alt.education

http://www.tabash.com/articleAdmin/articles/ET%20True%20Meaning%20Long%20Version.pdf

THE TRUE MEANING OF "SEPARATION OF CHURCH AND STATE." By: Edward Tabash

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INTRODUCTION

It is my purpose to demonstrate that the Framers of the Constitution and
the Bill of Rights
intended government to be neutral in matters of religion. Contrary to the
historical interpretation of the religious right wing, government was not
designed so that any branch of government could favor belief over non
belief, even generally. By the enactment of the Establishment Clause of the
First Amendment, government was designed to treat belief and non belief
equally, and to never betray any theistic preferences. The Clause reads:
"Congress shall make no law respecting an establishment of religion."

JEFFERSON AND MADISON: ARCHITECTS OF FREEDOM OF AND FROM RELIGION

While the future fourth president of the United States, James Madison, was
the principal
drafter of the First Amendment, his main ally and mentor in the realm of
government and religion was the future third president of the United
States, Thomas Jefferson. The efforts of these two men, along with the
Framers of the original Constitution and the members of the First Congress,
leave a clear historical record that those who drafted the original
Constitution and the First Amendment intended government neutrality in
matters of religion and did not intend to allow government to favor belief
over non belief.


MADISON OPPOSES GOVERNMENT SPONSORED AID TO ALL RELIGIONS

In 1785, four years before submitting the initial draft of the First
Amendment, Madison wrote in
opposition to a proposal by the Virginia Legislature to levy a general
assessment for support of the
clergy, generally. Madison wrote that the religion of every person must be
left to the conviction and
conscience of every person. Madison went on to write that our opinions
depend only upon the
evidence contemplated by our own minds and cannot follow the dictates of
others1 Madison also
warned that the same government authority that can force someone to
contribute to any individual
religious establishment can also compel support for any other religious
establishment in all cases.2

From this we can already see that Madison opposed government aid to
religion, generally. This
is important as it shows that the primary legal historical claim of the
religious right, that the First
Amendment was designed to allow government to favor belief over non belief,
but only prohibited
government from favoring one religion over another, is wrong. The principal
architect of the First
Amendment, four years before initiating the first draft of it, already
demonstrated clear opposition to government preference for religion,
generally.
_______________________________________________

1 Memorial and Remonstrance, James Madison on Religious Liberty, Alley,
Robert S.,
editor, Prometheus Books, Buffalo, New York, 1985, page 56
2 Ibid., page 57.

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JEFFERSON AND MADISON SECURE ENACTMENT OF VIRGINIA STATUTE FOR
RELIGIOUS FREEDOM

Jefferson and Madison collaborated on what was to become the Virginia
Statute for
Religious Freedom, enacted in 1786. The collaboration of the then future 3d
and 4th presidents of the
United States in an endeavor that was the first major enactment of any
legislative body in the known
world, up to that point in history, for purposes of protecting freedom of
conscience against any tyranny by any religious majority, was a major
advance in humanity's struggle toward severing the bonds between religious
dogma and government. Jefferson and Madison successfully persuaded the
Virginia Legislature to enact into law this statute which contained the
assertion that a person's civil rights should not depend in any way on that
persons's opinions on religion. Further language stated that everyone
should be free to profess and to argue for any view on matters of religion,
and that no one's legal rights should depend in any way on those views,
whatever they may be.3

JEFFERSON LEFT NO DOUBT ABOUT HIS VIEW THAT BOTH NON BELIEVERS AND
THOSE HOLDING UNCONVENTIONAL VIEWS ON MATTERS OF RELIGION
DESERVE FULL EQUALITY BEFORE THE LAW

In 1787, the year following the successful enactment of the Virginia
Statute for Religious
Freedom, Jefferson offered to the public his Notes on Virginia. In Query
XVII thereof, he wrote:

"The legitimate powers of government extend to such acts only as
are
injurious to others. But it does me know injury for my neighbor to
say
there are twenty gods or no god. It neither picks my pocket nor
breaks
my leg."4

It can then be seen that the man who had the greatest influence on Madison,
regarding
government neutrality in matters of religion, was deeply committed to just
that, strict government
neutrality in which the proclamation of twenty gods or no god could not in
any way invoke any
differential treatment by any government authority.
_______________________________________________________

3 http://usinfo.state.gov/usa/infousa/facts/democrac/42.htm (viewed on
September 2, 2006).
4 Jefferson, Writings, Library of America, Literary Classics of the United
States, Inc,
New York, N.Y., 1984, page 285.

