Copyright by James Carlson
The Freedom to do What is Right in the Sight of God – The Patriot’s Dream
We are at a point in American history where our history is all but lost. We don’t know even the basics of what freedoms we have and therefore are likely to lose them. Instead of accurate historical information that informs us on how government should work, we are given ideologies that are unfounded by leftwing ideologues. The ideas of Equity instead of Equality, where the outcome is supposed to be equal for all instead of the beginning that is supposed to be equal for all is but one example. So in this climate of lies mis-informing leadership, it will help to recall what the First Amendment has to say about our religious freedoms and how that was originally understood by those who drafted it, presented it, and then used it.
Jefferson’s Letter to Danbury Baptist Association – Church State Separation
Thomas Jefferson was an avid fan of the work of Roger Williams. Both Jefferson and Williams were rationalists pursuing social compact philosophy and how that related to government and freedom. These were issues that were very important to both of these men. And as Jefferson worked to codify his own views of religious freedom for Virginia and America, he borrowed from the ideas that came from Williams one hundred years earlier.
Roger Williams was a Christian rationalist, merging principles of the Bible with principles of social compact theory that led to his view of the separation of Church and State. Williams spoke of the separation of the Church of England from the State of England. As a Separatist, Williams coined the phrase,
Separating the Garden of God’s Church from the wilderness of the world [Bloody Tenet of Persecution, 1644]
Jefferson later used the metaphor of the wall of separation of Church and State in 1802. As Williams was the first to establish a Baptist Church in North America, he was famous with the Baptists. That is why Jefferson quoted him when writing to the Baptists of Danbury Connecticut in the famous Danbury Baptist Letter.
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 the free exercise thereof,” thus building a wall of separation between Church & State. [Thomas Jefferson, Letter to the Danbury Baptists]
This letter has been used to define the meaning of the Constitution’s religious freedom clauses instead of using the Constitution itself to define the meaning. Several U.S. Supreme Court decisions used Jefferson’s metaphor from his letter in determining their decisions about cases brought before the Court on religious freedom.
Reynolds v. United States 1879
Jefferson’s separation of church and state phrase, “may be accepted as an authoritative declaration of the scope and effect of the [First] Amendment,” effectively giving credibility to Jefferson’s interpretation under the rule of the law.
Emerson vs. Board of Education 1947
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another…. In the words of Jefferson, the [First amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’.
As we will see below, this is where the No Preference rule, applied by Jefferson and others throughout American history for 150 years met an untimely demise. Justice Hugo Black applied Jefferson’s phrase to the First Amendment’s religious clauses but mischaracterized the phrase stating:
That wall must be kept high and impregnable. We could not approve the slightest breach.
This last sentence has been called by some a Myth of Separation. Clearly, Jefferson got it right; Everson got it wrong.
McCollum v. Board of Education 1948
The majority opinion stated, “the First amendment’s language, properly interpreted, had erected a wall of separation between Church and State...’’
Engel vs. Vitale 1962
The majority opinion stated, “The petitioners contend, among other things, that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention…”
Lemon v. Kurtzman 1971
“Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable…Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”
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As the preceding history proves, Jefferson’s letter to the Danbury Baptist Association in 1802 was used many times to define the meaning of the U.S. Constitution’s First Amendment’s 2 religious clauses. The ‘wall metaphor’ has been plainly used and at time abused to describe what religious freedom means in America. But that is as far as the Court and academia have taken it. There is still more…
Jefferson’s Letter to Danbury Baptist Association – Separation of Tablets
Prior to the work of Roger Williams was the idea from Calvinism of the 2 Tablets of the 10 Commandments. The first tablet contains Commandments 1-4 and the second tablet contains the Commandments 5-10. As the stone tablets given to Moses by God were the foundation of the Mosaic Law, the 2 Tablets represents first our responsibilities to God and second our responsibilities to mankind.
Calvinism had a long history of combining the 10 Commandments in the rule of government but Roger Williams, in pursuit of the separation of Church and State, said that the 2 Tablets had to be separated. Williams argued that the State was based on the second Tablet and not the first. Therefore, the State had no business directing the beliefs of society by law; you have a right to be wrong religiously and the government cannot compel you to observe any matter religiously.
However, as law should be based upon the second Tablet and not the first, you do not have a right to do what is wrong morally against your fellow man. Therefore, law must be based upon moral principles, even biblically informed moral principles. In short, there is no right to do what is wrong and law should have a moral foundation. This is at the core of the Separation of Church and State (secular rationalists twist this around).
While this is all interesting, it has a direct application to the letter given by Thomas Jefferson to the Danbury Baptist Association. In the same paragraph where we read about the Separation of Church and State, we read about the Separation of the Tablets.
