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I’ve been following with interest the back-and-forth following my post on Christine O’Donnell and the First Amendment, and would like to offer a few remarks in response to Paul Thompson. Thompson believes that the United States currently protects a secularist belief system while denigrating religion in general and Christianity in particular. The central issue here is the obligation Americans are under to make policy based on what is sometimes called public reason. An example: Young earth creationists do not argue that their views should be taught because the Bible says God created the world in six days. They offer secular arguments that they believe will convince those who do not accept a literalist reading of Genesis. Thompson in fact seems to grant the importance to proceeding according such a “public reason” standard.
As far as the meaning of the First Amendment is concerned, Thompson urges me and other readers to look an an article by Joseph A. Zavaletta, Jr., published a dozen years ago in the online journal Early America Review. Zavaletta, a lawyer in Brownsville, Texas, offers a pretty good example of the kind of argumentation that lies behind O’Donnell’s dismissal of the idea that the Constitution provides for separation of church and state.
The pillars of his argument are the importance of interpreting the Constitution according to original intent; the intention of the Framers not to have the Supreme Court be the ultimate arbiter of constitutionality; and the natural law basis of religious rights. I’ll confine my remarks to what he has to say about the religion clauses.
1. It’s certainly true that the Constitution doesn’t include the words “separation of church and state.” The question is whether forbidding religious tests for federal office and disallowing congressional legislation “respecting an establishment of religion or prohibiting the free exercise thereof” amounts to such separation, by the standards of the time. I say yes.
2. With respect to Jefferson’s letter to the Danbury Baptists, where the phrase “wall of separation between Church & State” first occurs in the new republic, it’s important to bear in mind that what the Danbury Baptists wanted was help in doing away with Connecticut’s Standing Order, which directed tax monies to support the state’s Congregational establishment, unless non-conforming citizens like the Baptists specified that the relevant portion of their tax payments should go to their own churches. The Baptists considered this a violation of their religious rights.
3. Like others in his camp, Zavaletta skates over this anti-establishment dimension of contemporary discussions, preferring to see the Establishment Clause as designed only to prohibit the creation of a national church. No one looking seriously at the historical record should come to such a conclusion. There was, for example, significant uncertainty over whether it permitted the president to proclaim days of prayer or thanksgiving. Washington and Madison thought it did; Jefferson and others thought it didn’t. Congress maintained Sunday mail delivery throughout the 19th century on constitutional grounds. To be sure, we still debate–and the Supreme Court continues to decide–what the Clause prohibits.
4. It’s true that the religion clauses, like the rest of the Bill of Rights, originally only applied to the federal government. Justice Clarence Thomas would like to go back to the days when that was still true. I doubt whether most people, including Paul Thompson, would appreciate opening such a can of worms. To imagine a few examples, this would permit Utah to require all school children to hear readings from the Book of Mormon; allow Vermont to forbid public school students from gathering around the flagpole to pray; enable Alabama to mandate prayers at football games; allow Oregon to require Catholic hospitals to perform abortions. I’m not saying that any or all of those things would happen, but do we really want to return to the days when 50 states determined the bounds of religious rights within their borders?
5. Finally, for the originally minded, I believe that any statement made by one of the framers or founders after 1793 or 1794 must be used advisedly to interpret the original intent of the religion clauses. That’s because many of them became more religion-friendly after the news of French Revolution’s anti-religious activities began to be known. Thus, Washington’s 1790 letter to the Jews of Newport is a better guide to the separationism of the Constitution than his 1796 Farewell Address. The latter, in language drafted by Alexander Hamilton (who had his own post-French Revolution conversion), stresses the importance of religion to “political prosperity.” The former is concerned only with “liberty of conscience” and the “immunities of citizenship.”