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THE ONLY REFERENCE TO RELIGION IN THE ORIGINAL CONSTITUTION WAS A
NEGATIVE ONE: A PROHIBITION AGAINST ANY RELIGIOUS TEST FOR PUBLIC
OFFICE, AS SET FORTH IN ARTICLE VI, CLAUSE III.

In the Summer of 1787, 55 Founders gathered in Philadelphia to draft the
original Constitution
of the United States. Of the many remarkable features of the Constitution,
what stands out most for our purposes was that the only reference to
religion was a negative one. In Article VI, Clause III, the
Founders prohibited all religious tests for public office.

Also, during the deliberations, the Founders specifically refused
suggestions that they pray for
guidance, when they had difficulty working out consensus on various
issues.5

On February 8, 1788, about a year and a half before presenting the first
draft of the First
Amendment before Congress, Madison, in Federalist No. 52, defended the
prohibition of any religious test for public office. He wrote that public
office should be open to "merit of every description" without regard to
"any particular profession of religious faith."6 On October 17, 1788, in a
letter to Jefferson, Madison was contemptuous of an objection to the
prohibition of any religious test for office because that objection was
rooted in a concern over "infidels" being elected to office.7 In this same
letter, forecasting his soon-to-be First Amendment views that the majority
should not be permitted to use popular government to oppress the rights of
the minority, Madison wrote that the "rights of conscience" would be
substantially narrowed if "submitted to public definition."

As the United States Supreme Court has noted, during the debates on whether
or not to ratify
the Constitution, a then future Justice of the Supreme Court, James
Iredell, argued in favor of the
prohibition against any religious tests for office by saying that if we are
to value religious liberty, we must allow "pagans" and those "who have no
religion at all" to be elected to office.8

Thus, by the time that the original Constitution was officially ratified in
1788, the new nation had
thoroughly debated and accepted the prohibition against any religious test
for public office. Before
Madison's initial draft and introduction of the First Amendment, he and
Jefferson had already
demonstrated their firm commitment to a form of government that does not in
any way favor religious

_________________________________________

5 Pfeffer, Leo, Church State and Freedom, Revised Edition, Beacon Press,
1967, page 122.
6 http://www.foundingfathers.info/federalistpapers/fed52.htm (Viewed on
September 3,
2006).
7 http://www.founding.com/library/lbody.cfm?id=181&parent=58 (Viewed on
September 3,
2006).
8 Torcaso v. Watkins, 367 U.S. 488, 495 (1961).

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belief over non belief. The stage was now set for enshrining these
principles into the Bill of Rights, the first ten amendments to the
original Constitution.

THE FIRST AMENDMENT IS BORN

In the above referenced October 17, 1788, letter to Jefferson, Madison also
expressed the
concern that even though popular government does not have as great a danger
of leading toward
tyranny as does a monarchy, a bill of rights is still necessary to guard
against oppression that could be engendered by the majority.9

The people of the new nation were also generally concerned that the
Constitution, by itself, did
not provide adequate restraints on the national government. The prevailing
sentiment in the country
favored a bill of rights.

On June 8, 1789, Madison, as a member of the House of Representatives,
introduced into
Congress proposed amendments to the Constitution, one of which initially
read:

"The civil rights of none shall be abridged on account of religious
belief
or worship, nor shall any national religion be established, nor
shall the
full and equal rights of conscience be in any manner, or on any
pretext,
infringed.
No state shall violate the equal rights of conscience, or the
freedom of
the press, or the trial by jury in criminal cases."10

This set in motion the most remarkable series of alterations, over the next
three months,
resulting in the strengthening of the language on government neutrality in
matters of religion in the final version that was jointly approved by the
House and Senate in September of 1789.
Justice Souter, in his concurring opinion in Lee v. Wesiman11 points out
that Madison came to
his initial draft of what was to ultimately become the First Amendment,
after having collaborated with Jefferson on the Virginia Statute for
Religious Freedom a few years earlier.12 Madison was thus
committed to government neutrality in matters or religion and opposed to
allowing government to favor
___________________________________________


9 Op cit., footnote 7, above.
10 Stokes, Anson Phelps and Pfeffer, Leo, Church and State in The United
States, Harper
& Row, 1964, at page 93.
11 505 U.S. 577 (1992)
12 Ibid., page 615.


