Freedom Writer - June 1994

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Is separation 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. 

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Copyright 1995 IFAS
The Freedom Writer / ifas@crocker.com

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