"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

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.

  • Cunning Pam

    You might as well say the word “monogamy” isn’t in the bible, so the framework and concept of monogamy isn’t in there.

    It is soooo tiresome to hear this from the fundies over and over and over again. Thank you for an excellent one-liner punch to the cerebrum of those who insist on trotting out this tired old canard!

    • http://icarusswims.blogspot.com Anne C. Hanna

      I admit to being a little confused by this sentence, seeing as how polygyny is shown as an uncontroversial norm throughout the Tanakh, and the Christian scriptures never correct this. Is it meant to be a subtle jab at Christians reading modern monogamy into their scriptures when it’s not present, or is it a genuine error?

      • http://icarusswims.blogspot.com Anne C. Hanna

        (And I apologize if it is indeed the subtle jab thing and I’m just being dense.)

      • F

        I don’t think it is so much that it is assumed that Jesus wanted monogamy (which Christians certainly enshrined as the rule elsewhere, if not in the Bible). JT is making the technical argument (or rather, displaying it) about the word itself.

        >The specific phrase “Separation of Church and State” is not in the Constitution, therefore it is not real, not supported by the law of the land, and was not in the intentions of the founders.

        >>The specific term “monogamy” does not appear in the Bible, therefore it is not a thing in which God or Christians have a stake, and should not be an intrinsic part of the Christian belief system.

        Of course, both of these are wrong and equally ridiculous, regardless of the fact that the exact words do not appear in the authoritative texts in question. (You may have to excuse the fact that there is no god, but we are talking about what Christians believe here, and the authenticity and accuracy of the Bible is not in question for this purpose.)

        • typecaster

          I frequently use a variation of this myself. But I don’t use “monogamy”, since that’s sort of incidental to what’s important to these folks. Usually, I ask ‘em where the word “Trinity” is used in the Bible. After all, if that specific word isn’t there, then the concept just can’t be used in any doctrine derived from it, now can it?

          • howardbarrett

            Not only is the word “trinity” absent from the bible; also absent are the words “God the father, God the son, and God the Holy Spirit”. But you will hear these words at every Catholic mass you attend…

        • http://icarusswims.blogspot.com Anne C. Hanna

          I guess the reason I have a problem with the comparison is that it makes the endorsement of church/state separation in the Constitution sound much weaker than it actually is.

          When a Christian reads endorsement of monogamy into hir scriptures, ze is completely wrong. Monogamy is not something that (many of) the composers of those scriptures can be reasonably inferred to even have intended to put into their works. They didn’t even clearly spell it out in reasonably synonymous words.

          “Congress shall make no law,” on the other hand, is a fairly clear expression of the requirement that religion and government must be separated. In addition, we have tons of documents from the founders to back up that interpretation, including the documents from which the phrase “wall of separation between church and state” actually derives.

          “Separation of church and state” has so much more warrant in the U.S. Constitution than “monogamy” does in the Christian scriptures that I just can’t be comfortable with any analogy that seems to compare them on an even remotely equal footing.

          • http://icarusswims.blogspot.com Anne C. Hanna

            My kingdom for an edit function!

            Please insert after, “They didn’t even clearly spell it out in reasonably synonymous words,” the sentence, “In fact, they included a substantial amount of material which appears to directly contradict it.”

  • John Eberhard

    Couldn’t have said it better myself. In addition to the “monogamy” punch line Cunning Pam liked so well, one of my favorites is “freedom of religion”. “Church and state aren’t separate because the Constitution doesn’t have the phrase “separation of church and state”? Does that mean YOU can’t have freedom of religion because that phrase isn’t in the Constitution, either?”

    • Randomfactor

      It is instructive to count the number of times the word “god” appears in the constitution as well.

  • ‘Tis Himself

    “Activist judges” is a buzz phrase conservatives use which means “some judge made a decision we don’t like.”

