A Wall of Separation – Abington v. Schempp (1963)

September 9, 2016June 4, 2023 ~ Blue Cereal ~ 1 Comment

Cases don’t just magically appear in the Supreme Court. Except in rare circumstances, they begin as local disputes, sometimes working their way up through District Courts. By the time a case comes before the highest court in the land, it’s often been going on in some form for several years.

The Court nevertheless chose to hear School District of Abington Township v. Schempp (1963) only one short year after its decision in Engel v. Vitale (1962). Their decision to do so suggests they saw something in this case distinct from the issues a year before. Otherwise, they’d have remanded it to the lower courts for reconsideration in light of their ruling in Engel.

The case is remembered for the Court’s 8-1 ruling that government-sponsored Bible reading or prayer in public schools is unconstitutional. It violates the First Amendment as applied to the states through the Fourteenth.

Other than the focus on ‘Bible reading’ instead of prayer (in this case it was often the Lord’s Prayer rather than the very general incantation at issue in Engel), it would seem to be a repeat of the previous case. It does have a few interesting little features, however, which make it worth separate consideration here.

The case began in the late 1950’s when Edward Schempp, his wife, and two of his kids who went Pennsylvania public schools, argued that their religious rights (they were Unitarians) were being violated by a state law that required public schools to begin each school day with a reading of at least 10 verses from the Bible.

Pennsylvania tried to deflect the issue by changing the law to allow students to be excused with a written request from a parent, but the case nevertheless moved forward.

Sometimes the Supreme Court will combine similar cases to be heard together. This was what happened in Brown v. Board of Education (1954), for example – while the story of Linda Brown still remains the ‘face’ of the case, there were actually four other cases, all pushed by the NAACP, packaged together with Brown and technically considered and decided at the same time.

Schempp’s case was combined with a case from Baltimore, Murray v. Curlett. While Abington is the one we most often remember and discuss, it was Murray – as in “Madelyn Murray O’Hair” – who made the biggest personal ripple at the time.

Ms. O’Hair was America’s most prominent and outspoken atheist of the 20th Century. For several generations after Abington/Murray was decided, she was cited and demonized as the woman who removed God – or at least prayer – from public schools.

Whatever the spiritual ramifications of her actions, this simply wasn’t true. She fought prayer and Bible-reading in public schools, to be sure, but the prayer issue had already been decided by the time her case made it to the Supreme Court, and the Bible-reading issue would have turned out the way it did with or without her.

That doesn’t mean she’s not burning in eternal damnation even as we speak, but history is history. I’m just saying.

The second memorable feature of this case, besides the decision itself, is that for the first time the Court developed a sort of ‘test’ to be used in subsequent situations to determine whether or not the Establishment Clause was being violated.

From the majority opinion, written by Justice Tom C. Clark:

The wholesome “neutrality” of which this Court’s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits.
And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees.
Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof.
The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that, to withstand the strictures of the Establishment Clause, there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion…

The Court would “update” this test less than a decade later in Lemon v. Kurtzman (1971). The updated version – commonly referred to as the “Lemon Test” – is far better known and still utilized today.

Justice Clark’s opinion quotes from the record of the initial “trial court” which heard the case to begin with. Better than anything else, it summarizes the reasoning behind the final decision:

The reading of the verses, even without comment, possesses a devotional and religious character and constitutes, in effect, a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord’s Prayer.
The fact that some pupils, or, theoretically, all pupils, might be excused from attendance at the exercises does not mitigate the obligatory nature of the ceremony, for . . . Section 1516 . . . unequivocally requires the exercises to be held every school day in every school in the Commonwealth.
The exercises are held in the school buildings, and perforce are conducted by and under the authority of the local school authorities, and during school sessions. Since the statute requires the reading of the “Holy Bible,” a Christian document, the practice . . . prefers the Christian religion. The record demonstrates that it was the intention of . . . the Commonwealth . . . to introduce a religious ceremony into the public schools of the Commonwealth.

Like Justice Black before him, Justice Clark soon launches into a history lesson about the role of faith in our collective past. He cites related cases, some involving schools and others not, before this poignant little line:

The government is neutral, and, while protecting all, it prefers none, and it disparages none.

