The Truth About the Separation Between Church and State

[ArcticFox]

Another gem from my old Bishop:

Did Rick Santorum step into it again?

Rick Santorum on Sunday (Feb. 26, 2012) took on separation of church and state.

"I don't believe in an America where the separation of church and state are absolute," he told 'This Week' host George Stephanopoulos. "The idea that the church can have no influence or no involvement in the operation of the state is absolutely antithetical to the objectives and vision of our country...to say that people of faith have no role in the public square? You bet that makes me want to throw up."

http://www.huffingtonpost.com/2012/02/26/santorum-church-and-state_n_1302246.html

PAPIST! What an idiot!!

He wants to walk all over the sacred doctrine of the separation between church and state. OOOO! But wait . . . In their zeal to exploit Santorum’s ignorance, Stephanopoulos and David Gregory overlooked President Obama’s call to the Black church this week to appoint “Congregation Captains” to round up votes for him.

http://prolifeintn.blogspot.com/2012/02/obama-become-congregation-captain-for.html

Maybe those Pastors should take a closer look at the source of “the wall of separation between church and state.”

Well, a double standard is rarely a surprise these days, but here's the part that really shocked me:

http://egnorance.blogspot.com/2011/10/hugo-black-and-real-history-of-wall-of.html


Hugo Black and the real history of
"the wall of separation between church and state"


...[T]he Supreme Court has been consistent through the history of the United States on the subject to the establishment Clause, with the cases building on each other in a very easy to follow manner. Whine all you want, but this is not a set of precedents that are likely to be overturned any time soon, if ever.

Let's take a closer look at "separation of church and state" in American culture and law.

Klansman and bigot, Supreme Court Justice Hugo Black, created the “separation of church and state” in a fit of anti-Catholicism in 1947. Maybe we should take a second look at all the lousy decisions that have been made based on this precedent.

Of course "a wall of separation between church and state" is found nowhere in the Constitution. It was a casual phrase used by Thomas Jefferson in a personal letter written to the Danbury Connecticut Baptists association in 1802. Jefferson played no role in the ratification of the Constitution, and his personal letters obviously have no credible bearing on Constitutional law.

In fact, the Establishment Clause of the First Amendment

"Congress shall make no law respecting an Establishment of religion..."


was ratified in order to protect state established churches. At the time of the ratification, many states had official churches. The Establishment clause was ratified in large part to prevent federal interference with local government-sponsored religious activity-- to protect local governments' sponsorship of religious activities from federal censorship. Established state churches only disappeared with the 14th Amendment, which applied the Bill of Rights to the states through the doctrine of incorporation.

Jefferson's letter was forgotten for a half century, until it was reprinted in 1853. His phrase "wall of separation between church and state" first appeared in Supreme Court jurisprudence in 1878 in the Reynolds v. United States decision. In that ruling (about a bigamy conviction of a Mormon), the Court found that invocation of "religious duty" was not a defense to a criminal indictment.

The "wall of separation" phrase languished in jurisprudence for another 70 years, but it did not languish in American culture.

In the early 20th century, anti-Catholic bigots promoted the doctrine of "a wall of separation between church and state" to extinguish Catholic schools and other institutions. The Ku Klux Klan spearheaded the "wall of separation" doctrine. From the Seattle Civil Rights and Labor History Project:

During the Ku Klux Klan’s revival during the 1920s, the organization formed a strong presence in the Pacific Northwest. In Washington, the majority of the Klan’s work was devoted to passing an anti-Catholic school initiative and attempting to spread their particular brand of white, Protestant supremacy. Yet while Oregon passed an anti-Catholic school bill in 1922, heavily backed by the Oregon Klan, Washington voters rejected a similar measure–and the influence of the Washington Klan–two years later. The Ku Klux Klan that surfaced in the 1920s formed the second wave of Klan activity in the United States. Unlike the first emergence of the Ku Klux Klan, formed in the South in 1868 and mainly concerned with keeping black people from exercising their new freedoms, the second wave of the Ku Klux Klan focused their efforts on a wider range of issues. This new wave portrayed themselves as a race-protecting group that “espoused a virulent form of racism, anti-Semitism, anti-Catholicism, and anti-immigrant sentiment. . . .”


. . . The Oregon School Bill aimed to close private Catholic schools in Oregon and have the children sent to the public school system. Since public schools taught state-mandated curricula, the Klan saw this measure as a way to “Americanize” Catholic children and limit the amount of “non-Protestant” instruction they received. Oregonians who supported the Compulsory Education Bill, including the Oregon Klan, made the argument that private and parochial schools were often controlled by non-American organizations that emphasized foreign ideologies over traditional American values.

So how does this invocation of "wall of separation between church and state" become Supreme Court doctrine, extending from a casual phrase by Thomas Jefferson in a letter to an obscure comment in an 1878 Supreme Court ruling on bigamy to a pervasive doctrine of anti-religious censorship in the public square in the 21st century?

