- The Washington Times - Saturday, January 27, 2007

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …”

the First Amendment of the Bill of Rights to the U.S. Constitution, which took effect Dec. 15, 1791

U.S. courts rule about two times each week on cases involving whether prayers can be included in a high school graduation ceremony, an image of Jesus Christ can be displayed in a public school or a Ten Commandments monument can remain in a government building or public park.

The American Civil Liberties Union (ACLU) says such prayers and displays violate the principle of separation of church and state.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, estimates the frequency of such rulings between 104 and 156 annually.

Mr. Lynn, whose group often gets involved in the cases, says they represent only a small fraction of incidents that arise.

“Most of these cases never even make it to court,” he says.

The ACLU, which routinely takes on such cases in federal court, has scored some important victories in the church-state area.

Those victories include the 1992 U.S. Supreme Court ruling in Lee v. Weisman, which struck down school-sponsored prayers at public-school graduation ceremonies.

Another was the court’s 2000 decision in Santa Fe Independent School District v. Doe, which struck down a Texas school district’s policy of permitting students to vote on selecting a classmate to lead prayers before football games.

The tide started to turn in June 2005, when the Supreme Court ruled that a granite monolith on the grounds of the Texas state Capitol in Austin featuring the Ten Commandments — along with Jewish and patriotic symbols — did not violate the First Amendment’s ban on an establishment of religion.

Francis Manion, senior counsel for the American Center for Law and Justice (ACLJ), says that with its 5-4 opinion in Van Orden v. Perry, the high court “did away with the idea that there is something constitutionally radioactive about the Ten Commandments.”

In a December 2005 ruling about a Kentucky courthouse’s display of the Ten Commandments, the 6th U.S. Circuit Court of Appeals held that the phrase “separation of church and state” is an “extra-constitutional construct … [that] has grown tiresome.” The court ruled that the display was allowed because it was “part of an otherwise secular exhibit.”

Since then, the ACLJ, a public-interest law firm that specializes in religious-liberty cases, has won “most of the Ten Commandments court cases” in which it has participated, Mr. Manion says.

History of the ‘wall’

Many Americans wrongly assume the words “separation of church and state” are included in the U.S. Constitution.

In fact, the phrase “wall of separation between church and state” was first used by Thomas Jefferson in a letter he wrote to the Danbury Baptist Association in Danbury, Conn., on Jan. 1, 1802, 10 months after his presidential inauguration.

An analysis of that letter — now housed at the Library of Congress — as well as other documents from this nation’s earliest years and nearly 150 years of legal decisions strongly suggest that Jefferson and his contemporaries would be at odds with the courts today regarding church-state issues, according to the Rev. Bryan Fischer, a minister and executive director of the Idaho Values Alliance in Boise.

Mr. Fischer says Jefferson coined the phrase that some judges are calling overused to “reassure” the Connecticut Baptists that they had “no need to fear oppression from the federal government or its intrusion into the free exercise of religion because the Constitution had erected a ‘wall of separation between church and state.’ ”

“In other words, Jefferson’s wall was designed to protect the church from the state, not the other way around,” and it “was never intended to insulate the state from the influence of the church,” Mr. Fischer wrote in a 2005 opinion piece published in the Idaho Statesman.

Mr. Lynn disagrees and calls opponents “historical revisionists.”

“Thomas Jefferson was a longtime champion of not having the state involved in religion,” says Mr. Lynn, an ordained minister with the United Church of Christ. “He and James Madison erected a framework for separation of church and state. … It’s clear the majority of the framers of the Constitution had no interest in having government accommodate religion.”

Mr. Manion says the two sides in the church-state debate agree that the Founding Fathers opposed allowing government “to make any religion obligatory” or giving one religion preferential treatment over another.

“But we know the framers of the Constitution permitted acknowledgement of religion in the public square. Given the things Jefferson said and did, he would be sued by the ACLU if he were president today,” he says.

The ‘wall’ in court

Jefferson’s letter to the Baptists was cited by Supreme Court justices for the first time in the 1879 case of Reynolds v. United States.