  • DaveL

    Also not found (word-for-word) in the Constitution:

    Separation of Powers
    Presumption of Innocence
    Right to Remain Silent
    State’s Rights
    Limited Government
    etc., etc…

  • subbie

    I’m reminded of another favorite phrase of the Godstapo: “Freedom of religion doesn’t mean freedom from religion.” In fact, First Amendment religion jurisprudence is broken into two different parts: Congress shall make no law respecting the establishment of religion, and Congress shall make no law prohibiting the free exercise of religion. For the sake of brevity, these are called the Establishment Clause and the Free Exercise Clause. And it is the Establishment Clause that means, in effect, freedom from religion as far as the government is concerned.

  • Ken

    The basic problem seems to be that few people understand what “establishment of religion” meant in the Enlightenment Era.

    I tend to dislike the argument from authority, so saying that the SCOTUS (a group I sometimes disagree with) is right because they are SCOTUS doesn’t appeal to me.

    I usually send people off to read up on the disestablishment movement of the Enlightenment Era. “Establishment” was a common phrase of the time so many educated people understood its meaning. When talking about the Establishment Clause the founding fathers themselves (as we all know) used the phrase about a wall of separation.

    Despite the US Constitution not applying to the states at the time there was also a wildly successful disestablishment movement in all state governments soon after the sighing of the US Constitution. This was in large part due to the popularity of the establishment clause in the new federal constitution.

    After the 14th Amendment was ratified and the SCOTUS, for the first time, had to rule on a state-level establishment case, they referenced the writings of founding fathers on the wall of separation to support that definition of the disestablishment of government from religion.

    Still, when you run up against the “that phrase isn’t in the Constitution” crowd, I suppose you could also just point out the phrase “freedom of religion” is also missing.

    I really do wish that schools would still require passing a test on the US Constitution to graduate grammar school as was the case when I was just a young’n. Unless, of course, you are a student in Missouri where you can declare lessons about the Constitution to be against your religion. After all, the First Amendment clearly violates the First Commandment.

    • F

      Just look at the use of the verb “establish” in the Constitution’s Preamble. Twice.

      Actually, I sometime think there may be a more important understanding problem with the word “regarding”.

    • http://yetanotheratheist.com TerranRich

      I tend to dislike the argument from authority, so saying that the SCOTUS (a group I sometimes disagree with) is right because they are SCOTUS doesn’t appeal to me.

      It’s not a fallacious appeal to authority if the authority in question does, in fact, have the authority to rule as it does. The Constitution gives them this authority, so how is this fallacious in any sense?

    • howardbarrett

      “saying that the SCOTUS (a group I sometimes disagree with) is right because they are SCOTUS doesn’t appeal to me.”

      I concur. SCOTUS can get a number of things wrong — like “Citizen’s United”. 5 to 4 decisions tell you that personal viewpoints — judicial partisanism — rule the day. However, in separation of church and state cases, the decisions are typically more lopsided, with bipartisanism ruling the day. THIS is the reason why this is established law and will remain such unless and until a constitutional amendment changes it.

  • slc1

    It is quite true that the phrase separation of church and state are not to be found in the Constitution.

    As regards the military, Article 1 Section 8 says the following: Congress shall have the power

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    To provide and maintain a Navy;

    It says nothing about raising, supporting, and maintaining a separate air force. The phrase air force is just as absent as the phrase separation of church and state.

  • http://justdfacsmaam.wordpress.com MarkNS

    With Christians in the driver’s seat, it’s what protects the rest of us from them.

    It’s also what protects the Presbyterians from the Catholics, the Baptists from the Unitarians, the Jehovah Witnesses from the Seventh Day Adventists…etc, etc, etc.

    • typecaster

      Damn. Now I’ll never be able to join the Unitarian Jihad.

  • http://justdfacsmaam.wordpress.com MarkNS

    Ken #6

    I tend to dislike the argument from authority, so saying that the SCOTUS (a group I sometimes disagree with) is right because they are SCOTUS doesn’t appeal to me.