Here's how:

On August 11, 1921 Fr. James Coyle, a Roman Catholic priest in Birmingham, Alabama, was shot to death on the porch of his rectory by E.R. Stephensen, a local Ku Klux Klansman. Fr. Coyle had just performed a wedding between Stephensen's daughter and her Puerto Rican husband.

Stephenson was defended by five lawyers, four of whom were Klan members. The fifth lawyer who volunteered to defend Stephenson was Hugo Black, a prominent local attorney. Despite the fact that the Catholic priest was unarmed and the murder was committed in public in front of witnesses, Stephensen was acquitted of murder based on "self-defense"and "temporary insanity".

Defense attorney Black joined the Ku Klux Klan after the trial. In the Klan, Black was a Kladd of the Klavern, which was an initiator of new Klansmen.


>From The Volokh Conspiracy:


... Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.”... Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed...


Several years later, Black ran for U.S. Senate from Alabama. He barnstormed the state, campaigning on a virulent anti-Catholic platform and demanding "a wall of separation between church and state". His strongest support came from his Klan base, and he gave many anti-Catholic "wall of separation" speeches to Klan meetings across Alabama.

Black, a Democrat, won the Alabama senate seat in 1926, defeating his Republican opponent with 80.9 % of the vote. He easily won re-election in 1932, with 86.3 % of the vote. He was a staunch defender of FDR's New Deal and of Roosevelt's court-packing plan.

In 1937 Roosevelt appointed Black to the Supreme Court. Despite controversy about his Klan history, Black was easily confirmed. He quickly acquired a reputation for idiosyncratic interpretation of the Constitution.

In 1947, Justice Hugo Black wrote the majority opinion in Everson v. Board of Education, the landmark Establishment Clause Supreme Court decision that barred use of tax revenues to transport children to religious (Catholic) schools.

Justice Black 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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.'" 330 U.S. 1, 15-16 [emphasis mine]


In 1962, Justice Hugo Black wrote the majority opinion in Engel v. Vitale, the landmark Establishment Clause Supreme Court decision that outlawed prayer in public schools.

Justice Black wrote:

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 since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. [emphasis mine]


Justice Hugo Black began his political career in the wake of his successful defense of a Klansman who murdered a Catholic priest. The modern application of the non-Constitutional doctrine "a wall of separation between church and state" derives from Black, a former Kladd of the Klavern of the Alabama Ku Klux Klan, who used his Klan base to secure a Senate seat and ultimately an appointment on the Supreme Court.

The phrase "a wall of separation between church and state" played little role in jurisprudence until the mid-20th century. The doctrine has long played a large cultural role, preserved by pervasive anti-Catholic bigotry through organizations such as the Ku Klux Klan, and became a 'Constitutional principle' through the jurisprudence of an anti-Catholic bigot. It is used today to suppress prayer and religious expression in all public schools in the United States.

Why is it that discussions of the "separation of church and state" don't generally include the cultural and political history of the "doctrine"? Why is the central role that "separation" played in the political and judicial rise of Justice Black-- the father of modern Establishment Clause jurisprudence-- never seems to show up in New York Times Op-Ed columns or NPR's "All Things Considered"? Ever see a press release by Americans United for Separation of Church and State note the fact that "an eternal separation of church and state" was a part of the KKK’s jurisprudential agenda and the Klansmen's Creed, and that one of those Klansmen jurists wrote the Supreme Court opinions establishing "separation of church and state" as the law under which we live?

Commenting on the Black's "wall of separation" doctrine, twogaybullies express (approvingly) the censors' view quite nicely:

Black was a former member of the Knights of the Ku Klux Klan, and a rabid anti-Catholic. He hated Catholics almost as much as I do. He once worked as defense counsel to a KKK member accused of murdering a Catholic priest. The KKK member was acquitted, thank goodness!

The term “separation of church and state” first became case law when Justice Black cited it in Everson v. Board of Education (1947). The case involved a school district that used its buses to help transport children to Catholic schools. Keep in mind that Black was a Catholic-hater of the first degree, although that certainly had no bearing on his judgment at all. Black interpreted the constitution with an eye toward Thomas Jefferson’s “Letter to the Danbury Baptists”. He plucked the phrase “separation of church and state” from Jefferson’s letter, albeit wildly out of context. Which is really odd, because Thomas Jefferson was not the author of the constitution. In fact, he had nothing to do with its text as he was serving as the US Ambassador to France at the time. But I don’t care. I like Black’s conclusion and I don’t care how he came to it.

For years, the doctrine established in Everson v. Board of Education has been used as a weapon against people of faith, and that’s great. That’s what it’s supposed to [be] used for...

Do you understand?

That's... Scary.

