Jurisprudence of the separation of church and state

This is interesting. The Washington Post ran this AP story yesterday:

Republican Senate nominee Christine O’Donnell of Delaware on Tuesday questioned whether the U.S. Constitution calls for a separation of church and state, appearing to disagree or not know that the First Amendment bars the government from establishing religion.

In fact, what happened was nothing of the sort. O’Donnell was making the point, popular among some on the right, that the Constitution never uses the phrase “separation of church and state”. The Constitution does forbid Congress from making any law “respecting an establishment of religion”, but many people, including O’Donnell, argue that the modern notion of separation of church and state goes far beyond the Constitution’s establishment clause.

One may disagree with O’Donnell’s thesis, but it is an argument to be disagreed with. Alas, to Chris Coons (O’Donnell’s Democratic opponent), to the audience at the no-name law school where the debate was held, and to the Associated Press, it was a ridiculous statement, worthy of mockery, not debate. Of course, everyone knows that the First Amendment establishes a separation of church and state.

In fact, as I understand it, the separation of church and state did not enter US case law until 1878 in Reynolds v. United States. Moreover, that decision cited not the text of the First Amendment, but a letter that Thomas Jefferson wrote to the Danbury Baptist Association. The Supreme Court justified using it to interpret the First Amendment because Jefferson was one of the amendment’s chief advocates.

Now, I’m not sure that the court was wrong to do so. It strikes me as a defensible piece of originalist analysis. (ASIDE: However, the ultimate decision in Reynolds v. US was to deny Mr. Reynolds the right to practice his religion, which all-too-often is also the result of Establishment Clause litigation today.) But there is a serious argument to be made that the separation of church and state, identified indirectly nearly a century after the amendment was adopted, is bad jurisprudence.

The Associated Press belatedly recognized this, which is why their current article now bears no resemblance to the one quoted above. Without issuing a correction, the AP revised their story to open:

Republican Christine O’Donnell challenged her Democratic rival Tuesday to show where the Constitution requires separation of church and state, drawing swift criticism from her opponent, laughter from her law school audience and a quick defense from prominent conservatives.

Close. It should read:

Republican Christine O’Donnell challenged her Democratic rival Tuesday to show where the Constitution requires separation of church and state, drawing swift criticism from her opponent, bad reporting from the Associated Press, laughter from her law school audience and a quick defense from prominent conservatives.

It seems like only yesterday (it was), that I criticized PBS’s Gwen Ifill’s reflexive mockery of Sarah Palin (regarding a point of history on which Palin was right):

I suppose assuming your opponents are stupid can save you time and effort, if you’re right. If you’re wrong, you look like an idiot.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s