church and state

1. Church and StateThe Battle for Religious Liberty Stephen J. Wesolick Wesolick Law Firm www.wesolicklaw.com

3. U.S. Constitution Establishes the foundation and framework for the democratic legal system in the U.S. Writers stated their intent in the preamble �We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.�

4. What the First Amendment Says �Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.� (Ratified effective December 15, 1791)

5. Fourteenth AmendmentDue Process Clause . . . Nor shall any State deprive any person of life, liberty, or property, without due process of law . . .

6. True Meaning of�Separation of Church and State� The phrase does not appear in the Constitution It was used by Thomas Jefferson in 1803, nearly 12 years after the Bill of Rights was ratified Jefferson (in France during Constitutional Convention) Used the phrase to assure the Connecticut Danbury Baptist Ass�n that the federal government lacked jurisdiction over religion By virtue of the fact that it was a government of limited enumerated powers and by virtue of the Establishment Clause

7. True Meaning of�Separation of Church and State� After quoting the Establishment Clause, Jefferson metaphorically indicated that it built a �wall of separation between church and state� Jefferson�s wall was radically different from the modern notion of separation of church and state Which seeks to eliminate religious influence in American public life

8. True Meaning of�Separation of Church and State� In Everson v. Board of Education (1947), the Court formally adopted Jefferson�s metaphor as law and held that the �wall must be kept high and impregnable� The Court also held that the First Amendment�s Establishment Clause imposed a restraint on the states Before this point in time, the First Amendment was generally deemed to be a limit on the federal government only That was certainly Jefferson�s understanding Since Everson, the relationship between church and state has been radically altered as demonstrated by the following chart

10. True Purpose of First Amendment The true purpose of the First Amendment was to prohibit the federal government from establishing a national church Like the Church of England Or require that sectarian policy be forced on an individual state or on the federal government While the amendment does not recognize a differentiation between church and government, it does not mean that they could not cooperate with each other

11. Declaration of Independence When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

12. The Law of NatureA Higher Law Foundational moral truths that you can�t not know William Blackstone: Commentaries on the Law of England in 1765, �the Nature of Laws in General� �Man, considered as a creature, must necessarily be subject to the law of his creator, for he is entirely a dependent being . . . And consequently, as man depends absolutely upon his maker for everything, it is necessary that he should in all points conform to his maker�s will. This will of his maker is called the law of nature . . .�

13. Others on Law of Nature The natural law was the axle on which Western jurisprudence turned for centuries Pagan sources � Antigone Greek tragedy Aristotle�s Rhetoric, Nicomachean Ethics, and Physics The Stoics � affirmed the divine mind which rules the universe General revelation in Rabbinical Tradition Roman Law, Corpus Juris Civilis 6th century A.D. by Byzantine Emperor Justinian Aquinas, 13th century Summa Theologica

14. Deists and Skeptics Those making claims that founders were Deists and skeptics seldom produce proof for assertion Frequently cite no sources at all If they do, usually only 20th century authorities Commonly take an isolated statement of Jefferson or Franklin out of context and present them as typical of framers as whole While Deism was popular in 18th century France, it had little influence in England and less in America

15. Framers� Worldview 55 delegates to Constitutional Convention 1787 Did not formulate their ideas out of thin air Came with certain worldview and basic moral values What sources? Donald Lutz & Charles Hyneman Detailed study of 15,000 political writings from founding period 1760-1805 Determine which authorities framers quoted, respected and from which ideas were derived

16. Findings Identified 3,154 references to other sources Bible cited 34% - far more than any other Deuteronomy cited most often (restatement of the Law) Baron Montesquieu Sir William Blackstone John Locke Familiar with anti-Christian writers: (Hobbes, Hume, Voltaire, Rousseau) Cited far less often & frequently in negative manner

17. Religions of Delegates Dr. M. E. Bradford determined 28 Episcopalians 8 Presbyterians 7 Congregationalists 2 Reformed 2 Lutherans 2 Methodists 2 Roman Catholics 1 unknown 3 Deists