There’s more history and lots of quoting from other cases, then this:

We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.” Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

A bit later we get to that ‘test’ discussed above, then more reasoning and quoting. It’s actually a bit tedious as majority opinions go – no offense to the late Justice Clark.

This bit caught my attention:

Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, “it is proper to take alarm at the first experiment on our liberties.”

Pages of legal reasoning and precedence, then suddenly “a trickling stream may all too soon become a raging torrent.” If only Clark had discovered his penchant for drama a few dozen pages earlier.

It is insisted that, unless these religious exercises are permitted, a “religion of secularism” is established in the schools.

Oooh! This sounds interesting. It’s essentially the same accusation made against public schools in Oklahoma by our very own 21st century representatives a couple times a year.

We agree, of course, that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” … We do not agree, however, that this decision in any sense has that effect.
In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.

I’ve cited this bit more than once when talking to teachers about religious content in school. You can’t read much great literature or analyze many great American speeches without a foundation of Biblical literacy. Reform movements or wars, individuals or cultures – the impact of religion is ubiquitous in our collective past, and to deny it would be to rewrite that history substantially.

But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

It sounds so simple, although at least one concurring Justice acknowledged how tricky this could sometimes be in practice. Despite popular perception in the 21st Century, the Court expressed no interest in stifling or limiting religion – it merely refused to make it, or any specific form of it, in any way mandatory.

It would be eight years before another case of note involving public education and the role of faith would reach the Supreme Court. It would produce the best-known ‘test’ for weighing whether or not a particular policy or practice was, in fact, in violation of one of those tricky ‘religion’ clauses.

A Wall of Separation – Engel v. Vitale (1962)

September 6, 2016August 10, 2023 ~ Blue Cereal

After Everson v. Board of Education (1947), fifteen years passed before the next important ‘religion and public schools’ case made its way to the Supreme Court. Whereas Everson dealt with transportation, Engel v. Vitale (1962) addressed the role of the supernatural in the classroom itself.

To this day, many evangelicals blame this case for the collapse of American culture. After the highest court in the land “kicked God out of public school,” there came the sex, the drugs, the decadence, and the disrespect.

Just think – we could have avoided disco altogether if nine old men in robes could have restrained their humanistic tendencies for just a few more decades.

But I’m getting ahead of myself.

Sometime in the 1950s, the Board of Regents of the State of New York put together a “voluntary,” non-denominational prayer to be recited by students each day. It was pretty tame:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.

But then, a prayer is a prayer.

In 1958, a small group of parents (including Steven Engel, who was Jewish) vocalized their objections to this prayer. The district argued that the prayer was technically voluntary, and that participation was protected by the “free exercise” clause of the First Amendment.

The parents sued, thus landing school board president William Vitale on the other side of the italicized “v.” The case eventually wound up in the Supreme Court, which decided Engel v. Vitale in 1962.

New York’s law promoting prayer – any prayer – in public schools was unconstitutional. Unlike Everson fifteen years earlier, the Court had but one dissenter – Justice Potter Stewart. Like Everson, the Court’s majority opinion was written by Justice Hugo Black.

Black’s written opinion has some golden moments. Let’s gaze into the rhetoric, shall we?

Among other things, these parents challenged the constitutionality… of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that “Congress shall make no law respecting an establishment of religion” — a command which was “made applicable to the State of New York by the Fourteenth Amendment…”

If you missed the part about “incorporation” via the 14th Amendment, you might wish to review.

The New York Court of Appeals… sustained an order of the lower state courts which had upheld the power of New York to use the Regents’ prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents’ objection. We granted certiorari to review this important decision involving rights protected by the First and Fourteenth Amendments.

In other words, lower courts had accepted the idea that the prayer was acceptable because it was technically voluntary. ‘Granted certiorari’ (Sir Shoe RHARee) is a fancy way of saying the Supreme Court agreed to hear the case. In Latin it means something like, “OK – inform us!”

The number of petitions to the highest court in the land would quickly prove crippling if Justices were compelled to hear all of them. In most cases, then, it is entirely up to the Court which cases they decide to hear and which they don’t. If they agree to hear the case, they ‘grant certiorari’.

