Wednesday, January 30, 2019

Jefferson’s ‘Wall’ is Embedded in the First Amendment. Protect It.



Early next year [2019], the Supreme Court will hear American Legion vs. American Humanist Assn., involving whether a 40-foot tall cross in Bladensburg, Maryland, is an unconstitutional violation of the separation of church and state. But what is striking about the litigation is that neither those words nor the concept applied today is contained in “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The Supreme Court just redefined the Establishment Clause in Everson v. Board of Education (1947), supposedly based on Thomas Jefferson’s letter to the Danbury Baptists, even though Jefferson rejected the current interpretation imposed on his words.  

So even though a wall of separation of church and state is routinely invoked to justify crowding out religious influences rather than protecting citizens’ rights to religious expression against federal encroachment, there is no such wall in the Constitution.

Oh my god. Did Mr. Galles even read the First Amendment words he quotes? It protects "the free exercise" of religion, but forbids anyone from using the government's power and resources from  the imposition or financing of their private religious beliefs or practices on others. What is that, if not a wall of separation between government and religion? The government represents all of the people--atheists and religionists of every denominations alike--equally and at all times.

Galles wants to take “Congress shall make no law” in a very narrow sense. But allowing government property to be used for religious advocacy is an implicit “establishment” of religion. Prayer in government schools is a good case-in-point. Allowing prayer in government schools may not involve an explicit law by Congress or other legislative body. But it is implicitly “law respecting an establishment of religion” if it is allowed. Galles wants to make an end run around the First Amendment.

The case American Legion vs. American Humanist Assn. involves a memorial on public property, using Christian symbolism and terms, and maintained by public, i.e., taxpayer, money. This is clearly “respecting an establishment of religion” by a governmental entity, if not Congress in particular. No one is suggesting that displays can’t be built and funded on private property by private funds, and displayed to the public. But using public property, which is theoretically owned by everyone, and taxpayer funds effectively forces people to sanction and pay for religious ideas they may not agree with.

And if a Christian display is allowed, shouldn’t Muslim displays also be allowed? Or atheist displays? Or anyone with conscientious beliefs of any kind? We’d all be fighting for our own piece of government property, and access to our neighbors’ wallets. We’d have a free-for-all, effectively politicizing private beliefs. Isn’t this precisely what the First Amendment’s implied “Wall of Separation between Church and State” is intended to protect us against?

We can only guess what Jefferson would think about the Bladensburg cross. But it is hard to believe he would sanction taking money from private citizens to pay for it. And I guess it’s arguable whether Jefferson’s phrase should be considered “authoritative” or “official” by the Courts. But the words of the First Amendment are crystal clear to me. The Founders used religion and conscience interchangeable, intending to protect the freedom of all beliefs, religious or nonreligious, from coercive interference by others, including others in their capacity as government officials. That’s what the Wall of Separation is all about. That’s what the First Amendment is about. For the sake of freedom and peaceful coexistence, that’s one Wall worth protecting.

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