18. Common Law ofEngland and America The common law had become law �by long and immemorial usage� or by custom Common-law judges in England did not make (create) law, but only discovered and stated it Opinions not in conformity with the �law of the land� were not law at all Human laws can not contradict or abridge the Law of Nature Two kinds of rules: (1) rules commanded by God; (2) rules adopted by the community for societal order (customs) � points that are �indifferent� to the Law of Nature

19. Great Expectations Constitution was potentially the convergence point for all the ideas about fundamental law that had been current in America since colonization Notion of law-above-government � �higher law� � was well known throughout Western world Colonists had given it a special domestic cast, infused with interpretation drawn from their unique experiences �Higher law� prevalent in colonial charters and decisions of British Privy Council

20. Great Expectations Struggle with England turned assumption into fiery conviction as colonists argued that Parliament was forbidden morally and literally to transgress American rights After break with England, the very American idea of written, tangible higher law was embodied in new state constitutions and Articles of Confederation Constitution could draw on this enormous fund of prestige that the higher-law idea had assimilated in America

21. The Only Solid Basis of OurCivil Constitution and Privileges This view of the common-law and the role of the judge prevailed without debate in England and America into early 20th century What Happened?

22. �The natural law . . . has been thoroughly purged from law school curricula and replaced with secularist ideologies . . . . A lawyer who does not understand the roots of jurisprudence is no lawyer at all.� --J. Budziszewski

23. Darwinian Revolution �Fundamental changes in culture . . . were affected . . . decisively by the intellectual and philosophical revolution we associate with Darwin�s Origin of Species (1859) . . . . What shattered that traditional world was science, which in almost every arena � including . . . the law . . . � substituted the operations of the law of evolution for the laws of God.� � (Henry Steele Comager, 1978)

24. Sanitization of Religious Message Justice Black was wrong to apply the term �separation of church and state� to the First Amendment Argument gives constitutional reasons to separate religion, religious values, and religious organizations from public life If we can�t talk about religion in any meaningful way in public schools, religious citizens can�t communicate their faith in public life The public square must be sanitized of religious messages, and we are left with a strictly secular public life (From Daniel Dreisbach, Assoc. Prof. of Justice, Law and Society, American University, 2001)

27. �Supreme Court Should Not Legislate� During their presidential campaigns in 1992, neither George H. W. Bush nor Bill Clinton devoted a major speech to the Constitution or the Supreme Court Bush did tell voters in Columbus, OH, just weeks before the election that he and Clinton had �a fundamental difference as to what should happen on the Supreme Court . . . I don�t think the Supreme Court should legislate� and that if voters wanted to �get somebody on there to legislate with a liberal point of view� they should vote for his opponent Enough people took his advice Clinton elected by narrow margin, certainly with some concern by the electorate over fear of a Bush-led assault on Roe v. Wade

28. Clinton�s Appointments Shortly after taking office, Clinton named Ruth Bader Ginsburg to replace Justice Byron White Assured by Ginsburg�s confirmation that Roe would survive his departure, Justice Harry Blackmun retired in 1994 and was replaced by Judge Stephen Breyer During their first years on the Court, Ginsburg and Breyer struck observers as cautious liberals, sticking to precedent whenever possible and writing careful, precise opinions that did not stake out any new constitutional ground

29. Culture War Between 1994 and 2000, the Court decided nearly 700 cases, few of which raised such divisive issues as abortion and affirmative action More than 1/3 were decided by unanimous votes Many involved �bread-and-butter� cases of commercial disputes and government regulation Some of the Court�s rulings during this period, however, reflected battles that stemmed from the growing �culture war� that had begun during 1960s Conservative backlash culminated in Patrick Buchanan�s �religious war� speech during 1992 Republican national convention

30. Recapturing a Nation Supposedly insulated from political battles that raged outside its cloistered chamber, the Court became the setting during 1990s for judicial skirmishes initiated by legal battalions of the Religious Right Pat Robertson and Jay Sekulow, ACLJ Jews for Jesus (1987) � distribution of leaflets in LA airport

31. Public Schools Since its 1948 decision in McCollum Striking down a �released-time� program in which clergy members conducted religious instruction Through the school-prayer cases of Engel and Schempp in the early 1960s Court had invoked the Establishment of Religion clause in maintaining the �wall of separation� between schools and churches Public schools were not like airports and parks, open to general public Facilities could be limited to �secular� purposes