Believing with you that religion is a matter which lies solely between Man & his God [First Tablet], that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only [Second Tablet], & 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 the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. [Jefferson's Letter to the Danbury Baptists; 2nd paragraph, 1802]
Clearly, the Separation of Church and State was presented within the context of the Separation of the Tablets of the 10 Commandments. Contrary to modern interpretations, the Separation of Church and State was never meant to be the Separation of Morals and State. In fact, morality is the legitimate foundation of our legal order, the rule of law, and our religious freedoms. The idea that one can legislate immorality is totally contrary to the idea of the separation of Church and State.
So with a more complete picture of the Separation principles, the use of this letter by the Supreme Court should include the fact that there is no right to do what is wrong, law should be based upon moral principles, and government cannot legislate immorality. Given Court precedent using Jefferson’s letter, these truths have to be a part of our modern legal order.
No Preference
The proper understanding of what Separation should mean is just the beginning of understanding the role of government in the maintenance of our nation’s religious freedoms. “No Preference” is the final word on how the government should be employed to secure these freedoms.
Wallace v. Jaffree 1985
JUSTICE REHNQUIST, dissenting.
Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U. S. 1, 330 U. S. 16 (1947), summarized its exegesis of Establishment Clause doctrine thus:
"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' Reynolds v. United States, [98 U.S. 145, 98 U. S. 164 (1879)]."
This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment, rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase
"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 the free exercise thereof,' thus building a wall of separation between church and State."
It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.
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Chief Justice Rehnquist dissented in the Jaffree Case citing a book by Distinguished Professor of Political Science at Northeastern University, Robert L. Cord, Separation of Church and State (1982) [see also, “Church-State separation: Restoring the "no preference" doctrine of the first amendment” (Harvard Journal of Law and Public Policy)]. The confused history of the Court was unraveled by Cord who presented 150 years of history of the No Preference rule that was applied by the Founding Fathers and later by the many States of our Republic in matters of religious freedom.
No Preference was in the ratifying conventions of the U.S. Constitution requiring no preference be given to one religion over another by law. No Preference was used in the debates leading to the drafting of the U.S. First Amendment’s 2 religious clauses. Also, No Preference was used in the Jefferson administration when dealing with the issue of religion and government action. No Preference became the rule for religious freedom in the new Republic of Texas (Texas Declaration of Rights, 3rd; 1836). And today, No Preference is found in a majority of the States Bills for Religious Freedom in the United States.
As No Preference had been used for 150 years before the Everson decision, Cord identified Everson’s problems with the Separation metaphor and presented the No Preference metaphor as the historic solution to the modern Separation problem. Cord was followed in 1987 by Daniel L. Dreisbach who agreed with Cord’s legal history. Together, they outlined the meaning of No Preference and how it was perverted in the Everson decision and how it should be applied today.
The idea of No Preference is that you either make state aid and or finance available to all religions or you don’t make them available to them at all. The ‘All or Nothing’ rule (my interpretation) was changed in Everson to become the ‘No or Nothing’ rule. According to Everson, you don’t make state aid and or finance available to all religions; you simply don’t make them available at all! This idea has led to confusion for the last 78 years since Everson [see Cord and Dreisbach for their legal scholarship]. No Preference is the solution to the problem of misapplying the principle of the separation of Church and State.
Laws of Nature and Nature’s God
John Cotton once criticized Roger Williams’ separation of the Tablets stating that the first Tablet was required to fulfill the second Tablet. Williams’ response to Cotton was that our conscience would fulfill the requirements of the second Tablet in that we have a moral conscience in our heart that tells us of the timeless transcendent moral truths of the 10 Commandments. Freedom of Conscience was Williams’ answer to the supposed problem of the separation of Church and State and the separation of the Tablets.
Williams was referencing the verse in the Bible (Romans 2:11-15) that says we have a natural law in our hearts that keeps by nature the Law revealed to Moses; our conscience bears witness to the natural law. The natural and revealed laws have since been called the Laws of Nature and Nature’s God. The Laws of Nature here refers to the natural revelation that God gives to us in our conscience to know right from wrong. And the Laws of Nature’s God refers to the special revelation found in the Bible that helps our conscience when it goes astray. This is what the Laws of Nature and Nature’s God is referring to.
The Declaration of Independence used the phrase, Laws of Nature and of Nature’s God, to speak to the conscience of the nations across the Atlantic Ocean. If the United Colonies (United States) were to become an independent nation in the constellation of nations worldwide, they would have to justify themselves in the opinion of those nations. Seeking to appeal to their conscience, Jefferson, et al, presented this principle that is largely ignored today.
In their appeal to the nations, the Framers used this phrase, Laws of Nature and of Nature’s God, to speak to the conscience of people in other nations. They presented their case to include the idea of human Rights to these nations. They said that the Creator God who gave us our Rights is also the Creator God who taught us the value of what is Right!
