Freedom of Religion – Episode 6

The dismantling of the true meaning and intent of the first amendment – the last episode but not the final say 

This is the story of Freedom of Religion in the United States and the subsequent attempt at its subjugation by the concept of “Separation of Church and State”

The fundamental right of Religious Freedom struggles against the imposition of the concept of “Separation of Church and State”.  The latter concept as it was and is invoked in the conduct of our lives and in our societal affairs is a falsehood, a misrepresentation, that spread throughout the nation before the truth got its boots on, and is now regarded by most as a factual truth. Paradoxically, neither the term, nor the concept of “Separation of Church and State” appears in the U.S. Constitution.  Yet, the overreaching, misguided and zealous invoking of the concept of Separation of Church and State, as if it were the law of the land, has effectively served to diminish the actual free exercise of religion specifically provided for in our Constitution’s Bill of Rights.

We left Episode 5 of the Freedom of Religion series in the mid 1940’s. Having helped liberate Europe, Americans were ready to again enjoy life, liberty and the pursuit of happiness.  We were still under the protection of the First Amendment and able to enjoy the free exercise of the Christian religion as they had for over 150 years. The bible and prayer were still commonly used in our schools. The Courts had declared that we were a Christian nation.  Christmas was celebrated in the public square, there was prayer to open public meetings and the Ten Commandments were engraved in the Supreme Court Building and in court houses around the nation.  And then came:

A radical turn by the Supreme Court 

Recall the initial words of first amendment as they pertain to freedom of religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  Also recall the Colonial history of there being “state” churches and how it was clearly described in Episode 3 that the first phrase in the First Amendment, “the establishment clause”, pertained specifically to restricting the Federal Government from establishing a “state” church.  That intent was clear. That understanding and the free exercise of religion flourished from the time the Bill of Rights was written (1789) until 1947.

In 1947, the U.S. Supreme Court made a 180-degree turn from past history and precedent. Without citing a single precedent, and ignoring 150 years of historically consistent rulings, the Court decided that the First Amendment “establishment clause” had a much broader meaning than not establishing a state church and announced that; “The wall of separation between church and state must be kept high and impregnable”. Invoking this concept was a radical departure from the past. With that statement by Justice Hugo Black, the myth of separation between church and state was born.  Before that time the phrase “separation of church and state” was hardly know, it did not even appear in the World Book Encyclopedia until 1967.

So exactly what happened.  How did this change come about?

The genesis of the change resulted, rather innocuously, from a Supreme Court case that actually came down on the side of religious freedom. In Everson vs. Board of Education, Arch Everson, challenged a 1941 New Jersey Law that allowed local school districts to provide students transportation to school.  In Everson’s township both public and private (parochial) students were provided transportation.  A total of $357 for the year was allocated by the township toward the transportation of parochial students.  Everson alleged that this indirect aid to religion violated the New Jersey Constitution and the First Amendment. Everson’s lost the case in the highest New Jersey State court and then was taken on to the U. S. Supreme Court. The Supreme Court ruled against Everson, on the basis of the majority opinion, written by Justice Hugo Black, that: “ … the state bill was constitutionally permissible because the reimbursements were offered to all students regardless of religion and because the payments were made to parents and not any religious institution.”  Sounds reasonable and in accord with the First Amendment, right? –  What was being authorized certainly could not be considered as the Federal Government establishing a state religion.

But Wait!!    In the write up of the majority opinion, Justice Black stated that:

“ —-The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.”

So far so good. These statements follow the true intent of the two Freedom of Religion clauses of the First Amendment, the “establishment clause” and the “free exercise clause”.  But Justice Black then added this statement, perhaps without contemplation of the future expanding reach of the government or the devious interpretation that would be made linking “tax” and “funding”.

