Standing Up for Separation of Church and State is the Christian (and Historically Baptist) Thing to Do

By:       J. Kent Holland, Jr., J.D.

             http://www.KentHolland.com

            The fundamental principles of Baptists include (1) baptism of believers, (2) loyalty to the Scriptures, (3) independence of the local church, and (4) complete separation of church and state.  The origin of the Baptists began with John Smyth in 1608.  It has been said of Smyth’s 1612 booklet entitled, Propositions and Conclusions…” that this was “perhaps the first confession of faith of modern times to demand freedom of conscience and separation of church and state.” [1] 

            Interestingly, a Methodist, Frank S. Mead, has written a most accurate summary of Baptist History, published by Broadman Press in 1954.  He states:

They have never been a state church, never taken orders from any government or king [at the same time being good citizens where man’s law did not conflict with God’s law]; in the their blood is an eternal insistence that the state shall rule only in affairs political, and let the church alone.  They are God’s patriots, putting allegiance to him always above allegiance to Caesar.  Freedom of conscience and complete divorce of church and state!  How they have suffered for that!  They have faced mockery and mud, fines, whippings and iron bars; [in Europe ] they have been burned at the stake and pulled on the rack, but they have held to it.  And not this: never once in their bitter, bloody history have they struck back at their persecutors or persecuted any other for his faith. That is patriotism touched by the divine.

            “Baptists certainly have a consistent record.  In their advocacy of soul freedom in its completest measure and of the principle of the separation of church and state, and in their insistence upon believer’s baptism and a regenerated church membership, as a group they have stood as stalwarts through the centuries.  All of these are related to soul freedom and/or the individual’s direct relation to God, which is at the very heart of Baptist faith and practice.”[2]

            “With regard to the principle of soul liberty and the separation of church and state, they have so far outstripped all other religious bodies in modern times that without doubt the impartial historian in the future, as in the past, will accord to them [Baptists] the palm of leadership.”[3]  Those words were written in 1978 by two highly respected Baptist historians and authors.   In the two decades that followed, many Baptist “leaders” in their effort to tear down the wall of separation, seem to have gone out of there way to reverse the proud history of Baptists standing for soul liberty and separation of church and state. 

            What is the history of Baptists standing up for religious liberty in America ?  When Baptists left England for America due to persecution against them by the state and the state sponsored Church of England, it was not long before they found the same kind of persecution in the colonies.  Roger Williams was one of the most significant of early Baptists in America .  While serving as president of Harvard in 1636, he was banished from Massachusetts .  The offense for which he not only was summarily removed from Harvard but was also physically removed from the colony was his refusal to have his own children baptized as infants.  He believed that Baptism was only to occur after a soul reached the age of reason and could make a decision to accept God’s grace of salvation through Jesus Christ. [4] 

            For the offense of participating in an unauthorized worship service in the home of a Baptist in Lynn , Massachusetts , Obadiah Holmes, 1651 was publicly whipped.  Perhaps, the events that occurred in the colony of Virginia in 1784 are even more on point for the debate in America today concerning the use of tax dollars to fund programs run by religious organizations.  In that year, a bill was introduced in the Virginia General Assembly to provide a tax to support teachers of religion, with each person being allowed to designate which religious teacher his assessment would support.[5]  Those today who argue that various ambiguous statements by James Madison show he had no intention of creating a separation of church and state might be interested in the following words he penned in a letter concerning the proposed legislation of 1784. “The Episcopal clergy are generally for it. . . .  The Presbyterians seem as ready to set up an establishment which would take them in as they were to pull one down which shut them out.  The Baptists, however, standing firmly by their avowed principle of the complete separation of church and state, declared it to be ‘repugnant to the spirit of the Gospel for the Legislature thus to proceed on matters of religion that no human laws ought to be established for the purpose.’” [6]

            Virginia Baptists strongly objected when the Federal Constitution was written without an inclusion of religious liberty.  John Leland, a candidate for the Virginia ratifying convention and a prominent Baptist who had was leading the fight for religious liberty, apparently dropped his candidacy and gave his support instead of James Madison in exchange for a commitment that Madison would join with Leland in a crusade to amend the draft Constitution to guarantee religious liberty, free speech, and a free press.    At the Constitutional Convention, the amendment sought by John Leland was not made.  It is possible that Madison concluded that if religious liberty were included in the Constitution, the colonies of Massachusetts and other states might not ratify it.  In any event, history shows that John Leland and the Baptists didn’t give up the fight.  By letter dated 1789, Leland wrote to President Washington requesting that a guarantee of religious liberty be added to the Constitution.  President Washington replied assuring Leland that such a guarantee would be provided.  Shortly thereafter, James Madison  presented the First Amendment and it was enacted.  It has been said that “If the researchers of the world were asked who was most responsible for the American guarantee for religious liberty, their prompt reply would be ‘James Madison’; but if James Madison might answer, he would as quickly reply, ‘John Leland and the Baptists.’”[7]

