Since we’ll
be hearing this, constantly, ad nauseam, over the next 4-8 years…
The phrase
“Separation of Church and State”, a phrase which has provided the justification
for such legislation such as no prayer in public schools, no religious worship
or icons on public grounds, along with defending such legislation such as “The
Johnson Amendment” (no political commentary “from the pulpit” for tax-exempt
organizations… 501(c)(3) …), is not to be found in The Constitution. Rather, it
is a phrase taken from President Thomas Jefferson’s letter to the Danbury
Baptist Association; a response to a letter to Jefferson from the Danbury
Baptists. Since most have read neither letter in compete context, both are
included in this commentary.
When
defending any of these pieces of legislation and tax code (Johnson Amendment),
the term often arises. Yet, curiously, the actual text of The Constitution
regarding religion is almost never used. When The Constitution is referenced, the “Establishment
Clause” is never used in its entirety. Conveniently, only one part, the first
part, “Congress shall make no law respecting an
establishment of religion…” is referenced. Proponents argue that the Government, in
drafting these laws and tax codes, reinforces that “wall of separation”. And,
taken out of context, seems to justify Government’s stance in stepping in,
legislatively, to prohibit these practices.
However, in its complete context, the Establishment
Clause paints an entirely different picture:
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free
exercise thereof…”.
The
Government, in drafting laws that prohibit the “free exercise of” religion,
clearly violates The Constitution, since it prohibits
where a religion can be freely exercised.
President
Trump will very likely move to overturn the Johnson Amendment in the tax code,
and he will very likely use the Establishment Clause, in its entirety, as his
justification.
Is he
right?
In a word:
yes.
Churches
(and by this, I mean religious institutions) should be free to support
candidates whose policies coincide with their religious convictions. And their
support of these candidates should not be limited by where they may profess
their support. By limiting, legally, where political speech may take place, the
Government not only violates the Establishment Clause, but also violates those
parts of the First Amendment which state “… or abridging
the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
With this
in mind, when I have argued this point, I’m often asked about limitations to
the First, and other, Amendments. Regarding the First, I’ve been asked, “How about, for example, a religion who
practices human sacrifice? Is the Government prohibited from prohibiting that?”
Again, in a
word: yes.
I’m not
opposed to certain limitations on the Amendments. In the First Amendment, the
prohibition on yelling “FIRE!” in a crowded theater, stands as a common
example. Limitations should revolve around the rights of all involved. In the “fire!” example, since the probability of
other theater-goes being injured or killed as a result of ensuing panic certainly
exists, so such a limitation, in my mind, is justified. In the case of human
sacrifice as a part of a religious practice, the right to freely practice does
not include the right to violate the rights of person (the person to be
sacrificed).
The
battleground is where those lines are
drawn. With prayer in public schools, can prayer be required? No. Can a “moment of silence” be prohibited? Again, no.
See the
difference?
As to the
Johnson Amendment, I see no reason a Church cannot speak out about what it
deems an offense to that Church’s teachings. And I see no reason a Church
cannot speak out, either in support or against, a candidate, based on that
candidate’s policies. Tax exemption has nothing to do free speech; and the
Johnson Amendment states exactly that. It is bad law, not only because it
violates nearly all of the First Amendment, but also because, expanded, it
allows Government to also disallow ANY person or organization it deems “tax-exempt”
from voicing their political opinions in a public forum.
Think about
it: who would be okay if the Government decided that people who are personally
tax-exempt are not allowed to speak on politics in a public forum? (#thepoor).
See where this can go?
(On a side note, I find it curious that
organizations such as Planned Parenthood (also subject to the Johnson
Amendment) is allowed to officially endorse candidates (Hillary, Obama) and
speak continually, as Planned Parenthood, in public forums. Yet, the government
does nothing to stop them. Hypocrisy.)
To
Thomas Jefferson, Esq., President of the United States of America.
Sir,
Among the many
million in America and Europe who rejoice in your election to office; we
embrace the first opportunity which we have enjoyed in our collective capacity,
since your inauguration, to express our great satisfaction, in your appointment
to the chief magistracy in the United States: And though our mode of expression
may be less courtly and pompous than what many others clothe their addresses
with, we beg you, sir, to believe that none are more sincere.
Our sentiments are
uniformly on the side of religious liberty‐‐that religion is at all times and places a matter between
God and individuals‐‐that no man ought
to suffer in name, person, or effects on account of his religious opinions‐‐that the legitimate power of civil government extends no
further than to punish the man who works ill to his neighbors; But, sir, our
constitution of government is not specific. Our ancient charter together with
the law made coincident therewith, were adopted as the basis of our government,
at the time of our revolution; and such had been our laws and usages, and such
still are; that religion is considered as the first object of legislation; and
therefore what religious privileges we enjoy (as a minor part of the state) we
enjoy as favors granted, and not as inalienable rights; and these favors we
receive at the expense of such degrading acknowledgements as are inconsistent
with the rights of freemen. 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.
Sir, we are
sensible that the president of the United States is not the national
legislator, and also sensible that the national government cannot destroy the
laws of each state; but our hopes are strong that the sentiments of our beloved
president, which have had such genial effect already, like the radiant beams of
the sun, will shine and prevail through all these states and all the world,
till hierarchy and tyranny be destroyed from the earth. Sir, when we reflect on
your past services, and see a glow of philanthropy and good will shining forth
in a course of more than thirty years we have reason to believe that Americaʹs God has raised you up to fill the chair of state out of
that goodwill which he bears to the millions which you preside over. May God
strengthen you for your arduous task which providence and the voice of the
people have called you to sustain and support you enjoy administration against
all the predetermined opposition of those who wish to raise to wealth and
importance on the poverty and subjection of the people.
And may the Lord
preserve you safe from every evil and bring you at last to his heavenly kingdom
through Jesus Christ our Glorious Mediator.
Signed in behalf of
the association, Nehemiah Dodge
Ephraim Robbins
Stephen S. Nelson
Thomas
Jefferson’s Letter to the Danbury Baptist Association
To messers.
Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the
Danbury Baptist association in the state of Connecticut.
Gentlemen
The affectionate
sentiments of esteem and approbation which you are so good as to express
towards me, on behalf of the Danbury Baptist association, give me the highest
satisfaction. My duties dictate a faithful and zealous pursuit of the interests
of my constituents, & in proportion as they are persuaded of my fidelity to
those duties, the discharge of them becomes more and more pleasing.
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 ʺmake no law
respecting an establishment of religion, or prohibiting the free exercise
thereof,ʺ thus building a
wall of separation between Church & State. Adhering to this expression of
the supreme will of the nation in behalf of the rights of conscience, I shall
see with sincere satisfaction the progress of those sentiments which tend to
restore to man all his natural rights, convinced he has no natural right in
opposition to his social duties.
I reciprocate your
kind prayers for the protection & blessing of the common father and creator
of man, and tender you for yourselves & your religious association,
assurances of my high respect & esteem.
Th Jefferson
Jan. 1. 1802