No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

This statement, followed by Black’s closing statement in the majority opinion that “the wall of separation between church and state must be kept high and impregnable”, opened a pathway for future courts to rule against allowing any religious expression to be associated with activities that had any government funding.  But the separation concept was just plain made up. There is nothing in the First Amendment clauses that suggest separation or a wall or taxes and nothing in the conduct of our country for 150 years that suggested separation.  The separation of church and  state was not conceived of or established by the founders, nor was it part of our national heritage.

In 1962, the innocuous seeds of the Everson case burst into full bloom and began their invasive attack on America’s Christian population.  Black’s words became controlling precedent for Engle v. Vitale–the case that removed prayer in public education by ruling voluntary and denominationally neutral prayer unconstitutional. The actual prayer that was ruled on was rather benign: “Almighty God, we acknowledge our dependence upon thee and we beg thy blessings upon us and our parents, our teachers, and our country.” Tragically, Engle v. Vitale started a domino effect of court rulings that threatened to remove our religious heritage from the public arena, especially from education.

In the 1963 decision of Abington v. Schempp, the Court removed Bible reading from public education. The Court’s justification? “If portions of the New Testament were read without explanation, they could be and have been psychologically harmful to a child.” Simply amazing!! Suddenly, the best- selling book of all time and the most quoted source by the founding fathers was unconstitutional and psychologically harmful. The honorable court certainly didn’t share the religious values of the founders nor the sustainers of the Republic. Abraham Lincoln said, “But for the Bible we would not know right from wrong.” Exactly. One of the reasons moral bearings have been lost in the country is that the objective values of right and wrong have been removed from children’s education.

In 1969, it became unconstitutional to erect a war memorial in the shape of a cross (Lowe v. City of Eugene, 1969). The Court carried that same religious intolerance into a 1994 case in which a cross in a San Diego park had to be removed.

In 1976, it became unconstitutional for a board of education to use or refer to the word God in any official writings (State of Ohio v. Whisner). In 1979, it became unconstitutional for a kindergarten class to ask whose birthday was being celebrated in a Christmas assembly (Florey v. Sioux Falls School District).

By 1980 this incredibly twisted approach made it unconstitutional to post the Ten Commandments on school walls. According to Stone v. Graham, “If posted copies of the Ten Commandments are to have any effect at all it will be to induce the schoolchildren to read, meditate upon, perhaps venerate and obey the commandments; this is not a permissible objective.” James Madison, the man most responsible for the U.S. Constitution said “[We] have staked the future of all of our political Constitutions upon the capacity of each and all of us to govern ourselves according to the Ten Commandments of God.”²⁰ Once again, the honorable Court is completely out of step with the founding fathers. Madison was absolutely right–the pathetic condition of our culture reflects the inability of individuals to control themselves. While the Ten Commandments hang above the chief justice of the Supreme Court, they are hypocritically censored from the halls of our schools. George Washington said that apart from religion, there can be no morality.

In 1985, Wallace v. Jaffree, the Supreme Court in the ultimate absurdity outlawed allowing a “moment of silence” in Alabama schools.  Ruling a state law, providing for a moment of silence, as unconstitutional. Several states had gone this route in response to the outlawing of school prayer. The reach of the Federal Government now being taken to extremes.  The rationale for the ruling was that any bill (even those which are constitutionally acceptable) is unconstitutional if the author of the bill had a religious activity in mind when the bill was written. In this case the Court carried the separation of church and state concept beyond belief. In addition to applying to religious activities, words, and symbols, along with anything else that might cause someone to think about God, now the mythological wall may be brought to bear on an author’s thoughts while penning a bill.

Why did the Courts make such a drastic departure from our roots? The answer is two-fold, on the one hand there are mean spirited, anti-Christian, intolerant individuals who use the freedom’s granted in the Bill of Rights for their purpose of hurting others and secondly there are the social activist judges who have a complete disregard for the Constitution’s intent. Chief Justice Charles Evans Hughes illustrated his personal contempt for the original intent of the Constitution when he said, “We are under a Constitution, but the Constitution is what judges say it is.” The words of Supreme Court Justice Brennan are more inflammatory:  “It is arrogant to use the Constitution as the founding fathers intended, it must be interpreted in light of current problems and current needs.”

