References to God abound
Thursday, July 18, 2002
By Raymond H. Vogel
A recent decision by a federal appeals court in California held that "under God" in our Pledge of Allegiance, when recited in a public school, violates our U.S. Constitution. While this decision will probably be overruled, perhaps we should examine what led the court, and other courts, to make this kind of decision.
The only statement in the Constitution which refers to religion is the First Amendment: "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof."
The courts have held that the 14th Amendment, one of the post-slavery amendments, makes the First Amendment applicable to the states. That amendment states that no state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ... nor deny to any person within its jurisdiction the equal protection of the laws."
How did the so-called establishment clause, helped by the 14th Amendment, lead the courts to prohibit the display of the Ten Commandments in public schools?
What does "an establishment of religion" mean?
The plain meaning is that this refers to a state religion, familiar in other 18th century systems. The Britannica Encyclopedia defines an established church as being the official church of a nation by law. So the Church of England is an established church.
Nowhere in the Constitution does the term "separation of church and state" appear, but the Supreme Court has ruled that the establishment clause was intended to erect a "wall of separation" between church and state.
This "wall" reference came from Thomas Jefferson's 1802 address to the Danbury Baptists who were concerned that the federal government would interfere with their plans. Jefferson assured them that the wall of separation would protect them in the free exercise of their religion.
There is no indication that Jefferson intended this statement should be used in interpreting the First Amendment. Jefferson was known as a strict constructionist and said when he became president, "The Constitution on which our Union rests shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption."
So, did the people understand what "establishment" meant when they adopted the Constitution?
They knew that the Church of England was an established church.
Chief Justice William Rehnquist said the wall-of-separation statement, which is now an established part of constitutional law, was responsible for many activities being declared in violation of the establishment clause when they should not have been so.
Many justices have taken the position that the constitution is a living document, is still evolving and does not require the justices to defer to the understanding of the people who voted on the adoption of the Constitution and its amendments.
Jefferson also said: "God who gave us life, gave us liberty at the same time. Can the liberties of a nation be secure when we have removed their only sure basis, a conviction in the minds of the people that those liberties are the gift of God?"
These words are inscribed on the Jefferson Memorial in Washington, D.C. -- on public land, I expect.
Are there some who would erase these words?
Raymond H. Vogel is a retired lawyer who practiced law in Cape Girardeau for 54 years.