“the Wall Of Separation”

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THE SUPREME COURT has been busy of late scrutinizing the “wall of separation,” a figure of speech attributed to Thomas Jefferson. It is not like the ugly Berlin Wall, built of concrete blocks and topped with broken glass and barbed wire. Rather it is more like a double-mirrored screen. Persons standing on either side discover whatever preconceptions about the First Amendment they may have brought with them.

And so it was in the Supreme Court decision of March 5, 1984, on Lynch v. Donnelly . Standing on one side of the mirrored screen, four men and one woman on the High Court found that the Establishment Clause of the First Amendment—the clause that prohibits Congress from making any law establishing a religion—did not prohibit the city of Pawtucket, Rhode Island, from including a crèche, or nativity scene, in its annual Christmas display. Speaking for the majority, Chief Justice Warren Burger, in overruling the lower court, argued that the crèche, “like a painting, is passive.… To forbid the use of this one passive symbol… would be a stilted overreaction contrary to our history and to our holdings.” The four dissenters looked at the reverse side of the mirror and, with Justice William Brennan as their spokesman, found that Pawtucket had taken “an impermissible step toward the establishment of religion.”

The close division on this case by the High Court reflects sharply divided nationwide opinion about the range and limits of the First Amendment, a confusion to which courts in the past have signally contributed in defining the permissible parameters of governmental intrusion in matters of private conscience. Courts have a penchant for probing history to discover the intention of the framers of legislation and amendments. Regrettably they generally find what they are looking for, and their explorations into the past seldom contribute to its enlightenment.

 

SUPPOSE WE ourselves do the probing. Just what does the First Amendment say, what did its author think it said, and finally, how has this very first of the Bill of Rights been faring of late?

The First Amendment, like the rest of the Bill of Rights, was adopted in response to widespread demand on the part of the state conventions that ratified the federal Constitution. These conventions sought to protect civil liberties from the overarching power of a Leviathan state and to make certain substantive changes in the Great Charter as well. The state conventions proposed more than two hundred amendments. James Madison headed a committee delegated by Congress to come up with an acceptable package. He whittled the total down to fourteen (eliminating all that involved substantive changes). After considerable debate Congress narrowed the list still further to twelve. Of these first twelve amendments, two failed to be ratified by the states. The remaining ten (the Bill of Rights) became a part of the Constitution on December 15, 1791.

The relevant portion of the First Amendment, which, with some alterations by others, was Madison’s handiwork, reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

Note that the amendment restricts Congress , not the states, because, at the time the Bill of Rights was ratified, at least two states, Massachusetts and Connecticut, already had established religions. In other states test oaths barred persons of some religious denominations from voting or holding state office. In a sweeping constitutional revolution initiated in the 1940s by the Supreme Court, the Fourteenth Amendment was construed, some seventy years after it was passed, to extend this prohibition to the states as well as to Congress.

SINCE THE 1940s the Supreme Court has valiantly upheld the prohibition against the establishment of religion while chipping away at its foundations. In taking such opposing positions, the justices have sought to read James Madison’s mind. We do know that young Madison had found the persecution of religious dissenters in his area of Virginia abhorrent, “a diabolical, hell-conceived principle. “He shared with George Mason and Edmund Randolph in the drafting of Virginia’s Declaration of Rights, especially the guarantee of “free exercise of religion.” He joined with Thomas Jefferson in moving toward the disestablishment of the Anglican church in Virginia. In the 178Os Madison assumed the principal role in mounting a campaign against Patrick Henry and other prominent advocates of a bill that would assess everyone to pay a tax to the Christian church of the taxpayer’s choice. To propagandize his opposition, he wrote a private paper, later printed and widely circulated in 1785 under the title Memorial and Remonstrance Against Religious Assessments .

Arguing that religious belief “must be left to the conviction and conscience of every man,” he opposed tax support for any and all denominations. However, the reason he advanced was not that of a Deist or an atheist but quite the opposite. He believed that any regulation of religion was “adverse to the diffusion of the light of Christianity,” which the Remonstrance accepted as the true faith. Madison denounced the bill as an expression of “unchristian timidity. ” His argument swayed enough votes to defeat the assessment bill.