32. Defending Against Overzealous Officials In two cases in 1990 (Mergens) and 1993 (Lamb�s Chapel), Sekulow persuaded Court majorities that schools could not allow �secular� groups like student chess and the Girl Scouts to use their facilities while denying the same access to religious clubs and organizations His skill at turning the Establishment clause to protect Christians from discrimination by overzealous officials was aimed esp. at Justice O�Connor, who emerged as swing vote on many issues Framed a new test focused on governmental �endorsement� of religion known as the Lemon test (1971), criticized by Scalia for its �geometry of crooked lines and wavering shapes its intermittent use has produced�

33. Establishment Clause v. Free Speech In Rosenberger v. University of Virginia (1995) the Court held that a university�s refusal to fund a student religious publication on equal terms with other student publications constitutes viewpoint discrimination in violation of the Free Speech Clause (Free Speech trumped) In Sante Fe ISD v. Doe (1999), brought by ACLU, the Court struck down student prayers at high school football games (Establishment Clause trumped) �Bristles with hostility to all things religious in public life� (Rehnquist dissent)

34. �One Nation Under God� Razor-thin presidential victory of George W. Bush in 2000 not only placed a �born-again� Christian conservative in the Oval Office, but also encouraged Religious Rights legal groups to hope that Supreme Court justices would be more receptive to arguments like �we are a religious people whose institutions presuppose a Supreme Being� (Justice William O. Douglas, 1952)

35. �One Nation Under God� It was not the Religious Right, however, but church-and-state separationists who initiated a trio of cases that challenged invocations of a �Supreme Being� in such institutions as Public schools (Newdow v. Elk Grove School Dist. � filed 2000, 9th Cir. 2002, S.Ct. 2004; second suit pending in 9th Cir. with injunction pending) Courthouses (McCreary County v. ACLU, 2005 � Ten Commandments violate Establishment Clause) State capitals (Van Orden v. Perry, 2005 � Ten Commandments do not violate Establishment Clause) Where does that leave us?

36. �The Battle Is Far From Over� The battle is far from over Important victory for church and state separation The government is still limited in what it can do with religious symbols on government property But until new cases reach the Supreme Court, what those limits might be remains in doubt (Erwin Chemerinscky, attorney for Van Orden)

37. �People can change Congress but only God can change the Supreme Court.� (George Norris, US Senator)

38. Justices of the Court John Paul Stevens Ford 1975 Antonin Scalia Reagan 1986 Anthony McLeod Kennedy Reagan 1988 David H. Souter GHW Bush 1990 Clarence Thomas GHW Bush 1991 Ruth Bader Ginsburg Clinton 1993 Stephen G. Breyer Clinton 1994 John G. Roberts, Jr. GW Bush 2005 Samuel A. Alito, Jr. GW Bush 2006

39. Why Is This Important for Republicans? If you believe . . . That we must retain those principles of the past worth retaining, yet always be receptive to new ideas with an outlook broad enough to accommodate thoughtful change and varying points of view. Then you should know . . . That the Republican Party is the best vehicle for translating these ideals into positive and successful principles of government.

40. Is the US a Christian Nation? Answer depends on how term is defined If by Christian nation one means a nation in which everyone is a Christian, or in which only Christians are welcome, or in which non-Christians are second-class citizens, then in that sense the US is not a Christian nation But every nation is founded on certain basic principles or values, and those values have their source in religious belief If by the term Christian nation one means a nation that was founded on biblical values that were brought to the nation by mostly professing Christians, then in that sense the US may truly be called a Christian nation

41. Search and Destroy Mission �The American Civil Liberties Union and its secularist allies have created this poisonous culture where many government officials have the wrong idea that the Constitution requires them to go on this search and destroy mission for all things religious. And so they look around and they see something like what the senior citizens were doing in Balch Springs (Texas) and they say, �This must be eliminated.�� (Jordan Lorence, Constitutional Lawyer, ADF)

42. Find more information at: Alliance Defense Fund www.telladf.org Wesolick Law Firm www.wesolicklaw.com