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religion, generally, over non belief. Yet, remarkably, as Justice Souter
further explains, by September
of 1789, the final language of the First Amendment that emerged as a result
of a joint conference
between the House and Senate, adopted language even more assertive in
mandating government
neutrality in matters of religion, than what was set forth in Madison's
initial formulation.13 The phrase "no law respecting an establishment of
religion" is much more prohibitory of any government preference for
theological beliefs over non belief than even Madison's initial wording of
"nor shall nay national religion be established."

Thus, the final result was that the First Congress strengthened the
language on church/state
separation, even beyond the force and effect of the initial wording
composed by the nation's staunchest advocate of strict separation.

The path the First Congress took in finalizing the wording of the
Establishment Clause of the
First Amendment, in between Madison's initial wording introduced on June 8,
1789 and the final
wording, passed first by the House and then finally by the Senate on
September 25, 1789,14 shows a developing trend toward government neutrality
in matters of religion, and not just a non preferential stance in which
government would be permitted to assist religion, generally. For instance,
on September 3, 1789, three motions were defeated in the Senate that, if
passed, would have restrained government only from favoring one religion
over another.15

During the House debate on August 15, 1789, Representative Daniel Carroll
of Maryland, who
was also one of the fifty five Framers of the original Constitution in
1787, said: "....the rights of
conscience are, in their nature, of peculiar delicacy, and will little bear
the gentlest touch of
governmental hand..."16

Further, since the Bill of Rights was designed to restrain the power of the
federal government,
the First Amendment could not have contributed to an expansion of
government's authority to aid all religions. The First Amendment consists
of prohibitory constraints on what government can do. It

________________________________________________

13 Ibid., page 614
14 Levy, Leonard W., The Establishment Clause: Religion and the First
Amendment,
Macmillan Publishing Company, 1986, at page 83.
15 Ibid., page 82.
16 Op cit., Stokes and Pfeffer (footnote 10, above), page 94.

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does not empower any branch of government to do anything. It restrains
government authority. It does not add to it. It does not expand it.17

We have the collaboration of Jefferson and Madison on government neutrality
in matters of
religion and securing equal rights for believers and non believers, in the
years leading up to the
enactment of the First Amendment. We have Madison's submitting the initial
draft of what was to
become the First Amendment, in his role as having always advocated
prohibiting government from
betraying any favoritism toward religion. Then, we have the First Congress'
further strengthening of the separationist language contained in Madison's
initial draft. All of these factors make it far more likely than not that
the Framers of the Establishment Clause, as properly recognized by the U.S.
Supreme Court, intended to prevent government from showing favoritism to
any one religion, or to all religions, as against non belief.18

THE STATEMENTS AND POSITIONS OF BOTH JEFFERSON AND MADISON
AFTER THE FIRST AMENDMENT WAS ENACTED, FURTHER SHOWS THEIR
COMMITMENT TO STRICT SEPARATION/GOVERNMENT NEUTRALITY

Now that we have seen that Jefferson and Madison engaged in a close
collaboration that
ultimately led to Madison's initial introduction of the First Amendment
into Congress, the views of both of them on church/state separation and on
the meaning of the Establishment Clause, after it was
already enacted, are highly relevant to the proper interpretation of the
Clause.

On January 1, 1802, Thomas Jefferson, now the president of the United
States, wrote to the
Danbury Baptist Association that the Establishment Clause of the First
Amendment built "a wall of
separation between church and state."19 Certainly, Jefferson was in the
best position to know what he and Madison meant in their collaborative
efforts to secure government neutrality in matters of religion. So, if he
chose to categorize the Establishment Clause as requiring a wall of
separation between church and state, his wording should be deemed an
accurate interpretation of the Clause.

