Separation of Church and State

[Mick Jagger]

Separation of Church and State​

What's wrong, or right, with this essay?

A Big Tar-Baby Subject: Separation of Church and State

by Gary DeMar

01/29/08

One of the arguments made by yesterday’s Tar-Baby emailer that while the words separation of church and state do not appear in the Constitution “the concept clearly does.” If the concept is there, then why didn’t the founders phrase the constitution to fit the concept? The concept of “separation of church and state” is older than the Constitution, was not invented by Thomas Jefferson, and is a long-held biblical idea. “Martin Luther (1483–1546) wrote of a ‘paper wall’ between the ‘spiritual estate’ and the ‘temporal estate.’ In his Institutes of the Christian Religion, John Calvin (1509–1564) asserted that the ‘spiritual kingdom’ and the ‘political kingdom’ ‘must always be considered separately’ because there is a great ‘difference and unlikeness . . . between ecclesiastical and civil power,’ and it would be unwise to ‘mingle these two, which have a completely different nature.’”1 Connecticut, Anglican divine and theologian Richard Hooker (1554–1600) described “walls of separation between . . . the Church and the Commonwealth” in his Of the Laws of Ecclesiastical Polity. While no one can be sure whether Jefferson borrowed the phrase from Hooker, we do know that Jefferson owned a copy of Ecclesiastical Polity, and “it was among the volumes he sold to the Library of Congress.”2 The phrase was also used by Roger Williams (1603?–1683), the founder of Rhode Island, and the Scottish schoolmaster James Burgh (1714–1775).3

If the founders wanted the concept to be present, I suspect that they would have made that clear in the way they worded the amendment. We have evidence from the state constitutions that separating the institutions of church and state was already happening. Prohibitions concerning clergymen not holding dual offices were in place prior to the drafting of the Constitution. For example, Delaware’s constitution (1776) established the Christian religion (Art. 22) while not elevating “one religious sect” in the “State in preference to another” (Art. 29).4 A jurisdictional separation between church and state was maintained by prohibiting a “clergyman or preacher of the gospel, of any denomination” from “holding any civil office” in the state, “or of being a member of either of the branches of the legislature, while they continue in the exercise of the pastoral function” (Art. 29).5 What’s interesting is that the First Amendment does not prohibit an active clergyman from holding federal office.

Up until 1835, North Carolina’s Constitution required “That no person who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within [the] State.” This prohibition was amended in 1835 by changing the word “Protestant” to “Christian” and remained in force until the Constitution of 1868. And in that Constitution among the persons disqualified for office were “all persons who shall deny the being of Almighty God.”

It’s obvious by these historical vignettes that the First Amendment was designed for Congress to stay out of the business of either establishing a religion or prohibiting the free exercise of religion. Establishing does not mean acknowledging. The United States Court of Appeals has finally expressed the frustration that a lot of people have had with groups like the ACLU that continually substitute “the separation of church and state” language with the actual words of the First Amendment which allows them to fill the substitute phrase with any content that suits their cause: “The ACLU’s argument contains three fundamental flaws [in their claim that the posting the Ten Commandments on government property is a violation of the First Amendment]. First, the ACLU makes repeated reference to ‘the separation of church and state.’ This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. . . . Our Nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion.”6 The reason the First Amendment does not demand a wall of separation between church and state is because it was not an issue in 18th-century America, and properly understood, is not a problem today.

1 Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002), 72.

2 Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State, 76.

3 Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State, 76–82

4 Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Nor or Heretofore Forming the United States of America, 7 vols. (Washington, DC: 1909), 1:566.

5 Thorpe, The Federal and State Constitutions, 1:567–568.

6 ACLU of Kentucky v. Mercer Co., Kentucky, 2005 WL 3466545 at *12, 2005 Fed.App. 0477P (6th Cir. December 20, 2005), 13
Gary DeMar is the President of American Vision.​

 

[cammerfe]

Succinctly put!!
KS

 

[Mick Jagger]

Does the law that put "In God We Trust" on the nation's coins violate the U. S. Const

Does the law that put "In God We Trust" on the nation's coins violate the U. S. Constitution? Where does the Constitution grant the government jurisdiction over whether or not we trust in God?

