Today, I start with a simple question. Does the term “Separation of Church & State” appear in the US Constitution? The answer is “no.” The first recorded use of the phrase comes from a letter sent by newly elected president Thomas Jefferson to the Danbury Baptists of Connecticut.
Jefferson’s letter was sent in response to the Danbury Baptist Association’s concern over the lack of an explicit provision in Connecticut’s State Constitution protecting an individual’s free exercise of religion and from the establishment of a state sponsored and/or approved government religion.
In response to the DBA’s concerns and, no doubt, in part to the affects of his nascent presidency being compared by the Baptists to;
“…the radiant beams of the Sun, will shine & prevail through all these States and all the world till Hierarchy and tyranny be destroyed from the Earth.”
I mean, how can you say no to that? Jefferson shortly, happily, thereafter, assured the Baptists;
“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.”
Perhaps the concerns of the Danbury Baptists were a bit premature for when looking back on the history of our First Amendment giants, Thomas Jefferson, James Madison and George Mason, these enlightened thinkers, though not atheists or agnostic themselves, were not likely to favor a Henry VIII style unification of religion and government functions. You see, the problem with a singular entity (Church of England) capable of both hanging you for treason while simultaneously ordering your excommunication and eternal hell damnation for your speech, both sedition and blasphemy, in opposition to let’s say a new tax on hogs…well, you get the picture. Or at least our Founding Fathers did. Build the wall indeed.
This is also, in part, why the First Amendment is multifaceted. It contains five distinct clauses, the Establishment, Free Exercise, Free Speech, Free Press, Assembly and, one “inferred” right to Free Association. These six, in total, guarantees of free religion and speech and the interplay between the two are, in the minds of the Framers, necessary to the creation and continuance of a democracy. A nation of free thinkers and believers capable of reading the Constitution and the Bible, Torah, Koran or whatever religious text they so choose and interpret the social, political, theological implications for themselves and to vote accordingly. Damn that Gutenberg! What was he thinking when he printed his Mainz Bible. The masses of humanity reading for themselves? Blasphemy! Or, so it was. But not no more. Maybe.
Recently, there has been a movement of one, for now, within the Supreme Court. Clarence Thomas, who will no doubt go down in history as one of our worst Supreme Court Justices has, for some reason, without any real law or, quite frankly, logical basis, begun asserting, for the most part in his dissents, the I guess somewhat novel, if not naïve idea that the US Constitution does not ban individual states from “sponsoring” certain individual religious sects, and they, in fact, can establish a state mandated “preferred” religion. You know, establish a state religion. Think Utah providing direct assistance to the LDS Mormon Church and no other. Perhaps restricting and/or outright banning the practice of “competing” or “lesser” religious faiths. According to Clarence, it could happen.
Clarence, who does not ask questions at oral argument and throughout most of his career has been recognized as Scalia’s “sidekick” and let’s say is hesitate to assert his own opinions from the bench (perhaps he was right and it was for the best), has been asserting that while the First Amendment’s Establishment Clause does ban Congress from establishing a national religion, it does not apply to the states.
In Town of Greece v. Galloway (2014), a case involving prayer at town meetings, in a separate opinion, Thomas points as evidence for his conclusion that six, count ‘em six whole states still maintained state sponsored religions at the time the Constitution was ratified and get this bombshell, that Massachusetts didn’t “officially” disestablish their state religion until 1833. Check out the recordings of oral arguments in the case at:
Further, in 1833 the Fourteenth Amendment had yet to be ratified (1868). You know, the post-civil war Amendment that binds the States to the same standards as the Federal government? As a Supreme Court Justice, you’d think Clarence would know that. Maybe he could watch Steven Spielberg’s “Lincoln” on Netflix. That would, apparently, be the more appealing method as it would appear Clarence does not like to read, particularly when it comes to Jefferson’s Letter to the Danbury Baptists or the US Constitution. Perhaps the Danbury Baptists were not too hasty in their reservations, just a century or so early.
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