The Establishment Clause Has NOTHING to do with the Separation of "Church and State" - And I Can Prove It!
“The real object of the First Amendment was…to prevent any national ecclesiastical establishment” by leaving “the whole power over the subject of religion…exclusively to the state governments.” - Supreme Court Justice Joseph Story, 1833
In recent days, we have seen a number of infringements on our First Amendment rights as U.S. Citizens. The two that frankly hurt me the most were (1) the case of the high school football coach Joe Kennedy being punished for praying in a public setting and (2) the demand for East Central University to remove all religious icons from a donated, sixty-year-old, on-campus chapel, including a cross atop the steeple. Those in favor of these unconstitutional actions are actually basing their stance on a willful misinterpretation of the Constitution. In this blog post, I will present the history and original purposes of two of the First Amendment Clauses in order to show the unconstitutional nature of these recent developments.
In the 18th Century, England had its own established religion through the Church of England. Citizens were expected to follow the established religion, and those who attempted to do otherwise were persecuted. As discussed in our first blog post, our Founding Fathers experienced this oppression first-hand, which is why they strived to compose a Constitution which would prevent such oppression in their new country.
In 1791, the Bill of Right was established. It encompassed the first ten Constitutional Amendments, and the very First Amendment was specifically designed to prevent religious oppression. The Free Exercise Clause seems fairly obvious to me, so I don’t think there’s need for much explanation there. People should be able to practice their religion freely without fear of persecution. But, the Establishment Clause, here’s where it gets interesting:
Contrary to popular belief, the Establishment Clause was NOT meant to protect individual people from State governments’ religious laws; it was instead designed to protect States from Federal Government interference in the States’ own religion laws.
Don’t believe me? I’ll prove it.
In the early 1800’s, Supreme Court Justice Joseph Story was one of the most respected legal analysts of his time. In 1833, he very clearly stated: “The real object of the First Amendment was…to prevent any national ecclesiastical establishment” by leaving “the whole power over the subject of religion…exclusively to the state governments.” You see, Justice Story had not lost sight of the circumstances surrounding the initial purpose of the First Amendment, as he was little more than forty years past the original ratification.
Out of the thirteen original Colonies (States) in 1791, all thirteen ratified the Bill of Rights, including the First Amendment. Out of those thirteen States, SIX (6) of the States had, at the time, an established religion within the States’ own laws. In Massachusetts, it was actually a prosecutable offense to fail to attend Church on Sunday, and Massachusetts did not disestablish its State religion until the year 1833. These historical facts show us that the citizens who ratified the Bill of Rights in 1791 were actually very comfortable with established religions within their own States, just not at the Federal level.
John Adams wrote the State establishment of religion into the Massachusetts Declaration of Rights in 1779, and the people of the State ratified it. Maryland, North Carolina, Rhode Island, Pennsylvania, Connecticut, New Hampshire, and New Jersey followed suit and wrote religion into their own State charters.
Why on earth would States that had chosen to establish their own religions (via a State Charter ratified by the people of the States) also choose to ratify a Federal Amendment that prohibited their established religions? And how could Massachusetts have continued to maintain not only an established religion, but also continued to prosecute those who failed to attend church, for more than forty years after the First Amendment was ratified? The answer is simple:
The First Amendment was never meant to prohibit the States from making laws regarding religion, it was designed to prevent the Federal Government from interfering in the States’ chosen religious laws.
Do you feel the epiphany happening? This means that EVERYTHING we have been taught in our lifetime about the meaning of the Establishment Clause is wrong. But why? How was history re-written right in front of us and no one noticed? I can answer that question with one name: Hugo Black.
Hugo Black was a long-time member of the Alabama Ku Klux Klan who, after serving as a U.S. Senator for 11 years, was nominated to the Supreme Court by President Franklin Roosevelt. A devout KKK member, Black was a racist and a bigot, and he had delivered anti-Catholic speeches at nearly every single one of the 148 Klan “Klaverns” in Alabama before arriving at his Supreme Court position. So, in 1947, when a case regarding the constitutionality of the State of New Jersey funding the transportation for children to and from parochial (Catholic) schools came before the Supreme Court, Black saw his opportunity to strike at the religion he so opposed.
