Tear Down This Wall

Edward C. Mosca

The U.S. Supreme Court's latest confused rulings on religion and government - the Ten Commandments can be displayed on state property in Texas, but not in Kentucky - are the offshoots of a decision it issued in 1947 which said the First Amendment's Establishment Clause "was intended to erect a wall of separation between church and State." Although this metaphor is quite arresting, it does not reflect the original understanding of the Establishment Clause.

The "wall" was lifted by the supreme court from a letter written in 1802 by Thomas Jefferson to the Danbury Baptist Association. The letter asserted that by ratifying the Establishment Clause the American people were "building a wall of separation between Church & State." The problem with using the Danbury letter to interpret the Establishment Clause is that it is after-the-fact gloss by someone who had no active role in developing the Establishment Clause.

When the First Amendment was being drafted and debated by the First Congress, which was 14 years before Jefferson penned the Danbury letter, he was serving as Ambassador to France. Jefferson didn't return to America until November, 1789, two months after the final text was approved.

The actions of other Founders are much better evidence of the original understanding of the Establishment Clause, and indicate that it was not meant to be a wall. George Washington, for example, opened his presidency with a prayer and in his farewell address stated that, "reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle."

And if official actions speak louder than unofficial words, even Jefferson did not believe that the Establishment Clause required government neutrality toward religion. In 1803, one year after the Danbury letter, he made a treaty that provided the Kaskaskia Indians funding to build a Catholic Church and for a priest. And in his second inaugural address, he asked the audience to join him in prayer to "that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life."

It is true that, while he was President, Jefferson refused to proclaim a national day of thanksgiving and prayer. But he did so on federalism grounds, not the Establishment Clause: because "no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General [i.e., federal] Government. It must then rest with the States."

In addition to not reflecting the original understanding of the Establishment Clause, the wall is conveniently porous. If the First Amendment really mandates government neutrality toward religion, then the supreme court should stop opening its sessions with "God save the United States and this Honorable Court." It should order that our currency can no longer bear the motto, "In God We Trust," and that Christmas can no longer be a federal or state holiday. And it should announce that it will hold the President of the United States in contempt of court if he concludes another official speech with, "And God Bless America."

The supreme court claims these inconsistencies exist because the Establishment Clause "lacks the comfort of categorical absolutes." Justice Scalia's dissenting opinion in the Kentucky Ten Commandment case is withering on this point - "What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not."

In other words, the supreme court's jurisprudence on religion and government is not based on some neutral principle derived from the constitution, but on the whims of the justices. But as Scalia's dissent points out, "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that--thumbs up or thumbs down--as their personal preferences dictate."

The author of the majority opinion in the Kentucky Ten Commandment case was none other than New Hampshire's David Souter, who instead of turning out to be the "home run" for conservatives that Governor John H. Sununu predicted is one of the most liberal justices ever to sit on the supreme court. If a vacancy does occur, Bush 43 must not repeat the mistake his father, Bush 41, made. No more Souters.

Mr. Mosca is an attorney practicing in New Hampshire. LINK

Posted July 7, 2005

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