefferson had in mind

cess to the public square, creating the appearance of an a-theistic state.  In 1962, school sponsored prayer was ruled unconstitutional.  In recent years, individuals and groups have sued to remove crèches from courthouse lawns and displays of the Ten Commandments in public places.  In 2002, the Ninth Circuit Court of Appeals ruled that the Pledge of Allegiance was unconstitutional because it includes the words “under God.”  From a layperson’s perspective, the courts have tried so hard to eliminate possible favoritism for any one religious position that they have, in effect, elevated non-religion to a favored position in the government.  What the court has failed to understand that what appears to be a theological non-statement (‘we will ban all religions from the public square’) is a theological statement (‘non-religion will be the preferred religion’).  In taking this approach, argues University of Nebraska Law professor Richard Duncan, the court “promotes the evil it seeks to avoid,” by giving non-religion a favored status among government.

 The question remaining is this: did Jefferson intend to picture a high prison wall?  Did the founders of our country intend to create a religion-free, or purely secular state?   Though many of the founding fathers were not Christians (more about that next week), they definitely believed that religion has an acceptable and respectable place in the public square.  John Adams wrote that “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”  Benjamin Franklin, himself a deist, insisted that the doctrines of Christianity were taught in the public schools he chartered.  It is clear that the founding fathers did not intend for any reference to religion to be excised from the public square.  In the past sixty years, the courts have built Jefferson’s wall much higher than he intended.  Perhaps it’s time to tear down the prison-type wall and replace it with a farmer’s fence.

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