Why Removing Religious Symbols from Public Property Violates the First Amendment’s Establishment Clause
By Jerry A. Kane
During a recent Facebook exchange, a former student asked how removing a religious symbol from public property violates the First Amendment’s Establishment Clause. After some research and quite a bit of serious thought, I wrote the following response:
The Framers wrote the Bill of Rights to restrict the powers of the federal government, which means the First Amendment was intended to protect religion from an intrusive government, and not the government from religion.
The First Amendment begins with the words, “Congress [i.e. the federal government] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The Framers didn’t want the federal government establishing a “state church” (as England and some European Countries had at the time) or interfering with the free exercise of religion. The First Amendment kept the federal government from interfering with the people’s right to establish their own churches and denominations and worship freely.
The suggestion that Christian symbols displayed on public property could in some way violate the Establishment Clause would be laughable to the Framers.
“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg. … Our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”—Thomas Jefferson
The concept of a Judeo/Christian God or nature’s God was embraced by the Founders:
Fifty-two of the 55 Framers of the U.S. Constitution were members of established orthodox churches in the colonies:
Congregationalist-7
Deist-1
Dutch Reformed-2
Episcopalian-26
Lutheran-1
Methodist-2
Presbyterian-11
Quaker-3
Roman Catholic-2
In fact, the Framers enshrined the concept of the Judeo/Christian God and nature’s God in the Declaration of Independence:
When …it becomes necessary for one people to …assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them …
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights …
We, therefore, the representatives of the United States of America … appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies …
And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.
At the time the First Amendment was written, several states were dominated by churches, e.g., Connecticut was Congregationalist, Massachusetts was Puritan, Virginia was Baptist, and Pennsylvania was Quaker. The people in those states chose the religion they preferred, and they didn’t want the federal government imposing any particular sect or denomination on their states.
We can safely assume that when the Framers wrote the First Amendment, they understood that:
1. God establishes the place of nations in the world.
2. God created man.
3. God endowed man with certain unalienable rights.
4. God is the supreme judge of human conduct.
As Mark Levin writes in Men In Black: How the Supreme Court is Destroying America, “the Declaration of Independence … is an explicit recognition that our rights derive not from the King of England, not from the judiciary, not from government at all, but from God. … Religion and God are not alien to our system of government, [sic] they’re integral to it.”
If the Framers intended the Establishment Clause to erect a wall of separation between the Judeo/Christian God and nature’s God and government, they would have included the “separation of church and state” notion in the First Amendment or would have at least introduced and discussed it at the first Constitutional Convention. But not one of the Framers ever mentioned it. None of the Congressional Records of the discussions and debates of the 90 Founding Fathers who framed the First Amendment contains the phrase “separation of church and state.” The phrase is not found in the Constitution, the First Amendment, or in any of the notes from the Convention.
The idea of a wall of separation between church and state surfaced in 1947 when the Warren Court lifted the “wall of separation” phrase from a letter written by President Thomas Jefferson to the Danbury Baptist Association of Connecticut. Jefferson used “wall” as a metaphor to address the Baptists’ concerns about religious freedom, and to clarify for them that the federal government was restricted from interfering with religious practices. Jefferson’s letter explained that the First Amendment put restrictions only on the government, not on the people.
The truth is the current “separation” doctrine is a relatively recent concept and not a long-held constitutional principle. The Warren Court took Jefferson’s “wall of separation” phrase out of context and reinterpreted the First Amendment to restrict people instead of government. And now some 65 years later, nearly 70 percent of the American people believe the First Amendment actually contains the “separation of church and state” phrase.
In his dissenting opinion in the 1985 ruling against silent prayer in public schools, Chief Justice William Rehnquist decried how the Warren Court’s “wall” notion undermined the Framers’ original intent of the First Amendment:
“There is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson. But the greatest injury of the ‘wall’ notion is the mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. [N]o amount of repetition of historical errors in judicial opinions can make the errors true. The ‘wall of separation between church and state’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
The Warren Court’s Everson v. Board of Education decision has made the First Amendment internally inconsistent in that the “free exercise” of religion now collides with the prohibited “establishment” of a religion. Today federal courts not only use the Warren Court’s baseless “separation of church and state” argument to justify removing religious symbols from public places, but they also use it to keep people from expressing their Judeo/Christian beliefs in the public square. The federal courts no longer look upon the “free exercise” of religion as an unalienable right endowed by the Creator; they implicitly assume it’s a fundamental right granted by the government and the judiciary.
The intensive and concerted effort to exclude references to religion or God from public places is an attack on our founding principles. It’s an attempt to bolster a growing reliance on the government–especially the judiciary–as the source of our rights. But if our rights are not unalienable, if they don’t come from a source higher than ourselves, then they’re malleable at the will of the state. This is a prescription for tyranny.—Mark R. Levin, Men In Black: How the Supreme Court is Destroying America
On the day the First Amendment was passed by the Congress in 1789, George Washington accepted Congress’ charge to proclaim a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” As Chief Justice Rehnquist opined, “History must judge whether it was the Father of our country in 1789, or … the Court … which has strayed from the meaning of the Establishment Clause.”
