Our flawed perception of separating church and state

The City Council of Yakima has recently found it­self in trouble over one of its long standard proce­dures: opening meetings with prayer. According to an article by Chris Bristol in the Yakima Herald, “a lawyer for the Freedom From Religion Foundation, based in Madison, Wis., accused the council of vio­lating the constitutional principle of separation be­tween church and state.” According to the article, the lawyer, Rebecca Markert, contends that “the Council is illegally and inappropriately imposing its religious beliefs on the citizens of Yakima who attend the Council’s meet­ings for public business.”

The Freedom from Religion Foundation threatened to sue the City of Yakima unless they ceased praying in Jesus’ name.

As far as I’m concerned, this reaction should cause general outrage, seeing as it relies on a poor reading of the Constitution. Instead, many Americans falsely believe that separation of church and state is a principle enshrined in the Constitu­tion. It is this principle upon which groups like free­dom from religion operate. It is also a principle that I believe has been misconstrued at best, and com­pletely fabricated and corrupted at worst.

To begin with, separation of church and state is found nowhere in the U.S. Constitution. Indeed, the First Amendment is the only part of the Constitu­tion that specifically deals with matters of religion. It dictates that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” Thus it contains two clauses: the establishment clause and the free exercise clause.

Read straightforwardly, the establishment clause simply prohibits a state-sponsored religion. The founding fathers were well aware of the problems that having a unified church and state had caused in Europe, and sought to avoid that in America. How­ever, decades of reinterpretation and Supreme Court cases have been used to justify removing any ap­pearance of a connection between government and religion, from preventing students from praying at school events to removing religious references from public buildings. Now, the modern construction of the separation of church and state is being used in an attempt to prevent the individual members of the Yakima City Council from engaging in public prayer.

The current interpretation has created a situation in which the government, to avoid an establishment of religion, is forced to violate the rights of citizens to freely exercise their religious beliefs. The problem is, these are the very rights the First Amendment is supposed to protect. In essence, the Supreme Court and society at large have adopted a view in which these two clauses inherently conflict; in almost any situation, either the establishment clause (equated to separation of church and state) or the free exer­cise clause will be compromised. The only question left for the Court is which clause to uphold in each situation.

I would argue, however, that this approach to the issue of separation of church and state is inherently flawed.

First, the founders were too smart to put two con­tradictory directives in the same sentence. Further­more, I think most reasonable people would agree that the primary purpose of these clauses is to pro­tect the ability of the citizens to exercise whatever religious beliefs they see fit. Even the establishment clause exists for this purpose. Banning an es­tablished religion is not valuable in its own right; it is important because doing so helps ensure freedom of religion.

Cornell University Law School, referencing the Annals of Con­gress 1789, points out that, “dur­ing House debate [over the first amendment], [James] Madison told his fellow Mem­bers that ‘he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.’”

Consequently, any interpretation of the First Amendment that actually limits individual freedom of religion, as the current interpretation does, runs contrary to the entire purpose of the amendment.

I realize that I am not a legal scholar. I also admit that few legal scholars are likely to agree with me.

But common sense should make it clear that the modern conception of the separation of church and state is self-contradictory and oppressive to indi­vidual liberties. In the case of the Yakima City Coun­cil, its prayers might be offensive to some, but since when did going through life without being offended become a right, and a right superior to the public profession of one’s faith?

One of the most important protections in our Constitution has been perverted into a tool used to silence religious expression. This should be the true cause of offense.

By Max Nelsen

Issue #12 - March 8, 2011

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