    I disagree that this is an argument from authority. The discussion at hand is what the Constitution means in a legal sense. As JT points out, SCOTUS unarguably is the legal authority in interpreting the Constitution. It doesn’t matter, in a legal sense, whether their interpretation is “right”. Their interpretation is the legal one, right or wrong.

  • James

    When a republic says something as stupid as “where does it say in the constitution ‘separation of church and state’”, all you have to do is ask him where it says the exact words that he can “own a gun”.

    • James


      • Hypatia’s Daughter

        Or where it says he can use a gun for self defense? It speaks of “well-armed militia” in the same sentence as “the right to bear arms”.

  • kantalope

    I would also not depend on SCOTUS, with Stare Decisis on such sketchy ground with the current set of robes…while you may be correct today, you very well could be wrong tomorrow.

    I think you might get much better traction with the fact that State Constitutions give a much better sense of what the Federal one was getting at (except maybe Utah…I’m afraid to look at the Utah version). But Delaware, 1st state. This is from Article ONE! To paraphrase: Religion is great but…

    §1. Freedom of religion.

    Section 1. Although it is the duty of all men frequently to assemble together for the public worship of Almighty God; and piety and morality, on which the prosperity of communities depends, are hereby promoted; yet no man shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent; and no power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship, nor a preference given by law to any religious societies, denominations, or modes of worship.

  • kantalope

    Or maybe not – Maryland, where all those papists were hanging out. The religion clause is all good until you get to the last bit that seems to treat Atheists differently but maybe it just leaves that up to god…hard to tell.

    Art. 36. That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty; wherefore, no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; nor ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry; nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or in the world to come.

  • Azkyroth, Former Growing Toaster Oven

    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.

    And also because the phrase was fucking COINED in the context of one of the founding fathers explaining what the First Amendment meant.

  • Mark

    “Separation of church and state” is a discriminating phrase because it leaves out temples, masques, tabernacles, synagogs, etc. It should really be “separation of religion and state.” Even then, it does not adequately cover active ideologies that do not classify themselves as religions.

  • howardbarrett

    Thanks JT for putting Ben in check. I’m sitting here watching “CNN Presents” and the topic is Murfreesboro, TN’s citizens’ attempt to block the building of a mosque there. They keep saying that the new Muslims will try to impose sharia law. I don’t know where the attorney for the citizens’ group got his law degree but he’s obviously not very smart. He actually argued that Islam is NOT a religion. SMH.

    I don’t understand why Christians are so intent on blurring the line between church and state. Like prayer in schools for instance. ANY group of students can decide to get together and pray on school grounds without incident. THAT’S FREEDOM!! The fact that a teacher or other school official can’t lead the prayer is irrelevant.

    Another point Ben raised was the fact that both the House and Senate have chaplains (they also pray in chambers). Actually this is unconstitutional as well and would be ceased if a lawsuit were brought. SCOTUS would rule the practice of having chaplains as respecting one religion over another. The problem is the issue of “standing”. Under our law only a person who “stands” to be affected by a practice can bring suit. I believe we do have one Muslin in the House but if he brought a suit it would be political suicide. And once he was voted out of office, because it takes so long to get a case to the court, he would lack standing…

  • fastlane

    Let’s sort this out once and for all.

    Good luck with that JT. Ain’t gonna happen. I’ve been saying the same thing for…probably since before you were born. The stupid just keeps coming.

    I’ve got a list of ‘magic words’ that xians love, that aren’t in the bibull (Trinity, Holy Ghost, monogamy, etc.), that doesn’t stop them from special pleading, and a host of other logical fallacies that, apparently, never get old (to them).

    Consider this my passing of the torch. :)

  • dougindeap

    Good points well put.

    Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

  • hated community atheist

    Thank you for this very clear explanation. I had someone arguing this exact thing to me and I referenced you and the article. Thank you, thank you, thank you. It is so difficult to stand up to these people. I can’t tell you how important it is for people like you to keep doing what you do. Did I say thank you?