Separation of Church and State
Myth Number 6: The First Amendment prohibits any display of religious sentiment in publicly owned or managed venues.
The First Amendment is one of the four or five most misused sections of the Constitution. Instead of preventing religious oppression by the federal government as intended, it is used by the left to oppress Christianity at the state and local levels. Sure, no one has been burned at the stake recently, but that is not how the left works. Instead, it does its work through conditioning. Taking away just enough freedom to engender mild protest, it then pauses and allows the population to become accustomed to life without the lost liberty. As soon as it does, a little more is taken. The process is repeated one step at a time until one day we realize that all our liberty is gone.
A major part of the process is propaganda and half-truths spread through the media and the education system. Given enough time, the lie becomes truth and meanings are reversed. Freedom of religion becomes freedom from religion. Free speech becomes hate speech. Patriotism becomes obstructionism and patriots become dangerous radicals. To combat these perversions of our Constitution and founding principles it is important that we get back to the basics.
The Bill of Rights is often treated as a single unit much like Article I, Section 8, in the body of the Constitution. It is not. Section 8 is a single, compound sentence, listing the unique powers delegated to the Congress— separated only by semicolons, as noted by James Madison in Federalist Number 41. The Bill of Rights consists of ten stand-alone amendments, each dealing with a different subject. The First Amendment went through four revisions before being sent to the states for ratification.
As proposed by James Madison to Congress the various amendments were intended to be incorporated into the body of the Constitution. What eventually became the First Amendment was, in Madison’s proposal, a part of his proposed Fourth Amendment.
“Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: ‘The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or in any pretext, infringed.” “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of Liberty, shall be inviolable.”
“The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances….” *
It was reported out by the House Select Committee on July 28, 1789 as,
“No religion shall be established by law, nor shall the equal rights of conscience be infringed”
“The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” *
It was passed by the House of Representatives on August 24, 1789 as the third and fourth amendments.
The Third Amendment read, “Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience by infringed.” *
The Fourth Amendment contained the clauses dealing with speech, the press and assembly.
The Senate combined the third and fourth amendments of the House version and passed them as the Third Amendment:
“Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for a redress of grievances.” *
It was revised further, to its present form, before being proposed to the States by Congress as the Third Amendment.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble and to petition the Government for a redress of grievances.” *
* Quotes from Richard Labunski, James Madison and the struggle for the Bill of Rights (Oxford University Press, 2006)
The Bill of Rights was proposed to the states as twelve separate amendments. The first two were not ratified, making the Amendment dealing with the freedom of religion, speech, press and assembly the first Amendment. What is important to note here is that the First Amendment applies only to Congress, it does not apply to the states.
Had it been submitted to the states and ratified as reported out by the House Committee, the restrictions would also be binding on the states under Article VI, clause 2. The phrase “Congress shall make no law”, added by the House and carried through the Senate and the final version, limit’s the restriction to Congress only. However, most states have similar protections in their State Constitution. The Illinois State Constitution, for example, reads, in part; “…No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship….”
A study of the First Amendment in its historical context reveals several important facts concerning its scope and purpose. First, its purpose was to prevent the establishment of a national religion as concisely expressed in Madison’s proposal and carried through all the various versions to ratification. Although the Madison version and the Senate version contained more detailed specifics, all unquestionably continue the same intent. A second purpose was to prevent the federal government’s sanctioning of religious persecution.
An unspecified additional consequence of the Amendment was to prohibit the use of federal tax monies to fund church activities and pay the salaries of clergy. The fact that these practices were continued in several of the states long after the ratification of the First Amendment is an additional indication that its scope was limited to the federal government. In effect, the First Amendment is a reaffirmation of Hamilton’s argument in Federalist Number 81 that the federal government has no powers that would allow it to affect the freedoms of religion, speech or press in any way.
The famous correspondence between the Association of Baptist Churches in Danbury, Connecticut and Thomas Jefferson in 1801 is proof that the oppression of certain denominations was still being practiced in Connecticut a full ten years after ratification of the First Amendment. The famous “wall of separation between church and state” contained in Jefferson’s reply was intended only to reassure the Danbury Baptists that the federal government could not meddle in religious affairs as they feared. The text of the Danbury letter and Jefferson’s reply along with comments can be found here.
The First Amendment and the freedom of religion clauses in state constitutions are intended to protect religious observances and practices from oppression by government. They were never intended to protect individual citizens from incidental exposure to religious precepts through overhearing religious speech or observing religious symbols or actions in public places. Furthermore, unless prohibited by state constitutions, states and municipalities may, by statute or local custom, permit religious symbols or expression on publicly owned properties, Bible reading and/or prayer in public schools, Christmas displays, Christmas pageants, et cetera, without interference by the federal government, under the authority of the Tenth Amendment.