IFAS | Freedom Writer | June 1994 | separation.html

Is separation of
church and state a myth?

By Barbara A. Simon, Esq.

The First Amendment to the United States Constitution contains a mere 45 words, yet protects our individual rights to religious liberty; freedom of speech; freedom of the press; freedom of assembly; and freedom to complain to the government to right wrongs. Prior to the twentieth century, the First Amendment, along with the next nine amendments (Bill of Rights), was originally viewed as a limitation on the federal government's action against citizens of the individual states. During the twentieth century, the United States Supreme Court, utilizing the Fourteenth Amendment, began to view the Bill of Rights as a limitation on state and local governments, as well as federal governments.

Why? After the Civil War, it was not the federal government that sought to deny African Americans equal protection of the law, but state and local governments. The Fourteenth Amendment, ratified on July 9, 1868, just after the Civil War, proclaimed that no state may deny any person within its jurisdiction equal protection of the law. Through a series of 20th century Supreme Court decisions, the limitations on the federal government became applicable to the state and local governments, through the doctrine known as "incorporation."

The first time the incorporation doctrine was utilized to make the restrictions of the First Amendment apply to state and local governments was in the 1940 case Cantwell v. Connecticut. In Cantwell, a Jehovah's Witness was arrested in the course of his proselytizing on the streets of New Haven, Connecticut, and was convicted for inciting a breach of the peace. The Supreme Court reversed the conviction and found that Cantwell's behavior did not breach the peace and that he was convicted under a statute that was sweeping and included a great variety of constitutionally protected conduct, including Cantwell's free exercise of religion.

The focus of this column is the First Amendment's religion clauses. The language "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" comprises the first 16 words of the amendment, and has been termed the Establishment Clause and the Free Exercise Clause. In its essence, the Establishment Clause means that government may not establish religion, or prefer one religion over any other religion, or prefer one sect of religion over any other sect of religion, or prefer religion over non-religion; and the Free Exercise Clause means that the government may not interfere with the free exercise of religion unless there is a compelling governmental interest that would justify the interference, and the government has no less restrictive means available to accomplish its compelling interest.

The Supreme Court, the ultimate arbiter of the U.S. Constitution, first utilized the term "wall of separation between church and state" in its 1878 Reynolds v. United States decision, in which it held that "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 and state." The Court then stated that Thomas Jefferson's term "wall of separation between church and state may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment."

Like those who would deny the Holocaust, there are those who, in seeking to create "Christian America," deny that the First Amendment's religion clauses mean "a wall of separation between church and state," but promote the erroneous notion of "the myth of separation." David Barton, founder of the Aledo, Texas-based WallBuilder Press is such a revisionist. His 1989 book, which is titled, not surprisingly, The Myth of Separation, has been quite popular with followers of the Rev. "Pat" Marion Robertson. Robertson's nationwide Christian Coalition promotes Barton as a featured speaker at many of its conferences. What is the problem with this diversity of opinion about the meaning of the First Amendment's religion clauses? It is similar to the problem created by Holocaust revisionists. The truth will be obfuscated. And well-intentioned people will be misled.

© 1998 Institute for First Amendment Studies, Inc.