[ChickenSoup]

[ccgr]

Interesting and shocking. I'm surprised that a former KKK member can be a justice :\ Good history lesson learned.

[Chozon1]

Interesting and shocking. I'm surprised that a former KKK member can be a justice :\ Good history lesson learned.

O Brother where Art thou?

[ccgr]

ahhh never put two and two together (don't remember the names and assumed they were all fictitious)

[Chozon1]

Probably are.

But I've never let lack of reality stop me before.

[Truthseeker]

In 1947, Justice Hugo Black wrote the majority opinion in Everson v. Board of Education, the landmark Establishment Clause Supreme Court decision that barred use of tax revenues to transport children to religious (Catholic) schools.

This is 180 degrees factually wrong. The majority in Everson upheld the use of tax revenues to transport children to religious schools. The development in Everson was that the Court decided that the Establishment Clause would be applied to the states, but ultimately the underlying Establishment Clause claim regarding the buses was rejected. I do not consider this a minor error. This author tries to pass himself off as a historical authority but he was too lazy to actually read the case that his entire thesis revolves around, or was too disinterested in anything but his agenda to take the time to grasp the nuances. Either way, please do not put too much stock in this author's credibility.

Hugo Black was probably not a very good person and I wouldn't really doubt that he wrote Everson to screw over Catholics, except in that case the Catholics won. So basically all this article has to offer is a ad hominem attack and some lazy inaccuracies.

[Chozon1]

Not to be that guy...but you're wrong amigo. Ish, at any rate. The article never claims that Black won the case, ruling it to be unconstitutional, just that he authored the majority opinion. Which is correct. Straight from the wiki's mouth:

"Both Justice Hugo Black's majority opinion and Justice Wiley Rutledge's dissenting opinion defined the First Amendment religious clause in terms of a "wall of separation between church and state". Emphasis mine.

And it claims he's one of the big heads behind the phraseology of separation of church and state. Which he also was. Because, also smelling of Wiki breath, "However both affirming and dissenting Justices were decisive that the Constitution required a sharp separation between government and religion and their strongly worded opinions paved the way to a series of later court decisions that taken together brought about profound changes in legislation, public education, and other policies involving matters of religion."

Not so much lazy and disinterested as *mildly* vague.

[Truthseeker]

Again, let's look at what I quoted:

In 1947, Justice Hugo Black wrote the majority opinion in Everson v. Board of Education, the landmark Establishment Clause Supreme Court decision that barred use of tax revenues to transport children to religious (Catholic) schools.

Emphasis mine. This is factually wrong because the decision did not bar use of tax revenues to transport children to religious schools. It upheld that practice. The opposite of what I underlined is what actually happened. And this is the crux of the entire case. The argument of this entire article is that Justice Black wrote Everson to spite Catholics and therefore the concept of separation of church and state that the case promoted was just an excuse to advance a bigoted agenda. That entire thesis is undermined by the fact that the result of Everson was exactly not what the author of this article says it was.

The article never claims that Black won the case, ruling it to be unconstitutional, just that he authored the majority opinion.

Maybe you haven't learned how the Supreme Court works. The justices vote on what the result should be and then a member of the majority writes an opinion of the court that is binding on the parties. Because Black wrote for the majority, he must have voted with the majority--the majority that wanted to declare that the busing was constitutional.

But let's pretend that for some reason Justice Black secretly wrote Everson grudgingly because he lost a bet or something. That still doesn't change the fact that the author of this article got the outcome of Everson completely wrong. That's just an objective fact that cannot change.

[Chozon1]

Again, let's look at what I quoted:

In 1947, Justice Hugo Black wrote the majority opinion in Everson v. Board of Education, the landmark Establishment Clause Supreme Court decision that barred use of tax revenues to transport children to religious (Catholic) schools.

Emphasis mine. This is factually wrong because the decision did not bar use of tax revenues to transport children to religious schools. It upheld that practice. The opposite of what I underlined is what actually happened. And this is the crux of the entire case. The argument of this entire article is that Justice Black wrote Everson to spite Catholics and therefore the concept of separation of church and state that the case promoted was just an excuse to advance a bigoted agenda. That entire thesis is undermined by the fact that the result of Everson was exactly not what the author of this article says it was.

Meh. To me, that seems the dude was simply writing what Black wanted. Further emphasised by the paragraph directly after it. But I hand it to you, since I missed the word 'decision' and though I still think you're wrong, I canna very well argue with you.

Maybe you haven't learned how the Supreme Court works. The justices vote on what the result should be and then a member of the majority writes an opinion of the court that is binding on the parties. Because Black wrote for the majority, he must have voted with the majority--the majority that wanted to declare that the busing was constitutional.

But let's pretend that for some reason Justice Black secretly wrote Everson grudgingly because he lost a bet or something. That still doesn't change the fact that the author of this article got the outcome of Everson completely wrong. That's just an objective fact that cannot change.