 

[RedHotMark96]

Might I point out that the whole purpose of the government is to legislate and enforce laws for the "good of the people", this means by definition they are creating/deciding which Morals people should follow, wether someone as an individual likes/agrees with those morals or not. Religions, by nature, ascribe to a certain set of morals.

Thus, the real conflict is not between morality (via religion/the church) and state, nor is it between moral relativity and moral absolutes (since moral relativity is incompatible with the nature of government).
The real question is which system of morals will be legislated.

 

[Mick Jagger]

Might I point out that the whole purpose of the government is to legislate and enforce laws for the "good of the people", this means by definition they are creating/deciding which Morals people should follow, wether someone as an individual likes/agrees with those morals or not. Religions, by nature, ascribe to a certain set of morals.

Thus, the real conflict is not between morality (via religion/the church) and state, nor is it between moral relativity and moral absolutes (since moral relativity is incompatible with the nature of government).
The real question is which system of morals will be legislated.

Regardless of what our social duties are, religion, under the U. S. Constitution, is exempt from civil authority.

 

[RedHotMark96]

Religion/"The Church" as an institution, yes and rightly so.

But to separate religious beliefs and doctrine from government is impossible.

 

[Mick Jagger]

Religion/"The Church" as an institution, yes and rightly so.

Religion is the duty we owe to our Creator and the methods of discharging it. Under the Constitution, religion is exempt from the authority of the federal government.

But to separate religious beliefs and doctrine from government is impossible.

Why is it impossible to separate the following religious beliefs from the jurisdiction of the civil authorities?

There is but one living and true God, everlasting, without body, parts, or passions; of infinite power, wisdom, and goodness; the Maker, and Preserver of all things both visible and invisible. And in unity of this Godhead there be three Persons, of one substance, power, and eternity; the Father, the Son, and the Holy Ghost.
​

 

[fossten]

People v. Ruggles

8 Johns. R. 290 N.Y. 1811

Kent, Ch. J. delivered the opinion of the Court. The offence charged is, that the defendant below did "wickedly, maliciously, and blasphemously utter, in the presence and hearing of divers good and christian people, these false, feigned, scandalous, malicious, wicked and blasphemous words, to wit, "Jesus Christ was a bastard, and his mother must be a whore;" and the single question is, whether this be a public offence by the law of the land. After conviction, we must intend that these words were uttered in a wanton manner, and, as they evidently import, with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion. The language was blasphemous not only in a popular, but in a legal sense; for blasphemy, according to the most precise definitions, consists in maliciously reviling God, or religion, and this was reviling christianity through its author. (Emlyn's Preface to the State Trials, p. 8. See, also, Whitlock's Speech, State Trials, vol. 2, 273.) The jury have passed upon the intent or quo animo, and if those words spoken, in any case, will amount to a misdemeanor, the indictment is good.

