In the past few months there has been a renewed debate about the principles surrounding the first amendment, and especially about what scholars call the religion clauses – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Prior to the midterm elections in November, Christine O’Donnell asserted that separation of church and state is no in the Constitution. This is interesting, not because she is not technically correct, but because I find it funny that some would insinuate that because the phrase “separation of church and state” is not in our Constitution that it has no benefit and should not be a constitutional principle. It seems to me that those who would make this argument (including Christine O’Donnell) do not truly understand the way Constitutional law works.
The case of Marbury v. Madison (1803) established the principle of judicial review, which makes the Supreme Court the final arbiter of constitutional interpretation. Since that time, all constitutional scholars understand, whether they admit it or not, that the Constitution has not been just the words on the pages of the document. The Constitution has also been the interpretation of that document as decided by the Supreme Court through its jurisprudence (its decisions). Turning back to the issue of the religion clauses of the First Amendment and the separation of church and state, the wall of separation has been ensconced in our constitutional understanding by two cases. First, Reynolds v. US (1878) established that the wall of separation was apropos as it relates to free exercise. Second, Everson v. Board of Education (1947) established the wall of separation of church and state as a guiding principle as it relates to the establishment clause. Since these decisions, the metaphor of the wall of separation of church and state has been the meta-narrative, the guiding principle that helps the Court determine what the Founders meant when they said, “Congress shall make no law respecting an establishment of religion (Establishment Clause), nor prohibiting the free exercise thereof…” (Free Exercise Clause) Christine O’Donnell can certainly be ridiculed for not grasping this concept, or at least for not clearly stating that she did understand this and was trying to point out that separation is not a valid constitutional guide. Of course, if she meant the latter, that would mean she would be honor bound to posit some better, more efficient rubric, or one that would help us to better understand the Founders’ intent.
Conservative Christians often move from this argument to the question of religious symbols on public property. However, it flies in the face of well-established Supreme Court jurisprudence to argue that symbols of the Christian religion, like crosses, Ten Commandment monuments, and prayers before school events are not establishments of religion. Why? Because the Supreme Court, which is the final arbiter of the meaning of the Constitution, has decided that these nods to the Christian religion are audible and visual signs that our country supports Christianity more than it supports other religions. That’s establishment. It has been for more than 60 years and counting. Moreover, in order to have the Christian monuments that do exist, churches and cities and other religious groups have had to argue that these symbols are not Christian, but are part of a greater amorphous American heritage. This argument robs the cross, or the Ten Commandments of their deep spiritual meaning to every Christian. Shouldn’t that offend believers? That in our rush to have a structure erected, we rob the structure of the very meaning that makes the structure important in the first place?
It is also important for Christians to not overstate the case as it relates to their rights in America. It makes every Christian look disingenuous. For example, the Court has not removed prayer from school. What has been removed from school is official-led prayer or state-sanctioned prayer. If a parent wants their child to pray, they can do so whenever they choose. Also, there has never been a case, so far as my research has shown, where some monument to someone else’s faith was created with gov’t funds and not challenged as an establishment of religion. Some of us make it sound like Christianity is undergoing some sort of Dark Ages level persecution here. Such a thing is totally untrue. Christianity can’t be under that much persecution can it? Not when political candidates go speak in Christian churches, and churches can get gov’t funds through faith-based initiatives, and Christian leaders have influence with politicians, and control lobbying groups, and help to push through moral legislation. Christianity is still at the top of the heap as it regards religion in this country. Every Christian would do well to remember that.
Some ask (in a derogatory fashion I presume) what kind of country we’re living in, when they cannot do things like have teachers lead prayer in schools or put up Ten Commandment structures in a courthouse. I would respond by saying that we live in a country that respects freedom so much that they created a system in which people are free to believe as they wish about religion without feeling like their gov’t does not support their right to believe in that fashion. I would say that we live in a country so great, that our Founders, almost 250 years ago, had enough foresight to realize that they could not create hard and fast rules in an area like religion, so they created an open, malleable standard that would be able to expand and contract as the future society would demand. It seems to me that we live in a country whose theories and principles of freedom are great. Unfortunately, those who most strenuously argue for the Founders’ intent seem to be the ones most hell-bent on destroying that intent, turning something that is great in theory into something that is terrible in practice.
