Captain Ed notes a key Establishment Clause decision from the Sixth Circuit that explicitly rejects the doctrine of a “wall of separation between church and state”. That language appears nowhere in the text of the Constitution, but in a letter by Thomas Jefferson to the Danbury Baptist Association. While Jefferson may have been a brilliant man, the doctrine of the “wall of separation” has been used as a justification for removing all influences of religion from the public square.
Former Justice Hugo Black popularized the “wall of separation” doctrine in the 1947 case of Everson v. Board of Education – a case which ironically upheld the right for public funds to be allocated to transportation to parochial schools.
The late Chief Justice Rehnquist put it best in Wallace v. Jaffree:
The ‘wall of separation between church and State’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned… The crucible of litigation has produced only consistent unpredictability, and today’s effort is just a continuation of the sisyphean task of trying to patch together the ‘blurred, indistinct and variable barrier’ described in Lemon. We have done much straining since 1947, but still we admit that we can only ‘dimly perceive’ the Everson wall. Our perception has been clouded not by the Constitution, but by the mists of an unnecessary metaphor.
The “wall of separation” doctrine should be set aside for the reasons that Rehnquist and the Sixth Circuit elucidated. Jefferson’s private correspondence may be of interest, but it is not a standing legal doctrine. It does not have the force of law, and it argues for an impossible standard – the Founders certainly didn’t perceive such a wall or they would have made it explicit within the First Amendment. There were plenty of issues of contention during and after the framing of the Constitution, but an exegesis of those opinions must always take a back seat to the wording of the Constitution itself. Justice Black’s usage of the Danbury Baptist letters represented an extra-textual judgement that has had a profoundly confusing effect on the state of Establishment Clause jurisprudence.
A reasonable person would not argue that the presence of the Ten Commandments in a government building constitutes an “establishment” of religion anymore than a statute of Hammurabi is an endorsement of worshipping Marduk. It is simply impossible to erase or conceal the profound influence of religious and especially Judeo-Christian themes in American law and society – and an idea is not invalid, unjust, or wrong merely because it has a religious connotation. The doctrine of a “wall of separation” is simply a poor metaphor and unworkable in reality, and the Supreme Court should follow the Sixth Circuit in repudiating it as an operative standard of legal judgment.
Nonsense, or have you forgotten your Ten Commandments? Check the first one. How can the government of a pluralistic, democratic society be allowed to erect a monument stating that “you shall have no other gods but me?”
The Ten Commandments is religion, not history; the assertion that it somehow forms the “basis of our laws” is laughable on the face of it. Let the themes of Judeo-Christianity (if there even is such a construct) be introduced into our society, yes; along with the themes of other traditions, too. But let those themes stand or fall on their secular merit to a secular society, not as the championed ideals of one or another religious faith. If there is, indeed, a secular merit to outlawing the worship of all other gods but Jehovah, or YHWH, let’s hear it.