Thursday, July 28, 2005
I’m a 41 year old mother of five, a student, and a church-going, praying Christian. I voted for President George W. Bush and am presently overwhelmed by the ongoing war. The one I’m talking about is the war over church and state in America. It is raging between the people, in our classrooms, and even among the judges of the Supreme Court. Last month the Supreme Court handed out two ambiguous rulings about displaying the Ten Commandments on government property. The vote was 5-4 on both. The court ruled that it was unconstitutional to display the Ten Commandments in a Kentucky courthouse, but constitutional to display them on the state capital grounds in Texas. According to Washington Post writer E. J. Dionne Jr. , in his article, American Spirit, the court explained that posting them in Kentucky was “‘to emphasize and celebrate the religious message’ of the commandments” and those in Texas were there for “historical” purposes. And this from a court that starts each session with: “God save the United States and this honorable court” (Dionne).
Is posting the Ten Commandments in a government forum unconstitutional? The Supreme Court can’t even decide. The Founding Fathers wouldn’t have thought so. Anyone looking at their words and actions could see that. The First Amendment was not written with the purpose of keeping religious ideas out of government forums, but was set up to protect the right of religious expression for people of all beliefs. This right, originally protected by the Founding Fathers, is often being destroyed by misapplication of the law, when at other times the right is upheld. The inconsistent and confusing rulings of the court is muddying the waters and worsening the war. Our courts need to truly look to the Founders and the framers of the Constitution for a peaceful solution.
The Founding Fathers started this war by giving us the right to fight it. According to Noah Feldman in his book, Divided by God, the framers of the Constitution strongly believed that governments should not coerce people in religious matters and affairs of individual conscience (Feldman). Because of their experience with the Church of England, they felt it was imperative to add the First Amendment to the Constitution which says that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Their purpose in adding this was to protect religious expression for all people, especially for those of differing beliefs. Even the Founders had varying views about religion. For example, according to his own writings, Thomas Jefferson was a Deist when most of his associates were fervent Christians (Feldman). This law was not intended to protect the government from the influence of religion, but the people from coercion by the government.
Through the years the First Amendment has been interpreted, and reinterpreted by the people and the courts depending on their political situations and motivations. Consequently, the right of religious expression has been injured by the law being misapplied. When our nation started the “common” schools in urban areas in the 1820’s, the concern over religion and religious teaching was immediate, but the leaders in the government didn’t even consider leaving religious teachings out of the classroom (Feldman). These teachings were never thought of as harmful, or unconstitutional, but they were thought of as vital. But the teachings were Protestant doctrines. Then there was a massive influx of Catholics from Europe and the first bomb hit. The Catholics did not want to pay taxes that supported public schools that taught religious doctrines that conflicted with their own (Feldman). They wanted their tax dollars to support their own Catholic schools. When the case went to the courts, the Catholics lost their right of religious expression in the schools. The Constitution should have equally protected their right to education, but it did not. Taxing the Catholics to support other’s religious education was deemed constitutional.
Then the Mormon question arose. After mobs murdered many Mormons and drove them out of several states in the mid-1800s, they fled to the Utah Territory for religious freedom. The states that “legally” drove them out did so because of state anti-bigamy laws. After the Mormons reached Utah and set up a territorial government, Republicans, in 1860, passed a federal law banning polygamy in the Utah Territory. Their quarrel was that because of the dominance of the Mormon Church in Utah, there were church/state issues in the territorial government. The Mormons appealed to the U.S. Supreme Court to argue that “Congress lacked the power to interfere with the purely local government of the territory. But the Supreme Court reframed the issue to ask whether Mormons’ religious belief in polygamy meant that the law in question violated their free exercise of religion under the First Amendment” (Feldman). The justices looked back at similar cases in the late 1700s and the court unanimously determined that creating a federal law about marriage (because marriage was a religious institution) was unconstitutional (Feldman). If only our current court would follow those predecessor’s example. Feldman said, “Never before had the Supreme Court so much as considered a claim that Congress had passed a law prohibiting free exercise. Since 1791, Congress had steered clear of any law that might have given rise to such an objection, and it would be another seventy years before the Supreme Court came to believe that the First Amendment applied to the states, not only Congress.” The original intent of the First Amendment was upheld, and the Mormons won, for a time. . It wasn’t until the 1870’s that the now famous and incredibly influential phrase by Thomas Jefferson stating “that the Constitution had ‘erected a wall of separation between church and state’” was dusted off (Feldman). It was then construed and twisted to support the idea that Jefferson meant that the state and federal governments should be guarded from the ideas of the religious, which Jefferson never imagined (Feldman). The people had to wait until he was good and dead to try that and get away with it.
Luther Kramer, in his letter to the editor titled, No Theocracy, But Allowed Expression wondered why it “has taken Christians several decades to challenge the historical context of Thomas Jefferson’s ‘wall of separation letter’ which was used to promote separation of church and state in 1947.” Kramer goes on to explain that the ruling handed down that year has been “called ‘bad history and bad law.’” Another misapplication, perhaps?
The above examples show that the battle over the church state issue has been anything, but consistent. Dionne said that Americans “....have seen a good deal of incoherence and inconsistency, a fair bit of hypocrisy and a huge amount of contention. We have muddled through in a way that has allowed Americans to believe and worship God as they chose to – and reject faith altogether if they are so inclined”. Our present Supreme Court is just as inconsistent with the current conflict as was the path through history.
So, is posting the Ten Commandments anywhere unconstitutional? Is merely displaying them coercing anyone to read them, let alone believe them, or live them? The Founding Fathers wanted the people to be free to exercise their religion without the government forcing the people to go against that which their consciences dictate. Because of misapplication of the law through the years this idea has been lost. With closer examination of the actions and words of the Founding Fathers and the framers of the Constitution, the Supreme Court could get a clearer idea of what was originally intended by the Constitution, and better guard the right to freedom of religion and expression. But the justices would have to be willing to do some soul searching and a lot more homework.
Dionne Jr., E.J. “American Spirit.” Book World. The Washington Post 10 July 2005: T7.
Feldman, Noah. Divided by God. New York: Farrar, Straus and Giroux. (2005).
First Amendment to the Constitution of the United States
Kramer, Luther. “No Theocracy, But Allowed Expression.” East Valley Tribune 30 July 2005: A18.