_____________________________________________

17 Levy, Leonard W., The Original Meaning of the Establishment Clause of
the First
Amendment, in Religion and the State, Essays in Honor of Leo Pfeffer, Wood,
Jr., James E.,
editor, Baylor University Press, Waco, Texas, 1985, page 61.
18 Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).
19 Op cit., Jefferson, Writings (footnote 4, above), page 510.


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Jefferson also refused to issue proclamations of Thanksgiving during his
presidency. In his
second inaugural address, on March 4, 1805, he stated that for himself, as
president, there will be "no occasion, to prescribe...religious
exercises..."20

When we also see Jefferson's lifelong expressions of hostility to any
religion or its clergy having
any official power within government, we can see that he was, just like his
closest ally on church/state matters, James Madison, always committed to a
government that cannot even favor religion generally, but must be neutral
as between belief and non belief. In 1800, the year of his first election
to the presidency, Jefferson wrote to Jeremiah Moor: "The clergy, by
getting themselves established by law and ingrafted into the machine of
government, have been a formidable engine against civil and religious
rights."21 In 1813, he wrote to Alexander von Humboldt:

"History, I believe, furnishes no example of a priest-ridden people
maintaining a free civil government. This marks the lowest grade
of ignorance of which their civil as well as religious leaders will
always avail themselves for their own purposes."22

In 1814, Jefferson wrote to Horatio Spafford:

"In every country and in every age, the priest has been hostile to
liberty.
He is always in alliance with the despot, abetting his abuses in
exchange
for protection of his own."23

These are not the words of someone who would allow government to even
generally promote
and support religion as opposed to non belief.

Jefferson also held in ridicule the supernatural beliefs of Christianity.
Since the only candidates
for government sponsored, or government supported, religion were various
Christian sects, during
Jefferson's time, it is not likely that he supported anything other than
strict government neutrality in matters of religion. On April 11, 1823,
Jefferson, the retired third president of the United States, wrote to John
Adams, the retired second president of the United States:

"And the day will come when the mystical generation of Jesus, by
the

20 Ibid., page 520.
21 http://etext.virginia.edu/jefferson/quotations/jeff1650.htm (Viewed on
September 6, 2006).
22 Ibid.
23 Ibid.

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supreme being, as his father, in the womb of a virgin, will be
classed
with the fable of the generation of Minerva in the brain of
Jupiter."24

An exceptionally powerful demonstration of where Jefferson stood with
respect to strict
government neutrality in matters of religion and the full equality of non
believers, can be seen in his
Autobiography, dated January 6, 1821. In a magnificent paragraph, Jefferson
talks about how the
Virginia Statute for Religious Freedom was meant to secure protection for
all points of view on matters of religion and how an attempt to still show
preference for Christianity was defeated. Jefferson then exults in the
result that non believers are to enjoy equal protection under the law. His
precise words are:

"The insertion was rejected by a great majority, in proof that they
meant to comprehend, within the mantle of its protection, the Jew
and the Gentile, the Christian and Mahometan, the Hindoo, and
infidel of every denomination."25

To give full equality under the law to "the infidel of every denomination"
constitutes the clearest
proof that Jefferson, Madison's closest partner and confidant in
church/state separation, had always
intended that government be neutral in matters of religion and that
government be prohibited from
betraying any favoritism for belief over non belief.

Madison always affirmed his view that government should not promote
religion in any way.
Dumas Malone, the famed historian who authored the acclaimed multi-volume
biography of Jefferson, Jefferson and His Time, has said that Jefferson and
Madison held the same views with respect to religion and government.26

Madison shared Jefferson's distrust of any clergy, who seek to obtain
political power for
purposes of using government to impose any religious view. On January 24,
1774, twelve years before introducing the Jefferson/Madison Statute for
Religious Freedom into the Virginia Legislature, andmore than fifteen years
before embarking on the first draft of the First Amendment, Madison wrote
to William Bradford:

"That diabolical hell conceived principle of persecution rages
among some and to their eternal infamy, the Clergy can furnish
___________________________________________________

24 Op cit., Jefferson, Writings (footnote 4, above), page 1469.
25 Ibid., page 40.
26 Op cit., Alley (footnote 1, above), pages 304 and 338.