That was a bit silly. This entire half of the post was, since it applied to nothing at all pertinent. XD Black did write the majority opinion. Too, an objective fact. Look it up if you don't believe me. But in fact, I am confused. Not as to the nature of the supreme court (which can best be replicated by angry monkeys throwing poo at each other; I understand that), but because though the vote went for the Catholics, Black's language was generally what brought the separation of church and state issue to what it is, and generally farted on everything. The arguement seems to be just another useless court idiocy, since both sides agreed but dissented. Only reason Black let it off was a technicality; no money was actually going to the schools, just the buses.

So meh.

[ArcticFox]

And that's the thing... regardless of the specific outcome of that decision, the point of the article is to illustrate that the phrase "Separation of Church and State" does not come from the Constitution, but rater came in to common use after it appeared in language written by a religious bigot who had an agenda that had very little to do with the actual spirit of the Constitution.

[Truthseeker]

Meh. To me, that seems the dude was simply writing what Black wanted. Further emphasised by the paragraph directly after it. But I hand it to you, since I missed the word 'decision' and though I still think you're wrong, I canna very well argue with you.

It's very clear that the author means to say exactly what he said, that the result of Everson was that the bus tax was barred. But it wasn't. If the author meant to say that the result of Everson was that the tax was not barred, and this was contrary to Black's wishes, even though Black himself wrote the opinion, then he could have said that. People who know better would laugh him off the internet, but he could still have said it. But unambiguously saying the tax was barred when it wasn't isn't a mistake I can attribute to a poor choice of words. Especially not when it is followed by an out-of-context quote from the case clearly intended to support the proposition that the case barred the tax and would appear that way to anyone who only skimmed over the case in haste looking for quotes to support a hastily cobbled and factually inaccurate embarrassment of a blog choice. It's only attributable to a writer who did not take the time to actually read the case that was the centerpiece of his argument.

That was a bit silly. This entire half of the post was, since it applied to nothing at all pertinent. XD Black did write the majority opinion. Too, an objective fact. Look it up if you don't believe me.

I know Black wrote the majority opinion. I've read every Supreme Court Establishment clause case that's ever been written. That isn't the point I was making. The point is because Black wrote the majority opinion, it means that he voted for the majority result, which to uphold the tax. The argument that somehow Black wanted a different result from the one he himself voted for and authored is ridiculous. It points to the factual invalidity of the article we are discussing.

But in fact, I am confused. Not as to the nature of the supreme court (which can best be replicated by angry monkeys throwing poo at each other; I understand that), but because though the vote went for the Catholics, Black's language was generally what brought the separation of church and state issue to what it is, and generally farted on everything. The arguement seems to be just another useless court idiocy, since both sides agreed but dissented. Only reason Black let it off was a technicality; no money was actually going to the schools, just the buses.

If I were making the argument that Black had an agenda in Everson, I'd say that even though he didn't think the bus thing was unconstitutional he snuck that wall of separation language in so that later cases could refer back to it as precedent in order to find more Establishment Clause violations in the future. That's almost literally the oldest Supreme Court trick in the book. This author could have easily made that argument but it would have required--oh--the ten minutes of effort took me to come up with it. I think smart arguments can be made on this point but this particular author blew all his credibility because he didn't take the time to actually read Everson other than to pull out a few quotes and make assumptions on how the case ended up.

Also, I think Everson's relevance right now is being overestimated. The "wall of separation" concept didn't have legs and it has almost never had serious sway in Supreme Court cases. The idea that the government doesn't have to be separate from religion as long as it is neutral as to what religions it endorses has ultimately had a greater impact and it is the policy I happen to agree with.

Arctic Fox:

And that's the thing... regardless of the specific outcome of that decision, the point of the article is to illustrate that the phrase "Separation of Church and State" does not come from the Constitution, but rater came in to common use after it appeared in language written by a religious bigot who had an agenda that had very little to do with the actual spirit of the Constitution.

Actually, the outcome of that case is critical. The argument is that Separation of Church and State is a tainted concept because it was advanced by a bigot who used it as a pretense to push his bigoted agenda. But if the case did not actually push his bigoted agenda because the outcome was exactly the opposite of what the author says it was, then the only argument that he's left with is this: The separation of church and state is a tainted concept because it was advanced by a bigot. That's nothing but an ad hominem argument and unworthy of the attention of our lofty intellects here at Christ Centered Gamer.

Like I said, better arguments could be made but this author did not make them. This is my first impression of this author and it is not an impressive one.

[ArcticFox]

...It's only attributable to a writer who did not take the time to actually read the case that was the centerpiece of his argument.

Actually, the outcome of that case is critical. The argument is that Separation of Church and State is a tainted concept because it was advanced by a bigot who used it as a pretense to push his bigoted agenda.

