Misunderstanding of First Amendment causes unfair war on Christmas

With the approaching 2011 Christmas season, young students in America's public schools are learning some curious terminology related to the upcoming festivities. These include such head-scratching expressions as "holiday tree," "solstice party" and "winter recess," in place of the more sensible "Christmas tree," "Christmas party" and "Christmas break." Teachers and school administrators, either to avoid being perceived as controversial or to send a political message, often choose not to utter the word "Christmas" in their classrooms. This behavior is a hallmark of what some have dubbed a "war on Christianity" in the public sphere. Whatever this phenomenon is called, whether a "war" or not, the de-emphasizing or outright exclusion of Christianity in education and other aspects of public life, despite the vast majority of Americans' practice of it, has a single main cause: the fanciful "wall of separation" between church and state.

Because of its ubiquity, many Americans today believe that the supposed "wall of separation" between church and state is a literal component of the First Amendment. It is not. The amendment, in relevant part, states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The text is starkly clear in its brevity; there are no double entendres, no clever wordplay or hidden meanings. The amendment could be rewritten thusly: "The U.S. Congress shall not establish a national religion or prohibit citizens' free exercise of their own religions."

It is obvious that this is the intended meaning of the amendment after the briefest of examinations of the founding-era's religious climate and the writings of the framers. At or around the time of ratification, many states, including our fair state of Connecticut, had established religions. Here, the Congregationalist presence dominated religious and political life to such a degree that only members of the church could participate in certain civic activities. Though obviously questionable today, 19th century public policies inspired or even dictated by religion were plainly not forbidden under the Constitution. Moreover, until the late year of 1818, the State of Connecticut even collected taxes on behalf of Protestant churches in the state. Recollection of these facts is not intended to endorse a state-sponsored religion today, but merely to show that when the First Amendment was written, there seemed to be little or no concern, whether governmental or popular, about enmeshment between religion and government activity. If, then, there is no "wall" created or intended by our Constitution, how did such a concept originate?

The term "wall of separation," as used in this context, was written by then-President Thomas Jefferson in January of 1802, 15 years after adoption of the Constitution. A deeply religious man, Jefferson personally feared the encroachment of a national religion on state and local churches. He used the expression "wall of separation" in personal correspondence to the Danbury, Conn. Baptists to address their fear that a "hierarchy and tyranny" of nationally-designated religion was not specifically prohibited by the Constitution. Jefferson used the term "wall of separation" to reassure the Baptists that "Congress is inhibited from acts respecting religion," but he did not use the term publicly and he likely could not have imagined the extent to which 20th century jurists would pervert his turn of phrase.

The very idea of a legally-recognized, hard-and-fast separation between religious activity and government and, indeed, the rest of public life, is virtually the brainchild of one man, Supreme Court Justice Hugo Black. In 1947, he wrote the Court's majority opinion in Everson v. Board of Education, in which he announced that "the First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

Though Justice Black added the "wall" metaphor as a mere afterthought to the Everson opinion and it did not play a role in the Court's decision, the phrase gained significant traction among "progressive" elements of the public, such that it has evolved (or, rather, devolved) into an oft-invoked and hugely magnified distortion of constitutional interpretation.

It is important for Americans to understand that the myth of a "high and impregnable" wall between church and state is merely a concoction of 20th century American jurisprudence and not a constitutionally-laid cornerstone of our civil society. This "wall" is entirely judge-made and, as it is presently interpreted, should have no practical force in our daily lives. Public school teachers should not be afraid of the specter of political correctness and bureaucratic reprimand if they allow schoolchildren to draw Christmas trees or Santa Clauses or menorahs during arts-and-crafts. Churches and towns ought not to fear putting up Nativity crèches merely because they are visible to "the public." Perhaps above all, no child, whatever religion they practice, should ever have to grapple with the conceptual abomination of a "holiday tree".

Thus, to those of you who choose to observe it, I wish you from the pages of this publicly-funded newspaper a very merry Christmas.