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A short and partial history of the wall of separation of church and state in the US

President Jefferson stated in part:

“Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting free exercise thereof,’ thus building a wall of separation between Church and State.”

Contrary to some popular notions, the phrase “a wall of separation” does not occur in the Constitution or the Bill of Rights – not in fact in any of the founding documents for the United States. Concerning religious freedom, the Constitution (in the amendments known as the Bill of Rights) states precisely as Thomas Jefferson had quoted above.

As Mark R. Levin noted in his recent book Men in Black:

“…Justice Black, in writing for the court in Everson v. Board of Education, seized on this idea that a ‘wall of separation’ existed between church and state. Black also declared that the religion clauses of the First Amendment, which were intended to be a check on the federal government, were now applicable to state and local governments. The term ‘wall of separation’ was to attach thereafter to every case or controversy arising under the establishment clause or the free exercise clause.

Everson involved a New Jersey statute that permitted local school districts to create their own rules for transporting children to and from school. The board of education for Ewing Township, New Jersey, which relied on public buses, reimbursed parents for their children’s fares. A portion of this money was distributed to parents who enrolled their children in Catholic parochial schools. As one would expect, these schools instructed their students in Catholic religious teachings.

“A taxpayer who lived in Ewing Township brought suit, alleging that the New Jersey statute violated the establishment clause, The Court, however, disagreed. Justice Hugo Black, delivering the majority opinion wrote:

‘“[New Jersey] cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do note inadvertently prohibit New Jersey from extending its general law benefits to all its children without regard to their religious belief.’”

“While this affirmed a fair treatment of religion in the public sphere, other portions of Black’s opinion established the anti-religious precedent that has done so much damage to religious freedom. He wrote, ‘No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.’ He added, ‘The First Amendment has erected a wall of separation between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.’

“According to his biographer, Roger K. Newman, although Black wrote the majority opinion upholding the use of public funds to transport children to Catholic schools, he did so for the purpose of undercutting the true meaning of the religion clauses:

‘“[Justice Black’s opinion in Everson v. Board of Education] drew criticism from all quarters. Black’s rhetoric and dicta contrasted too sharply with his conclusion and holding to satisfy anyone. If he had not written as he did, he later said, ‘[Supreme Court Justice Robert] Jackson would have. I made it as tight and gave them as little room to maneuver as I could.’ [Justice Black] regarded it as going to the verge. His goal, he remarked at the time, was to make it a Pyrrhic victory and he quoted King Pyrrhus, “One more victory and I am undone.”’

“Black, therefore, joined the majority in order to thwart them from the inside — and he succeeded. Today, Everson is remembered more for the easily understood ‘wall’ metaphor than for the fact that state funds were used to reimburse the parents of parochial students.

“Black might have had darker motives behind his opinion. He had been a member of the Ku Klux Klan in the 1920’s, when the Klan was deeply resentful of the growing influence of Catholicism in the United States. According to Hugo Black, Jr., his father shared the Klan’s dislike of the Catholic Church… ‘He thought the Pope and bishops had too much power and property. He resented the fact that rental property owned by the Church was not taxed; he felt they got most of their revenue from the poor and did not return enough of it.’”

Without knowledge we are but poor respondents. RAV

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