But if the case did not actually push his bigoted agenda because the outcome was exactly the opposite of what the author says it was, then the only argument that he's left with is this: The separation of church and state is a tainted concept because it was advanced by a bigot.

Your argument appears to rest solely on the idea that the entire article is about one thing - Justice Black and that one singular event. Friendly Suggestion: Re-read the article.

First, the author asserts that Jefferson was the originator of the phrase, but that he did not play a role in the ratification of the Constitution nor do his personal letters constitute law. true or false?

Then, he goes on to point out that the actual language of the First Amendment actually protects state established churches. In the context of the time, it makes sense since people were hesitant to give power to the Federal Government to control states. (This changed as of the 14th Amendment.) Again, is this accurate or not? One can agree or disagree but so far we have two premises supporting the author's conclusions that don't rely in any way on Black's views, writings or decisions.

Next comes an example of when the phrase "Separation of Church and State" appears in Reynolds v. United States where someone attempted to use "religious duty" to justify a crime. (Bigamy, to be precise. The guy was a Mormon.) Why a phrase that did not originate in any legal document became involved in a Supreme Court decision as a basis for the decision is a question I leave to more knowledgeable people than myself, but at any rate, there's still no sign of Justice Black, which you state is somehow the centerpiece of this blog article. So are the facts asserted to this point true or false?

Moving on...

At last we come to the Oregon School Bill, an effort to close down Catholic schools in order to force Catholic children to attend public schools. I don't see anything in the language of these paragraphs to lead me to believe that the author was trying to suggest this measure was successful, but at any rate, are the details presented to this point accurate or not?

Next, the author is switching gears to offer some background to support the next point. He starts off with the 1921 case in which a Catholic priest was murdered for performing an interracial marriage. The murderer was acquitted and one of the members of his defense team: Hugo Black. (mentioned at last!) Here are a few assertions regarding Black's membership in the KKK, a few procedural assertions about the KKK's goals and requirements for membership, etc. Are these assertions in dispute? Yes or no?

Next come a few tidbits about Black's political career. Do you dispute any of these facts? (Yes, there's some editorial hyperbole in there, but are the facts presented true or false?)

The author then asserts that Black wrote the majority opinion in Everson v. Board of Education. True or false? Now here, the author does seem to get a bit confused because while Black DID write the majority opinion, it did allow for public funds to pay for transporting kids to private, religious schools (on the grounds that the funds were being disbursed to parents, not to the schools directly), it also codified the idea that "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."

So the actual result still supports the author's overall argument, in that Justice Black was clearly leading the "Separation of Church and State" charge even so. So, if you're pointing to this one example as somehow being the centerpiece of the entire article, then slamming the article on that basis, then that's a fairly weak argument. This also isn't an ad hominem attack. An ad hominem attack would say "This guy was a real jerk therefore everything he did was wrong by default." More on that, later.

After this comes Engel v. Vitale which outlawed composing official school prayers in public school. Again, the author asserts that Black wrote the majority opinion. True or false?

After all that comes a summary and then a quote which illustrates the results of all this.

So, bottom line: The article seeks to assert that, prior to the mid-20th Century, the Constitution was NOT interpreted to mean that there should be ab absolute, total wall between Church and State. It wasn't until a few Supreme Court decisions suddenly incorporated terminology that NEVER appeared in the Constitution that the perception took hold. When examining those decisions, we find reason to question the motives of one of those Justices which is relevant to the discussion if it can be shown that he was operating from bigotry and not from a genuine understanding of precedent and Constitutional Law. That is NOT an ad hominem attack.

That's nothing but an ad hominem argument and unworthy of the attention of our lofty intellects here at Christ Centered Gamer.

Like I said, better arguments could be made but this author did not make them. This is my first impression of this author and it is not an impressive one.

At the end of the day, it's a blog. Take it for what it is. The real question is, are the arguments he's making relevant? Are his facts accurate? Does one error suddenly make all of his other factual citations somehow false by default? It took me 5 minutes to check out the background of the one case you call the "centerpiece" of the argument and figure out what the author was probably trying to say.

[Truthseeker]

Your argument appears to rest solely on the idea that the entire article is about one thing - Justice Black and that one singular event. Friendly Suggestion: Re-read the article.

Hm. Okay. The article starts with a quote from a reader that the author wants to rebut, and then says we should take a closer look. Then we have the thesis statement of the article:

Klansman and bigot, Supreme Court Justice Hugo Black, created the “separation of church and state” in a fit of anti-Catholicism in 1947. Maybe we should take a second look at all the lousy decisions that have been made based on this precedent.

So, yes, this article is about Justice Black and the event in 1947 (the Everson decision) that this author claims was motivated by anti-catholicism. All the other decisions that this author thinks are "lousy" are "based on" the 1947 event. Yes, the article touches on some broader subject matter but the 1947 Everson decision is absolutely the sun around which this entire article revolves.

