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Separation of Church and State


October 20th, 2010

Christine O’Donnell’s comment about the absence of separation of church and state in the Constitution led to an online discussion/debate with a friend of mine.

Please understand that I’m not arguing against the concept of the separation of church and state itself, but pointing out that Ms. O’Donnell is literally correct that it’s not in the Constitution, notwithstanding the audible gasps one could hear from the audience when she made that statement in her debate.

The First Amendment does not mention “separation of church and state”. It (1) prohibits the establishment of a government-sponsored religion, and (2) prohibits government interference in the free exercise of religion. Our republic thrived for 150 years without a constitutional principle of separation of church and state until Hugo Black grafted the idea onto the Constitution in a 5-4 decision in Everson v. Board of Education (1947).

Thomas Jefferson is often cited as an early proponent of the concept of separation of church and state, but he used that term in a political letter to a religious minority he was attempting to court. As president (later), he, e.g., endorsed the use of federal funds to build churches and to support Christian missionaries working among the Indians, so either he didn’t really believe in separation of church and state or he understood the concept in a far different way than how it is understood today.

Also, keep in mind that Alabama-born Hugo Black (Klansman, Klan lawyer and virulent anti-Catholic) used separation of church and state in Everson v. Board of Education as a device to prohibit public school districts from busing students to Catholic schools. I’m not debating whether that decision was right or wrong, just pointing out that Black had strong personal prejudices when he wrote his decision.

My points are (1) separation of church and state is NOT in the constitution itself, and (2) its incorporation into the constitution is the product of the Supreme Court, which is sometimes fallible. Compare Plessey v. Ferguson (“separate but equal”, 1893) with Brown v. Board of Education (1954).

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jimwalsh