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their quota of imps for such business.27

Bearing in mind that when Madison wrote the Memorial and Remonstrance in
1785, the only
possible choices of religions for government to support were all Christian
denominations, we again seehis firm conviction that government must not
convey any support for religion, even generally. Madisonthus wrote in the
Memorial:

"During almost fifteen centuries has the legal establishment of
Christianity been on trial. What have been its fruits? More or less
in
all places, pride and indolence in the Clergy, ignorance and
servility
in the laity, in both, superstition, bigotry and persecution.28

This shows that very early on, Madison was already committed to a scheme of
government in
which religion could not at all seek any special favors.

No one could imagine any major political figure, today, with viable
aspirations to the
presidency, clearly saying that Congress should not have chaplains paid for
by public funds and that
presidents should not issue proclamations of thanksgiving with any
religious implications. Yet, Madison, the 4th president of the United
States, and principle author of the First Amendment, believed such
appropriation of public money for Congressional chaplains violated the
constitutionally required government neutrality in matters of religion and
that presidents should not issue thanksgiving proclamations that contain
any religious content..29

In 1970, the United States Supreme Court was very supportive of the notion
of church/state
separation. Yet, by a seven to one decision, the Court upheld property tax
exemptions for the property of religious organizations that were to be used
solely for religious worship.30 Madison, however, opposed such tax
exemptions for the property owned by religious organizations.31 In giving
examples of violations of the principle of government neutrality in matters
of religion, Madison cited attempts in
________________________________________

27 Ibid., page 48.
28 Ibid., page 58.
29 Ibid, July 10, 1822, Letter to Edward Livingston, page 82.
30 Walz v. Tax Commission of City of New York, 397 U.S. 664, 680 (1970)
31 Pfeffer, Leo, God Caesar and the Constitution, Beacon Press, Boston,
Mass, 1975,
page 66.


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Kentucky to "exempt houses of worship from taxes."32 Madison also warned
against accumulation of property by religious organizations, generally. He
wrote:

"But besides the danger of a direct mixture of religion and civil
government, there is an evil that ought to be guarded against in
the
indefinite accumulation of property from the capacity of holding it
in perpetuity by ecclesiastical corporations.33

In light of the strict separationist perspective clearly articulated
throughout the lives of the
principle author of the First Amendment–Madison–and his closest confidant
and partner in matters of separating religion from
government–Jefferson–their clear intent of a government that is prohibited
from betraying any favoritism for believers over non believers is
unmistakable. This argument is even further bolstered by Congress' ultimate
strengthening of Madison's original church/state separation language in
what was to finally take shape as the First Amendment.

The most plausible interpretation of the First Amendment, then, is that the
Framers did intend to
establish a government that was required to be neutral in matters of
religion and that was required to treat the non believer as fully equal
under the law.

THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
INCORPORATES THE BILL OF RIGHTS, INCLUDING
THE FIRST AMENDMENT, TO THE STATES

Though Madison attempted to initially have what was to become the First
Amendment also
bind state governments (see footnote 10, above), as ultimately passed and
ratified, the First
Amendment restrained only the federal government. However, in 1868, the
nation ratified the
Fourteenth Amendment to the United States Constitution. The Fourteenth
Amendment sought to put
limits on the extent to which state power can be exercised against
individuals and thus it makes sense to deem the limits imposed on the
federal government, by the Bill of Rights, to now be equally imposed on
state governments. To hold otherwise would be for state governments to be
able to nullify the individual liberty that the federal government must
allow. Thus, without a legal system that deems the Bill of Rights
incorporated to bind all state and local governments, a person who makes a
speech about a controversial topic could be imprisoned by authorities in
the city, county, or state in which the speech occurred, even though that
individual would be free from federal prosecution.
_______________________________________________________________

32 Op cit., Alley (footnote 1, above), page 90 (Directly Quoted from
Madison's Detached
Memoranda, estimated to have been written by him at some point after 1817.)
33 Ibid, page 91.


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If a liberty is worth preserving, it must be preserved against
encroachments by all branches of
government. If a state can imprison a non believer for expressing views on
why religious beliefs are
incorrect, it would not matter that the federal government could not so
imprison the non believer.

