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Veteran Member
Join Date: Dec 2002
Location: Gatorville, Florida
Posts: 4,334
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Church/State Separation In The Courts
Since there is so much focus on the "under God" ruling, I thought I would post an excerpt from a recent court decision that analyzed the separation of church and state in the case of a man convicted of possessing Golden Eagle feathers without a permit. The 10th Circuit judges wrote:
Quote:
In 1655, Roger Williams, the founder of Rhode Island, penned perhaps the first concise expression of what we now know as the religion clauses of the First Amendment. In a letter to the town of Providence, R.I., he wrote:
It hath fallen out sometimes that both Papist and Protestants, Jews, and Turks may be embarked in one ship; upon which supposal I affirm that all the liberty of conscience that ever I pleaded for turns upon that two hinges--that none of the Papists, Protestants, Jews, or Turks be forced to come to the ship's prayers or worship, nor compelled from their own particular prayers or worship, if they practice any.
1 Stokes, Church and State in the United States 197 (1950). Ever since this dual formulation of protection for religion was codified in the First Amendment, it has been alternatively praised for its genius and damned for its vexing complications. In either case, the kind of separation of church and state embodied in the religion clauses of the First Amendment is central to the structure of ordered liberty upon which this nation was founded.(5) John Locke thought it "above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other." John Locke, A Letter Concerning Toleration, quoted in <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=374&invol=203" target="_blank">Sch. Dist. v. Schempp</a>, 374 U.S. 203, 231 (1963) (Brennan, J., concurring). However, finding the precise line and degree of "the just bounds" between religion and civil government has been "elusive," <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=374&invol=203" target="_blank">Schempp</a>, 374 U.S. at 231 (Brennan, J., concurring), and a "most difficult and sensitive task, calling for the careful exercise of both judicial and public judgment and restraint," id. at 305 (Goldberg, J., concurring).
Footnote (5) reads: While the word separation appears nowhere in the text of the First Amendment, its importance as a guiding principle of First Amendment jurisprudence cannot be denied. For example, in the now famous <a href="http://www.infidels.org/library/historical/thomas_jefferson/letter_to_baptists.html" target="_blank">letter to the Baptist convocation at Danbury, Connecticut</a>, Jefferson wrote: "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." T. Jefferson, 16 Writings of Thomas Jefferson 281-82 (1903). One-and-a-half centuries earlier, Williams, the political grandfather of the First Amendment, argued that religious persons have always been called to be "separate from the world" and that "when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness." Roger Williams, Mr. Cotton's Letter Lately Printed, Examined and Answered (quoted in Perry Miller, Roger Williams: His Contribution to the American Tradition 98 (1953)). This notion of separation has permeated modern Supreme Court jurisprudence. See e.g., <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=330&invol=1" target="_blank">Everson v. Bd. of Educ.</a>, 330 U.S. 1, 16 (1947) ("In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" (quoting <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=98&invol=145" target="_blank">Reynolds v. United States</a>, 98 U.S. 145, 164 (1878))); Id. at 31-32 (Rutledge, J., dissenting) ("The Amendment's purpose . . . was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."). We are mindful that "rule[s] of law should not be drawn from a figure of speech," <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=333&invol=203" target="_blank">McCollum v. Bd. of Educ.</a>, 333 U.S. 203, 247 (1948) (Reed, J., dissenting), and that the Constitution does not "require complete separation of church and state," <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=465&invol=668" target="_blank">Lynch v. Donnelly</a>, 465 U.S. 668, 673 (1984); however, it is clear that separation, in all its guises, remains a guiding principle of the First Amendment. See, e.g., <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=440&invol=490" target="_blank">Catholic Bishop of Chicago v. N.L.R.B.</a>, 559 F.2d 1112, 1119 (7th Cir. 1977) ("[I]rrespective of the height, breadth, straightness, or fissures in the Religion Clauses separation wall, the Court's numerous precedents in this area are firmly rooted and now provide substantial guidance.").
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The key point of this quote is that the idea of separation of church and state is very ancient. This is discussed at length in <a href="http://www.ffrf.org/fttoday/march01/sierichs.html" target="_blank">Ye Olde Walls of Separation</a> by William Sierichs, Jr.
Don't let people try to tell you that <a href="http://www.infidels.org/library/historical/thomas_jefferson/letter_to_baptists.html" target="_blank">Jefferson's letter</a> doesn't clearly represent the considered opinion of his day on the issue of separation of church and state. In fact, after a lengthy debate between the representatives of the various colonies (some wanted state churches, but they could not agree on WHICH church should be the state church), "separation of church and state" was eventually agreed upon as the proper foundation for a national government.
Yes, some of the states of the United States did have "state churches" in the early years of our nation. But those had all been abolished by the time of the adoption of the Fourteenth Amendment, which extended the reach of the Bill of Rights down to state actions (as well as national government actions).
== Bill
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06-27-2002, 04:56 PM
