Jewish World Review Sept. 2, 2003 / 5 Elul, 5763
The myth of church-state separation
http://www.NewsAndOpinion.com | Recently I have discussed the issues involved in the controversy surrounding Alabama Chief Justice Roy Moore. Before finally leaving the subject, I want to address this nettlesome notion of the separation of church and state.
Often the sword of separation is used to smother, rather than promote, religious liberty. There is nothing in the Constitution mandating a separation of church and state. (The phrase originated in a letter from Thomas Jefferson.) When you hear people talking about the supposed "separation of church and state," what they usually mean is "the Establishment Clause of the First Amendment requires a separation." But it doesn't.
Aside from the fact that the Establishment Clause has been erroneously extended to apply to the states as well as Congress, let's look how far the scope of "establishment" has been stretched on both the state and federal levels. It's darn near criminal.
The Framers meant that Congress couldn't establish a national church. They did not intend to forbid every little activity on government property or partially funded by the government. Justice Moore's monument flap is just the tip of the iceberg.
The courts are using the Establishment Clause to scrub Christianity entirely from the public square, including public schools. Their restrictions on religious freedom in schools illustrate the obscene extremes to which the law has been extended.
The separationists contend that public schools, because they are funded by federal and state money, cannot engage in activities that are deemed an endorsement of a religion. Just the slightest nod toward a religion will be enough to trigger an Establishment Clause violation.
Consider the case in which public high-school students held their own two-step election - first, to decide whether a student address, possibly containing a prayer, could be delivered at a football game, and second, which student would deliver it. The Supreme Court ruled, in effect, that just by permitting such an election the state was violating the Establishment Clause.
Now seriously, just how far do we have to suspend our disbelief to conclude that the Framers intended to prohibit such an election merely facilitated - not initiated - by a public school?
Well, first we have to ignore that the First Amendment restricted the federal Congress only. Second, we have to disregard that it also prohibited Congress from intruding on the states' right to establish religion if they so chose. Third, we have to assume that a local school, which happens to receive funding from both the state and federal governments, is deemed to be an extension of those governments, keeping in mind that there were no such government funded and controlled schools at the time of the nation's founding.
Fourth, we have to find that the students' voluntary action to elect a speaker to deliver a statement that might or might not contain a prayer, with no involvement from the school beyond permitting the election, should be imputed to the state or federal governments - as if they are the ones choosing to say the prayer.
Fifth, we have to conclude that the reading of the prayer itself is tantamount to establishing a federal or state religion - notwithstanding that there are thousands of other government-run schools throughout the United States that would be completely unaffected by the prayer and no other part of the nation would be affected by it. (How can we conclude that a single public school in a single community in a single state, by merely permitting and not encouraging its students to choose, on their own, to read a prayer at a football game, constitutes the establishment of a particular denomination as the national or state religion?)
Sixth, we have to assume that you can ignore all these obstacles, even though in the very process you are emasculating that other critically important religion clause of the First Amendment, the Free Exercise Clause, which also guarantees our religious liberty.
By precluding the student-led prayer through these outrageous legal fictions and convoluted reasoning, the Court sanctioned the school's encroachment on the freedom of students to worship as they pleased - thwarting the very purpose of both First Amendment religion clauses.
The point here is not that it is desirable for the government to endorse religious activities. Rather it is that courts have made the law up as they've gone along, completing mucking up Establishment Clause jurisprudence, and, in the name of protecting religious freedom, have greatly suppressed it.
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