Yes There Is a Constitutional Separation of Church and State

Perhaps nothing is more important to American politics than a well-reasoned debate. Unfortunately, far too many people are ill-informed to make such discussions possible.
09/21/2015 12:35 pm ET Updated Sep 21, 2016

Perhaps nothing is more important to American politics than a well-reasoned debate. Unfortunately, far too many people are ill-informed to make such discussions possible.

An excellent example of this comes from the responses to an article I wrote examining the concerns of conservative Christians over Tennessee schools' teaching the five pillars of Islam. While there were a number of topics that readers could have discussed, by far the most outrage centered on my statements regarding the separation of church and state. Comments included "Clearly, someone hasn't read the Constitution, because there is no such thing as "separation of church and state" in the US Constitution." "Where exactly in the U.S. Constitution does it address "separation of church and state?" and "Simply put, nowhere in the First Amendment does the phrase 'separation of church and state' exist."

It seems that to some people, if the words don't explicitly appear in the constitution then the idea they refer to isn't constitutionally guaranteed. Viewing it in these simplistic terms is meant to dismiss the entire argument; as if every decision based on the separation of church and state is somehow invalid because the term separation of church and state doesn't appear in the constitution.

Of course the problems with this assertion are many. First and most basic is the fact that the Supreme Court is the ultimate interpreter of federal constitutional law. This means that while the term "separation of Church and State" may never appear in the constitution itself, the Court ruling in the case of Everson v. Board of Education stated "the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'"

A quarter century later, the case of Lemon v. Kurtzman further defined this separation when it established the Lemon Test to determine if a law violates the establishment clause of the First Amendment. Every ruling since has confirmed that, in the view of the highest court in the land the Constitution created a separation of church and state.

Having said that, the separation of church and state is hardly the first unwritten concept that is protected by the constitution. In the 1973 case of Roe v. Wade, the Supreme Court established a women's constitutional right to have an abortion despite the word abortion never appearing in the constitution. In the 2015 case of Obergefell v. Hodges the Supreme Court established that laws against same sex marriage were unconstitutional despite the word marriage never appearing in the constitution. In the 1963 case of Gideon v. Wainwright the Supreme Court established that the constitution guarantees the right to an attorney despite the words public defender never appearing in the constitution. In the 2010 case of McDonald v. Chicago the Supreme Court established that the second amendment right to bear arms included the right to bear arms for self-defense despite the words self-defense never appearing in the constitution.

It should also be noted that of the 112 Supreme Court Justices, none of them has been an atheist. In fact 92 pecent of them were Christian. What rationale would these justices have for making laws that would create a legal prejudice towards their system of beliefs, especially if the separation of Church and State is a misinterpretation?

The reality is that the constitution was never meant to be a stagnant document that was rigidly adherent to the words on the page. As Thomas Jefferson said "The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please." Over the past 200 years the Supreme Court has shaped the constitution to contain a clear separation of church and state that protects every religion equally. If only those who argue against this separation could see how they benefit from it instead of inappropriately interpreting it as an attack on Christianity.