Anti-religion Suit Is Based on a Myth

The man who invented the phrase "separation of church and state" must be turning in his grave.

The Military Religious Freedom Foundation, a group that opposes the free exercise of religion in government, is suing U.S. Air Force Academy Superintendent Lt. Gen. Michael Gould in an effort to forcefully censor an evangelical Christian from speaking at the National Prayer Luncheon — a private event scheduled for Feb. 10 at the academy. To establish grounds, the organization has included faculty members.

David Lane, the go-to Colorado lawyer for trying a case in the media, had this to say about the upcoming speech by decorated war veteran and retired Marine Clebe McClary:

"It's a clear violation of the First Amendment of the Constitution, which mandates the separation of church and state," Lane said. That's a whopper of legal fiction, and Lane must know better. The First Amendment does not mandate "the separation of church and state," which is never mentioned in the Constitution. The First Amendment restricts government from making laws that respect the establishment of religion or interfere with the free exercise of it.

The mythical belief that the First Amendment sanitizes government of religion results from abuse of a political letter written by President Thomas Jefferson to a committee of the Danbury Baptist Association on Jan. 1, 1802, thanking members for their support. In the letter, Jefferson explains that he is praying for the committee, asking for its members "the protection & blessing of the common father and creator of man..." It quotes the First Amendment and then says "thus building a wall of separation between Church & State." Baptists had pushed for the First Amendment in order to strengthen their freedom from the Church of England and any future efforts by government to establish one religion and forbid the free exercise of others. The "wall" analogy was not written into law and the eloquent letter makes clear that Jefferson wanted a barrier to laws that would establish religion. Was his intent also to protect government from the words of religious speakers, the likes of McClary? It could not possibly have been his intent, unless he ranks among the most hypocritical and dishonest figures in American history — which he does not.

Two days after Jefferson wrote the Danbury letter, he attended a Baptist worship service in the House of Representatives.

The lectern of the Speaker of the House was used as a preacher's pulpit on Sundays. Jefferson continued attending the service routinely, occupying a reserved seat. Throughout his presidency, Jefferson hosted church services in buildings of the executive branch of government. The Supreme Court also housed worship services. The federal Treasury Building hosted a four-hour Presbyterian communion service. Tolerance was held in high regard; establishment laws were forbidden, kept outside of the metaphorical wall.

President James Madison, Jefferson's successor, also attended regular church services in the House of Representatives. Madison knew exactly the meaning of the First Amendment, as he's the man who pushed for it at the urging of mostly-Baptist constituents who wanted freedom of religion secured, and freedom from only those laws that would enact a federal religion. Madison introduced the First Amendment and the rest of the Bill of Rights to the First United States Congress in 1789. Madison and Jefferson were relentless in guarding against establishment, by law, of a national religion. They obviously had no intention of preventing the free exercise of religion in government institutions, as they participated in it. Most of the services were led by Christian clergy of various denominations. The Library of Congress has analyzed and preserved dozens of exhibits, including the Danbury letter and a draft of it, that leave no room to believe our country's founders wanted government institutions cleansed of religion.

The Air Force Academy has a legal obligation to protect the free exercise of religion for students, faculty, employees and other Americans. It cannot do that while forbidding the free exercise of religion. It cannot, by law, rescind a speaking invitation for the purpose of silencing a man with a religious message some consider grotesque.

The First Amendment was written and ratified to protect religious speech, in government and in private. Part of protecting free exercise involves forbidding government from enacting laws that favor one religion over others. Inviting a controversial religious man to speak is a far cry from passing a law, and those who conflate ideas with laws are either confused or dishonest. Asking the courts to censor a speech makes mockery of the First Amendment, which protects free speech and the free exercise of religion. Mr. Lane, "separation of church and state" is not in the First Amendment. The federal judiciary should dispense with your client's case.

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