We think that, by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity…
The Board of Regents as amicus curiae, the respondents, and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage…

Unlike your typical television courtroom drama, most Supreme Court cases prompt multiple amicus curiae, or “friend of the court,” briefs. Pretty much any interested party can submit research, arguments, background, etc., for the Court to consider – even if they’re not directly involved in the case.

Black’s point here is that no one involved was disputing that the prayer was religious. Instead, they were arguing that it was OK that it was religious because Americans are largely people of faith, historically speaking. In short, supporters wanted to frame the prayer as more like a Christmas Tree than a Cross.

Justice Black then dives into a history lesson on the subject, as he was wont to do. The gist of it is that America was largely founded by people trying to get away from other people – especially those in government or other positions of power – telling them how to pray and exactly what to believe. The subplot is that government efforts to standardize and mandate faith – however general or ‘voluntary’ – repeatedly caused more problems than they solved.

And you know what they say about those who don’t know their history…

It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies…

Ah, history and its uncomfortable lessons… We fight the power until we become the power, at which point abuse suddenly seems like a really good idea – in everyone’s best interest, in fact – because now it’s ME!

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.

This is a theme we don’t appreciate sufficiently whenever church/state issues arise. It’s not just about “protecting” the government from religious influence; it’s about protecting individuals and their faith from the damage government inherently brings to everything it “improves.”

They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch.
But this safeguard was not enough… The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say — that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office…

Here comes my favorite part. You might want to grab a Slurpee and some popcorn – this is delish!

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that.
Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.

Think about this argument for a moment. Once your personal walk with God becomes just another parking meter demanding quarters or a regulation with which you must comply before adding a shed in the backyard, it’s no longer your reach for the divine – it’s merely another vulgar hoop through which you must jump.

Didn’t someone relatively significant die to overcome this sort of entrenched legalism at some point?

The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith.

Think about modern politics replacing your Holy Spirit. Do you seriously want Donald Trump and Hillary Clinton going back and forth about whether or not baptism requires immersion? John Bennett and Emily Virgin on a committee together to determine whether or not Jesus is OK with you changing churches twice in the same year?

I can’t wait to hear what Governor Fallin and Preston Doerflinger determine about how much tithe God intends for you to pay, and where it should best be applied. And if you argue against them, you’re part of the godless liberalism pervading our once great nation. Good times!

That may sound like it’s a far cry from “we beg Thy blessings upon us,” but whether you’re a lefty or a righty, you know how slippery government slopes tend to be. Chutes and ladders, kids.

Lest we think the Court is suggesting secular government should instead be in some way hostile towards faith, Black goes again to history. On behalf of the Court, he acknowledges not only the role of religion, but it’s power in shaping the best of the New World’s aspirations.

The excerpt is a bit lengthy, but well-worth some mastication:

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong.
The history of man is inseparable from the history of religion. And perhaps it is not too much to say that, since the beginning of that history, many people have devoutly believed that “More things are wrought by prayer than this world dreams of.”
It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose.
And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either.
They knew, rather, that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

We don’t separate church and state because we’ve forgotten the role of faith in our creation; we separate them because we remember.

A Wall of Separation – Everson v. Board of Education (1947)

September 2, 2016June 4, 2023 ~ Blue Cereal

Prior to the 14th Amendment, the protections offered by the Bill of Rights applied primarily to the Federal Government. While most States had similar protections in their own constitutions, these were inconsistent and locally interpreted.

The 14th Amendment changed all of that in ways neither immediate nor obvious. Passed in 1868 as part of the ‘Reconstruction Amendments,’ its initial intent was to guarantee full and equal citizenship for Freedmen – newly freed Black Americans.

It reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the first time that the States had been specifically targeted this way. It chipped away substantially at the wall separating State and Federal power – with central authority clearly coming out ahead.

Still, several generations passed before the Supreme Court began regularly interpreting the Fourteenth Amendment as a means of “incorporation” – applying the Bill of Rights to the States by way of that part about “equal protection.”

In 1947, this gradual “incorporation” finally crossed into the realm of public schooling. Well… sort of.

It made it as far as the bus.

New Jersey regularly reimbursed parents whose children rode public transportation to school. This sounds strange in the Midwest, where fleets of bouncy yellow school busses are a seasonal hallmark, but it’s not unusual in larger cities even today. Why duplicate something already in place and working, running up costs and clogging everything up unnecessarily? They’re not Congress, after all.

