Church-State 'Wall' Coming Back Down?

Article excerpt

Byline: Joyce Howard Price, THE WASHINGTON TIMES

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof .." - the First Amendment of the Bill of Rights to the U.S. Constitution, which took effect Dec. 15, 1791

U.S. courts rule about two times each week on cases involving whether prayers can be included in a high school graduation ceremony, an image of Jesus Christ can be displayed in a public school or a Ten Commandments monument can remain in a government building or public park.

The American Civil Liberties Union (ACLU) says such prayers and displays violate the principle of separation of church and state.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, estimates the frequency of such rulings between 104 and 156 annually.

Mr. Lynn, whose group often gets involved in the cases, says they represent only a small fraction of incidents that arise.

"Most of these cases never even make it to court," he says.

The ACLU, which routinely takes on such cases in federal court, has scored some important victories in the church-state area.

Those victories include the 1992 U.S. Supreme Court ruling in Lee v. Weisman, which struck down school-sponsored prayers at public-school graduation ceremonies.

Another was the court's 2000 decision in Santa Fe Independent School District v. Doe, which struck down a Texas school district's policy of permitting students to vote on selecting a classmate to lead prayers before football games.

The tide started to turn in June 2005, when the Supreme Court ruled that a granite monolith on the grounds of the Texas state Capitol in Austin featuring the Ten Commandments - along with Jewish and patriotic symbols - did not violate the First Amendment's ban on an establishment of religion.

Francis Manion, senior counsel for the American Center for Law and Justice (ACLJ), says that with its 5-4 opinion in Van Orden v. Perry, the high court "did away with the idea that there is something constitutionally radioactive about the Ten Commandments."

In a December 2005 ruling about a Kentucky courthouse's display of the Ten Commandments, the 6th U.S. Circuit Court of Appeals held that the phrase "separation of church and state" is an "extra-constitutional construct .. [that] has grown tiresome." The court ruled that the display was allowed because it was "part of an otherwise secular exhibit."

Since then, the ACLJ, a public-interest law firm that specializes in religious-liberty cases, has won "most of the Ten Commandments court cases" in which it has participated, Mr. Manion says.

History of the 'wall'

Many Americans wrongly assume the words "separation of church and state" are included in the U.S. Constitution.

In fact, the phrase "wall of separation between church and state" was first used by Thomas Jefferson in a letter he wrote to the Danbury Baptist Association in Danbury, Conn., on Jan. 1, 1802, 10 months after his presidential inauguration.

An analysis of that letter - now housed at the Library of Congress - as well as other documents from this nation's earliest years and nearly 150 years of legal decisions strongly suggest that Jefferson and his contemporaries would be at odds with the courts today regarding church-state issues, according to the Rev. Bryan Fischer, a minister and executive director of the Idaho Values Alliance in Boise.

Mr. Fischer says Jefferson coined the phrase that some judges are calling overused to "reassure" the Connecticut Baptists that they had "no need to fear oppression from the federal government or its intrusion into the free exercise of religion because the Constitution had erected a 'wall of separation between church and state.' "

"In other words, Jefferson's wall was designed to protect the church from the state, not the other way around," and it "was never intended to insulate the state from the influence of the church," Mr. …