Church-State Separation Has Its Roots in Anti-Catholicism, Authors Say

          by Wayne Laugesen, Register Correspondent

          National Catholic Register

          November 24-30, 2002

          WASHINGTON -- When groups such as the American Civil Liberties Union and the Freedom From Religion Foundation fight for

          "separation of church and state," they're siding with historical bigotry against Catholics that was bestowed on American culture by

          the Ku Klux Klan.

          So argue two new academic books about the First Amendment that come to nearly identical conclusions: The First Amendment set

          out to protect religion from government, not government and society from religion.

          "One of the real dangers that arises from the metaphorical use of the 'wall of separation' is that a wall, by its nature, imposes

          restrictions on either side of the wall," said Daniel Dreisbach, professor of justice, law and society at American University in

          Washington, D.C.  Dreisbach is the author of Thomas Jefferson and the Wall of Separation Between Church and State (New York

          University Press, 2002).

          "The Constitution places no restrictions on religion -- or religious expression -- on private or public property," Dreisbach said.  "The

          Constitution expressly imposes restrictions on government and on government only."

          Dreisbach's conclusions mirror those of University of Chicago law professor Philip Hamburger, who wrote Separation of Church and

          State (Harvard University Press, 2002).

          Both scholars argue the phrase "wall of separation" was gleaned from Jefferson's Jan. 1, 1802, letter to the Danbury Baptist

          Association in Connecticut.  They write that Jefferson used the metaphor in hopes of winning support of rival Federalists in New

          England, not as a definitive interpretation of the First Amendment.

          "In a 1947 Supreme Court case, justices picked up this metaphor and elevated it to a virtual rule of constitutional law," Dreisbach

          explained.  "This misinterpretation has become the central metaphor that's used to restrict the role that people in communities of

          fair can play in the public marketplace of ideas."

          Dreisbach and Hamburger, who worked separately, blame the late Supreme Court Justice Hugo Black for erecting the wall and

          promoting the myth that the First Amendment regulates and restricts religious expression.  They argue that Black was motivated

          mostly by a hatred of Catholics, cultivated while he was a member of the Ku Klux Klan, and his overt fear of Catholic schools

          becoming too dominant in American culture.

          "Black, like John Dewey, saw public schools as the temple of democracy, the great equalizer in society, so he looked at Catholic

          parochial schools with great fear and disdain," Dreisbach said.

          Dreisbach, a Presbyterian, said Black's KKK-inspired intolerance was popular because America has a history of Protestant bigotry

          against Catholics.

          "The rhetoric 'separation of church and state' came into vogue in the 1820s and 1840s when we saw the first great waves of Irish

          Catholic immigrants," he said.  "We see the same thing at the end of the 19th century when the second wave of Catholic immigrants

          came from Ireland, Italy, Poland and other central and southern European countries.  ...  It was a separation of Catholics from the

          dominant Protestant society."

            Yearly Debate

          Arguments about separation of church and state come to the forefront every year, when local governments begin planning Christmas

          and Hanukkah displays that usually go up the day after Thanksgiving.

          Some of the displays, found in every state in the union, are sponsored and funded by cities, counties or school districts.  Others are

          privately sponsored displays that draw controversy when erected on public property, such as a courthouse lawn or in a civic center

          park.  Both routinely result in protests and lawsuits by the American Civil Liberties Union and the Freedom From Religion Foundation.

          The Supreme Court has ruled such displays do not violate the First Amendment as long as they consist of secular symbolism, such as

          Santa and reindeer, and symbolism from various religions.  Most displays, therefore, have Christian symbolism, secular commercial

          symbolism and Jewish symbolism.

          The fuss over the religious contents of public religious displays, Dreisbach, said, represents an ironic affront to what the founding

          fathers intended when they wrote the First Amendment.  He said they intended to protect religious expression from being singled out

          for special treatment or exclusion from the public square.

          "The courts have consistently said that certain kinds of speech are not protected, and there are legitimate limitations to free speech,"

          Dreisbach said.  "We are not protected in using speech that promotes violence, for example.  But if an expression does not directly

          result in violence, deemed lewd or pornographic, government must remain neutral regarding the content."

          Laurie Gaylor, spokeswoman for the Freedom From Religion Foundation based in Madison, Wis., said Americans love the "wall of

          separation."  They will continue to cherish the wall, she said, regardless of what scholars write about its questionable origins.

          "The fact is, hordes of Catholics support this wall precisely because they have been a minority to Protestants in this country," she

          said.  "Very typically, the earliest court cases arguing in favor of a wall of separation were brought by Catholics who didn't like the

          fact that their children were hearing readings from Protestant versions of the Bible in the public schools.  Catholics, outnumbered by

          Protestants, wanted their children to learn from a Catholic version of the Bible at home and at church."

          Even recently, Gaylor said, Catholics have fought for separation of church and state in court.  In a federal case in Texas, Santa Fe

          Independent School District v. Doe, a Catholic and Mormon family sued the school district because Baptist students were leading

          prayers over the school's public address system at sporting events.

          Dreisbach said he understands that some people benefit from separation of church and state, and that it is popular among many

          Americans -- secular, religious and atheist alike.  That doesn't mean, however, that constitutional law should be twisted in such a

          way that religious expressions are sifted from the marketplace of free ideas.

          "The strictest notions of separation -- the idea that religion is an inappropriate thing for public schools -- has really declined," said Tom

          Berg, law professor at the University of St. Thomas School of Law, Minneapolis, who specializes in constitutional law.  "There has

          been a big movement away from this idea that secularism is neutral ground that serves the interests of separation of church and state."

          Wayne Laugesen writes from Boulder, Colorado.