My reply to Doug Indeap on the constitutional separation of church and state.

Commentor Doug Indeap has some comments on my posts about the principle of "separation of church and state". Doug is an attorney and an atheist.

Doug:

... the Constitution founds the government on the power of the people rather than god(s) and keeps its separate, in some measure at least, from religion.

The Constitution has nothing to say about God, for or against. It clearly ascribes sovereignty to the people ("We the people...") who, then as now, were overwhelmingly Christian and who were guided by explicitly Christian morals.

The salient point, which Doug omits, is that the Constitution nowhere makes any reference to "separation" from religion. If the Framers had meant to do so, they would have. There was clear intent to acknowledge sovereignty of the American people, who were a deeply Christian people.

The First Amendment constrains government from interfering in religion in two ways only:

"Congress shall make no law respecting an Establishment of religion or prohibiting the free exercise thereof."

No mention whatsoever of "separation".

In fact, when the Constitution was ratified, many states had established state churches, and a primary purpose of the Establishment Clause was to strengthen and protect the established state churches from the federal government-- the same federal government Doug now invokes to sandblast every vestige of Christianity from public schools.

"Establishment of religion", which is the only religious act prohibited to the federal government by the First Amendment, had and has a very specific meaning. It refers to the legal enactment of an official religion. The Church of England is an established church.

A state with an established religion divides it's citizens into two classes: adherents of the National Church, and non-adherents. All citizens are compelled to financially support the National Church. Citizens associated with the National Church are given preference in government jobs, voting rights, practicing certain professions such as teaching, etc.

That is what the Founders prohibited in the First Amendment. They did not mandate "separation" in any other form, because they knew that separation between religion and government was not possible for a sovereign people who were deeply religious. The Establishment Clause was intended to promote religious expression, by getting the federal government out of the "religious watchdog" business. That, of course, frustrates religious watchdogs, like Doug.

To bring home the point, the Founders added the Free Exercise clause. Free Exercise of religion was to be permitted, with no constraint by the federal government. The government was put out of the watchdog business. The purpose of the First Amendment was to get the government out of the business of regulating religious expression.

Ironically, atheists like Doug now spend much of their time trying to get the federal government to regulate religious expression.

It is important to distinguish between the "public square" and "government" and between "individual" and "government" speech about religion.

The distinction is nowhere in the Constitution. Doug is just makin' stuff up.

The constitutional principle of separation of church and state does not purge religion from the public square--far from it.

There is no "constitutional principle of separation of church and state".


Constitutional "separation of church and state" is a principle held dear by atheists, nativists, a host of anti-Catholic bigots, and notably the Ku Klux Klan, for whom "separation of church and state" is part of the Klan Creed. The constitutional "principle of separation" has long been used by ideologues to suppress disfavored religious expression. You might call it a religious "Jim Crow". The government water fountain isn't for people who believe in God.

So while there is no constitutional "principle of separation of church and state", the constitutional principle of separation of church and state has been used by atheists and others who despise Christianity precisely for the purpose of purging religion from the public square. They purge what they can. Have you ever seen an atheist sue in federal court to expand religious rights? They always sue to censor. No God-talk at the water fountain.

Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views--publicly as well as privately.

Unless the public expression is by the people of a school district who want to have a plaque containing a prayer in their children's school. Then Doug calls the police to enforce the constitutional "principle of separation of church and state". Doug doesn't see the irony in the invocation of the First Amendment-- which was written to prohibit government injunctions against religion-- to empower the federal government to censor religious expression.

The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion.

No, Doug. The First Amendment only prohibits the Congress from making a law Establishing a religion. Full stop. Doug's "promote or otherwise take steps toward..." are weasel words that he (not the Constitution) applies to religious expression. Government life is full of promotion of religion-- the president says "God Bless America" or proclaims a National Day of Prayer, Congress begins sessions with prayer, references to God are everywhere on national monuments, and schoolbooks in every classroom in the country refer to "Endowed by our Creator with certain unalienable rights...".

None of these establish a national church. All of them are perfectly constitutional, and all of them "promote" religion.

As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government.

I agree. A schoolteacher should not make a law respecting an establishment of religion. A schoolteacher also must also not infringe on the right of the people to keep and bear arms, and shall not require excessive bail. School janitors and bus drivers are similarly constrained.

When acting in their individual capacities, they are free to exercise their religions as they please.

Whew!... Thanks for the favor, Doug.

If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated.

That is enumerated by the "... Free Exercise except for school employees at work" clause to the First Amendment, which is often overlooked.

While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

The whole point of the First Amendment, Doug, is that the government is prohibited from making "distinctions" as to when religious expression is permitted and when it is not.

Let me say it again in case I was unclear:

The whole point of the First Amendment, Doug, is that the government is prohibited from making "distinctions" as to when religious expression is permitted and when it is not.

Uncle Sam doesn't get to make distinctions about Free Exercise. That is what the "Free" is all about, Doug.

Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions.

Whew!, again...

Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion;

Your principle of "separation" has no basis in the Constitution, Doug, so it constrains no one.

in other words, the predominant purpose and primary effect must be nonreligious or secular in nature.

Citizens, and that includes government officials, may have any damn purpose or primary effect they want. No "purpose or primary effect" police.

No. Established. Church. That's it, Doug. Otherwise, free exercise.

And government officials exercise religion freely all the time, Doug. This ain't just theoretical. The president says "God Bless America" until he's hoarse, asks the nation to pray for our soldiers, and issues National Day of Prayer proclamations until he gets writer's cramp. National monuments are slathered with God-talk (should the schoolchildren cover their eyes, Doug?), and military chaplains conduct Mass, hear Confession, and administer Last Rites in Afghanistan. Are the Sacraments' "predominant purposes and primary effects non-religious and secular"?

Why don't you take the chaplains to court, Doug? After all, administering Last Rites to a soldier in Kandahar is a whole hell of a lot more religious than an anodyne little prayer on a school wall. Both are paid acts of government agents. Why take one to Federal Court, and not the other? Why not seek an injunction against military chaplains, as well as teachers?

Here's why, Doug: it would blow the lid off your hate campaign against Christianity, and set you bigots back a century.

A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

A religious purpose or effect does not render a government official's act unconstitutional. There have been countless acts with religious purposes and effects made by government officials. They're all perfectly Constitutional.

Only making a law establishing a national religion would be unconstitutional. We've never even been close to that, Doug, so breathe easy.

Otherwise, free expression of religion, Doug, and that's for everyone, not just you.

More to come...