EDITOR’S NOTE: This is the last in a series of commentaries is adapted from articles that ran in consecutive issues of Report from the Capital. Previous installments are here, here and here.
By Brent Walker
(ABP) — Myth No. 7: The separation of church and state is a creation of 19th century anti-Catholic bigotry and 20th century secularism.
This is simply not the case. The concept of church-state separation, familiar to Baptists for more than four centuries, preceded the 19th century by a long shot. Even though some may have used it to support reprehensible bigotry against Catholics, many champions of religious liberty — including our Baptist ancestors — insisted on separation to protect religion, all religion, from coercive and corrosive influences of government. Separationists have opposed the Catholic Church when it has sought to tap into the public till to support its parochial schools. But that principled debate on the issues does not support the charge of bigotry.
Some have argued anti-Catholic animus coalesced with 20th century secularism resulting in hostility to religion. This is wrong too. Along with the 18th century Enlightenment rationalists, who wanted separation for political and philosophical reasons, were Baptists, like John Leland and Isaac Backus, who worked for separation for reasons having everything to do with religious liberty.
Moreover, the word “secular” is a good word, not a bad one. Here I am not talking about that anti-religious, often atheistic, critique that would banish religion to the back waters of privatized faith. Rather, I mean the more friendly form of secularism embraced by many people of faith who simply believe that government should be non-religious.
Government should not take sides in matters of religion but be neutral toward religion. We do not need or want a religious government.
Myth No. 8: The religion clauses in the First Amendment apply only to the federal government, not to the states.
It is true the Bill of Rights originally applied only to the federal government, not to states. It was simply a further limitation on the already limited powers delegated to the federal government. State establishments and preferences for religion continued even after 1791. In fact, Massachusetts did not abolish its Congregationalist establishment until 1832.
However, the 14th Amendment changed this. It prevents the states from depriving citizens of due process and equal protection under the law. The U.S. Supreme Court later interpreted these provisions to “incorporate” most of the Bill of Rights and apply them to the states. The Free Exercise Clause was incorporated in 1940 and the Establishment Clause in 1947. Thus, the religion clauses — and therefore the concept of church-state separation — apply to the states as a matter of federal constitutional law.
A related argument has been advanced, notably by Supreme Court Justice Clarence Thomas, that the Establishment Clause is a federalism provision. This wrong-headed notion argues that the clause provides little, if any, substantive protection against government advancement of religion; it simply prevents the federal government from interfering with state establishments. This understanding of the Establishment Clause, taken to its logical conclusion, would permit 50 different state establishments as far as the federal law is concerned.
Thankfully, this argument continues to be an outlier, but, unfortunately, it is gaining some strength. My friend Ellis West, University of Richmond professor emeritus, has a new book that should be helpful on this issue titled The Religion Clauses of the First Amendment: Guarantees of States’ Rights?