So is there a "separation of church and state," or not?

You know, every once in a while, I get into a heated exchange about religion, and government, and politics (usually with my wife, but this time, it was my mother). With dear old mom, I tend to go "old school" on her -- by writing a letter. Yeah, a real, pen-to-paper letter (or, in the 21st Century, fingers-to-keyboard-to-printer letter, but you get the point). Here's my latest missive on that "hot button" issue of religion and the first amendment, as argued with me mum.

This will follow-up on our telephone call the other night about the infamous phrase “separation of church and state.” We’ve discussed it in brief already, but I’m going to give you a few more things to chew on.

Perhaps the most significant point to be made on this issue is this: Each of the following statements is true: (1) All of the current interpretations of the First Amendment are correct, and (2) None of the current interpretations of the First Amendment are correct. It all depends on what you are trying to establish because there are no “right” answers in interpreting the constitution. This is because of the way the document was designed, and because of the nature of a democracy.

For instance, if you believe in a right to privacy, you cannot rely on the Constitution because it does not exist there. If you believe that you should be protected from governmental interference in the private dealings of your day to day life, then you have to accept that the constitution is a living document, subject to interpretation, from which certain rights that are not specifically spelled out can nevertheless be inferred. You cannot rely on the plain language of the constitution for the right to privacy because it’s not in there. The right to privacy only exists because the constitution has been interpreted to provide it.

Regarding the language “separation of church and state,” it is actually irrelevant to a discussion of the meaning of the First Amendment that this particular phrase had its genesis in a letter by Jefferson to a group of Baptist clergymen in 1802, assuring them that the Congregationalists Church would not become the state-sponsored religion of the United States. (As I’m sure you know, Jefferson was pointing out that the First Amendment guaranteed that there would be no establishment of any one denomination over another.)

The phrase “separation of church and state” has been co-opted by both the right and the left to stand for whatever it is that the respective sides want it to mean. On the extreme left, it means that nothing remotely religious can be associated with anything remotely governmental. On the extreme right, the phrase is a hot button topic used to show that the extreme left is misinterpreting the constitution. The reality is that the truth lies in the middle because the plain language of the First Amendment clearly contemplates that the government and religion were to operate in separate realms.

The plain language of First Amendment provides, in relevant part:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . "

As I’m sure you know, these clauses are usually broken down into “the Establishment clause” and “the Free Exercise clause.” The Establishment clause is the one that always gets misinterpreted to service the needs of the parties invoking it, but the language of the clause is clear: Congress cannot, by law, establish a national religion.

The plain meaning of this language simply means that Congress cannot tell people who to worship, what to worship, when to worship, or how to worship -- in other words, separating Congress from any involvement in the peoples’ choice of religion. This, by definition, is a separation of “church” from “state,” because it was designed to ensure that Congress couldn’t involve itself with the peoples’ choice of religion.

James Madison said that the First Amendment was prompted because "The people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform." The obvious point of the amendment was thus to avoid the religious wars and religious tyrannies that had plagued Europe for centuries before the 1700s. The Founding Fathers wanted to make sure that no specific church or creed had authority over the government -- thus, a “separation” between them.

The fact that the phrase “separation of church and state” has taken on connotations over the years inconsistent with this interpretation doesn’t change the original intent of the clause. I submit that it cannot be reasonably disputed that the intent of the First Amendment was and remains to expressly prohibit Congress from establishing any religion as the national religion. Towards that end, any law that attempts to establish one or more religions as predominant over another can be seen as violative of the First Amendment.

That, of course, doesn’t mean that religion has no place in politics. In fact, quite the contrary is true. If you research the issue, you will see that the politicians of the day, including George Washington, all accepted that religion, as a concept, was an important aspect of any politician. However, even accepting all of their statements does not change the fact that the First Amendment still prohibits Congress from establishing a national religion. You can be as religious as you want, and be a politician. You can even advocate one religion over another, if you really want to (although how that will impact your political career is a separate issue). However, you cannot pass a law about establishing one, or two, or even a dozen religions as the national religion of the United States.

The problem is that people and groups on the extreme right take their argument one step too far. One of the arguments goes that the “separation” was only intended to be one-way, claiming that it was not the intention of the Constitution to separate the government from Christianity and its principles. The claim is that the purpose of the Establishment clause was to protect the church from the state, but not the State from the Church. Unfortunately, there is no support for this argument anywhere in the Constitution. (In fact, the Constitution itself mentions religion only once. In Article VI, paragraph 3, the Constitution provides that state and federal office holders "shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as qualification to any office or public trust under the United States." The purpose of this paragraph it to permit any individual to hold office, regardless of their religion. There is no other reference to religion anywhere in the Constitution.)

The fact is that advocating that the Constitution did not contemplate separating Christianity from government ignores the plain language of the First Amendment. There should be no law establishing any religion. If you want to elect Christians, Jews or Muslims to Congress, the people are free to do so, but not one of those religions can, by law, be decreed as being “better than” or a “guiding principle” more than the other. The fact that the politicians in the 1700s were primarily Christian does not change the fact that, in 2005, the Constitution still protects all of the religions, sects and creeds out there.

The Establishment clause has, of course, grown long tentacles over the years. It’s the classic “slippery slope” argument. You could justify a ban on federal funding for Catholic schools because a law providing federal funding to Catholic schools would suggest a law tending to establish Catholicism as the national church because the Catholic school is getting money that other religious schools are not getting. In all honesty, such a ban is not too much of a stretch under the Establishment clause. Of course, you really have to stretch the Establishment clause almost to the breaking point to make the clause apply to a Nativity scene, or the Ten Commandments on a stone in the courthouse, because putting up a Christmas display, or engraving the Ten Commandments on a stone in the courthouse, hardly involves the passage of a law. But none of these extreme interpretations of the Establishment clause changes the original intent of the clause, which clearly was to ensure that Congress (and under the Fourteenth amendment, the States) did not get involved in the business of passing laws -- any laws -- establishing any one, or any twelve, religions as the national religion.

The “free exercise” clause is equally easy to interpret, on its face. Congress cannot pass any law that interferes with an individual’s right to freely exercise his or her religion. Of course, the difficulty arises when people create “religions” as an excuse to engage in behavior that would otherwise be considered illegal. For instance, the mere fact that I assert a religious belief in my divine right to drive while intoxicated doesn’t mean that I’m actually free to exercise that purported belief. That’s why God invented lawyers, and why there are volumes upon volumes of books devoted to constitutional law.

The point is this: the First Amendment was intended to ensure that there was no legal connection between religion and government, and that government could not interfere with the free exercise of religious beliefs. To be sure, there is nothing about the amendment that requires that religion and religious backgrounds can have no impact on government. Obviously, the religion of a religious person will have an impact on his or her decision making. However, it is equally apparent that the law does prohibit a religious person from passing a law that establishes his or her religion as the State religion, or as one supported by the State to the exclusion of others. That, by definition, requires a separation between church and state, despite any misgivings that phraseology might engender.

There. That’s all I’ve got to say on the issue, at least for now. If nothing else, I’m sure it will inspire you to explain to me how misguided I am!

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And that's the end of that missive. Feel free, if you're of a mind to, to join my mother in explaining to me how misguided you believe me to be.