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Title: When did the U.S. government pass a law dictating the Separation of Church and State? Where can this law be found?
Source: Christian Answers
URL Source: http://www.christiananswers.net/q-wall/wal-g004.html
Published: Oct 23, 2011
Author: n/a
Post Date: 2011-10-23 21:18:11 by Murron
Keywords: None
Views: 10623
Comments: 24

When did the U.S. government pass a law dictating the Separation of Church and State? Where can this law be found?

As the concept is commonly understood today, the government has never passed a law implementing the "separation of church and state." The First Amendment simply states

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

Over the years, however, the Supreme Court and lower federal courts have reinterpreted this amendment in many ways. This reinterpretation of the Constitution has in effect become the “law” supposedly dictating the "separation of church and state."

Let's look first at a very brief history of the Courts reasoning and rationale for reinterpretation, and then we'll discuss what the phrase "separation of church and state" means as it is applied in American public policy.

One of the Supreme Court's most blatant violations of the Constitution came about through their reinterpretation of the Bill of Rights - the first ten amendments. Prior to this constitutional violation, the Bill of Rights applied only to the federal government. Notice the actual language of the First Amendment: "Congress shall make no law…"

As one of many efforts to limit the power of the federal government, the Constitution left authority over religious matters to the States. The Supreme Court consistently adhered to this constitutional principle until well into the twentieth century.

But in the 1925 ruling, Gitlow v. New York, the Supreme Court began ignoring its predecessors and precedents. The Court reasoned that one of the purposes of the Fourteenth Amendment was to extend the Bill of Rights to the States. (This would obviously expand the powers of the federal courts to a great degree.) The history of the Fourteenth Amendment does not support their contention, nor do the earlier Courts.

Nonetheless, the 1925 Court ignored the historical record and the opinions of their predecessors, establishing a new precedent. Gitlow dealt with freedom of speech and the press; religious matters would soon follow.

In the context of religion, the Court's first and most abusive reinterpretation began in a 1940 Supreme Court ruling, Cantwell v. Connecticut. Here, the Court applied the "free exercise" clause of the First Amendment to the states. Again, religion was a State matter. State courts were, and are, completely capable of handling the issue. Nevertheless, the Supreme Court, in direct opposition to the original intentions of the Constitution, applied yet another portion of the Bill of Rights to the States. They did not stop there.

The next landmark ruling came down in 1947. In the case, Everson v. Board of Education, the Supreme Court applied the "establishment clause" of the First Amendment to the states. In the context of the "separation of church and state," the Court's foundational reinterpretation of the Constitution was complete. From 1947 forward, the Court has ruled with regularity on religious issues, in direct violation of the original meaning of the First Amendment. Their rulings, and those of lower courts (federal and State) have become the “law” of "separation of church and state."

That was a very brief description of how the federal courts have taken authority over religious issues, reinterpreting the First Amendment and applying it to the States by way of the Fourteenth Amendment. All of this was done in clear violation of the actual wording of the Constitution, as well as the intentions of its framers. The modern concept of "separation of church and state" can not be justified using the historical record.

During the last generation, the courts, at all levels, have ruled in ways that essentially guarantee the freedom from religion, instead of the freedom of religion.

"Separation of church and state," as applied to education, means that a prayer at a graduation ceremony is unconstitutional. It also means that students may not pause for a moment of silence at the beginning of their school day. It means that a nativity scene may not be displayed on public property unless there are other displays (e.g. Santa Clause or Christmas trees) that secularize the presentation.

Today's conception of "separation of church and state" has also been used to remove historic crosses from public property, and religious symbols from city seals. It has been used to remove the Ten Commandments from courtrooms, even though they are carved in stone within the architecture of the Supreme Court building. The concept has been used to prevent religious expressions on personalized license plates. And these are but a few of the official applications of the concept, or “law” of "separation of church and state."

One should understand that "separation of church and state" is not actually a law. It is a doctrine, or a legal concept, that has been implemented by the various courts primarily over the last fifty years. If this concept, as originally understood, would have been applied with consistency over the years, America would certainly be a different country right now. Religious expression would flourish, and the courts would not be micromanaging the religious life of the American people.

The doctrine of "separation of church and state" has been used, and is being used, to effectively purge religion from the public square. The historical perspective on church/state issues reveals a much different story. The government was to accommodate the religious communities; religion and religious expression were to be encouraged.