George Reynolds, a Mormon polygamist, had been convicted of bigamy in the Utah Territory. He said his conviction should be overturned because it was his religious duty as a Mormon to have multiple wives.

Eight justices held that religious duty was not a suitable defense to a criminal indictment. The majority opinion alluded to Jefferson’s letter, in which he said there was a distinction between religious belief and action that flowed from religious belief.

The court said it recognized that under the First Amendment, Congress cannot pass a law prohibiting the free exercise of religion. But it noted that a law limiting marriage to one spouse at a time had been in effect since the times of King James I of England, who ruled from 1603 to 1625.

Nonetheless, the Supreme Court case cited by many legal analysts as having the greatest influence on the church-state debate today is Everson v. Board of Education of Ewing Township, N.J., in 1947.

“That’s when the Supreme Court yanked the phrase out of an obscure letter Jefferson had written and inserted it in a legal ruling,” Mr. Fischer says. “Overnight, it went from being an obscure phrase Jefferson had written” to being used in a way its author had not intended, he said.

In his lawsuit, Arch R. Everson charged that a New Jersey law authorizing local school boards to pay the costs of transportation to and from private and parochial schools violated the First Amendment of the U.S. Constitution and the state constitution because it allowed indirect aid to religion.

In its ruling, the Supreme Court applied the Establishment Clause to the states through the Due Process Clause of the 14th Amendment. The latter says: “No state shall make or enforce any law … nor shall any state deprive any person of life, liberty, or property without due process of law.”

However, the court was divided 5-4 in its decision that the New Jersey law allowing reimbursement to parochial-school students was constitutional.

Supreme Court Justice William O. Douglas, one of the five who signed the majority opinion in the Everson case, acknowledged in a 1970 ruling that the Everson case turned the entire issue of religious liberty on its head.

By incorporating the 14th Amendment into the Establishment Clause, Justice Douglas wrote, the high court “reversed the historic position that the foundation of those liberties rested largely in state law,” not federal legislation.

Rob Boston, spokesman for Americans United, commemorated next month’s 60th anniversary of the Everson ruling in the January issue of Church & State, his group’s newsletter.

His article describes Everson as the “most important church-state decision you never heard of,” which “kicked off the culture wars that still exist today.”

“The importance of Everson can hardly be overstated,” Mr. Boston wrote. “Virtually every case that deals with the ‘establishment of religion’ cites Everson. Federal judges use it as a touchstone when seeking guidance in contentious clashes over the proper role of religion in government. Its language appears in countless lower court rulings and legal briefs.”

Debating Everson

However, there is disagreement about the importance of the Everson ruling among legal scholars.

Bruce Fein, a lawyer who specializes in constitutional law, is a sharp critic of the Everson ruling and has made his opinions known in columns published in The Washington Times and other newspapers.

“It sows more doubts than it dispels,” he says. “If there really was a wall separating church and state, a city fire department couldn’t even put out a fire at a church.”

Besides, Mr, Fein says, “Thomas Jefferson never insinuated the wall was at the state level.”

But Jonathan Turley, professor of law at George Washington University, contends that “it makes a lot of sense to have a system where we all have basic [religious] rights, no matter what state we are in.”

Mr. Manion says it’s “hard to believe that in a country where 80 [percent] to 90 percent of the people believe in God” that the government forbids the acknowledgement “of the widespread nature of this belief.”

John Whitehead, president of the Rutherford Institute, a public-interest law firm that takes on cases it sees as limiting religious freedom, says he sees several “ominous trends” in the church-state area.

“In the past few years, we’ve seen judges put more emphasis on something they call the government’s speech doctrine, which limits free speech on government property,” including prayer, Mr. Whitehead says.

He cites two cases the Rutherford Institute is working on, in which people were denied the right to pray in public ceremonies or meetings.

One case involves a City Council member in Fredericksburg, Va., who was told he could not say “in Jesus’ name” in a prayer at a council meeting.

“So Christians can’t pray now in public. It’s dangerous,” Mr. Whitehead says.

Researcher Amy Baskerville contributed to this article.

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