Freedom Writer - June 1994 [ref001] Is separation a myth? By Barbara A. Simon, Esq. The Fi
Freedom Writer - June 1994
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]
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
[ref002][ref003] Return to table of contents
Copyright 1995 IFAS
The Freedom Writer / firstname.lastname@example.org
This file is copywritten by the Institute for First
Subscribe to The Freedom Writer and Walk Away news
letters by writing to or telephoneing the Institute
for First Amendment Studies:
Post Office Box 589
Great Barrington, Massachusetts. 01230
Telephone: (413) 528-3800
Web page: http://www.crocker.com/~ifas
E-Mail Fredric L. Rice / The Skeptic Tank