America's Mythical ‘Law': Separation of Church and State

An analysis of the mythical 'wall of separation' and the duty of the Church to resist it. The irony is that the 1st Amendment was implemented to allow the States to continue the establishment of their protestant Churches free of Congressional interference. 

From Catholic365

By John Gerard Lewis

Perhaps no linguistic device has been more deceptively and effectively used to influence American public policy than the phrase, “separation of church and state.” So inculcated into society is this false doctrine that it is universally accepted as a foundational law, a constitutional pillar believed to be embodied in the establishment clause of the First Amendment.

It is no such thing. The First Amendment says this and no more: “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 peaceably to assemble, and to petition the Government for a redress of grievances.”

By no reasonable stretch of the imagination does this first in the Bill of Rights direct that the respective affairs of government and religion shall not share ideals or that religion shall not overtly influence affairs of state. At variance with their modern, liberal and agenda-driven counterparts, originalist constitutional scholars ascribe to the text its plain meaning: religious bodies shall have the right to conduct their affairs without interference or abridgment of their beliefs by government. The words, “separation of church and state,” or any remotely comparable idiom, are simply not contained or implied in the First Amendment.

But for nearly 140 years the United States Supreme Court has been whimsically redefining this phrase coined in 1802 by Thomas Jefferson, gratuitously imputing to it an altogether novel meaning: that Jefferson’s “wall of separation between Church and State,” though merely his personal belief expressed in a private letter, was tantamount to a royal decree utterly protecting government from religion, though not religion from government, and that, moreover, it was somehow worthy of enshrinement into the Constitution by arbitrary judicial fiat.

Though popularly glommed onto the First Amendment, the justices effectively created a new amendment, so inventive was their reasoning, and if it is to be enforced as such, one might reckon that it ought to be codified as “Amendment I(a),” if only because it became an outgrowth, however aberrant, of Amendment I. (But so as to preserve the pure meaning of Amendment I, it would better be tacked on at the end, as Amendment 28.)

Professor Daniel L. Dreisbach contrasts Jefferson’s letter with language of the First Amendment, writing in 2006 that “Jefferson’s trope emphasizes separation between church and state, unlike the First Amendment, which speaks in terms of the non-establishment and free exercise of religion.” In other words, Jefferson was not referring to the principles of the First Amendment at all in his letter to the Danbury Baptist Association. Dreisbach says the “‘high and impregnable’ wall central to the past 50 years of church-state jurisprudence is not Jefferson’s wall; rather, it is a wall that Justice Hugo Black erected as recently as 1947 in Everson v. Board of Education,” in which Black, an avowed anti-Catholic and one-time member of the Ku Klux Klan, wrote that using taxpayer funds to bus children to religious schools did not breach the “wall of separation” between church and state.  

Objection to Black’s creative term, “high and impregnable” was swift, even among members of the high court. As Dreisbach recounts, several justices subsequently renounced the decision. “A rule of law should not be drawn from a figure of speech,” said Justice Stanley Reed just a year later. Justice Potter Stewart later opined that the court’s duty to resolve constitutional matters “is not responsibly aided by the uncritical invocation of metaphors like the ‘wall of separation,’ a phrase nowhere to be found in the Constitution.” And Justice William Rehnquist offered that the “wall of separation” is “based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”

Within a year, the U.S. bishops joined in, issuing a strong rebuttal to Justice Black’s construal of Jefferson’s wall. In their pastoral letter, “The Christian in Action,” the bishops called Black’s new interpretation of separation of church and state an “utter distortion of American history and law” and a “shibboleth of doctrinaire secularism.”

But their protestations could not plug the dike. Black’s codification of this new concept devastated the peaceful coexistence that had produced reciprocal benefits for both religion and government in America. The bishops of 1948 could not have imagined the resulting secularism that would dominate America seven decades later, a state of affairs that has alarmed today’s leaders of all religious denominations, including Catholic churchmen.