As the law should be based upon moral principles, we have a responsibility to do what is right; that is the foundation upon which the idea of human rights is based (moral philosophy). The Patriots Dream of the American Revolution was the freedom to do what is right in the sight of God (our conscience and the Bible guiding us). The Patriot’s Dream eventually became the Dream of Dr. King; a dream we need to fulfill. Separating Rights from what is Right is a falsehood; separating rights from responsibilities to do what is right is simply wrong. The Separation of Church and State was never meant to be the Separation of Morals and State.
Political Rights
James Madison and Thomas Jefferson had a special relationship with respect to religious freedom issues and government. Madison was a protégé of Jefferson working towards religious freedom in Virginia. And even though Jefferson was not in America when the First Amendment was written, his influence on Madison was present when the first Congress drafted the First Amendment. Like Roger Williams before them, Jefferson and Madison were both Christian rationalists who understood the value of religious freedom.
James Madison was instrumental in bringing Jefferson’s Bill for Religious Freedom to fruition, when in 1786, the Virginia State Legislature disestablished themselves from controlling the Church in Virginia. Madison is famously known for his Memorial and Remonstrance Against Religious Assessments, which eventually led to the complete end of government taxation for religious institutions. Sadly, Progressives in the late 19th and early 20th century resuscitated religious assessments in order to fund their government run charities for social justice. Progressivism is in fact a violation of the separation of Church and State as they tax people for charitable giving and religious purposes.
As history further records, Madison was in the first Congress that debated and passed the First Amendment, which includes the 2 religious clauses:
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 on December 15, 1791]
Here we have 5 freedoms, which represent our political freedoms or rights that We the People have in our Republic:
· The Freedom of Religion
· The Freedom of Speech
· The Freedom of the Press
· The Freedom of Assembly
· The Freedom of Petition
These represent our political freedoms, which can be exercised individually or in a combination. One is not limited in their freedom to speak while practicing their freedom of religion. One is not limited in their freedom to publish while exercising their freedoms in a political party (freedoms of assembly and petitioning the government). All can be exercised together or separately as one desires.
Within our political freedoms is the freedom of religion. James Madison was a leading luminary guiding the creation of the First Amendment’s 2 religious clauses and proposed the following:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
Madison addressed our ‘civil rights’ with respect to religious freedom as a political right we have in America. This political right or ‘civil right’ is the freedom we have in our lives whether inside a Church building or outside in our everyday lives. The freedom to bake and sell cakes does not compel one to support homosexual marriage with lettering on a cake. This isn’t a religious freedom, this is a civil freedom or a civil right. The separation of Church and State nowhere means the Separation of Morals and State. To imply one has to follow immorality as a rule of law is a violation of the essence of law as well as of one’s civil freedom to do what is right in the sight of God.
Madison’s proposal was referred to a Select Committee that included Madison and they revised his proposal regarding the establishment of religion:
[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed.
Reflecting upon the work of this first Congress and the religious freedom provided by the First Amendment, Justice Brennan said:
[O]ne would have to say that the First Amendment Establishment Clause should be read no more broadly than to prevent the establishment of a national religion or the governmental preference of one religious sect over another. [Abington School District v. Schempp; 1963]
So the political rights of our religious and civil freedoms are found in the First Amendment’s 2 Religious Clauses:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
The first clause provides that no religious sect shall be established by law to become our nation’s sole religion; this is one of our political rights. The second clause, however, says that we are free to join any religious sect without punishment by law; another one of our political rights. These 2 clauses provide no preference for any sect at any time; to include the religious sect of atheism (secular rationalism seeks to establish atheism as our nation’s sole religion in society and in government in violation of the no establishment clause).
Summary
The Separation of Church and State was never meant to be the Separation of Morals and State. And it was never meant to compel people who want to live a life of freedom to do what is right in the sight of God. We are a nation born of religious freedom. Living according to our conscience and the principles of biblical morality are not antithetical to the principle of the Separation of Church and State.
As Jefferson got it right in 1802, Everson got it wrong in 1947. Chief Justice William Rehnquist in his dissent in the Jaffree case (1985) presented the solution of No Preference. Yet, in the 40 years (one generation) that followed, our open door to victory has been slammed shut. We are still facing a corruption of our religious freedoms.
Cord (1982) and Dreisbach (1987) both published books outlining our path to success against the errors of Everson. David Barton published his book in 1992, where we were presented with the errors of Everson as The Myth of Separation. Instead of admiring the problem, let’s apply the solution that has been clearly outlined for us!
The new Trump administration is returning to the fray on Monday. Welcome the days ahead where the Culture Wars will be in full swing. But will they include the genuine principles of religious freedom, no preference, moral relevance, and civil freedoms? Now is NOT the time to go along to get along but the time to stand for principle based government that isn’t interested in what is easy but what is right. With the tools firmly in hand, let us take the next steps in the pursuit of religious freedom in this next generation to finally finish the task at hand. Religious freedom not the freedom from religion. Liberty and Justice for all!!! Liberty under Law. I look forward to living the Patriot’s Dream without the fear of reprisal.
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