Children who attended parochial Catholic schools were entitled to the same assistance. A local taxpayer challenged this on the basis that it was government support for religion – that his tax dollars were being used to make it easier for children to attend Catholic indoctrination.

The case eventually reached the Supreme Court as Everson v. Board of Education of the Township of Ewing (1947). The central question was whether New Jersey’s reimbursement to parents for the cost of sending their darlings to private religious schooling violated the Establishment Clause of the First Amendment as applicable to the states through the Fourteenth Amendment.

The short answer was no, New Jersey wasn’t violating anything. The bus thing was fine.

The Court’s decision was split 5-4, which doesn’t make it any less binding, but certainly makes the discussions more interesting. Justice Hugo Black, writing for the majority, argued that busing in this case was comparable to police or fire department protection, and that refusing parochial school students the same government services as public school students would in fact violate the Free Exercise clause of the First Amendment.

But the Supreme Court doesn’t just rule yay or nay. They write about why they decided what they did, and any Justices who disagree write about why they disagree. It can be tedious reading, but there are often nuggets of mirth or pith sprinkled amongst the elucidation.

For example, in Justice Black’s majority opinion:

The only contention here is that the state statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects… First. They authorize the State to take by taxation the private property of some and bestow it upon others to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment.

One argument by the petitioner – the guy who originally complained about his tax dollars being used this way – was that the Fourth Amendment guarantees him “due process” before the government can take his stuff. Essentially he argued that the government was acting as a sort of Papal Robin Hood, appropriating his money for redistribution against his will.

Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of state power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states.

That’s the part that got this one into the history books, and why we’re talking about it here.

First. The due process argument that the state law taxes some people to help others carry out their private purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public’s interest in the general education of all children…
But the New Jersey legislature has decided that a public purpose will be served by using tax raised funds to pay the bus fares of all school children, including those who attend parochial schools… The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need.

In other words, it’s fine for the state to dedicate public funds to bus fare for all kids – whatever type of school they’re attending – because it serves a broader and legitimate government purpose benefitting all citizens.

Not everyone needs the fire department the same. Not everyone calls the police the same number of times. But that doesn’t matter, Black explains, because those services aren’t about individuals – they’re about the larger ‘social contract’. They’re about ALL of us being better off when those around us are safe and whole.

And educated.

Modern civilization is built on the understanding that we’re all willing to give up a bit of our individual freedom – our short-term self-interest – in order to benefit the whole. This is the social contract at its most basic.
We cooperate not because it’s nice, or because it makes us feel like good people – we do it because in the end, we each benefit from this collective action. We behave unselfishly, but for self-serving reasons.

It is true that this Court has, in rare instances, struck down state statutes on the ground that the purpose for which tax raised funds were to be expended was not a public one… But the Court has also pointed out that this far-reaching authority must be exercised with the most extreme caution…

Sit up straight and pay attention – here comes a really good part:

Otherwise, a state’s power to legislate for the public welfare might be seriously curtailed, a power which is a primary reason for the existence of states…

According to our founding documents, the primary function of national government is the protection of property – our life, our liberty, and our stuff – but if Justice Hugo is correct, one essential function of state government is coordinating and administering the collective good. The social contract.

It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose…

Justice Black then proceeds to offer an extensive history lesson in the necessity of the Establishment Clause. It’s too long to reproduce here, but certainly worth reading. It even contains the wonderful phrase, “Baptists were particularly obnoxious” – which out of context makes a great teaser for the rest, yes?

The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religions and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion…

Seventy years later, we still encounter similar ‘difficulties’ from time to time.

The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority…

Just a reminder that it works both ways. Yes, the Framers wanted to keep secular power out of religious control. But they also wanted to avoid secular interference in matters of faith. Historically, overt cooperation between church and government works out poorly more often than not.

{W}e must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.

That was the key. It’s a tricky balance, the Court acknowledges, but in this case a balanced understanding dictates that the bus thing is fine.

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.

When every opinion you issue potentially shapes the logistics and ideology of an entire nation, you want to be as specific as possible regarding what you do and don’t mean by them.