Such words, uttered with such a disposition, were an offence at common law. In Taylor's case, (1 Vent. 293. 3 Keb. 607. Tremaine's Pleas of the Crown, 226. S. C.) the defendant was convicted upon information of speaking similar words, and the court of K. B. said, that christianity was parcel of the law, and to cast contumelious reproaches upon it, tended to weaken the foundation of moral obligation, and the efficacy of oaths. And in the case of Rex v. Woolston, (Str. 834. Fitzg. 64.) on a like conviction, the court said they would not suffer it to be debated whether defaming christianity in general was not an offence at common law, for that whatever strikes at the root of christianity, tends manifestly to the dissolution of civil government. But the court were careful to say, that they did not intend to include disputes between learned men upon particular controverted points. The same doctrine was laid down in the late case of The King v. Williams, for the publication of Paine's "Age of Reason," which was tried before Lord Kenyon, in July, 1797. The authorities show that blasphemy against God, and contumelious reproaches and profane ridicule of Christ or the Holy Scriptures, (which are equally treated as blasphemy,) are offences punishable at common law, whether uttered by words or writings. (Taylor's case, 1 Vent. 293. 4 Blacks. Com. 59. 1 Hawk. b. 1. c. 5. 1 East's P. C. 3. Tremaine's Entries, 225. Rex v. Doyley.) The consequences may be less extensively pernicious in the one case than in the other, but in both instances, the reviling is still an offence, because it tends to corrupt the morals of the people, and to destroy good order. Such offences have always been considered independent of any religious establishment or the rights of the church. They are treated as affecting the essential interests of civil society.

And why should not the language contained in the indictment be still an offence with us? There is nothing in our manners or institutions which has prevented the application or the necessity of this part of the common law. We stand equally in need, now as formerly, of all the moral discipline, and of those principles of virtue, which help to bind society together. The people of this state, in common with the people of this country, profess the general doctrines of christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful. It would go to confound all distinction between things sacred and profane; for, to use the words of one of the greatest oracles of human wisdom, "profane scoffing doth by little and little deface the reverence for religion;" and who adds, in another place, "two principal causes have I ever known of atheism--curious controversies and profane scoffing." (Lord Bacon's Works, vol. 2. 291. 503.) Things which corrupt moral sentiment, as obscene actions, prints and writings, and even gross instances of seduction, have, upon the same principle, been held indictable; and shall we form an exception in these particulars to the rest of the civilized world? No government among any of the polished nations of antiquity, and none of the institutions of modern Europe, (a single and monitory case excepted,) ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under the sanction of their tribunals, the general religion of the community to be openly insulted and defamed. The very idea of jurisprudence with the ancient lawgivers and philosophers, embraced the religion of the country. Jurisprudentia est divinarum atque humanarum rerum notitia. (Dig. b. 1. 10. 2. Cic. De Legibus, b. 2. passim.)

The free, equal, and undisturbed, enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the grand Lama; and for this plain reason, that the case assumes that we are a christian people, and the morality of the country is deeply ingrafted upon christianity, and not upon the doctrines or worship of those impostors. Besides, the offence is crimen malitiae, and the imputation of malice could not be inferred from any invectives upon superstitions equally false and unknown. We are not to be restrained from animadversion upon offences against public decency, like those committed by Sir Charles Sedley, (1 Sid. 168,) or by one Rollo, (Sayer, 158,) merely because there may be savage tribes, and perhaps semibarbarous nations, whose sense of shame would not be affected by what we should consider the most audacious outrages upon decorum. It is sufficient that the common law checks upon words and actions, dangerous to the public welfare, apply to our case, and are suited to the condition of this and every other people whose manners are refined, and whose morals have been elevated and inspired with a more enlarged benevolence, by means of the christian religion.

Though the constitution has discarded religious establishments, it does not forbid judicial cognisance of those offences against religion and morality which have no reference to any such establishment, or to any particular form of government, but are punishable because they strike at the root of moral obligation, and weaken the security of the social ties. The object of the 38th article of the constitution, was, to "guard against spiritual oppression and intolerance," by declaring that "the free exercise and enjoyment of religious profession and worship, without discrimination or preference, should for ever thereafter be allowed within this state, to all mankind." This declaration, (noble and magnanimous as it is, when duly understood,) never meant to withdraw religion in general, and with it the best sanctions of moral and social obligation from all consideration and notice of the law. It will be fully satisfied by a free and universal toleration, without any of the tests, disabilities, or discriminations, incident to a religious establishment. To construe it as breaking down the common law barriers against licentious, wanton, and impious attacks upon christianity itself, would be an enormous perversion of its meaning. The proviso guards the article from such dangerous latitude of construction, when it declares, the "the liberty of conscience hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of this state." The preamble and this proviso are a species of commentary upon the meaning of the article, and they sufficiently show that the framers of the constitution intended only to banish test oaths, disabilities and the burdens, and sometimes the oppressions, of church establishments; and to secure to the people of this state, freedom from coercion, and an equality of right, on the subject of religion. This was no doubt the consummation of their wishes. It was all that reasonable minds could require, and it had long been a favorite object, on both sides of the Atlantic, with some of the most enlightened friends to the rights of mankind, whose indignation had been roused by infringements of the liberty of conscience, and whose zeal was inflamed in the pursuit of its enjoyment. That this was the meaning of the constitution is further confirmed by a paragraph in a preceding article, which specially provides that "such parts of the common law as might be construed to establish or maintain any particular denomination of christians, or their ministers," were thereby abrogated.

