"Separation of church and state isn't in the Constitution!"

It’s inevitable any time you point out that government endorsement of religion is against the law. It seems to be an instantaneous reaction of those on the right, like screaming when someone shouts “boo!” at them from the shadows: “Show me where the words ‘separation of church and state’ appear in the Constitution!”

Let’s sort this out once and for all.

The phrase “separation of church and state” is used as a shorthand description for what the constitution calls for. You might as well say the word “monogamy” isn’t in the bible, so the framework and concept of monogamy isn’t in there.

Follow me to one of the first sections of the Constitution: Article 3, Section 1 which says:

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority….”

This specifically gives the Supreme Court the authority to interpret the Constitution under their judicial power over the law. If you take the baby step to admit the Constitution is the supreme law of the land, you are forced to accept that the Supreme Court has the right to rule on its interpretation. The interpretation of the court has consistently been that the establishment clause means there is separation of church and state.

There is realistically no denying that the Supreme Court has the authority to make that call, so that’s the way it is. Of course the theocrats will say SCOTUS made the wrong call, but no reasonable person is really going to accept the judgment of “truck stop lawyers” over decades of decisions by people whose lives are spent entrenched in the study of constitutional law and whose decisions are based on decades of established precedents. If the Separation clause is illegal, the federal judiciary must have been mistaken all these years, and still is.

They are the referees who have the authority to make the call, and they have clearly made the call for separation. Entertaining as the theocrat’s arguments against the Separation clause may be, they are scarcely new. By now they’ve failed to convince generation after generation of American judges. Why do you think that is?

Because of judicial bias or activist judges? Those are the reactionary buzz words of the day, aren’t they? Yet, there is no question that the overwhelming majority of church/state separation cases in what has undoubtedly and unarguably been a nation of Judeo-Christian background have nevertheless come down on the side separation. Let’s face it: until recently the population has been around 90% Judeo-Christian.  That is the background of every single Supreme Court Justice ever, and clearly and consistently “separation” has been the winner. They haven’t done this because of their religious beliefs, but in spite of them.

You may kick and scream and insist that this country’s 100% Judeo-Christian Justices have, for decades, pushed a subversive “agenda” of separation, but that idea is absolutely ludicrous. Do you even hear what you are suggesting? Does that make any kind of sense?

What you think the Constitution means, or what you think the founders intended, does not matter. You can whine all you want that atheists and the courts don’t get it; it is nothing but sour grapes on your part. The legal precedents are well established. That bell is rung, and you can’t unring it.

Saying the Constitution does not support the separation of church and state because it lacks those precise words is a type of grasping at air known as Constitutional literalism. For those reaching for it, it is the last gasp rationalization, the final excuse to have their antiquated (and unconstitutional) religious and moral nonsense forced into public institutions and the culture at large. It has virtually no relevance to actual jurisprudence, and even the tiniest amount of thought towards how a society would actually function by interpreting the constitution literally reveals it to be not just staggeringly impractical for any complex society with complex differences of opinion, but just transparently silly. Literalism is a concept of intellectual interest only.  It has virtually no practical relevance to the actual law or meaning of the Constitution.

As far as the phrase in the 1st amendment goes (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”) SCOTUS (the ones with the authority to make the call) realizes the only way to achieve both of these is to keep the government neutral through separation of church and state. Hypothetically, if the government was to be comprised of a Muslim majority, it is the separation of church and state that would protect the Christian’s rights, no matter how much the majority disliked it. With Christians in the driver’s seat, it’s what protects the rest of us from them.

Thus, it is entirely appropriate to speak of the “constitutional principle of church-state separation” since that phrase summarizes what the First Amendment’s religion clause does: it separates church and state.

Trite arguments like Constitutional literalism are a pipe dream for those who hope that people will believe their constitutional knowledge, wisdom, and interpretation is better than decades of jurisprudence and Supreme Court justices. Hell, it’s probable that most of them actually believe, despite having never read the Constitution, that they actually do know better than the legal experts. It’s rather a pity that ignorance is inversely proportional to overconfidence in this way.

What it boils down to is this: those with the power to make the call have made it, repeatedly, and they know far more about it than you. If you’re selling anything else, surely the only people buying are those with equally little knowledge.

“When the government puts its imprimatur on a particular religion it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some.” ~ Supreme Court Justice Harry A. Blackmun in the Lee v. Weisman ruling, 1992

Guest post by Danielle Muscato: I'm gay, but I'm not celebrating today.
The anti-gay tantrum parade: Peter LaBarbera round 2.
The anti-gay tantrum parade: Bobby Jindal.
The anti-gay tantrum parade: Matt Barber.
About JT Eberhard

When not defending the planet from inevitable apocalypse at the rotting hands of the undead, JT is a writer and public speaker about atheism, gay rights, and more. He spent two and a half years with the Secular Student Alliance as their first high school organizer. During that time he built the SSA’s high school program and oversaw the development of groups nationwide. JT is also the co-founder of the popular Skepticon conference and served as the events lead organizer during its first three years.


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