Since 1789, every session of Congress has begun with a prayer given by a clergy member whose salary is paid by taxpayers. The National Day of Prayer as well as the nation’s motto “In God We Trust” attests to the fact that the acknowledgement of the Judeo/Christian God or nature’s God in the public square is a tradition in this country. Many federal buildings and monuments in Washington, DC, display Bible verses etched in stone. The United States Supreme Court building houses a statue of Moses holding the 10 Commandments.
The First Amendment does not restrict religious practice to church or home; it actually permits and protects the practice of religion in the public square. Suppression of religion is the hallmark of atheist-communist societies, which have routinely restricted the practice of religion to church or home.
“We are a religious people whose institutions presuppose a Supreme Being …
When the state encourages religious instruction … it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.
To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.”—William Orville Douglas, U.S. Supreme Court Justice
Now that the Supreme Court no longer views religious rights as “unalienable,” it regulates and abridges them with impunity. The Court rejects natural law and the doctrine of original intent and guarantees freedom from religion and not freedom of religion. In protecting the rights of atheists and agnostics over those who believe in the Judeo/Christian God or nature’s God and in cleansing institutions and communities of Judeo/Christian symbols and practices, the Court has become a “despotic branch” of government.
Judicial activists are nothing short of radicals in robes–contemptuous of the rule of law, subverting the Constitution at will, and using their public trust to impose their policy preferences on society. In fact, no radical political movement has been more effective in undermining our system of government than the judiciary. And with each Supreme Court term, we hold our collective breath hoping the justices will do no further damage, knowing full well they will disappoint. Such is the nature of judicial tyranny.— Mark R. Levin, Men In Black: How the Supreme Court is Destroying America
The Framers understood that government encouragement of religion did not violate the First Amendment and establish a state religion. Today, however, federal courts not only restrict the religious activities of government, but they also restrict the religious expressions of the people.
“We hold it for a fundamental and undeniable truth, that religion, or the duty we owe our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”—James Madison
To control the masses, despots must always divert the people’s attention away from the plot against them. Over the last 60 years, federal courts have gradually supplanted faith in the Judeo/Christian God or nature’s God with secular beliefs and established an atheistic Secular Humanist religion; yet their work has gone largely unnoticed because Americans have been too preoccupied with reports of Christian symbols, expressions, and prayers in the public square that supposedly breach the imaginary wall separating church and state.
THE MILLSTONE DIARIES 
I would like to draw your attention to the fact that the Warren court was not until 1953, so it did not use the “wall of separation” metaphor in 1947 as you say in your article. Just a little fact error I noticed. Other than that, this article was very helpful. Thank you, and keep up the good work. I’ll be visiting your blog often from now on!
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Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.
That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”
During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is hardly a recent invention of the courts.
While the religious views of various founders are subjects of some uncertainty and controversy, it is safe to say that many founders were Christian of one sort or another and held views such as you note regarding religion. In assessing the nature of our government, though, care should be taken to distinguish between society and government and not to make too much of various founders’ individual religious beliefs. Their individual beliefs, while informative, are largely beside the point. Whatever their religions, they drafted a Constitution that establishes a secular government and separates it from religion as noted earlier. This is entirely consistent with the fact that some founders professed their religiosity and even their desire that Christianity remain the dominant religious influence in American society. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion. It is entirely possible for thoroughly religious folk to found a secular government and keep it separate from religion. That, indeed, is just what the founders did.
While some, e.g., Levin, also draw meaning from the references to “Nature’s God” and “Creator” in the Declaration of Independence (references that could mean any number of things, some at odds with the Christian idea of God) and try to connect that meaning to the Constitution, the effort is largely baseless. Important as the Declaration is in our history, it did not operate to bring about independence (that required winning a war), nor did it found a government, nor did it even create any law, and it certainly did not say or do anything that somehow dictated the meaning of a Constitution adopted twelve years later. The colonists issued the Declaration not to do any of that, but rather to politically explain and justify the move to independence that was already well underway. Nothing in the Constitution depends on anything said in the Declaration. Nor does anything said in the Declaration purport to limit or define the government later formed by the free people of the former colonies. Nor could it even if it purported to do so. Once independent, the people of the former colonies were free to choose whether to form a collective government at all and, if so, whatever form of government they deemed appropriate. They were not somehow limited by anything said in the Declaration. Sure, they could take its words as inspiration and guidance if, and to the extent, they chose–or they could not. They could have formed a theocracy if they wished–or, as they ultimately chose, a government founded on the power of the people (not a deity) and separated from religion.
It is important to distinguish between the “public square” and “government” and between “individual” and “government” speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.
The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.
Wake Forest University has published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx
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