Along with death and taxes, one other thing is certain: You can break a lull in the conversation between political partisans with the Bill of Rights. I was a little surprised at how little conversation arose when the recently proposed bill in the State House of Representatives to allow certain persons to carry firearms on college campuses died aborning, due to heavy opposition from those campuses. However, if the Second Amendment won’t do it, the First Amendment probably will, especially the religious part of it.

It is interesting that what apparently was a consensus in the U.S. Supreme Court on the Establishment of Religion clause was not challenged until the 1940s. This primarily was because the prohibition of religious establishment was limited to congressional enactments, as were the other guarantees of the First Amendment. The states were not subject to this scrutiny until 1938-40, when all First Amendment protections were incorporated into the Fourteenth Amendment, forbidding the states, as well as Congress, from passing laws respecting the establishment of religion.

It is also interesting that church-state separation now is widely vilified by the religious right, whose religious ancestors were the very people whom James Madison and Thomas Jefferson sought to protect from established churches. To them the “wall of separation” was real.

Edmund Burke, an icon of conservative political philosophy, spoke to the issue more directly: “Politics and the pulpit are terms that have little agreement. No sound ought to be heard in the church but the healing voice of Christian charity.”

Today’s religious right are not the first to proclaim that America is a “Christian nation.” That distinction belongs to the signers of the Mayflower Compact.

“Advancement of the Christian faith” was their written intent, contrary to the revisionist history fed to us for generations, that they sought religious freedom and tolerance. The Puritans who followed did likewise. Transgressors were subject to severe penalties, even death. Evangelical Christians were relentlessly persecuted. Quakers were banished. In Virginia, where the Church of England was established, all colonists were taxed for its support.

Even the Declaration of Independence only implied the freedom of religion. Nor did the Articles of Confederation, adopted in 1781, specify religious freedom. Against that background, Madison submitted his “Memorial and Remonstrance” to his fellow legislators: “Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?

During almost 15 centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and intolerance in the clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.”

It remained for Madison to be convinced that a Bill of Rights was a necessary part of the new republic’s Constitution. That case was ably made by George Mason and others, who drafted a Bill of Rights patterned on the Virginia Declaration of Rights of 1776.

Jefferson, then in France, added his own weight to the effort, viewing a Bill of Rights as being essential to a “supreme law of the land.” Thus the Constitution was completed, and was ratified in 1791.

Since 1947, through the various school prayer cases and “creation science” cases, and others, the U.S. Supreme Court has dealt extensively with the establishment clause. From time to time it has opened a small door in the wall but in most cases, whether the court was predominantly liberal or predominantly conservative, the door remained closed. The clause has been tested in various ways, depending on the particular case, hence the failure to achieve consistency or unanimity.

I am fairly optimistic that regardless of who becomes president in 2009, the principles of Madison and Jefferson will be upheld and the wall will remain intact. The influence of the religious right with respect to church-state separation will wane, as do most extremist philosophies, and the threat of governmental theocracy will decline. Nevertheless, we must remain constantly aware that the freedoms guaranteed in the Bill of Rights have to be continually guarded. And we, the people, must do it.



DENNIS WEIGAND is an Edmond resident.

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