This is why, for example, the first Congress asked President George Washington to issue a Thanksgiving Proclamation upon completion of the Bill of Rights. Today, that practice would be viewed as unconstitutional. It would violate the "separation of church and state."


Poster Comment:

General Thanksgiving
By the PRESIDENT of the United States Of America
A PROCLAMATION (George Washington, 1789)

WHEREAS it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favour; and Whereas both Houfes of Congress have, by their joint committee, requefted me "to recommend to the people of the United States a DAY OF PUBLICK THANSGIVING and PRAYER, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to eftablifh a form of government for their safety and happiness:"

NOW THEREFORE, I do recommend and affign THURSDAY, the TWENTY-SIXTH DAY of NOVEMBER next, to be devoted by the people of thefe States to the fervice of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our fincere and humble thanksfor His kind care and protection of the people of this country previous to their becoming a nation; for the fignal and manifold mercies and the favorable interpofitions of His providence in the courfe and conclufion of the late war; for the great degree of tranquility, union, and plenty which we have fince enjoyed;-- for the peaceable and rational manner in which we have been enable to eftablish Conftitutions of government for our fafety and happinefs, and particularly the national one now lately instituted;-- for the civil and religious liberty with which we are bleffed, and the means we have of acquiring and diffufing useful knowledge;-- and, in general, for all the great and various favours which He has been pleafed to confer upon us.

And also, that we may then unite in moft humbly offering our prayers and fupplications to the great Lord and Ruler of Nations and befeech Him to pardon our national and other tranfgreffions;-- to enable us all, whether in publick or private ftations, to perform our feveral and relative duties properly and punctually; to render our National Government a bleffing to all the people by conftantly being a Government of wife, juft, and conftitutional laws, difcreetly and faithfully executed and obeyed; to protect and guide all fovereigns and nations (especially fuch as have shewn kindnefs unto us); and to blefs them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increafe of fcience among them and us; and, generally to grant unto all mankind fuch a degree of temporal profperity as he alone knows to be beft.

GIVEN under my hand, at the city of New-York, the third day of October, in the year of our Lord, one thousand feven hundred and eighty-nine.

(signed) G. Washington Source: The Massachusetts Centinel, Wednesday, October 14, 1789 (1 image)

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Begin Trace Mode for Comment # 20.

#3. To: Murron, mcgowanjm (#0)

When did the U.S. government pass a law dictating the Separation of Church and State? Where can this law be found?

As the concept is commonly understood today, the government has never passed a law implementing the "separation of church and state." The First Amendment simply states

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

The separation of church and state as we know it today was not established by the Constitution or any Federal law.

The term comes from an 1802 letter of Thomas Jefferson.

http://www.loc.gov/loc/lcib/9806/danbury.html

To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.

The actual extent of what Jefferson spoke to (the First Amendment) was that the Federal "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In that, the Federal government is restrained from passing any applicable Federal law to impose its will upon the States or the people. It is a power explicitly withheld from the grant of powers given to the Federal government. It does not speak to restraining the States or the people.

The next landmark ruling came down in 1947. In the case, Everson v. Board of Education, the Supreme Court applied the "establishment clause" of the First Amendment to the states. In the context of the "separation of church and state," the Court's foundational reinterpretation of the Constitution was complete.

Originally, the Bill of Rights was a set of restraints upon the Federal government and did not apply to the States. The 14th Amendment deliberately did apply the rights of citizens of the United States (as opposed to the rights as a citizen of a particular State) as a restraint against the States. This would include the individual citizen rights expressed in the Bill of Rights. The 14th Amendment was a post-war amendment designed to attack the concept of States Rights or State Sovereignty.

The Supreme Court has not incorporated all of the Bill of Rights but has incorporated select provisions.

