Pres. Obama vs. the First Amendment — Scaling the Wall of Separation Between Church and State

Since he took office in January 2009, Pres. Obama’s opponents have asserted that he and his administration are shredding the Constitution–whether it be over guns, healthcare, national security, place of birth or just about anything else said and done in the past five years. I’m actually with them on a recent development…or am I?

Earlier this month, the United States, filed an amicus curiae brief in the case of Greece v. Galloway, which will be heard by the Supreme Court his fall. The issue is whether a town council opening its meetings with an official prayer violates the First Amendment. The town of Greece, NY has been leading prayers to open its meetings for well over ten years. The Second Circuit (in which Connecticut sits) held that the prayer does in fact violate the First Amendment and somehow avoids using “Are you kidding me?” in its opinion. The government’s official stance, through its amicus, is on the side of Greece and government-sponsored prayer which stands against the First Amendment and the separation of church and state.

The First Amendment in regards to religion contains both the Establishment Clause and the Free Exercise Clause. The Establishment Clause means that the federal (and state, as incorporated by the 14th Amendment) government may not establish a national religion, nor favor a particular religion or religion over non-religion. The Free Exercise Clause largely prevents governments from prohibiting individuals and their religions from exercising their religious beliefs. This amendment has not been amended since its passage. There is, under the Constitution, a clearly defined separation of church and state.

Church and State should not intersect. In New Haven for instance, they do not.

Forty years ago, in Abington School District v. Schempp, 374 U.S. 203 (1963), the Supreme Court ruled that school-sponsored prayer in public schools violated the First Amendment. More recently, in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Court held that an official prayer before public high school football games was unconstitutional. Although Greece allows and invites people of all different religious denominations to lead prayers, the practice still favors religion over non-religion.

One of the common refrains in these situation is that our nation is Christian or was founded by Christians. That isn’t true. Many of our founders were Deists, not Christians. Even assuming arguendo that all of our nation’s founders were devout, church-going Christians, that does not mean that they wanted religion entangled with government. Two Connecticut connections illustrate this concept.

Thomas Jefferson, in his 1802 letter to the Danbury Baptist Association, wrote,

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

Joel Barlow, a statesman and Connecticut native for whom Redding and Easton’s high school is named, proclaimed in the Treaty With Tripoli, in 1796, the following

Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.

The Treaty of Tripoli was approved unanimously by the Senate in 1797. Vice President John Adams presided over that Senate (and supported the treaty) which included several nation builders (and future president Andrew Jackson), some of whom were themselves clergymen.

The separation of church and state is a concept that should be supported by both the religious and non-religious. The United States is home to many, many different religious groups which were able to flourish because there was no official religion or constraint. The administration and Supreme Court should see that and use the Greece case as an opportunity to keep the wall from cracking.

Chris DeMatteo is an attorney and the sole member of DeMatteo Legal Solutions at 2911 Dixwell Ave., Ste. B10, Hamden, CT. Call (203) 691-6594 or visit the office website. Attorney DeMatteo represents clients in criminal, juvenile and civil matters in all of Connecticut's courts.

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