 Today’s Religion: Secular Atheism

 In 2008, Bishop Samuel J. Aquila, of Fargo, North Dakota (the offices cited by all quoted clerics herein are those held at the time of the quotation), wrote in his diocesan newspaper that “the mission of the Church and the task of the State are distinct, but they are never completely separate. The constitutional distinction between Church and State is found in the non-establishment of a state religion. However, this is not the denial of the entry of God or moral convictions into the public square.

“The misinterpretation of the separation of Church and State as the denial of the entry of God or moral convictions into the public square reveals the reality that the religion predominately lived today is that of secular atheism, the denial of God, whether directly through the works of [outspoken atheist] Richard Dawkins and modern academia, or more subtly through practical atheism, living day-to-day life as if God didn’t exist.

“Some Catholics in the separation of their faith from decisions in the political order abandon God and embrace secular atheism. Secular atheism goes hand in hand with secular humanism, namely, the idea that man alone can order society and the common life of the human race and that God has no part in this order. Secular humanism can never flourish, because the moment society abandons God’s law it also abandons humanity. Abandoning the truth is directly opposed both to our ideals as Christians and to the founding principles of our country as seen in the Declaration of Independence which acknowledges the ‘laws of nature’s God’ and ‘the Creator.’”

Bishop Thomas Olmsted, of Phoenix, cited “false notions about the separation of Church and state ... based on false understandings of the First Amendment to the U.S. Constitution, which in fact protects the practice of religion from coercion by the state, rather than limiting the religious voice.” He said people of faith have become fearful of espousing their beliefs beyond the church walls. “If we let our faith impact on the way we practice a profession, engage the culture, or become involved in political struggles, then we are accused of imposing our faith on others,” he said. “These voices have become increasingly strident in the United States over the past 50 years; and they can intimidate believers, making them afraid or uneasy to let their faith influence their involvement in the public square.”

Archbishop Charles J. Chaput, of Philadelphia, in 2012 endorsed an active role for Catholic clerics in the public realm, particularly in politics: “The ‘separation of Church and state’ can never mean that religious believers should be silent about legislative issues, the appointment of judges or public policy. It’s not the job of the Church to sponsor political candidates. But it’s very much the job of the Church to guide Catholics to think and act in accord with their faith.”

That contention was echoed by Father Anthony J. Mastroeni in his 2016 essay titled, “Voting Your Catholic Conscience.” “While the ‘business’ of religion is the saving of souls,” he wrote, “this in itself necessarily includes matters of morality. And since there are no morality-free-zones in the business of legislation or politics, religion has a right to make its voice heard. The act of voting represents a judgment of conscience.”

The First Amendment’s “free exercise” clause overrides the widespread misinterpretation of the church and state relationship, commonly ascribed to the “establishment” clause. The free exercise clause gives religion license to speak out loudly and often, and to do so in any venue it pleases. It “was not intended to protect the state from the church,” Mastroeni notes, “but rather to protect the church from the state; to allow every religion to express its views freely and publicly. It was meant to include, not exclude, the voice of religion (in) the public square.”

Jefferson's Latent Virus

Cardinal James Francis Stafford sees more than judicial mischief at work.

He blames Jefferson, himself. “He introduced a latent and powerful virus which would eventually be used to diminish and then to wound mortally a theology of discourse in the public arena,” he told a Catholic University of America audience in 2008. “It has led to the increasingly secularized states of the American union and their active hostility towards the Catholic Church. Some of these governments are threatening Roman Catholic adoption agencies because of their refusal to select same-sex couples as potential adoptive parents. They are forcing Catholic hospitals to accept medical procedures which are contrary to the dignity of the human person. They are insisting on hiring practices which will destroy the Catholic identity of health and social services under Catholic Church auspices. They have not refrained from coercing the individual conscience. Here the federal and state governments are enshrining the primacy of secular laws over against religious principles. These decisions are the legal and moral progeny of Jefferson’s insistence on debarring personal faith from the public forum.”

Some Catholic commentators identify a broad, clandestine machination that they believe to have capitalized upon Jefferson’s thesis: Freemasonry, of which Jefferson may have been a member. Could the cultural permeation of the “wall of separation” fiction have resulted, in part, from Freemasonry’s power during the mid-twentieth century? In his 1994 book, Behind the Lodge Door, Paul A. Fisher opines that the preponderance of Masons holding seats on the Supreme Court from 1941 to 1971 may have contributed to the court’s “determination to move the nation away from an emphasis on Judeo-Christian values in public life.”

