Tuesday, February 14, 2012

"Congress Shall Make No Law..."

Congress shall make no law respecting an establishment of religion...

So says the Establishment Clause of the First Amendment to the Constitution.

"Congress shall make no law..."

It says nothing about the state legislature. The city council. The school board.

Congress shall make no law establishing religion.

What does this mean?

When I was a kid one of the geniuses in my neighborhood proudly proclaimed that the longest word was "antidisestablishmentarianism." While the rest of us bright ones thought it was a cool word to say ("Antidisestablishmentarianism!" "Antidisestablishmentarianism!"), we had no idea what it meant.

But now I know. And some would say I am an antidisestablishmentarian.

I am not.

Establishmentarianism is the concept that there should be a national church. The national government "establishes" that church, recognizes it as the country's official religion, and supports it with taxes. Think Germany and the Lutheran Church; the United Kingdom and the Church of England.

Disestablishmentarians are those wanting to do away with a national church. They developed opponents called "antidisestablishmentarians," who advocated continuation of favored status for the church. And came up with a fun word to say.

These are the issues addressed in the Establishment Clause of the First Amendment. Not state funding for the Growing God's Kingdom Pre-School of West Fork, Arkansas, not threatening of high schools students with jail if they say the word "Jesus" at graduation, not the need to cover the statues when the President speaks in a church.

The Establishment Clause of the First Amendment says Congress should be antiestablishmentarian, meaning: the United States of America will not have a national church. Nothing more. And the antiestablishment idea is limited only to the United States Congress. At the 1787 adoption of the Constitution about half the states had established churches, including the Congregational Church in Connecticut and the Episcopal Church in Georgia. Despite adoption and ratification of the Constitution, the states remained free to have their established churches. Wisely, over time the states disestablished them, although Massachusetts did not cut loose of the Congregational Church until as late as 1833.

But what about the famous Thomas Jefferson phrase "separation of church and state?" Firstly, it is not in the Constitution; secondly it is contained in a letter Jefferson wrote to a group of Connecticut Baptists. Jefferson in the letter is praising the Establishment Clause of the First Amendment, meaning Jefferson was underscoring his position as an antiestablishmentarian, a position strongly shared by Baptists. And yet, antiestablishmentarian Jefferson had no qualms about attending worship services regularly held at the then-unfinished United States Capitol building. Because the use of federal facilities had nothing to do with establishmentarianism.

Why all this treatise on establishmentarianism, disestablishmentarianism, antidisestablishmentarianism? Because these big old words are important. And lack of knowledge of the concepts behind them results in things like a quote in today's Arkansas Democrat-Gazette regarding the First Amendment. The quote is from the Arkansas Department of Human Services which claims the First Amendment "prohibits any state or federal law respecting an establishment of religion..."

Wrong. The First Amendment says nothing -- nothing -- about state establishment of religion.

The problem is that about sixty years ago courts began applying that concept to states. And it was more than the concept of disestablishmentarianism. It grew to the concept of separation of church and state to the point of making government activities antiseptically divorced from the slightest whiff of religion.

Pretty hard to do in the most religious of the developed countries.

Thus our current convolutions over church and state.

That's what happens when courts ignore the clear language of the Constitution. And this is only one area of judicial mischief. But that's for another day.

One more thing. To the kids in the old neighborhood where I grew up:


Some words are just cool.

1 comment:

  1. Great idea, I vote Pastafarianism as the official religion of Washington CO Ar, from now on you'll have to wear a spaghetti strainer on your head or be stoned to death and have all you land forfeited to the Great Noodle Appendage.

    We can make the KKK's version of Baptist Church the Official religion of Harrison and kill black folks be cause "religious freedom is a state sanctioned activity".

    I'm not sure where you get these ideas but you don't seem to think them through very far.