Some folks doth protest too much. You know the crowd I’m talking about—the protest mongers who protest anything and everything all the time. Whenever I listen to such people a suspicion arises that they don’t really care as much about the issues they protest as they care about the protest itself. It seems they just want to make noise and trouble. As an example, consider the following:
The federal government owns an enormous piece of desert real estate in California called the Mojave Desert Preserve. It is harsh country. It might even be fair to call it desolate country. One thing is for certain, though. It is a low traffic area.
In the midst of that remote tract of land, atop a big rock, stands an eight-foot cross (some prefer to call it a “Christian cross”) erected in 1934 as a monument and tribute to the legions of American soldiers who have given their lives in defense of freedom. Local members of the Veterans of Foreign Wars (VFW) have seen to the upkeep and maintenance of the cross for eight decades.
Few people find themselves in that part of the Mojave desert wilderness on any given day. Still, a few do, and a while back the cross was spotted by one of those protest mongers.
I can only imagine why the protest monger was wandering in the desert that day, but I’m guessing it was a slow protest day in the city. A lazy, boring day. Looking around and coming up empty for things to protest in town, perhaps he wandered out into the desert in search of something to make noise about.
Quite by accident, I imagine, he spotted the cross and squealed with delight. “Now there,” he may have thought, “is something to complain about, something to sue, litigate, bluster and cavort about. Bonanza!” I think that’s how the protest monger mind works.
Who can doubt that the cross truly offended the protest mongers’ religious, or irreligious, sensibilities? For God’s sake (or for the sake of Madelyn Murray O’Hare, if you prefer}, who could tolerate such a gross insult to the doctrine of “separation of church and state?”
As screwball litigation often does, the protest monger’s suit found traction in a California federal district court. The trial court ruled that the cross had to go.
As screwball trial court decisions often are, the ruling of the district court was affirmed by the Ninth Circuit Court of Appeals. The cross, the appellate court affirmed, had to go.
All of this set the stage for the case to be considered by the U.S. Supreme Court, the highest legal authority in the land. Earlier this week, in a 5-4 ruling, the Supreme Court did what it rarely does of late—it got something right! The cross may continue to stand where it has stood since 1934!
Writing the Court’s main opinion, Justice Kennedy reasoned that “a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this nation and its people.”
Justice Kennedy further noted, “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.’”
At the heart of all this is the fact that the legal doctrine of “separation of church and state,” as commonly understood, is a legal fiction. Contrary to popular belief, such a doctrine is nowhere to be found in the U.S. Constitution, and the very notion of it is an affront to liberality of thought that permeated the constitutional convention from which our founding document issued. It’s time that “separation of church and state” be removed from our public consciousness and replaced with a right understanding of the provisions of the First Amendment, and the Supreme Court seems finally to have taken a first step in that direction.
The First Amendment reads as follows:
“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.”
Plainly, the amendment prohibits the establishment of any religion by Congress, and it prohibits Congress from placing restrains on the practice of religion as well. In other words, Congress may not set up a state religion, prefer one religion over another or ban or suppress an unpopular belief or disbelief.
Congress may not, for example, declare Christianity as practiced by Southern Baptists to be the official religion of the country. It may not establish the Church of America as the New World counterpart of the Church of England.
The term “separation of church and state” arose in the public consciousness not from any reading of the Constitution, but from a letter written by Thomas Jefferson in 1801.
In 1801, during Jefferson’s presidency, a rumor began to circulate among the citizens of Danbury, Connecticut. The gist of the rumor was that tenets of the Congregationalist denomination were about to be declared the official, national religion. The Baptists of Danbury became concerned and wrote a letter to Jefferson asking him to confirm or deny the rumor. Jefferson replied with a denial that any part of the rumor was true, and assured the Baptists that “the First Amendment has erected a wall of separation between church and state.”
Simple. There is to be no official state religion. Equally, simple. Nothing in the Constitution prohibits Americans from recognizing religious holidays or traditions of all faiths with appropriate symbols displayed on public property. Certainly, nothing in the Constitution was ever intended by the Founders to have a chilling effect upon public ceremonies or monuments honoring those who have given their lives for this country.
Finally, let me say that there is nothing liberal, progressive, tolerant or nice about suppressing either religious expression (“the free exercise thereof”) or gratitude, remembrance and honor for fallen soldiers. Such suppression is, on the contrary, anathema both to decency and the liberal mind.
This week’s Supreme Court ruling, as welcome as it should be to people of faith and those who respect the sacrifices of our soldiers, didn’t receive the media attention it deserved. Just as the cross commemorating the war dead stands in the desolate desert unnoticed by most, this ruling stands in a media desert of its own. Sadly, few Americans will get the news, and fewer still will get the message.
photo credit: flickr/florian: creative commons license
{ 4 comments… read them below or add one }
Great writing here, Prentice!
You and I don’t see eye-to-eye on many subjects, but here I can heartily “Amen!” your every point. I suppose I’m most thankful for your citing of the origin of the phrase “separation of church and state”. So many citizens speak as tho’ it’s in the Constitution; they’re clueless that Thomas Jefferson used it in a letter written years after the Constitution.
And actually in the past day or two I indeed DID learn of the wise Supreme Court ruling. I heard it on the radio, probably on a Christian network I listen to occasionally. But yeah, the general media probably wouldn’t find such an affirmation of traditional values by our highest Court to be newsworthy.
You needed only to read the decision to learn that the plaintiff is a retired employee of the National Park Service (which manages the Preserve) who makes regular trips to the Preserve. But that–and your speculation about his propensity to protest–is neither here nor there. Reading the decision would have revealed as well that the Supreme Court did not rule on any First Amendment issue, but rather held merely that the district court had not properly assessed whether its previously issued injunction (which remains valid) prohibits a transfer of the cross and the land on which it sits to a private party in accordance with a special bill passed by Congress and remanded the matter to the district court to do just that.
The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and later learned they were mistaken. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists. Instructive as that letter is, it played but a small part in the Court’s decision. Indeed, it was only after reaching its conclusion based on a detailed discussion of the historical events leading to the First Amendment that the Court mentioned the letter. The metaphor “separation of church and state” was but a handy catch phrase to describe the upshot of its conclusion. Some also discount the decision as just Justice Black’s doing. The Court’s reading of the First Amendment in this regard, though, was unanimous; all nine Justices agreed on that much. They split 5-4 on whether the principle of separation of church and state precludes states from paying for transportation of students to religious schools–with the majority, led by Black, holding that it does not.
Perhaps even more than Thomas Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “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 First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.
Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state. I commend it to you. http://www.adl.org/religious_freedom/WFU-Divinity-Joint-Statement.pdf
Actually I saw very comprehensive coverage of the Supreme Court ruling on MSNBC. So I don’t agree the “general media probably wouldn’t be interested” as Glen Alan suggests. Instead I see this as a wise decision. TheUS Supreme Court reminds us that the symbol of the cross is not only a symbol of Christianity. To quote Justice Kennedy “…it is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this nation and its people.”
Doug – you are quite correct that the Court’s ruling doesn’t rest on a First Amendment issue. Nonetheless, Justice Kennedy devoted a not insignificant portion of his opinion to a discussion of the First Amendment issue at the heart of the case.