            In 1791 Leland wrote a pamphlet titled “The Rights of Conscience Inalienable.”  In this pamphlet he argued that “Government has no more to do with the religious opinions of men, than it has with the principles of mathematics….  Let every man speak freely without fear, maintain the principles that he believes, worship according to his own faith, either one God, three Gods, no God, or twenty Gods; and let government protect him in so doing.”[8]

            Baptists came to believe fervently in the separation of church and state at least in part because of their own persecution at the hands of government and majority religions both in England and in the colonies.  At the heart of Baptist faith and practice is the Baptist belief in the individual’s direct relationship to God through the liberty of the soul to choose faith. If relationship with God is one of personal choice and faith, based upon one’s own conscience, then king, government, bishop, priest, or even a church, cannot make decisions on an individual’s behalf, intervene for an individual or in any way mediate between man and God. With that fundamental belief, Baptists must logically stand for religious liberty, insisting that an individual alone can make spiritual decisions impacting his or her relationship with God. 

            The Baptist call for religious liberty has always gone far beyond religious “tolerance” that posits that one religion can be more accepted by government so long as it tolerates the existence of others without persecution.  In contrast to “tolerance,” the notion of “liberty” is that all people are equally free to choose or reject any religious belief and no religion or belief system will be favored by the government over any other.  “Baptists distinguished religious liberty and religious freedom as belonging to all persons as persons and not to Christianity or to people of a particular brand of Christianity.”[9] 

            The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

            Although the term “Separation of Church and State” does not appear in these words of the First Amendment, it is clear that such separation was intended from the context in which the amendment was enacted and from statements and correspondence by the Founding Fathers.  In reply to an 1801 letter from the Danbury Baptist Association in Connecticut , Thomas Jefferson wrote on January 1, 1802 :

Religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative 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.[10]

            Jefferson ’s “wall of separation” metaphor was specifically accepted as the constitutional standard by the United States Supreme Court in 1947 in the case of Everson v. Board of Education.  In that case the court held:  “The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.”  Most importantly, the Supreme Court in this case held that Establishment Clause of the First Amendment applied to individual states by virtue of the due process clause of the Fourteenth Amendment.

            It is an unfortunate fact, that there are today some well publicized voices among a few key evangelical leaders, Baptist leaders and pastors that have turned their back on religious liberty and the principle of separation of church and state.[11]  In criticizing the Supreme Court’s Everson v. Board of Education decision, for example, the authors at Christian Law Organization argue “It is this Supreme Court case that stands in the way of individual states passing legislation that favors religion.  The Everson decision is a clear departure from the view of the Founding Fathers.  The First Amendment was not intended to stop the states from establishing a church or favoring a particular religion.”[12]  Apparently the Christians that operate Christian Law. Org would like to see individual states enact laws favoring religion – presumably their own version of protestant Christian religion. 

            Someone not familiar with Baptist history might be inclined to think that all or most Baptists are against separation of church and state.  But that is not the case.  To quote from a pamphlet of the Baptist Joint Committee on Public Affairs, “Interestingly, it is on issues of religious liberty that Baptists of America still cooperate more than they do on any other issue.  It has been an ecumenical force for Baptist life for most of Baptist history.  Their denominational cooperation in lobbying on behalf of religious liberty and separation of church and state has made them more committed to the concepts for which they lobbied.”[13]

            Yet there is most certainly more than one outspoken Baptist critical of the notion of separation of church and state. Jerry Falwell, for example, whose church is a member of the Southern Baptist Convention, has this to say about the First Amendment and the separation of church and state:

Modern U.S. Supreme Courts have raped the Constitution and raped the Christian faith and raped the churches by misinterpreting what the founders had in mind in the First Amendment of the Constitution…. [W]e must fight against those radical minorities who are trying to remove God from our textbooks, Christ from our nation.  We must never allow our children to forget that this is a Christian nation.  We must take back what is rightfully ours.”[14]

Falwell is also quoted as saying: 

Separation of Church and State has long been the battle cry of civil libertarians wishing to purge our glorious Christian heritage from our nation’s history.  Of course, the term never once appears in our Constitution and is a modern fabrication of discrimination.[15]

TV Evangelist and one-time presidential candidate, Pat Robertson is perhaps the most vocal in his disdain for the concept of separation of church and state.  Among his statements are the following:

There is nothing in the U.S. Constitution that sanctifies the separation of church and state.[16]