Father Justin Nolan, of the Priestly Fraternity of St. Peter, concurs, and is likewise reluctant to cast Jefferson as a misquoted innocent in the “wall of separation” confusion. “Although I don’t think Jefferson would have approved of modern judicial activism, I’m not so sure he wouldn’t agree wholeheartedly with the idea of the purely secular state,” Father Nolan told this author.

“Although there is debate about whether he was or wasn’t a Freemason, he certainly was a child of his rationalist times, a Deist, and not a believer in the Christian God. His famous ‘Jefferson Bible’ shows his repudiation of traditional Christianity and espouses an overtly Deist/rationalist belief system.”

The “wall of separation” forces have been largely successful in cleansing government of religion, i.e., perverting the establishment clause. They have largely succeeded in disallowing prayer at public meetings and school athletic events, removed crosses and crucifixes from public buildings, supplanted “Christmas” with “holiday” or “winter” when referring to December civic activities. This has been relatively easy, partly because the “separation of church and state” mentality naturally accommodated a compatible sentiment: nonpartisanship. No Christian holiday – the thinking goes – especially a Christian holy day, should even be acknowledged by government in a nation that is inhabited by other religions. Such acknowledgment, in their view, would somehow be “establishment.”

Government Lucre

But “wall of separation” advocates have met greater resistance in re-characterizing and thereby diminishing the “free exercise” clause. What success they have had is largely the Church’s own fault, the Church having struck a bargain to keep political talk out of its sermons – indeed, off campus altogether – in return for government lucre, i.e., direct parochial school and other subsidies, and most insidious of all: tax exemption. After enactment of the 1954 Johnson Amendment, which prohibited churches from endorsing or opposing specific political candidates, the American Catholic Church agreed to talk about anything except politics within the church walls and thereby has long since become a willing financial hostage of government.

Yet, despite this case of Stockholm syndrome, the Church in recent years has shown signs of rebellion. In 2006, Pope Benedict XVI said that while the Church should not engage in political battles, it “must not remain on the sidelines in the fight for justice.” In the United States, some prelates have ramped up their fight to proclaim Church teachings in the public square. After their decades-long concession regarding the establishment clause, American bishops have more actively been defending their right to free speech, even as that principle, itself, has come under broad attack in the secularization of the culture. In contrast to their earlier willingness to be muzzled in the pulpit, many bishops have been standing fast against this astonishing second constitutional threat and have been stirred to issue extraordinary, and corrective, counter-statements as the threat has grown.

In 1994, Archbishop Eusebius J. Beltran, of Oklahoma City, asserted the duty, not just the right, of the Church to speak out. “There are some who complain whenever the Church, or a bishop or a priest, addresses the societal issues of our day,” he said. “However, as American citizens and members of local communities and states, it is our duty to participate fully in the process of government. It is therefore both an obligation and a right for the Church to speak out and give us direction.”

In 2004, Archbishop William E. Lori, of Bridgeport, Connecticut, illustrated the absurdity of liberals’ redefinition of religious liberty. The First Amendment, he wrote, “in no way prohibits the Church from speaking out on issues and from helping her members understand how the positions of political parties and candidates stack up against the Church’s social teaching. If the First Amendment prohibited such activity, then there would be no real religious freedom in the United States. After all, religious freedom is not merely the freedom to believe what one wishes to believe in the privacy of one’s mind and home; you can do that in even the most oppressive gulag!”

In 2007, when a group of Democratic Catholic congressmen railed against Pope Benedict after he conceptually approved of sanctions against public officials who give scandal, Bishop Arthur J. Serratelli, of Paterson, New Jersey, was blunt in citing their hypocrisy and in defending Pope Benedict. “Ultimately, the statement of the 18 politicians who publicly blasted the Holy Father is simply a refusal to allow the Pope freedom of speech and the Church freedom of religion,” he said. “Now how American is that?”

