Lawsuit Promised Against the Declaration of Independence

John C. Rankin

[excerpted and adapted from First the Gospel, Then Politics …, 1999-2004, Vol. 2, not published]

In January, 1996, I addressed a Mars Hill Forum at the University of Virginia with Barry Lynn, director of Americans United for Separation of Church and State. An ordained minister with the United Church of Christ (UCC), and also an attorney, Barry once served as legal counsel for the ACLU’s Washington office. [We have addressed four forums together, visited at each other’s offices, and are friends.]

In the forum, I presented the original draft of Resolution #7 on a Recitation in the Public Schools. This Resolution calls for the freedom for public school students to recite the words: “WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unelienable Rights, that among these are Life, Liberty and the Pursuit of Happiness – That to secure these Rights, Government are instituted among Men, deriving their just Powers from the Consent of the Governed.”

My first Mars Hill Forum with Barry was held at the Unitarian-Universalist church in West Hartford in April, 1993. The subject was the separation between church and state, and it was an intellectually satisfying interchange for both of us. We agreed on most concerns, rooted in the shared belief, as Barry put it so well – that any religion which requires state power to support it is not a viable religion to begin with. We both oppose state established religion.

The differences begin to emerge when it comes to an interpretation of what the “free exercise” of religion equals, and the state’s role in ensuring such free exercise. Or to put it another way: Does the freedom of religion enjoy the same stature as the subsequent freedom of speech? Are we free to speak widely in the culture, if that speech is religious?

Later in the forum, during some interchange between us in the Q & A session, I wandered into a question on the spur of the moment. The subject had come to the nature of public schools, and Barry’s contention that the values they teach should be religiously “neutral” (which, by the way, is a concept I believe is not possible). Then I asked him: “Barry, if I were to sum up what values you believe are acceptable to be taught in the public schools, would it be fair to say that they are values consistent with a ‘secular humanism?’ ” He immediately said, “Yes.”

I continued, saying something like: “I assume that, as a lawyer, you are familiar with the 1961 and 1965 U.S. Supreme Court decisions, Torcaso and Seeger.” He said yes. I then explained to the (small) audience that in these two decisions, there was a concern for what qualifies as “religious” speech, that which has protection under the First Amendment. The Court said that as such, “secular humanism” is a “religion” for the sake of First Amendment protection. It recognized that it is not religious in the sense of believing in a deity, but that it competes with religion by appealing to people’s ultimate allegiance in terms of a belief system. In this sense it operates on the turf of religion by being a non-religion, and thus it deserves equal protection in terms of the First Amendment liberties. It is a positive set of rulings, its conclusions with which I agree, and which have ultimate foundation nowhere but in the ethics and power of informed choice of only Genesis. But as well, the rulings necessarily had to include the language of being “like a religion,” given the origins and constitutional basis for religious liberty.

Having given this explanation, one which Barry also agreed with, I then asked him something similar to this sequence: “If then, for the sake of First Amendment liberties, ‘secular humanism’ is a religion; and if, as you agree, ‘secular humanism’ is the set of values which is permissible in ‘public’ schools, whereas other religious values are not; then does this not constitute an ‘establishment of religion’? Has not the government de facto established ‘secular humanism’ as the religion of the state, by enforcing it in the ‘public schools’? And thus, do we not need a second disestablishment of religion, where we purge such a religion from ‘public’ education, based on your premises of ‘separation of church and state’ ”? No answer, as Barry shifted the subject.

The point of illustration here comes down to whether or not Barry, and others like him, use the “separation of church and state” language in a historically faithful fashion. And thus, we return to Barry’s contention in the UVA forum – that the recitation of the two sentences from the Declaration of Independence, by “public” school students, would equal a constitutionally forbidden prayer, a breach in the dividing wall between church and state.

This position reveals a great dilemma. There is a non sequitur, an inconsistency lurking about – either on Thomas Jefferson’s part, or on Barry Lynn’s part. Jefferson penned the (exact) words, “separation between church and state,” not as their originator, but making famous the concept in a letter to an association of Baptist ministers in Danbury, CT, January 1, 1802. Serving then as the U.S. President, he wrote the Baptists:

To Nehemiah Dodge and Others, A Committee of the Danbury Baptist Association, in the State of Connecticut:

Gentlemen: The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

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 and worship, that the legislative powers of 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 to man all his natural rights, convinced he has no natural rights in opposition to his social duties.

I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender that for you and your religious association, assurances of my high respect and esteem.”

In both Connecticut and Massachusetts at the time, the disestablishment of religion, at the state level, was still not complete. It would be decades yet (1821 and 1833 respectively – the last two states in the nation to do so). In 1802, Jefferson’s Virginia still had it state established Episcopal Church. Namely, the First Amendment applied only to the federal government. It prohibited it from establishing a national church, like the Anglican Church in England, or the Roman Catholic Church in France. In England, state monies supported the Anglican Church, but eventually allowed other denominations to have liberty to assemble, but still favoring the Anglican Church with tax dollars. In France, it was slower to allow non-Catholic churches the right to exist, and not as completely – even after the French Revolution and Napoleon Bonaparte. England and Scotland, along with other European nations still have state-established churches.

In Puritan New England, there was a sad irony at play. The Congregationalists had come to America seeking religious liberty for themselves. But then they imposed taxes on all citizens, including Baptists, Quakers, Catholics, Anglicans and Jews – though these peoples were small minorities at the outset. The taxes paid for the Congregational church in each parish (which also equaled political boundaries as well as religious), for the property, maintenance and the minister’s salary. Non-Congregationalists were thus being forced to pay for the Congregational Church’s support with their tax dollars. Contrary to the ethics and power of informed choice. Thus Roger Williams fled with fellow Baptists and established Providence (Rhode Island), as a jurisdiction based on religious liberty.