There were two dissenting opinions, including one by Justice Robert Jackson which is both passionate and amusing. At one point he makes rather naughty use of Lord Byron.

Unfortunately, we’re out of time. You’ll just have to look it up on your own.

RELATED POST: Should You Legislate the Bible?

RELATED POST: The Blaine Game

Building A Wall of Separation (Faith & School)

September 2, 2016August 10, 2023 ~ Blue Cereal ~ 1 Comment

The U.S. Constitution was written as a replacement for the Articles of Confederation – our first effort at writing a broad set of laws by which to govern the nation. The Articles had guaranteed the States almost complete sovereignty and absolute independence from one another – a great idea in theory, but not as workable as one might hope in practice.

It was understandable they’d err on the side of freedom, having finally won an extended and bitter war with the Motherland over a King they’d claimed was a “Tyrant.” There were over two dozen specific examples of his excessive rule-making and liberty-crushing behavior included in the break-up letter penned by the Colonies – a missive better known as the “Declaration of Independence.”

So, you know… downer.

But they had, perhaps, swung a bit too far away from structure and security. The Constitution was an effort to rectify the resulting difficulties. Turns out that sometimes, thoughtful limits actually grease the wheels of liberty and justice for all.

When the U.S. Constitution was finally ready for public review and debate in the late 1780’s, there were many who thought we’d once again overcompensated – this time back towards too much government, and too little freedom. They wanted some sort of written guarantee they wouldn’t be oppressed by this bigger, stronger government.

The authors were appalled at this concern. Obviously any powers not specifically granted to the national government by this document remained with the States and the People thereof! To spell out those protections would be… redundant! Possibly even limiting! What if listing some specifically guaranteed rights implied that they were the only ones entirely secured?!

It almost got ugly.

Nevertheless, a compromise was reached. The Constitution was ratified, and a collection of ten clarifying Amendments almost immediately passed as a package deal. Thus, the “Bill of Rights.”

Despite the numbering system, there are far more than ten rights included. Some Amendments, like the Fourth and Fifth, are packed with guarantees and thick verbiage. Others, like the Eighth, are fairly crisp and to the point – although written in such a way as to allow at least 225 years of subsequent debate as to exactly what they mean.

The Third is all but irrelevant. The Seventh, strangely technical. The Second – well, the Second was badly written from the moment it was passed. Forget whatever it may or may not intend to say about the right to bear arms, Madison’s English teacher must have had a fit.

But the best-known is probably the First.

The First Amendment contains six specific protections, somewhat related, and presumably so very important that they all tied for first when the Framers were debating what to guarantee the mostiest mostest.

Let’s take a gander, shall we?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That’s a meaty one, to be sure. What many people don’t realize is that this version was abbreviated from James Madison’s original text. Here’s what Madison proposed as Amendment Prime:

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. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.

So there’s a lesson in tightening up your language without losing substance, kids.

In any case, these are the biggies that squeezed in ahead of militias and quartering of soldiers, and even beat out due process in order of presentation. The right to protest. The right to associate with whomever you wish, including but certainly not limited to political organizations of any and all stripes. Freedom of the press and of speech – absolute linchpins to any nation hoping to maintain the slightest credibility as a true democracy.

But coming ahead of all of them – earning the first two slots in all of Amendment-dom – are the twin ‘freedom of religion’ clauses.

Congress shall make no law respecting an establishment of religion…

In the most basic terms, this is the part that says the government may not do anything to promote or encourage a particular religion or the concept of religion in general. Doing so creates a double curse. It leads to the marginalization and eventual persecution of those with different beliefs (whether that difference is major or minor), AND it soils the very faith the government is promoting by making it a tool of secular authority, regulated by political maneuvering and flawed men rather than one’s own spiritual journey. A faith mandated by the guys with guns and the keys to the jail is, of course, no faith at all.

Or prohibiting the free exercise thereof…

This is the part which says that the government may not do anything to discourage, limit, or punish a particular religion or the concept of religion in general. Hopefully the problems with that sort of behavior are self-evident.

You may wonder where the famous ‘wall of separation between church and state’ comes in. As with so many things, we have Jefferson to either thank or blame for that phrase, depending on your point of view. Well, him and the Baptists.