It’s amazing that the Constitution of the United States says nothing about the separation of church and state.  That phrase does appear, however, in the Soviet Constitution, which says the sate shall be separate from the church and church from the school.  People in the educational establishment, and in our judicial establishment, have attempted to impose Soviet strictures on the United States , and have done so successfully, even though they are not part of our Constitution.[17]

The above statements were made by Pat Robertson in 1996.  In each year since then he has been quoted making equally astounding remarks.  In 2002 he stated:

We have had a distortion imposed on us over the past few years by left-wingers who have fastened themselves into the court system.  And we have had a lie foisted on us that there is something embedded in the Constitution called separation of church and state.[18]

James Dobson, another well-known speaker, writer, counselor and evangelist, has spoken out against the belief that the concept of separation of church and faith is to be found in the Constitution.  He is quoted as saying: “Again, the phantom ‘separation of church and state’ clause was cited as the justification” for the courts striking down school voucher laws.[19]

            James Kennedy, another well-known evangelist has weighed in against the separation of church and state as follows:

If we are committed and involved in taking back the nation for Christian moral values, and if we are willing to risk the scorn of the secular medial and the bureaucracy that stand against us, there is no doubt we can witness the dismantling of not just the Berlin Wall but the even more diabolical ‘wall of separation’ that has led to increasing secularization, godlessness, immorality, and corruption in our country.[20]

            The Southern Baptist Convention has broken with and removed their financial support for the Baptist Joint Committee on Public Affairs which actively supports the separation of church and state. Increasingly, Southern Baptists are siding with those who want to tear down the wall of separation.   Many Southern Baptists now are seeking government support for school prayers, faith-based grants to religious organizations, and government funding for church-run schools.  They view separation of church and state to be bad for the country and adverse to religion.

            A Baptist scholar, Barry Hankins, assistant professor of history and church-state studies at Baylor University , recently conducted interviews of Southern Baptist leaders to assess where they stood on the issue of separation of church and state – and why.  He found that conservative Baptists “are driven by a perception of culture that changes the entire landscape.  This is the perception that the United States today is hostile toward and expression of religion or faith…. Hunkered down in what they call a ‘culture war,’ conservatives today are willing to downplay concerns about the possible government establishment of religion in order to achieve the greater good of ensuring free exercise of religion.”[21]  Professor Hankins states that when questioned closely, conservative Southern Baptist leaders claim to adhere to historic Baptist beliefs on church-state separation.  But in practice, they espouse a different view.  He says, “On church-state issues, this perception of culture not only shapes their positions on religious liberty but also leads them to virtually disregard the danger of the establishment of religion.”[22]

            Perhaps the shift in the view of some Baptist who seek to tear down the wall of separation of church and state is partly a response and reaction to what appears to be outright hostility against religion by the media and much secular of secular teaching and discourse.  As stated in a joint publication of five religious organizations,[23] there is a view prevalent today that “sees religion and religious groups as having a minimal role in – perhaps even being barred from – the vital public discourses we carry on as a democracy.  It sees involvement in the democratic process by people of faith as violating the principle of church-state separation.  It regards religious arguments as naïve and seeks to embarrass any who profess religious motivation for their public positions on political issues.  This view denies our country the powerful moral guidance of our religious heritage….”[24]

            But it is equally wrong to argue that America is a Christian or Judeo-Christian nation.  “This view wrongly suggests that the Founders never meant to separate the institutions of church and state or to prohibit the establishment of religion.  Such a view is historically inaccurate and endangers our common welfare because it uses religion to divide rather than unite the American people.”[25] 

            At the time the U.S. Constitution was written, numerous colonies had established official religions and were actively persecuting members of other religions.  With the adoption of the Constitution and the Bill of Rights that immediately followed, the Founding Fathers made an affirmative decision to disestablish religion and specifically to protect the free exercise of religion.  Although the Founding Fathers may have been godly men, and many of them may have been Christians, they deemed it important that the United States not be nation favoring any religion – not even a general (non-denominational) Christian religion.  By specifically stating in the First Amendment that the government would enact no law respecting the establishment of religion, the Founding Fathers made it plain that the United States could not be called a Jewish nation, a Muslim Nation, and Hindu nation or a Christian nation.  It matters not what religions the Founding Fathers themselves may have had.  All that matters is that they did not impose their religions upon the nation.