The individual would still be imprisoned by government for no more than
expressing a viewpoint about the structure and nature of reality. The
Supreme Court first acknowledged the incorporation of the religion clauses
of the First Amendment to the states in 1940.34 The Court's first explicit
application of the Establishment Clause to state and local governments came
bout in 1947.35 Since that time, the Court has consistently never wavered
in its majority view that the Fourteenth Amendment incorporates the
Establishment Clause to the states and that state and local governments are
as powerless to favor the believer over the non believer as is the federal
government.

SINCE 1947, THE SUPREME COURT HAS RECOGNIZED THAT THE FIRST
AMENDMENT REQUIRES GOVERNMENT NEUTRALITY IN MATTERS
OF RELIGION AND THAT NO BRANCH OF GOVERNMENT MAY
FAVOR BELIEF OVER NON BELIEF.

Starting in 1947, the Supreme Court began what is up to now an unbroken
line of decisions in
which there has always been a majority of Justices to proclaim that the
First Amendment means that nobranch of government can favor the believer
over the nonbeliever.36 The Supreme Court has, by majority vote, adopted
language that explicitly says:

"We repeat and again reaffirm that neither the a State nor the
Federal
Government can constitutionally force a person to ‘profess a belief
or
disbelief in any religion.' Neither can constitutionally pass laws
or
impose requirements which aid all religions against non
believers."37

In 1985, a majority of the Court fleshed out a thorough statement affirming
that the First
Amendment protects those who harbor all points of view on matters of
religion, including non believers, by declaring that the Court has always:

"Unambiguously concluded that the individual freedom of conscience
protected by the First Amendment embraces the right to select any
religious faith, or none at all. This conclusion derives support
not only
______________________________________________________

34 Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940)
35 Op cit., Everson (footnote 18, above.) 330 U.S., at page 15.
36 Op cit., Everson (footnote 18, above.)
37 Op cit., Torcaso (footnote 8, above.)


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from the interest in respecting the individual's freedom of
conscience,
but also from the conviction that religious beliefs worthy of
respect are
the product of free and voluntary choice by the faithful, and from
recognition of the fact that the political interest in forestalling
intolerance extends beyond intolerance among Christian sects–or
even
intolerance among ‘religions'–to encompass intolerance of the
disbeliever or uncertain."38

In 2000, the Court held by a 6 to 3 majority that government sponsorship of
a religious
message is:

"impermissible because it sends the ancillary message to members of
the
audience who are nonadherents that ‘that they are outsiders, not
full members
of the political community, and an accompanying message to
adherents that
they are insiders, favored members of the political community."39

Another way of wording the true meaning of the separation of church and
state was expressed,
again, by Justice O'Connor in a concurring opinion, when she said that no
branch of government can
"treat people differently, based on the God or gods they worship or don't
worship.40

THE ACCOMPANYING GUARANTEE OF THE FREE EXERCISE OF RELIGION CLAUSE
DOES NOT ALLOW BRANCHES OF GOVERNMENT TO CONFER SPECIAL BENEFITS
ON BELIEVERS. IT ONLY PROPERLY ENSURES THAT BELIEVERS WILL NOT
SUFFER SPECIAL ADVERSE DISCRIMINATION BECAUSE OF THEIR BELIEFS.

The First Amendment not only contains a clause prohibiting government from
passing any laws
respecting an establishment of religion, it also contains a companion
clause that prevents government
from prohibiting the free exercise of religion. In order for the Free
Exercise Clause to be harmonious
with the Establishment Clause, the total constitutional scheme must still
preserve the same legal rights for the non believer as are enjoyed by the
believer. Thus, for believers to be permitted to avoid complying with laws
that apply to everyone else would render non believers legally second class
citizens.

____________________________________________________

38 Wallace v. Jaffree, 472 U.S. 38, 53-54 (1985)
39 Santa Fe Independent School District v. Doe, 530 U.S. 290, 309-310
(2000) adopting
Justice O'Connor's language from her concurring opinion in Lynch v.
Donnelly, 465 U.S. 668, 688
(1984).
40 Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687, 714 (1994).