First, the author asserts that Jefferson was the originator of the phrase, but that he did not play a role in the ratification of the Constitution nor do his personal letters constitute law. true or false?

Thomas Jefferson was an ambassador to France at the time the Constitution was ratified, so it is true that he was not physically present at the constitutional convention. If you meant "he did not play a role in the ratification of the Constitution" to mean only that, then "true." However, if I take your words "no role" literally then it is definitely false. Thomas Jefferson was the most prominent proponent of the Bill of Rights and strongly objected to its absence in the original articles of the Constitution. He underwent a letter-writing campaign to promote adding a Bill of Rights to the Constitution and ultimately got his wish. One of his letters to Madison objected that the Constitution had no provision for "freedom of religion." And we know from Jeffersons letter to the Baptists what he thought freedom of religion requires: a wall of separation. So while Jefferson did not physically vote on the Constitution, he was a driving impetus for the ratification of exactly the provision we are discussing.

Your second statement is that Jefferson's personal letters do not constitute law. That is true in a literal sense. What the letters are, however, is evidence of how the law is meant to be interpreted. Because Jefferson was a chief political proponent of freedom of religion in the Constitution, his interpretation of the law on this point carries a great amount of weight. To me, it is not as persuasive as what might have been written by, say, James Madison, but I think Jefferson's letters do carry some weight and are not irrelevant.

Then, he goes on to point out that the actual language of the First Amendment actually protects state established churches. In the context of the time, it makes sense since people were hesitant to give power to the Federal Government to control states. (This changed as of the 14th Amendment.) Again, is this accurate or not?

It's enough of an oversimplification that I think it is inaccurate, or at the very least misleading. The idea that there is one intention behind any constitutional provision is a myth. The Constitution we have now is the product of compromise made by split factions who fiercely disagreed with each other. The people who wanted to protect state established religion were there, and they actually suggested a more stringent religion clause than what we got ('Congress shall make no laws touching religion'). Others, (including James Madison, incidentally) thought the clause really should be limited to forbidding establishing a national church. Actually, 'no National religion shall be established by law' and 'Congress shall make no laws touching religion' were both suggested and rejected in the deliberations. I find it remarkable how close those are to how the modern day Right and Left say they Establishment clause should be interpreted, and because there were people arguing on both sides its possible to selectively pull out quotes and say that their favored interpretation is what the "founding fathers" wanted. But the truth is that there was no a consensus so much as a compromise. What we got is "Congress shall make no law respecting an establishment of religion." We know from Madison's use of the word "establishment" in his Memorial and Remonstrance that the term back then included taxes to support religious ministries, so the provision is not limited to the establishment of a Church, which is what a lot of people on the right erroneously argue. I read the word "respecting" as making the clause even broader, forbidding laws that approach establishment even if they are not truly establishments.

So basically, yes, I do think the premise you quote is inaccurate. It only draws from one side of the debate, as side that would have instituted an even stronger separation of religion and federal government if it had succeeded. The Air Force patch that we were talking about in a different thread would have definitely been unconstitutional under the "touching" standard.

One can agree or disagree but so far we have two premises supporting the author's conclusions that don't rely in any way on Black's views, writings or decisions.

The purpose of these premises is to establish that there was no legal separation of church and state before Black made it up in 1947. That is the role of what you mention in the overall thesis of this article.

Next comes an example of when the phrase "Separation of Church and State" appears in Reynolds v. United States where someone attempted to use "religious duty" to justify a crime. (Bigamy, to be precise. The guy was a Mormon.) Why a phrase that did not originate in any legal document became involved in a Supreme Court decision as a basis for the decision is a question I leave to more knowledgeable people than myself, but at any rate, there's still no sign of Justice Black, which you state is somehow the centerpiece of this blog article. So are the facts asserted to this point true or false?

I've read Reynolds. The Jefferson quote was not being cited for its "wall of separation" language but rather for a different part of the quote, where Jefferson said that the Free Exercise clause protects opinions but not actions. The Reynolds case simply stands for the proposition that the religion clauses don't give people exemptions from the law. Mormons can't get out of bigamy laws, Rastafarians can't get out of drug laws, and Catholics can't get out of health insurance laws. At least, the constitution doesn't give them a way out.

The reason the author brought up Reynolds seems to be to belittle it as "obscure" and say that the "wall of separation" comment "languished" for decades after that because Reynolds might be a counter argument to the thesis that Justice Black pulled the law out of nowhere. If I were writing this argument, I would have just said that Reynolds quoted Jefferson to make a different point, but I stand by my assessment that this author has not actually read these opinions.

At last we come to the Oregon School Bill, an effort to close down Catholic schools in order to force Catholic children to attend public schools. I don't see anything in the language of these paragraphs to lead me to believe that the author was trying to suggest this measure was successful, but at any rate, are the details presented to this point accurate or not?