U.S. Supreme Court

Everson v. Board of Education, 330 U.S. 1 (1947)

Everson v. Board of Education of the Township of Ewing

No. 52

Argued November 20, 1946

Decided February 10, 1947

330 U.S. 1

APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY

Syllabus

Pursuant to a New Jersey statute authorizing district boards of education to make rules and contracts for the transportation of children to and from schools other than private schools operated for profit, a board of education by resolution authorized the reimbursement of parents for fares paid for the transportation by public carrier of children attending public and Catholic schools. The Catholic schools operated under the superintendency of a Catholic priest and, in addition to secular education, gave religious instruction in the Catholic Faith. A district taxpayer challenged the validity under the Federal Constitution of the statute and resolution so far as they authorized reimbursement to parents for the transportation of children attending sectarian schools. No question was raised as to whether the exclusion of private schools operated for profit denied equal protection of the laws; nor did the record show that there were any children in the district who attended, or would have attended but for the cost of transportation, any but public or Catholic schools.

Held:

1. The expenditure of tax raised funds thus authorized was for a public purpose, and did not violate the due process clause of the Fourteenth Amendment. Pp. 330 U. S. 5-8.

2. The statute and resolution did not violate the provision of the First Amendment (made applicable to the states by the Fourteenth Amendment) prohibiting any "law respecting an establishment of religion." Pp. 330 U. S. 8-18.

133 N.J.L. 350, 44 A.2d 333, affirmed.

nolu chan  posted on  2011-10-24   1:09:14 ET  Reply   Untrace   Trace   Private Reply  


#6. To: nolu chan (#3) (Edited)

Establishments of Religion, James Madison:

Strongly guarded as is the separation between Religion and Government in the Constitution of the United States, the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history. (See the cases in which negatives were put by J.M. on two bills passed by Congress and his signature withheld from another. See also attempt in Kentucky; for example, where it was proposed to exempt Houses of Worship from taxes...

But besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity [forever] by ecclesiastical corporations. The power of all corporations, ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses...

Is the appointment of chaplains to the two houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion. The law appointing chaplains establishes a religious worship for the national representatives, to be performed by ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the constituent, as well as of the representative body, approved by the majority, and conducted by ministers of religion paid by the entire nation.

The establishment of the chaplainship to Congress is a palpable [easily noticeable] violation of equal rights, as well as of constitutional principles.

If religion consist in voluntary acts of individuals singly, or voluntarily associated, and it be proper that public functionaries, as well as their constituents should discharge their religious duties, let them like there constituents, do so at their own expence. How small a contribution from each member of Congress would suffice for the purpose? How just would it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the legislature, be paid by the public, more than that for the executive or judiciary branch of the government?

Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality?

Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [the law has no concern for the very small]: or to class it cum “maculis quas aut incuria fudit, aut humana parum cavit natura [with faults which human nature either has scattered around through negligence or has guarded against too little].

Better also to disarm in the same way, the precedent of chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right principle, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one. Look through the armies and navies of the world, and say whether in the appointment of their ministers of religion, the spiritual interest of the flocks or the temporal interest of the shepherds, be most in view: whether here, as elsewhere the political care of religion, is not nominal more than a real aid. If the spirit of armies be devout, the spirit out of the armies will never be less so; and a failure of religious instruction and exhortation from a voluntary source within or without, will rarely happen; and if such be not the spirit of armies, the official services of their teacher are not likely to produce it...

Religious proclamations by the Executive recommending thanksgivings and fasts are shoots from the same root with the legislative acts reviewed.

Although recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.

The objections to them are...

The practice if not strictly guarded naturally terminates in a conformity to the creed of the majority and a single sect, if amounting to a majority...

war  posted on  2011-10-24   8:06:06 ET  Reply   Untrace   Trace   Private Reply  


#10. To: war (#6)

FYI - Willie Green

www.libertypost.org/cgi-b...i?ArtNum=314254&Disp=6#C6

I wonder how we get him over here...

Fred Mertz  posted on  2011-10-24   11:40:15 ET  Reply   Untrace   Trace   Private Reply  


#11. To: Fred Mertz (#10) (Edited)

He's a 'burgh guy...

I did notice that he has come 180 degrees from where he was...I wonder if his status as almost fully physically disabled has anything to do with it?

war  posted on  2011-10-24   11:44:26 ET  Reply   Untrace   Trace   Private Reply  


#20. To: war (#11)

I did notice that he has come 180 degrees from where he was...I wonder if his status as almost fully physically disabled has anything to do with it?

I suspect it may have been the case. That's the kind of thing that affects your whole life in a negative way.

sneakypete  posted on  2011-10-25   5:51:18 ET  Reply   Untrace   Trace   Private Reply  


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