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The Supreme Court recognizes that government has no obligation to give
believes special
exemption from laws of general applicability.41 Justice Stevens has
recognized that any government
program, law, or regulation that provides only believers with the right to
seek exemption from laws of generally applicability, but that does not
provide the same right to, in his words, "atheists and
agnostics," is a violation of the Establishment Clause.42

An example of the type of disastrous results that can derive from allowing
only religious people
to avoid complying with laws that apply to everyone else, is the type of
overt discrimination such a view would permit. Many people were horrified
in the 1960's when the then Governor of Georgia, Lester Maddox, made a name
for himself by chasing black people out of his chicken restaurant.43 If a
person, who can show that a sincerely held religious belief bars doing
business with a certain category of people, can claim a religious exemption
from non discrimination laws, such a person, even if otherwise doing
business with the general public, could refuse to sell to those members of
whatever that category of people would be.

Someone could found a church that prohibited doing business with atheists,
and a restaurant
owner, who is a member of that church, could then legally stand in the
doorway and bar any known
non believer from entering the place of business. This would be the same as
white supremacists
refusing to seat African Americans at lunch counters in the South during
the 1950s and 1960s.
In 1996, the California Supreme Court dealt with the case of a landlord,
who rented out
apartment units to members of the general public, but who claimed that her
religion deemed it sinful for her to rent to unmarried couples.44 The
California Supreme Court reversed the Court of Appeal, which had ruled for
the landlord and which held that her right of free exercise of religion
allowed her to claim exemption from California's anti marital status
discrimination laws that otherwise apply to all other landlords. The
California Supreme Court expressed concern over what would happen if any
time that someone wanted to escape complying with a law, that individual
could merely claim that compliance would violate a tenet of religious
faith.45 The California Supreme Court also expressed concern over the
consequences of allowing someone to claim a religious exemption from an
enforceable duty to

_________________________________________________
41 Employment Division, Oregon Department of Human Resources v. Smith, 494
U.S.
872, 879 (1990).
42 City of Boerne v. Flores, 521 U.S. 507, 536-537 (1997)
43 http://www.cnn.com/2003/ALLPOLITICS/06/25/maddox.dead/ (Viewed on
September
26, 2006).
44 Smith v. Fair Employment & Housing Commission, 12 Cal 4th 1143, 1151
(1996).
45 Ibid., page 1168.

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comply with laws of general applicability, when the exemption sought would
permit the religious
claimant to engage in otherwise legally prohibited discrimination against
third parties.46

Indeed, had the California case been decided differently, the state would
be in a position to
deny all landlords the right to refuse to rent apartment units to gay and
other unmarried couples, but
would have been compelled to allow any landlord, pleading a religious
motivation to so discriminate, a special right to engage in this form of
discrimination.

In order to avoid an irreconcilable collision between the Establishment
Clause and the Free
Exercise Clause, the latter must be read as a shield and not a sword. It
must be seen as protecting
religious believers from being singled out for special invidious
discrimination because of their beliefs. It must not be seen as a means by
which those who assert a religious belief will have greater legal rights
and exemptions from compliance with generally applicable laws than anyone
else.

The best example of the Free Exercise Clause, properly implemented, can be
seen in a United
States Supreme Court case that arose when the city of Hialeah, Florida,
passed an ordinance banning
the ritual killing of animals, but in a way that prevented only followers
of the Santeria religion from killing animals in their ceremonies, while
for instances, still allowing the kosher process of slaughter.47 This case
did not involve religious claimants seeking to avoid a law that applied to
everyone else. This case involved members of a specific religious sect
being singled out for discriminatory treatment.48 Because this was not a
law of general applicability but one designed to single out Santeria for
special deprivation of rights, the Supreme Court declared it
unconstitutional49

CONCLUSION

It was the intent of the Framers to create a legal system in which the
believer and non believer
are equal before the law and in which no branch of government can betray
any prejudice toward
someone for either accepting or rejecting any tenet of religious belief or
theological assertion
________________________________

46 Ibid., page 1170.
47 Church of Lukumi Babalu Aye v. City of Hialieah, 508 U.S. 520, 536-537
(1993).
48 Ibid, pages 540-541
49 Ibid, page 542

***************************************************************
You are invited to check out the following:

The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm

American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm

The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html

[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]

HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/

***************************************************************
. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote

"You pilot always into an unknown future;
facts are your only clue. Get the facts!"

That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.

It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.

*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html
****************************************************************