I don't know whether the details about the Oregon School Bill is accurate but let's say it is. The purpose of bringing it up is to show anti-catholicism on the part of the KKK. If Blacks decision in Everson actually barred tax money from going to school buses that helped take children to Catholic school, then the Oregon school bill would have been relevant to suggest that Black was motivated by a KKK agenda to force Catholics into public schools. But since Black actually protected Catholic busses, bringing up the Oregon School Bill actually suggests that Black wasn't following a KKK agenda. This is where the author's factual wrongness starts causing the other pieces of his argument to fall apart.

Next, the author is switching gears to offer some background to support the next point. He starts off with the 1921 case in which a Catholic priest was murdered for performing an interracial marriage. The murderer was acquitted and one of the members of his defense team: Hugo Black. (mentioned at last!) Here are a few assertions regarding Black's membership in the KKK, a few procedural assertions about the KKK's goals and requirements for membership, etc. Are these assertions in dispute? Yes or no?

Hugo Black mentioned at last? He was mentioned at the top of the article, in the thesis statement. All of this background information on the KKK is building up to the point of the article, which is that "Klansman and bigot, Supreme Court Justice Hugo Black, created the “separation of church and state” in a fit of anti-Catholicism in 1947."

The author then asserts that Black wrote the majority opinion in Everson v. Board of Education. True or false? Now here, the author does seem to get a bit confused because while Black DID write the majority opinion, it did allow for public funds to pay for transporting kids to private, religious schools (on the grounds that the funds were being disbursed to parents, not to the schools directly), it also codified the idea that "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."

So the actual result still supports the author's overall argument, in that Justice Black was clearly leading the "Separation of Church and State" charge even so. So, if you're pointing to this one example as somehow being the centerpiece of the entire article, then slamming the article on that basis, then that's a fairly weak argument. This also isn't an ad hominem attack. An ad hominem attack would say "This guy was a real jerk therefore everything he did was wrong by default." More on that, later.

After this comes Engel v. Vitale which outlawed composing official school prayers in public school. Again, the author asserts that Black wrote the majority opinion. True or false?

The point of the article is that Black is anti-catholic, that he led the separation of church and state, and that his leading the separation of church and state was motivated by his anti-catholicism. Without that last piece, the article is just an ad hominem attack. Without that last part, all you got is "Black was a bigot, therefore he was wrong." The fact that Everson upheld busing to Catholic private schools weakens that last part. The fact that every member of the Supreme Court signed on to either Black's opinion or the dissent that also cited that wall of separation, including a catholic justice, undermines that argument even more. The fact that Engle ruled as unconstitutional a prayer in a public school dominated by protestants undermines that point even more. These decisions seem to have been made despite Black's anti-catholicism. If the author had actually gotten his facts right, he might have known that. So really all this article has to offer is "Black was a bigot, therefore his ideas on church and state are wrong." That's a pure ad hominem.

[ArcticFox]

Hm. Okay. The article starts with a quote from a reader that the author wants to rebut, and then says we should take a closer look. Then we have the thesis statement of the article:

Klansman and bigot, Supreme Court Justice Hugo Black, created the “separation of church and state” in a fit of anti-Catholicism in 1947. Maybe we should take a second look at all the lousy decisions that have been made based on this precedent.

So, yes, this article is about Justice Black and the event in 1947 (the Everson decision) that this author claims was motivated by anti-catholicism. All the other decisions that this author thinks are "lousy" are "based on" the 1947 event. Yes, the article touches on some broader subject matter but the 1947 Everson decision is absolutely the sun around which this entire article revolves.

I still don't see it as revolving around that event, merely culminating in it. The difference is between "Every assertion made in this article hinges upon this one premise" and "Here's a chain of questionable elements, topped off with the one that we hear about a lot today."

Thomas Jefferson was an ambassador to France at the time the Constitution was ratified, so it is true that he was not physically present at the constitutional convention... So while Jefferson did not physically vote on the Constitution, he was a driving impetus for the ratification of exactly the provision we are discussing.

I have no problem acknowledging Jefferson's influence. I admire Thomas Jefferson for seeming to be everywhere at once in those days. I do dispute that somehow his comments about separating church and state permeated the ratification process the way you're suggesting here. if it were as critical as all that, and if it were truly such an overwhelming driving force, then I'd expect to be able to read reams and reams of documents talking about it. The fact that, in order to find the phrase "separation of church and state" we have to go looking in a single letter to a single congregation, speaks to its importance (or possible lack thereof). Furthermore, I'd be interested in reading the text of that letter to get a sense of the overall context in which the remarks were made.