Although the Remonstrance was a private pamphlet, never enacted into law, it was the principal authority, more than 160 years later, for the dissenting opinion of Justice Rutledge in a 1947 decision of the Supreme Court, in which a 5-to-4 majority upheld reimbursing parents with public funds for costs of busing their children to parochial schools. Since then the constitutionality of providing textbooks for parochial schools out of public funds has been upheld, and now the Supreme Court has seen fit to permit the public display of a crèche, a symbol sacred to Christianity. The majority found that the “wall of separation” between church and state is hardly an accurate description of the relationship that in fact exists. The Constitution, so held Chief Justice Burger, does not require a complete separation of church and state; contrariwise, “it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. ” Justice Brennan, speaking for the three other dissenters, found that the crèche was not merely a traditional symbol of Christmas like Santa Claus or reindeer but was a symbol of “an event that lies at the heart of Christian faith” and, as such, was “insulting to those who insist for religious or personal reasons that the story of Christ is in no sense a part of ‘history’ nor an unavoidable element of our national ‘heritage.’”

So contradictory is the historical evidence on whether the First Amendment intended to erect a “wall of separation” between church and state, and if so, just what that meant, that it might be instructive to see just what the Founding Fathers of Revolutionary and constitutional days thought about the subject. Unlike the seventeenth-century Puritans, who agreed that there should be a “consociation” of church and state, quite the opposite of a wall of separation, the Founding Fathers ran the gamut in their beliefs from rationalists or Deists like Thomas Paine and Benjamin Franklin to supporters of orthodox piety exemplified by John Adams and John Jay.

LET US REMEMBER that in 1774 the First Continental Congress opened sessions with a prayer. The preacher chosen happened to be the Reverend Jacob Duché, an Anglican clergyman who later turned Tory. But Duché’s defection did not deter succeeding Congresses from regularly employing chaplains, except during the administration of Thomas Jefferson. There does not seem to be any record of James Madison ever objecting to a chaplain when he himself sat in Congress or to a chaplain opening Congress with prayer during his own administration.

The issue had once been raised at a critical moment and behind closed doors at the Constitutional Convention in Philadelphia. As a result of intensified debate over the suffrage for the lower house, Benjamin Franklin, a man whose fame does not rest upon his religiosity, urged that a clergyman be invited in to offer prayers at the beginning of each session to allay the prevailing discord. Alexander Hamilton rejoined that the convention could be counted on to transact the business entrusted to its care “without the necessity of calling in foreign aid!” And no chaplain ever entered the barred doors of the convention.

Now just what are we to make of a government that exempts church property from taxes, that started a revolution with daily invocation to God by an ordained clergyman, and that included God in the Declaration of Independence while being scrupulously careful to keep God out of the Constitution! What are we to make of a government that has established a tradition by which each incoming President must take an oath of office on the Bible—and what of the first President’s inaugural address, reputedly written by James Madison, which offers “fervent supplications to that Almighty Being who rules over the universe” and asks for His benediction on the people of the United States? That same government has regularly employed chaplains in its armed services, has declared Thanksgiving Day a national holiday, has put God into the pledge of allegiance—and imprints IN GOD WE TRUST on the back of every dollar bill.

 

Finally, it should be pointed out that some of our learned Founding Fathers, notably Dr. Benjamin Rush, advocated that education be conducted in the Christian way. As for Alexander Hamilton, in his later years the embittered politician proposed the creation of a Christian Constitutional Society (it died aborning)—a notion utterly abhorrent to his chief political foes, Jefferson and Madison.

UNITED THOUGH the Founding Fathers stood on the issue of religious toleration, they were divided, if not confused, on whether the federal government was to be viewed as strictly neutral in matters of religion or whether it would encourage systems of morality and ethics drawn from the Judeo-Christian tradition.

And at the same time that the issue of the Christmas symbol is disposed of by a court choked with a backlog of cases, we hear the renewed call for prayer in the schools, a call widely trumpeted by public figures and fundamental religionists alike. In the wake of the Supreme Court’s acceptance of Pawtucket’s crèche, will this further probing of the First Amendment again intensify divisiveness in the nation?