The arrogance really lies in these liberal judges not interpreting the Constitution as the founding fathers intended but, rather, in reinterpreting the Constitution to meet their personal ideas. It takes brazen audacity to ignore the intentions of the founding fathers and to turn one’s back on the Constitution / Bill of Rights and 150 years of American history that faithfully followed it.

In a 2014 speech Justice Antonin Scalia criticized members of the Court who champion a more evolving, “living” view of the Constitution — a judicial philosophy he has previously said only an “idiot” could believe. “Our {the Supreme Court’s} latest take on the subject, which is quite different from previous takes, is that the state must be neutral, not only between religions, but between religion and non-religion,”. “That’s just a lie. Where do you get the notion that this is all unconstitutional? You can only believe that if you believe in a morphing Constitution.”

If Americans want a more secular political system that guarantees those distinctions, they can “enact that by statute,” Scalia said, “but to say that’s what the Constitution requires is utterly absurd.”

Progression of the Myth of Separation from the Courts to Daily Life

The court case rulings cited above and the associated thought metastasized rapidly. With the aid of a liberal media eager to publicize the demise of traditional values and an increasingly liberal educational system, the vast majority of the US population became convinced that the concept of separation of church and state was a fixture of the Constitution. Further, many school administrators, teachers and municipal leaders considered that mentioning or observing anything to do with Christianity was off limits. Thus, celebration of Christian holidays or even mentioning God in public schools could result in law suits or discipline. The country was literally traumatized. But paradoxically, while the free exercise of religion relative to Christianity was being drastically curtailed, tolerance as an ethic was being pushed. Open mindedness toward others religions was being advanced by social justice activists. No problem with discussing Islam in the schools.

Likewise, evidence of Christianity in the public square was being shut down. Boycotts, dismissals, and protests would occur against companies and individuals who dared to publically express / display their Christian beliefs. Businesses and employers removed any references related to Christianity and adopted non-descript substitute greetings to avoid offending no-believers. This change was: (1) being driven by protests from atheist individual or groups bringing, (2) being supported by those who were now being taught the validity of the concept of “separation of church and state” and (3) being accepted by people of faith who now believed (incorrectly) that “separation of church and state” was part of our heritage.

But all is not lost – truth is on the side of the real meaning of the First Amendment!

Fighting Back to regain the Free Exercise of (Christian) Religion

Although he was in the minority in the “silent prayer” decision in 1985, Justice William H. Rehnquist, penned a bitter dissent to the case in which he attacked the reasoning in the 1962 Ever­son case. “There is simply no historical foundation,” Rehnquist wrote, “for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson.” Rehnquist called Everson’s lofty rhetoric “useless as a guide to sound constitutional adjudication” and labeled Jeffer­son’s wall metaphor “useless as a guide to judging.”  Other high court justices, notably Clarence Thomas and Antonin Scalia, have since joined the attack.

In general, the Supreme Court began to become more conservative with the appoints by Presidents Reagan and President Bush (the elder) so the extremely liberal decisions under Justice Earl Warren’s Court (1953-1969) did not continue.  A list of decisions that are more favorable to religious freedom are listed below covering the period 1984 -2014.  However, there were many others that were not favorable as the Court has continued to follow the precedents and tests that had been established during the Warren years.

There are a number of groups that have formed to defend Freedom of Religion (Christianity) such as the Alliance Defending Freedom, the American Center for Law and Justice, and the Heritage Foundation.  It is my understanding that these groups have overwhelmingly won the frivolous cases brought against schools where school principals have banned or atheist’s groups have challenged the singing of Christmas carols and against towns putting up displays.

