SEPARATION OF CHURCH AND STATE

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.)

From “the Bill of Rights Institute” (https://www.billofrightsinstitute.org/founding-documents/primary-source-documents/danburybaptists/)

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