In Would
Thomas Jefferson Support Today’s Separation of Church and State Doctrine?, Gary M. Galles wrote for FEE:
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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