The legislative exposition of the constitution is conformable to this view of it. Christianity, in its enlarged sense, as a religion revealed and taught in the Bible, is not unknown to our law. The statute for preventing immorality (Laws, vol. 1. 224. R. S. 675, s. 69, et seq.) consecrates the first day of the week, as holy time, and considers the violation of it as immoral. This was only the continuation, in substance, of a law of the colony which declared, that the profanation of the Lord's day was "the great scandal of the christian faith." The act concerning oaths, (Laws, vol. 1. p. 405. [2 R. S. 407, s. 82,]) recognises the common law mode of administering an oath, "by laying the hand on and kissing the gospels." Surely, then, we are bound to conclude, that wicked and malicious words, writings and actions which go to vilify those gospels, continue, as at common law, to be an offence against the public peace and safety. They are inconsistent with the reverence due to the administration of an oath, and among their other evil consequences, they tend to lessen, in the public mind, its religious sanction.


The Founders' Constitution
Volume 5, Amendment I (Religion), Document 62
http://press-pubs.uchicago.edu/founders/documents/amendI_religions62.html
The University of Chicago Press

 

[Mick Jagger]

The Constitution Of The United States Contains
An Infidel And Anti-Christian Principle​

The Constitution of the United States contains the infidel and anti-Christian principle, that a nation as such ought not to support, nor even recognize the religion of the Lord Jesus Christ. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

It is unquestionably the duty of nations to make public provision for the maintenance of the worship of the true God as He has made himself known in the scriptures, whenever these scriptures are enjoyed. Apart from this, we cannot attach any satisfactory meaning to such prophetical parts of scripture, as declares that kings shall be nursing fathers, and queens shall be nursing mothers to the church. Apart from this, we cannot comprehend how the kings and judges of the earth shall render that homage unto the Son of God, which they are commanded to yield—"Kiss ye the Son." "Yea, all kings shall fall down before Him—all nations shall serve Him."

 

[fossten]

I found the letter from the Danbury Baptists, dated October 7, 1801.

Here’s the pertinent excerpt:

It is not to be wondered at therefore; if those who seek after power and gain under the pretense of government and
religion should reproach their fellow men–should reproach their order magistrate, as a enemy of religion, law, and good order, because he will not, dare not, assume the prerogatives of Jehovah and make laws to govern the kingdom of Christ.

Here’s Jefferson’s reply, dated January 1. 1802, with another excerpt.

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.

It’s obvious Jefferson was giving his personal opinion on the intrusion of government in making laws regards “governing” the Christian faith. In other words, keep government out of religion, not the other way around.

 

[Mick Jagger]

If the founders wanted the concept [Separation of Church and State] to be present, I suspect that they would have made that clear in the way they worded the amendment.

The framers made it clear that the U. S. Government was to have no power whatsoever over religion by granting the government no jurisdiction whatsoever over religion. Then, the fools turned around and implied that the government did have jurisdiction over religion by banning a religious test. Many wanted to know, if the government had no power over religion, why was a religious test ban needed?