In 1801, while Jefferson was President, he received a letter from the Danbury Baptists – yes, those Baptists. As in the folks with over 3x the membership of the next leading denomination in Oklahoma today. They had some concerns about religious freedom and what they saw as inadequate delineation between the secular and the spiritual:

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.

That’s right, kids – the Baptists were asserting that faith is between you and God while the government is simply supposed to keep you from killing one another or taking someone else’s stuff. That’s it – no getting involved in issues best left to the pulpit or the prayer closet.

But sir, our constitution of government is not specific… And such has been our laws and usages, and such still are, {so} that Religion is considered as the first object of Legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. And these favors we receive at the expense of such degrading acknowledgments, as are inconsistent with the rights of freemen.

These weren’t atheists arguing against the Ten Commandments or Muslims insisting on their right to pray to Allah instead of Jesus. These were Christians – Protestants, even – who were frustrated by their local government enabling and supporting some theological technicalities more than others.

That’s the logical and historical result when you have a religious people and a government of-the-by-the-for-the those same people. You’ve driven down the street and wondered how and why even the smallest community needs about 37 different churches? That’s the flip-side of religious freedom – where two or more or gathered, they’ll immediately begin arguing about the finer points of hermeneutics.

Unless government makes a substantial and ongoing effort to avoid such entanglements, those arguments naturally spill over into the secular realm.

It was Jefferson’s reply which gave expression to what has become the most common understanding of the First Amendment’s guarantees regarding matters of faith.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & 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 & State.

There it is.

By itself, it’s just a phrase in a letter. But it’s a phrase in a letter which has been repeatedly referenced and validated in Supreme Court decisions and has become an entrenched and widely accepted interpretation of First Amendment protections through case law and sheer longevity.

In other words, it’s as close to belonging in the actual text of the Constitution as something can be without actually being in the text. For the record, it’s not alone in this – the Constitution never explains Federalism or defends Democracy, both of which are now considered inherent. The Framers despised Political Parties and what letting them get involved would do to the entire system – but for better or worse, they’re clearly a thing.

And until the North won the Civil War, Equality wasn’t even a goal, let alone a realization. I’m a big fan of small government and faithfulness to the Constitution, but let’s not go overboard. It’s an outline, not a mathematical model.

So “wall of separation” it is. It sounds so simple, and it is – on paper.

In practice, though… well, let’s just say it’s come up a time or two. And sometimes, the issue involves public education.

Which is what I do.

Next: A Wall of Separation – Everson v. Board of Education (1947)

RELATED POST: Should You Legislate the Bible?

RELATED POST: Missing the Old Testament

An Early Xmas Venti

November 17, 2015June 4, 2023 ~ Blue Cereal

You read somewhere online that Christians are mad about coffee cups. You already despise a certain breed of religious person, and this seems to fit that profile. You and a hundred others you follow rant about those nuts and their damn cup obsession, eventually blaming them for not doing more for the homeless, for trying to run your life and ruin your relationships, and for that one pastor who molested that boy.

3 days later you realize that at no point have you actually seen or heard anyone mad at a cup (unless you went to the trouble to track it down as part of your outrage over what the hell is wrong with those people). You decide it doesn’t matter because screw them, you’re an enlightened scientific type who refuses to believe crazy things without evidence.

Unless it’s a massive uprising over a coffee cup. That you accept on faith, because… Christians.

The most popular idealized version of ‘Christmas’ utilized by seasonal TV shows and movies, and aspired to by families who’d like very much to consider themselves ‘traditional’, was birthed in the early 19th century through the writing of Washington Irving and Charles Dickens.

Christmas trees, colorfully wrapped presents, family festivities and such, weren’t without precedent, but neither were they what normally came to mind every time it snowed in prior centuries. And those songs which seem so timeless now – perhaps even a bit quaint? Few existed before the 1800s. Many of the most popular are less than 100 years old.

In other words, travesties like “Run, Run Rudolph” or those Jingle Bells Dogs have just as much historical credence as “Angels We Have Heard on High.”

I know, right?

To further carve the ‘X’ out of ‘X-mas’, non-traditionalists are quick to remind us of the pagan roots of many yuletide traditions – throwing around terms like ‘winter solstice’ to explain why we shouldn’t care whether or not Target uses a glowing plastic baby Jesus in their displays.