There has been a fairly strong backlash against the efforts to remove Christ from Christmas and the nativity from Christmas displays.   Progress has been made in recent years and religious freedom has even been a hot topic in the Republican presidential primaries. But the struggle for the free exercise of the Christian religion goes on.  The dissent to this point of view is embedded in the myth that the founders intend there to be separation of church and state.  That is wrong!

All the founders wanted to achieve by the first two clauses of the First Amendment was to ensure (1) that there would be no Federal Government specified religion for the nation (no specific Christian denomination) and (2) to allow everyone the freedom and privilege to choose and participate in their own denomination (or none art all) without interference or control by the Federal Government.   That the first simple provision specifying that the Federal Government could not designate a state church could be twisted by the Courts in such a way that it generated blatant Federal Government interference and in so doing decimated the free exercise provision is unconscionable.  The original and continued “reinterpretation” of the establishment clause of the First Amendment by the Supreme Court was and is an effrontery to the founders and is a great injustice to the American people.

Our job – Spread the Truth that the concept of “Separation of Church and State” is not part of the U. S. Constitution, is not a correct interpretation of the establishment clause of the First Amendment and its imposition on our lives and on the Right of the free exercise of religion is a travesty.                         Thanks for Reading – Larry Von Thun

 

Court Cases since 1984 which upheld Freedom of Religion for Christians

Lynch v. Donnelly (l984) The Court upheld a nativity display among other symbols in a public park “to celebrate the Christmas holiday and to depict the origins of that holiday.”

Board of Education of Westside Community Schools v. Mergens (1990) The 1990 Equal Access Act, which required that public schools give religious groups the same access to facilities that other extracurricular groups have, was upheld. Allowing religious clubs to meet did not violate the Establishment Clause.

Capitol Square Review and Advisory Board v. Pinette (1995) A cross placed by a private group in a traditional public forum adjoining the state house did not violate the Establishment Clause, as the space was open to all on equal terms.

Mitchell v. Helms (2000) The federal government could provide computer equipment to all schools—public, private and parochial—under the Elementary and Secondary Education Act. The aid was religiously neutral and did not violate the Establishment Clause.

Good News Club v. Milford Central School (2001) Religious clubs were allowed to meet in public schools after class hours as other clubs were permitted to do. Allowing religious clubs to meet did not violate the Establishment Clause.

Zelman v. Simmons-Harris (2002) A government program providing tuition vouchers for Cleveland schoolchildren to attend a private school of their parents’ choosing was upheld. The vouchers were neutral towards religion and did not violate the Establishment Clause.

Elk Grove Unified School District v. Newdow (2004) A father challenged the constitutionality of requiring public school teachers to lead the Pledge of Allegiance, which has included the phrase “under God” since 1954. The Court determined that Mr. Newdow, as a non-custodial parent, did not have standing to bring the case to court and therefore did not answer the constitutional question

Good News Club v. Milford Central School (2001) Religious clubs were allowed to meet in public schools after class hours as other clubs were permitted to do. Allowing religious clubs to meet did not violate the Establishment Clause.

Zelman v. Simmons-Harris (2002) A government program providing tuition vouchers for Cleveland schoolchildren to attend a private school of their parents’ choosing was upheld. The vouchers were neutral towards religion and did not violate the Establishment Clause.

Van Orden v. Perry (2005) A six-foot monument displaying the Ten Commandments donated by a private group and placed with other monuments next to the Texas State Capitol had a secular purpose and would not lead an observer to conclude that the state endorsed the religious message, and therefore did not violate the Establishment Clause.

Hein v. Freedom from Religion Foundation (2007) After the Bush Administration created the Office of Faith-Based and Community Initiatives for the purpose of allowing religious charity organizations to gain federal funding, the Court ruled that taxpayers cannot bring Establishment Clause challenges against programs funded by the executive office

Town of Greece vs Galloway (2014) Held that the New York town could continue opening legislative sessions with sectarian prayers.