The Separation of Church and State -- Then and Now

In the recurrent clash over the separation of church and state, both the religious right and the secular left invoke the Founding Fathers' original intent to justify their positions. In reality, neither side is completely correct on the historical dimension of the issue.
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The state's constitution still bars atheists from holding office or testifying as court witnesses.
The state's constitution still bars atheists from holding office or testifying as court witnesses.

A public high school in Muldrow, Oklahoma, recently decided to remove plaques of the Ten Commandments from its classrooms after an atheist student urged the Freedom From Religion Foundation to threaten a lawsuit. The removal of the Decalogue displays offended numerous community members, thereby evoking a prior controversy regarding a Ten Commandments monument placed in the Alabama Supreme Court building by its Chief Justice, Roy Moore, who claims that the Ten Commandments are the foundation of American law. A federal court predictably found the monument unconstitutional. Another legal dispute will soon lead the Supreme Court to decide whether it is constitutional to conduct Christian prayers at an official town meeting.

In the recurrent clash over the separation of church and state, both the religious right and the secular left invoke the Founding Fathers' original intent to justify their positions. Simply put, the religious right believes that America was intended to be a Christian country, whereas the secular left believes it was intended to be a secular one. In reality, neither side is completely correct on the historical dimension of the issue.

Historians generally agree that the Founding Fathers were not bent on creating a Christian theocracy. The Constitution merely states that it was made "in the year of our Lord [1787]." Neither God nor Christianity are otherwise alluded to. Rather, the Constitution explicitly precludes a religious test for office. The 1776 Declaration of Independence mentions God but it is not a constitutional or statutory text, and was written by Thomas Jefferson, a deist, secularist, and anti-clerical who undoubtedly would have been repulsed by the idea that his writing would be used to defend Christian theocratic ideas as late as the 21st century.

The religious right correctly notes that the phrase "separation of church and state" appears nowhere in the Constitution. But it oddly claims that this principle does not derive from the First Amendment's prohibition on "an establishment of religion." The expression "separation of church and state" has actually been traced to Jefferson. Fellow Founding Father John Adams wrote that the U.S. government was created "merely by the use of reason and the senses." "It will never be pretended," Adams stressed, that the Founders "were in any degree under the inspiration of Heaven." The 1796 Treaty of Tripoli, signed by Adams, stipulates that "the government of the United States of America is not in any sense founded on the Christian religion."

While the religious right falsely claims that the Constitution is based on Biblical principles, the secular left also engages in revisionism by claiming that the Founding Fathers wanted an absolute separation of church and state in the modern sense. In fact, legislative sessions commonly began with public prayers in the epoch of the framers, as they still do nowadays. In the early years of the republic, churches in certain states were funded by taxes, whereas other states like Virginia rejected that practice. There was actually no clear consensus among the Founding Fathers about what the First Amendment meant.

Many 19th century public schools had children read the King James Bible and ponder its meaning without the assistance of clergy. Catholics, who were growing in numbers due to European immigration, equated that practice with Protestant instruction. The Catholic Church recognized a different version of the Bible as legitimate, and emphasized that scripture must be interpreted and taught by its clergy. Proposals to discontinue Bible-reading in public schools were rejected and led to nativist riots. As underlined by Noah Feldman in his remarkable book Divided by God, only a minority of Catholics managed to send their children to private Catholic schools, and most had little choice but to accept public schools and their Protestant teachings.

However, the meaning of the Constitution has evolved, which is why focusing narrowly on the Founding Fathers' aspirations eclipses a fundamental issue: what secularism should mean in modern-day America. Prayers and other religious teachings in public schools, long defended as moral education, were disallowed in 1963 when the Supreme Court concluded that laws must have "a secular legislative purpose and a primary effect that neither advances nor inhibits religion." The Court later found it unconstitutional to display the Ten Commandments in public schools in a 1980 case.

The Court has equally held that public schools cannot endorse religious messages because, among other reasons, "it sends the ancillary message to members of the audience who are non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." The atheist student at Muldrow High School who blew the whistle on the unconstitutional Ten Commandments plaques indeed said that he did not intend to "attack religion" but wanted to "create an environment for kids where they can feel equal."

On the other hand, the Supreme Court has continued to authorize the mention of "God" in the Pledge of Allegiance recited in public schools, the inscription "in God we trust" on the dollar, and public prayers during legislative sessions or presidential inaugurations. The judiciary, like most Americans, finds it acceptable to promote God in general but not specific Judeo-Christian beliefs, as God is assumed to be neutral and inclusive of all. God is taken as a symbol of public good, morality, and spirituality rather than a religious concept. Behind this rationale lies the assumption that essentially everyone believes in God and that non-believers are somehow un-American. This celebration of monotheism also sets aside the views of people from polytheist or distinct traditions, such as Hindus, Buddhists, and Native Americans, the original inhabitants of the land.

Compared to other Western democracies, references to God abound in American public life and hinder another key purpose of secularism: precluding the government from implicitly justifying its actions under God's name. If God exists, how does one define God? There are countless different answers to that question even among Christians alone. And what does God want from us? One may argue that both society and religion suffer when politicians of both parties speak on these questions for their own gain, and when the government at large is claimed to be operating under God's guidance.

For better or worse, the Supreme Court has thus far tried to accommodate the public's views by adopting a flexible, if not contradictory, conception of secularism. This peculiarity is epitomized by the fact that the Supreme Court, despite having played a major role in advancing the separation of church and state in recent decades, begins its own proceedings by announcing "God save the United States and this Honorable Court."

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