But knowing the origins of something doesn’t automatically reshape our emotional expectations and ideals. We are not a people known for clinging to our own history, let alone that of the grander human story. Trivia from 2,000 years ago isn’t likely to compel us to give up our caroling, forsake our eggnog, or burn our DVDs of Scrooged, Elf, or the Die Hard Trilogy.

Our experiences and holiday yearnings aren’t about objective history or Druidic roots. They’re about hopes and feelings and stretching ourselves higher than we usually reach. They’re about redemption and clinging passionately to a faith which seems less and less generally understood with each passing year.

And yes, for many, they’re about the Baby Jesus and God becoming man to redeem us from our sins. Go ahead, godless and truculent – laugh it up. Your day is com-

Er… I mean, we just wish you could see the true joy of the Reason for the Season! Or something.

I’m not looking to defend an ‘Old Fashioned Christmas’ or to lament the cesspool of humanity that is Black Friday. Spend your holiday with family and feasting, in prayer and meditation, or naked on the couch Netflix-binging – it’s your call. This is ‘Merica!

But I’d respectfully suggest that the aches and fears some have over the ongoing de-Christing of the season may not be proof they are fascists, or oppressors, or Fox News morning show hosts (except the ones who are). It may simply be that they feel like something special is being taken away from them for reasons they don’t entirely understand.

Imagine that every winter, your homeowners association wants to make sure its members are prepared for the extended cold. Based on calculations you’ve never thought to question, a rep shows up at your door most years with a hot pizza, a pamphlet on staying warm, and around $400 in cash for groceries, electric bills, or unexpected expenses during the freeze.

One season they change the algorithm – something about family size, income, and who knows what else. That year your rep brings you a frozen pizza, a pamphlet, and $300 to get you through. It’s still appreciated, and it’s not like you rely on it to survive.

The next winter it’s $250. The following year they simply email you a PDF of the pamphlet. Soon there’s no pizza at all, just coupons for Papa Murphy’s. The total resources are still being allocated, but they seem to be going to people who haven’t lived in the neighborhood all that long – people who don’t always follow the unwritten rules of the community.

You’re still receiving more than you’ve paid in, and more than most neighborhoods do for their people. But as the rep hands you that $200 and the coupons, you feel violated. Taken advantage of. Not because you’re going without; because you’d grown so accustomed to having so much more.

Now imagine that a small, but angry and vocal, vanload of outsiders show up chanting and ranting about those nasty, hateful people trying to take everything you own and ruin the wonderful block party mentality which prompted the assistance to begin with.

It’s easy to see the absurdity from a distance. Even easier to succumb to fear and frustration when you’re cold and expected pizza.

The solution, at least in the allegory, is to find and get to know those new neighbors. Learn their stories. Chances are, given the opportunity, you’d have shared with them anyway. You’re not a bad person – you just… didn’t see it coming.

And it’s easy to confuse what you’re not being given with what you have and don’t wish to sacrifice.

‘Less’ looks and feels a whole lot like ‘loss,’ after all.

As to those of you rejoicing every time another Baby Jesus is kicked off the courthouse lawn, keep in mind that feeling first and rationalizing later is hardly exclusive to people of faith. It’s human nature – even for you I-heard-it-from-Neil-deGrasse-Tyson types.

You don’t have to accept others’ perceptions, but your blood pressure might go down a bit if you assumed the less-than-worst of those expressing frustration. Sure, it would be nice if reason and research won the day more often, but how many of us choose a spouse, an outfit, or even a restaurant only after a day in the library and a pro/con spreadsheet? We’re simply not that detached from our own perceptions and experiences.

I’m not sure we’d want to be.

So Eunice wishes people still said ‘Merry Christmas’, and Bob forwards that urban legend about candy canes representing Jesus and his cleansing blood. None of them took part in the Crusades. Very few of them ever sent Falwell money. Most of them have never yelled ugly things at anyone different than themselves.

And virtually none of them – almost zero – ever gave the tiniest thought to the design on Starbucks coffee cups.

Happy Holidays soon. And “Merry Christmas” starting in a few weeks as well – but only if it really bugs you.