In his analysis of the Court’s decision in Everson v. Board of Education, Black claimed that the State funding of any religiously affiliated school or entity was unconstitutional based on the Establishment Clause. He claimed that the clause was meant to imply that all levels of government could have no involvement of any sort with any religious organization or initiative. To support this, he claimed that Thomas Jefferson played a “leading” role in the “drafting and adoption” of the First Amendment and based the First Amendment on a belief in a “wall of separation” between “church and State”.
What’s the problem with this explanation? Well, firstly, Thomas Jefferson was not even present for the drafting or adoption of the Bill of Rights; he was in France at the time. Also, Thomas Jefferson did use the term “wall of separation” in an obscure letter unrelated to the drafting of the First Amendment; but, in reference to Government’s religious involvement, Jefferson stated:
“no nation has ever yet existed or been governed without religion. Nor can be.” – Thomas Jefferson
However, despite this contradiction, more than 150 years after the original ratification of the First Amendment, certain details of purpose and process had been lost to history, and in 1947 the people believed the interpretation of a Supreme Court judge with a subversive, racist agenda.
So, as you can see, according to the original intent of the First Amendment’s Establishment Clause, State Governments are not bared from involvement with religion. In fact, it was intended to give States the right to keep and maintain established religions of their own.
Please know that I’m not suggesting that we re-implement state-established religions, but here’s the point that I am trying to make:
A cross atop a donated chapel on a public university campus is NOT unconstitutional based on the First amendment. In fact, it’s quite the opposite. Any State-funded school should be fully permitted to display religious symbols without interference of any sort from the Federal Government, as such interference IS unconstitutional. In addition, any state-level court decision in such a case over the last 70 years has been based on an incorrect interpretation of the First Amendment, that it is unconstitutional for state-level government to have any connection or involvement with any religion. It is, in actuality, the right of the State and its citizens to make all such decisions.
Furthermore, the Free Exercise Clause clearly states in no uncertain terms that Coach Joe Kennedy is entitled to the “free exercise” of his religious traditions. Any infringement upon that right by the Federal Government (in this case, the U.S. 9th Circuit Court of Appeals) is unconstitutional. And, once again, the initial decision made by the Bremerton School District in this case was based on an incorrect belief that the Establishment Clause applies to them, when it really only applies to the Federal Government.
Now you have knowledge that you didn’t have before. Use this new constitutional wisdom to defeat the religious persecution we are seeing across our country. It is our duty as Americans to protect and fight for the Constitution of our great land and its true meaning.
Cody, D. (2014, November 24). The Church of England (the Anglican Church). Retrieved August 28, 2017, from http://www.victorianweb.org/religion/denom1.html
Lee, M. (2016). Our lost Constitution: the willful subversion of Americas founding document. NY, NY: Sentinel.
Office of the Historian, Bureau of Public Affairs. (n.d.). Constitutional Convention and Ratification, 1787–1789. Retrieved August 25, 2017, from https://history.state.gov/milestones/1784-1800/convention-and-ratification
Staff, L. (2010, February 05). First Amendment. Retrieved August 28, 2017, from https://www.law.cornell.edu/constitution/first_amendment
Starnes, T. (2017, August 23). Court rules high school football coach cannot pray on the field. Retrieved August 28, 2017, from http://www.foxnews.com/opinion/2017/08/23/court-rules-high-school-football-coach-cannot-pray-on-field.html
Urbanski, D. (2017, June 30). College reverses course, won't remove cross atop chapel. Retrieved August 28, 2017, from http://www.theblaze.com/news/2017/06/30/college-reverses-course-wont-remove-cross-atop-60-year-old-chapel-after-complaint-at-least-not-yet/