The Baptist association in Danbury held the same passion, and thus deeply opposed any state control of religion, and living as they were inside Congregationalist Connecticut, Jefferson’s sympathies were with its members. Just as Jefferson was conflicted about slavery, so he too was conflicted at the outset about state disestablishment of religion being part of national disestablishment. The original rationale of the First Amendment was that states could establish churches, and thus between the different states, provide opportunity for people to settle where they wished. But then the need began to be grasped that this was not full religious liberty, and that disestablishment had to come to the state level as well. Jefferson began to move in the direction that the Baptists had gone in all along.

Thus, when Jefferson penned the words about “separation between church and state,” he was doing so with a view to the purpose of the First Amendment. Its purpose was not to segregate the religious sentiments of individual citizens from their participation in matters of government, but to protect their “free exercise” from government intrusion. The “no establishment” clause was in service to the “free exercise” clause. In other words, unless citizens are free from a state imposed church, they have no genuine religious freedom to participate in the “consent of the governed,” and its attendant liberties of speech, press, assembly and redress of grievances.

Religious liberty invites all citizens to participate in the government, based on their explicit religious, or non-religious beliefs. Religious values, whether biblical, secular or pagan, are to have impact on law according to “the consent of the governed.” The religious liberty of citizens is violated when state power forces them to adopt a belief contrary to their own, or forces them to fund a specific religion. With secular humanism as a religion, it has become an unconstitutional state religion – sucking up public tax dollars in “public” education that is no longer truly public. Indeed, it affronts “the rights of conscience” of Christians that Jefferson commended to the Danbury Baptists, and as much as a state imposed religion would offend “the rights of conscience” of secularists and other dissenters.

Jefferson writes the Danbury ministers to affirm this, based on a common understanding of the First Amendment between them. Accordingly, his use of the “wall of separation between Church and State” is in support of “free exercise,” and this means that the “wall” protects individual religious liberty from federal intrusion. It does this by disallowing any religious denomination or organization from being given preferential treatment, which thus allows for individuals to participate in the government based on their explicit religious convictions, concomitant with “the rights of conscience.”

In other words, the concern was to restrict a state approved organized religion to act in hegemony against the religious liberties of others; so that all religions can organize equally according to their own power to persuade, according to the ethics and power of informed choice; and that their adherents can fully participate in the government based on their express beliefs within the rule of law.

Jefferson also notes that the legislature regulates “actions” not “opinions,” exactly as Resolution #4 on Human Sexuality and Civil Rights does, which is why “hate crimes” legislation frustrates the protection of civil liberties in the final analysis – it seeks to legislate opinions even more so than actions, and thus deny First Amendment liberties. Thus, Resolution #7 on a Recitation in the Public Schools also celebrates the freedom of opinions as being outside the government’s scope to regulate, but in Barry Lynn’s opposition to this Recitation, he wants the state to also regulate opinions, indeed, the very opinions that produced unalienable rights to begin with. Jefferson concludes his letter to the Baptist ministers by reciprocating a prayer of protection to the “common Father and Creator of man” (an appeal to the order of creation). Would he be allowed to speak these words in the current “public” school system, especially if Barry Lynn had anything to say about it?

Barry and I might agree on much of this interpretation, and perhaps argue on some nuances, but he would likely argue with my conclusion. But the non-sequitur logic, either on his part or on Jefferson’s part, lies with the fact concerning participation in and ownership of  the words of the Declaration, the very words that Barry says equal an unconstitutional prayer in violation of the “wall of separation between church and state,” if uttered by public school students.

If this Recitation is indeed such a violation of “the separation between church and state,” then Jefferson is morally and intellectually inconsistent.

For that makes the Declaration by definition an unconstitutional “prayer.” And if an unconstitutional prayer is the basis for unalienable rights, which is the basis for the civil rights of the Constitution in general, and the basis of the First Amendment in particular; then it means that the Constitution is itself unconstitutional, religious liberty is unconstitutional, unalienable rights are unconstitutional, and Jefferson’s words to the Danbury ministers reflect an unconstitutional bias as he seeks to support an unconstitutional First Amendment.

Or else Barry Lynn has an issue with moral and intellectual consistency.

Namely, there is no other source for unalienable rights apart from the God of the Bible. Get rid of this foundation, and all civil rights collapse. Barry Lynn is the one who pits Jefferson against Jefferson, using his words of “separation” to abolish his prior words of “unalienable rights.” But why? Unless I can be shown another reason, the only conclusion is that his organization is opposed to genuine religious liberty, and opposed to historical reality because it smacks too much of the Bible. Otherwise, why would he threaten to file lawsuit against a school that has its students recite the only basis our nation has for the unalienable rights Barry says he supports? Is the Declaration of Independence a constitutional violation of a “wall of separation between church and state,” language not found in the Constitution?

This I take to be Barry’s argument. Why would he not view such a recitation to be an excellent opportunity to teach what he understands to be the nature and scope of the First Amendment, that which he says he celebrates? And I would be delighted for him and all partisans in this debate to have equal access to the schools to give their perspective. And with such a recitation being done, what an excellent opportunity this is to thus educate our children.

The Recitation in the Public Schools would expose such an argument, and reveal it for the eisegesis it is. Namely, I believe most people in the United States and the U.S. Congress would support it gladly. Barry Lynn and a very few others would oppose it.