It’s a Limit on Government, Not Religion

In 2008, Bishop Joseph A. Galante, of Camden, New Jersey, reminded his diocese that the First Amendment’s free exercise clause is a limit on government, not on religion. The Constitution, he said, “requires that government be neutral toward religion, not that religion be kept from the public square. Our convictions regarding human life and dignity do not lose their right to be heard because they may happen to come from people of religious belief. As such, the Church has a responsibility to participate in the political process and to give voice to its core convictions in the public square.”

In a letter read in all diocesan parishes in 2016, Bishop William Murphy, of Rockville Centre, New York, stated that the Church has both “the God-given and constitutional right to proclaim religious truths in the public square.”

And the American bishops, as a body, have regularly confronted the free-speech threat head on. “Some question whether it is appropriate for the Church to play a role in political life,” they wrote in their quadrennial, election-year document, Forming Consciences for Faithful Citizenship:

“However, the obligation to teach the moral truths that should shape our lives, including our public lives, is central to the mission given to the Church by Jesus Christ. Moreover, the United States Constitution protects the right of individual believers and religious bodies to participate and speak out without government interference, favoritism, or discrimination. Civil law should fully recognize and protect the right of the Church and other institutions in civil society to participate in cultural, political, and economic life without being forced to abandon or ignore their central moral convictions. Our nation’s tradition of pluralism is enhanced, not threatened, when religious groups and people of faith bring their convictions and concerns into public life. ... The Church’s obligation to participate in shaping the moral character of society is a requirement of our faith.”

And because “the Church” means all the baptized, that obligation is therefore integral to an individual’s personal identity as a Catholic. He is not allowed, under Church law, to merely subsist in society, but rather must spread his Catholic belief throughout it. It is his Catholic duty. It is his Catholic identity. “Can a black man dissociate himself from his race when considering the positions of a party or candidate?” posited Father Peter M.J. Stravinskas in an October 2016 sermon at the Church of the Holy Innocents in New York City. “Can a Jewish woman put aside her Jewishness? In fact, would anyone even dare suggesting such a possibility? No, these aspects of one’s person are integral to one’s identity – and so is one’s faith.”

Priestly Ignorance and Cowardice

The various artifices – especially those of church tax exemption and the spurious “separation of church and state” fallacy – employed to muzzle Catholics and other orthodox Christians from the marketplace of civic debate are pure sophistry, a protracted exercise in illegitimate polemics. Priests can quite legally talk politics from the pulpit; they simply can’t advocate for or against an identifiable candidate, in accordance with the anti-religion Johnson Amendment, without risking the Church’s tax-exempt status. But they can legally talk about the issues of the day, even during an election season, and tell their parishioners to vote for candidates who best advocate for the teachings of the Catholic Church. They can even tell their flocks precisely how they should vote (yes or no, for example) on ballot issues. But despite their ecclesiastical duty to help the laity spread their Catholic identity in society, most priests won’t do these things, for a whole host of unacceptable reasons that generally include ignorance of the law and cowardice.

The Johnson Amendment and the pervasive “church and state” lie have so intimidated and deceived America’s priests that they simply refuse to talk about politics at all. Like other Americans, they have been bamboozled, propagandized into believing that any discussion about the issues of the day is simply verboten. And even if they become aware that they may, in fact, talk about or engage in anything and everything political, short of endorsing or opposing an identifiable candidate, they mostly demur. They simply don’t want to deal with the inevitable outcry from parishioners who are either misinformed about the law or the small number who reliably object to the priest’s authentic Catholic teaching. Both groups will reflexively scream, “separation of church and state”!

To which I respond, “Yes, indeed, do not establish a state religion – and keep that state away from our right to fully, freely practice our religion in our civic and political activities as citizens of the United States!”

And the chanceries are not blameless for the priests’ reluctance. Even those priests who exhibit a desire to provide authentic Catholic teaching in the political sphere can be shut down by their bishops.

In a personal case in 2006, my pastor was initially quite enthused by my request to allow a candidate forum to be held in the parish hall. A week later he told me with regret, “The diocesan lawyer says no.” But there was absolutely no legal basis for that decision. To this priest’s credit, he curiously did not choose to seek the lawyer’s advice when I later asked him to allow me and my little band of anti-abortion zealots to place leaflets on cars in the parking lot during all of the Sunday Masses just before election day. He just threw up his hands, walked away and said, “If I don’t see it, there’s nothing I can do about it.” God bless him.

