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Mark Oaks

Separation of Church and State
By Mark Oaks
Jun 27, 2005 - 12:58:00 PM

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The First Amendment to the Constitution states: "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."

I want to speak specifically to the establishment of religion clause. But I will make a brief comment about the entire Amendment first. If the establishment and speech clauses got the same respect that the press clause gets, then there would be no need to write this comment. Freedom of the press is, and should be a hands-off warning to the Government. In case after case, the courts uphold freedom of the press. That is as it should be (the FCC does regulate broadcast media, unconstitutionally, in my opinion, but we won't discuss that here). But so should the remaining clauses get the same treatment. This amendment tells the Government that it cannot regulate religion, speech, peaceful assembly, or the right for a citizen to seek redress.

We know, of course, that representatives cannot seem to keep their hands off of these rights. For example, the McCain-Feingold campaign finance bill attacks both free speech and freedom to seek redress.

Now to our religious freedom. Lets exegete the establishment clause. First, it tells who may NOT make any law respecting an establishment of religion, and that is the Congress. This really applies to the entire government because no institution except the Congress is supposed to make any laws. But we know that the Executive Branch makes law by decree (that is, by Executive Order) and we know that the Judicial Branch also makes law by Judicial Order, or fiat. Neither the Executive nor the Judicial Branches are Constitutionally allowed to do this, but we the people let them get away with it.

So, the Congress and by Constitutional extension, the entire Federal Government, is not to make any law respecting an establishment of religion. Also by further extension, and activist judicial interpretation of the Fourtheeth Amendment, the same applies to every state, county, and local government in the country.

Let's exegete. We already defined the law making limits on the government. Congress is the only entity allowed to make law. The next phrase, "shall make no law" is self-explanatory. "Shall" is an imperative meaning must. "Make" means to form, behave, act, create, compose, fashion, write, constitute, prepare, appoint, enact or establish. Simply put, Congress shall not enact, or establish any law. A law is "a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority". Congress can enact or establish no rule that is binding or enforced by a controlling authority respecting an establishment of religion.

The word "respecting" is a word that can mean either considering or concerning. An "establishment" is a public or private institution. "Of religion" refers to an institutionalized system of religious attitudes, beliefs, and practices.

Let's put it together. The Federal Government must not enact or establish any rule of conduct or action considering or concerning a public or private system of institutionalized religious attitudes, beliefs, or practices.

The government must also not enact or establish any rule of conduct or action considering or concerning the FREE EXERCISE of public or private religious attitudes, beliefs, or practices. Free means not subject to the control or domination of another. Exercise means putting into action. This means that the government may not control my right to put my religious beliefs into action. When the courts stop me from praying in a government school, they violate my right to put my religious beliefs into action. They violate the Bill of Rights when they do so.

So when the Federal Courts tell us that we may not pray at any government school function, including lunches, exercises, ceremonies, and sports events, the Federal Government is enacting and establishing a rule of conduct concerning a private institutionalized system of religious attitudes, beliefs, and practices. That rule of conduct is that you must not exercise your religious beliefs at a government school. They are also controlling my right to put my religious beliefs into action. That ain't (sic) allowed by the First Amendment.

I know that everyone has heard of the letter with the phrase "wall of separation" in it that Jefferson wrote to the Danbury Baptists, but it is good to reiterate it.

The Danbury Baptist Association was concerned that the Federal Government would usurp a citizen's right to freedom of religion. They wrote to President Jefferson with their concerns. Here is an excerpt from that letter:

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.

Jefferson wrote back to them in a letter expressing the famous "wall of separation" slogan. Here is an excerpt of what Jefferson wrote:

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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

Jefferson had some difficulty wording the last sentence of the above excerpt. Here is a synopsis of his drafts of and corrections made to that sentence (Words in red did not appear in the final product. Words in green were added to the final product.):

[Jefferson first wrote: "confining myself therefore to the duties of my station, which are merely temporal, be assured that your religious rights shall never be infringed by any act of mine and that." These lines he crossed out and then wrote: "concurring with"; having crossed out these two words, he wrote: "Adhering to this great act of national legislation in behalf of the rights of conscience"; next he crossed out these words and wrote: "Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience I shall see with friendly dispositions the progress of those sentiments which tend to restore to man all his natural rights, convinced that he has no natural rights in opposition to his social duties."] (These letters may be read in their entirety at

His thought processes were clearly that Congress was inhibited from acts respecting religion and that neither he, the President, nor the Congress would ever infringe upon the rights of the Danbury Baptists (nor any other religion). That being the case, the "wall of separation" is a wall prohibiting the government from regulating religion and does not prohibit the exercise of one's religious beliefs in a government institution like the schools.

Now for the argument that is used today. The courts say that by allowing any religious expression whatever or any expression that may somehow be construed to be religious, or even what some person or group says is religious expression, effectively establishes a religion. Not only does it establish a religion, but it makes the government the establishing authority of that religion. Put bluntly, if you pray at a high school football game, you have caused the government to establish a religion.

Another point. The Constitution expressly states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," and " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (Amendments Nine and Ten.)

In other words, the people have many rights, most of them not enumerated in the Constitution. Though they are not itemized in the Constitution, the people still have them. Also, the Federal Government has only limited powers enumerated by the Constitution. Those not itemized by the Constitution DO NOT BELONG TO THE FEDERAL GOVERNMENT. They are reserved for the States only or the People.

The courts have construed that the so called "separation clause" applies not only to the Federal Government but to the States as well. They use the Fourteenth Amendment as their basis. So if you pray in a county courthouse, you are somehow causing the Federal Government to establish a religion.

Here is the clause of the Fourteenth Amendment they use: "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." The courts have used this clause to usurp the rights of the States and exercise unconstitutional control over them.

The sentiment is that my exercise of my religious beliefs (e.g. prayer, or reading the Bible) abridges the privileges or immunities of citizens. In other words, those actions offend others, like atheists. Since the actions of a Christian may offend a Buddhist or a Moslem (or vice versa), they are prohibited. Well let me ask a question. Why do the courts not care about me being offended by an atheist saying he does not like my Christian beliefs thereby causing me to lose my right to the free expression and the free exercise of my beliefs?

Now we overflow into freedom of speech and expression. That is another complicated subject for another article.

2005, Mark Oaks. All rights reserved

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