Your second statement is that Jefferson's personal letters do not constitute law. That is true in a literal sense. What the letters are, however, is evidence of how the law is meant to be interpreted. Because Jefferson was a chief political proponent of freedom of religion in the Constitution, his interpretation of the law on this point carries a great amount of weight. To me, it is not as persuasive as what might have been written by, say, James Madison, but I think Jefferson's letters do carry some weight and are not irrelevant.

Ah, but it wasn't written by James Madison, or any of the others involved. If individual, unofficial letters written by the drafters of the Constitution and Bill of Rights are to be admitted as evidence to establish legal precedent, then I bet you can find text somewhere, written by someone to justify virtually any conclusion you like on practically any issue you like. Where does the line get drawn?

It's enough of an oversimplification that I think it is inaccurate, or at the very least misleading. The idea that there is one intention behind any constitutional provision is a myth...

Except when it comes to ousting religious references from Government facilities, apparently. Then, we're told it's quite simple.

..The Constitution we have now is the product of compromise made by split factions who fiercely disagreed with each other... I read the word "respecting" as making the clause even broader, forbidding laws that approach establishment even if they are not truly establishments.

Sure, I agree with that but I suspect it means something different to each of us.

So basically, yes, I do think the premise you quote is inaccurate. It only draws from one side of the debate, as side that would have instituted an even stronger separation of religion and federal government if it had succeeded. The Air Force patch that we were talking about in a different thread would have definitely been unconstitutional under the "touching" standard.

I don't have a reply to this that wasn't already mentioned in that thread, so to avoid redundancy I'll leave it there.

The purpose of these premises is to establish that there was no legal separation of church and state before Black made it up in 1947. That is the role of what you mention in the overall thesis of this article.

I don't see that as the premise. Clearly there was a legal separation in the sense that prior precedent showed that all were subject to the law, regardless of what may be permissible by individual religions. More on that next...

I've read Reynolds. The Jefferson quote was not being cited for its "wall of separation" language but rather for a different part of the quote, where Jefferson said that the Free Exercise clause protects opinions but not actions... If I were writing this argument, I would have just said that Reynolds quoted Jefferson to make a different point, but I stand by my assessment that this author has not actually read these opinions.

Again, this is a blog, not a research paper. That means giving it a little latitude as well as checking up on it as needed.

I don't know whether the details about the Oregon School Bill is accurate but let's say it is. The purpose of bringing it up is to show anti-catholicism on the part of the KKK. If Blacks decision in Everson actually barred tax money from going to school buses that helped take children to Catholic school, then the Oregon school bill would have been relevant to suggest that Black was motivated by a KKK agenda to force Catholics into public schools. But since Black actually protected Catholic busses, bringing up the Oregon School Bill actually suggests that Black wasn't following a KKK agenda. This is where the author's factual wrongness starts causing the other pieces of his argument to fall apart.

Actually, he didn't "protect" Catholic buses. What he did was to acknowledge that Black conceded that the disbursement was okay based on the fact that it went directly to parents, not to the schools, and because the transportation function wasn't inherently religious in nature, as a way to insert language that established a much broader set of conditions.

Hugo Black mentioned at last? He was mentioned at the top of the article, in the thesis statement.

I think you're nitpicking a bit here, brother. This was the first mention of Black within the body of the article itself.

The point of the article is that Black is anti-catholic, that he led the separation of church and state, and that his leading the separation of church and state was motivated by his anti-catholicism. Without that last piece, the article is just an ad hominem attack. Without that last part, all you got is "Black was a bigot, therefore he was wrong."

Without it, perhaps... But with it...

The fact that Everson upheld busing to Catholic private schools weakens that last part. The fact that every member of the Supreme Court signed on to either Black's opinion or the dissent that also cited that wall of separation, including a catholic justice, undermines that argument even more.

Depends. There's no way to really stand on that without knowing how things would have turned out if he hadn't been there. You can conjecture, but the simple fact is that this was a man who poisoned his own well of credibility and objectivity with his anti-Catholic past. Mind you, let's not get distracted too much by just the Catholic part. As a KKK henchman, he'd also have had a problem with Jews, Muslims, Mormons... prettymuch anybody who wasn't his brand of Protestant.

The fact that Engle ruled as unconstitutional a prayer in a public school dominated by protestants undermines that point even more.

Why?

These decisions seem to have been made despite Black's anti-catholicism. If the author had actually gotten his facts right, he might have known that. So really all this article has to offer is "Black was a bigot, therefore his ideas on church and state are wrong." That's a pure ad hominem.

What other facts are in dispute? Besides the irregularity in the Everson example, what other facts do you find a problem with?

What I take away from this article, primarily, is that the interpretation of the phrase "Separation of Church and State" which we've come to take for granted isn't nearly as plain or as historically consistent as we might think. It's funny how often I hear people freak out if someone's to be appointed to the Supreme Court when they have a religious background, as if only left-wing atheists are capable of objectivity while anyone else is a herald of a coming theocracy.