Judicial Precedent

Separation of church and state is a myth. It is not found anywhere in the Constitution. And it is absurd to argue that the omission of God’s name from the Constitution amounts to a secular, living, breathing document.

The phrase, “separation of church and state,” was written by Thomas Jefferson to the Baptist Association in Danbury, Connecticut. Since the courts today along with liberal groups such as the ACLU, Americans United for Separation of Church and State, etc seem to believe Jefferson’s phrase was aimed at keeping religion and government separated, it’s only logical to examine the context of the exchange of letters.

On October 7, 1801, The Danbury Baptists wrote to Jefferson about their concern with the First Amendment. They perceived the Constitutional protection for the “free exercise of religion” to mean the right was government-given (thus alienable) rather than God-given (hence inalienable), and that therefore the government might someday attempt to regulate religious expression:

Our sentiments are uniformly on the side of religious liberty: that religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, and that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific…Therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights.

Jefferson believed that the government was to be powerless to interfere with religious expressions for a very simple reason: he had long witnessed the unhealthy tendency of government to encroach upon the free exercise of religious expression. As he explained to Noah Webster:

It had become an universal and almost uncontroverted position in the several States that the purposes of society do not require a surrender of all our rights to our ordinary governors . . . and which experience has nevertheless proved they [the government] will be constantly encroaching on if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious effective against wrong and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove. Of the first kind, for instance, is freedom of religion.

On January 1, 1802, Jefferson replied to the Danbury Baptists assuring them that they need not fear; the free exercise of religion would never be interfered with by the government:

Gentlemen,—The affectionate sentiments of esteem and approbation which you are so good as to express towards me on behalf of the Danbury Baptist Association give me the highest satisfaction. . . . 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 his worship; that the legislative powers of government reach actions only and not opinions, 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 and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association assurances of my high respect and esteem.

The wall of separation was not meant to divide religion and government. Instead, it was unquestionably installed to limit the power of government to prohibit or interfere with the free exercise of religion.

Earlier courts evidently understood Jefferson’s intent. Jefferson’s letter was invoked only once prior to the 1947 Everson v. Board of Education case – the 1878 Reynolds vs. United States – and it quoted the letter in it’s entirety. The Court concluded:

Coming as this does from an acknowledged leader of the advocates of the measure, it [Jefferson’s letter] may be accepted almost as an authoritative declaration of the scope and effect of the Amendment thus secured. Congress was deprived of all legislative power over mere religious opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. (emphasis added)

The Reynolds case outlined the boundaries for proper use of Jefferson’s letter. That Court, therefore, and others (for example, Commonwealth v. Nesbit and Lindenmuller v. The People), identified actions into which—if perpetrated in the name of religion—the government did have legitimate reason to intrude. Those activities included human sacrifice, polygamy, bigamy, concubinage, incest, infanticide, parricide, advocation and promotion of immorality, etc. Such acts, even if perpetrated in the name of religion, would be stopped by the government since, as the Court had explained, they were “subversive of good order” and were “overt acts against peace and good order.” However, the government was never to interfere with traditional religious practices outlined in “the Books of the Law and the Gospel”—whether public prayer, the use of the Scriptures, etc.

It was—and typically still is—a fundamental maxim of law to determine the intent of the authors of a statute before attempting to apply it. Therefore, to discover the legitimate scope of protections and prohibitions intended in either the First Amendment, investigate the records from that era rather than relying on an interpretation concocted by the Court 200 years ex post facto.

Begin, for instance, by investigating the various proposals for the First Amendment. Notice that of George Mason (a member of the Constitutional Convention and “The Father of the Bill of Rights”):

All men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others.

In 1793, Zephaniah Swift (author of America’s first law textbook) explained:

Christians of different denominations ought to consider that the law knows no distinction among them; that they are all established upon the broad basis of equal liberty, that they have a right to think, speak, and worship as they please, and that no sect has power to injure and oppress another. When they reflect that they are equally under the protection of the law, all will revere and love the constitution, and feel interested in the support of the government. No denomination can pride themselves in the enjoyment of superior and exclusive powers and immunities.

As Justice Joseph Story, the father of American law, explained in his Commentaries:

The real object of the First Amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects.

Early court cases further support the claim that America was founded with Christianity as a central role.

Church of the Holy Trinity v. United States (1892) United States Supreme Court:

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons: they are organic [legal, governmental] utterances; they speak the voice of the entire people.These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.

Updegraph v. The Commonwealth (1824) Supreme Court of Pennsylvania

We will first dispose of what is considered the grand objection—the constitutionality of Christianity—for, in effect, that is the question. Christianity, general Christianity, is and always has been a part of the common law . Not Christianity founded on any particular religious tenets; not Christianity with an established church, but Christianity with liberty of conscience to all men. Thus, this wise legislature framed this great body of laws for a Christian country and Christian people. This is the Christianity of the common law and thus it is irrefragably [undeniably] proved that the laws and institutions of this State are built on the foundation of reverence for Christianity.

Despite all of this, the 1947 Everson case tossed out 150 years of judicial precedent and began a trend of striking down religious liberties. In addition, it dramatically changed the role of the courts, resulting in what we know today as “judicial activism.” Justice Hugo Black achieved this by systematically linking the Fourteenth Amendment (via a ruling from 1868 ) to the First Amendment (with a ruling from 1791) and blazing the road for the courts to begin plowing up religious liberties. Funny thing is, that connection had always existed for those 79 years prior with many, earlier courts and many Founders included, oblivious to such a connection.