But by the next election season, this pastor had been transferred, and his less enlightened successor pounced on us in the parking lot. So steeped was he in legal ignorance that he hid in the nearby school and watched for us through the second-floor classroom windows. When he spotted us that Sunday morning, he hurtled into the parking lot and ordered us to stop the leafleting. We refused, so he said he would make an announcement at the following Mass to ignore the leaflets on the cars. I called his bluff. “Go ahead, Father, but remember, you’re advocating against the lives of unborn babies.” That must have gotten to him. He didn’t make the announcement from the altar. So God bless him, too.

(Although not the case in that instance, many hardline liberal Catholic pastors simply don’t want orthodoxy promulgated anywhere on parish grounds. They, too, frantically run into the parking lots, but it has nothing to do with parishioners violating the tax code. They just don’t prioritize abortion, and don’t want anyone else doing so, either.)

“Don’t Impose Your Beliefs on Me!”

Today’s parish priests operate under a fraudulent cloud of legal and social intimidation, and the Catholic faith and American society at large suffer for it. As recounted above, many bishops are beginning to confront the lie, but they must now educate their priests on what they are allowed to say. It’s a simple instruction: priests can say anything, as long as it’s doctrinally correct, and as long as they don’t say specifically for whom to vote. Pretty simple. Further, legally talking politics would embolden their parishioners to properly spread the Church’s authentic teachings in the world. Unfortunately, this idea has been effectively banned by the Church’s acquiescence to yet another, and the inanest, of liberal ultimata: “Don’t impose your beliefs on me!”

In the face of this stark upbraiding, most Catholics politely, and shamefully, retreat. But such acquiescence to secular society is a dereliction of their Catholic duty, says Archbishop Chaput. “Claiming that ‘we don’t want to impose our beliefs on society’ is not merely politically convenient,” he wrote in 2004, “it is morally incoherent and irresponsible.”

Indeed, so ridiculous is this newly-contrived American “standard” that it betrays the very pluralism from which our nation’s laws derive. The Constitution, Chaput said, “does not, nor was it ever intended to, prohibit people or communities of faith from playing an active role in public life. Exiling religion from civic debate separates government from morality and citizens from their consciences.”

The dishonest, contemporary “imposition” touchstone directly conflicts with the supposed American bedrock of freedom of religion, the very foundation of the colonies’ quest for independence from King George III. “Religious freedom means the liberty to bring one’s beliefs and values into the public debate, to challenge the views of candidates for office, and to try to shape a society more worthy of the human person,” wrote Archbishop Lori. “To do all that is not to impose a sectarian view on others but rather to advance the truth about the human person known to reason (natural law) but clarified by faith.”

After all, added Chaput, “People who support permissive abortion laws have no qualms about imposing their views on society.”

It is time for Catholics to come out from the shadows, said San Antonio’s archbishop, Jose´ H. Gomez, a month before the 2008 election. “We live in a society that would like to privatize religion, to take it out of the public square,” he said. “Privatizing religion would be, for all people of faith, an unholy compromise. We who profess to believe in God cannot allow him to be banished from the public square.”

Our forefathers, far from regarding religion as a foreign threat, understood that it must be a critical moral pillar for the new nation, said Bishop Aquila in his 2007 Legislative Mass sermon. Virtually all of them non-Catholics, they still knew that the dignity of the human person is bestowed by God and that the nation’s citizens must uphold that truth at all costs. “To deny or remove God from political discourse,” Aquila said, “only opens the door to the destruction of the human person and to violence such as war, genocide, murder, abortion, and euthanasia as so evidenced throughout the last century and at the beginning of this new century.”

And one-fifth into the new century, that door has been flung open, pouring out those consequences like never before.

– This piece is an excerpt from Mr. Lewis’s book, Catholic Voting and Mortal Sin – How You Vote Can Endanger Your Salvation, available at Amazon.com and other book sellers.