William A. Jacobson
The mainstream media and blogosphere have erupted because in a radio debate Christine O'Donnell appeared to dispute whether "separation of church and state" was required by the First Amendment. (O'Donnell's campaign walked back the position after the debate, saying O'Donnell merely meant that the words were not in the First Amendment.)
The concept of separation of church and state is not, indeed, in the wording of the First Amendment. Rather, as explained in the 1984 U.S. Supreme Court decision in Lynch v. Donelly:
This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is
to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.
Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).
At the same time, however, the Court has recognized that
The reference to Jefferson relates to this passage from a letter Jefferson wrote in 1802, as recited in the 1878 case Reynolds v. United States (emphasis mine):total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.Ibid. In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. [p673]
The Court has sometimes described the Religion Clauses as erecting a "wall" between church and state, see, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). The concept of a "wall" of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. [n1] The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.
"Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties."So, O'Donnell unquestionably did not agree with the popular liberal conception that the First Amendment by its written terms requires a "separation of church and state," but she was not wrong.
And what an embarrassment to Widener Law School that as soon as O'Donnell questioned whether "separation of church and state" was in the First Amendment, the crowd erupted with gasps of disbelief and mocking laughter.
And if O'Donnell's imperfect -- or perhaps nuanced? -- understanding of the First Amendment were so outrageous, how about the inability of Chris Coons, a Yale Law School graduate, to identify the other freedoms protected by the First Amendment, and his misquoting the text of the First Amendment in his challenge to O'Donnell:
"Government shall make no establishment of religion," Coons responded, reciting from memory the First Amendment to the U.S. Constitution. (Coons was off slightly: The first amendment actually reads "Congress shall make no law respecting an establishment of religion.")Ann Althouse has more on how Coons simply was wrong in his quotation of the First Amendment which led to O'Donnell's supposed major gaffe about the Establishment Clause, and how the press has taken O'Donnell's comments out of context:
O'Donnell reacts: "That's in the First Amendment?" And, in fact, it's not. The First Amendment doesn't say "government." It says "Congress." And since the discussion is about what local school boards can do, the difference is highly significant.A literal reading of O'Donnell's comments reflects that she was correct, but of course, the press and the blogosphere don't want a literal reading, they want a living, breathing reading which comports with their preconceived notions.
Also, it isn't "shall make no establishment of religion." It's "shall make no law respecting an establishment of religion." There's a lot one could say about the difference between those 2 phrases, and I won't belabor it here. Suffice it to say that it was not stupid for O'Donnell to say "That's in the First Amendment?" — because it's not. Coons was presenting a version of what's in the cases interpreting the text, not the text itself.
Update: See also:
- Embarrassing Widener
- Separation: Christine O'Donnell 1, Coons, Widener Law Students 0.
- WaPo/AP Caught Revising the O’Donnell Story Without Issuing a Correction
- And On O'Donnell's Flub: After 24 Hours, It Appears It Was No Flub At All. Washington Post Reporter Ben Evans Simply Lied.
- Decrees of Separation
During Tuesday night's debate with Democratic opponent Chris Coons, O'Donnell challenged Coons to show where the Constitution requires separation of church and state, drawing swift criticism from her opponent, laughter from the audience and yet another media firestorm.
"It's really funny the way that the media reports things," she told ABC News. "After that debate my team and I we were literally high fiving each other thinking that we had exposed he doesn't know the First Amendment, and then when we read the reports that said the opposite we were all like 'what?'"
O'Donnell explained her line of questioning to Coons was not because she didn't know the First Amendment, but to the make the point the phrase "separation of church and state" does not appear anywhere in the Constitution. The Supreme Court has interpreted the First Amendment's declaration that Congress "shall make no law respecting an establishment of religion" as a legal separation between government and faith.
"I asked him where in the Constitution is the phrase 'separation of church and state,'" O'Donnell recounted. "He said the First Amendment. I followed up with, 'Can you name the five freedoms that are guaranteed to us that are protected by the First Amendment?' And he could not."
Legal Insurrection