            With the subsequent passage of the 14^th amendment it became clear that this disestablishment of religion and the newfound freedom of religion was also applicable to the individual states.  The two clauses of the first amendment ensure religious liberty through the separation of church and state.  The first sixteen words of the First Amendment state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

            As stated in A Shared Vision,[26] “The religious and ethic diversity of the United States makes the constitutional prohibition against laws respecting an establishment of religion more important than ever.  No one wants government taking sides against their religion in favor of someone else’s.  In matters of faith, government must not take sides at all.”  The combination of Article VI of the Constitution prohibiting religious tests for public office and the prohibition provided by the Establishment Clause against laws “respecting” an establishment of religion can only be read as demonstrating an intent by the Founding Fathers that the government remain neutral when it comes to matters of religion.  “The separation of church and state requires that government refrain from promoting or inhibiting religion.  Neutrality – by which religion is accommodated but never advocated by the state – should be the touchstone for interpreting both religion clauses…. No faith can ever be prohibited, penalized or declared heretical by the government.  All must be equally secure, minority as well as majority.”[27]

            The Baptist position favoring separation of church and state continues in the form of a dissenting opinion in England today, as that nation has long had an official state church – the Anglican Church, or Church of England.  The Baptist Union of Great Britain in a statement published in 2003 states, “There needs to be a rightful separation of Church and state.”  Further, the statement makes clear Baptist opposition to government funding of church run schools.

In 1902 The Education Act granted public funding to Anglican schools.  Nonconformists joined together in a campaign of resistance, expressing the view that Christ has not owned one exclusive conception of the Church, and so to privilege one over another was unjust.  While many of the causes of discrimination against nonconformists have been slowly removed over time, Baptists would want to go on insisting that no Church or faith community should be favored by the state.

            An example of the historic views of Baptists in America favoring the separation of church and state is seen in a famous 1949 sermon by William Ward Ayer.[28]  He preached:

What then in principle is this separation of church and state?  Primarily it is this:  A recognition that in church and state you have two different organizations dedicated to different purposes of the Gospel and the developing of the religious life of the people.  The state is an organization dedicated to the political and governmental life of the nation.  These two institutions cannot be intertwined nor yet interchanged.  Jesus said, ‘Render unto Caesar (government) the things that are Caesar’s (governmental), and unto God (religion) the things that are God’s (our religious obligations).’  Because of this principle, elected officials, representatives of the people, must not take their official religion and make it a part of their Political office.  They have a right, of course to their private religion, but it must be privately exercised.

            The American Baptist Convention, in 1983, issued an official resolution of the Convention on the separation of church and state.  It reads as follows:

We proclaim that separation of church and state is central to our American heritage; that it has made possible a measure of freedom not previously achieved under any other system; that it is indispensable to our national policy of equal rights for all religious and special privileges for no religion. 

Church and state are separate not only in their functions, but also in the source of their financing.  Government being under public control is properly financed by taxation.  Membership in religious institutions and organizations is voluntary, and therefore should be supported by voluntary contributions.  We believe that the use of tax money for support of religious groups is in opposition to the spirit and letter of the Constitution.

****

We object strenuously [  ] to any proposal that taxes or borrowing power be used to make grants or loans to sectarian or church-related schools.  We emphasize that the use of government finances in support of any sectarian purpose is a violation of basic religious liberties for it coerces citizens to support religious objectives which many of them cannot conscientiously approve.[29]

            The Southern Baptist Convention, too, has taken an official position in support of the separation of church and state.  In Baptist Faith and Message, the official document summarizing Southern Baptist beliefs,[30] the Convention states:

Church and state should be separate.  The state owes to every church protection and full freedom in the pursuit of its spiritual ends.  In providing for such freedom no ecclesiastical group or denomination should be favored by the state more than others. 

            Many Baptist teachers and pastors have been actively preaching on the importance of maintaining the separation of church and state.  James Dunn, visiting professor of Christianity and public policy at Wake Forest Divinity School says: “I personally and passionately believe that Baptist Christians are an identifiable breed.  One of our marks is separation of church and state.”  He adds, “True, separation of church and state does not define Baptist theology, but it is a logical, inextricable corollary of religious liberty as we know it.  It is the plug which, if pulled out of our machine, the motor dies.  We go no more.”  Finally, he states: “Anyone who claims a devotion to religious liberty but questions the validity of church-state separation may be a devout Christian, but that person is not an authentic Baptist.  If you dismiss the separation of church and state as some irrelevant optional teaching, I can say you are not a Baptist.”[31]

            Many other examples of Baptists speaking out on separation of church are found in sermons being preached in Baptist churches throughout the United States .  Thomas R. McKibbens, Senior Pastor of First Baptist Church in Newton Centre, Massachusetts , for example writes:

Some Baptists have a hard time with the notion that our nation was not founded as a “Christian nation.”  True, there were many Christians among the founders, but it was clearly founded on ideal of liberty for all religions, whether Christian or not….  The people called Baptists have played a major role in this issue from the beginning…. Why? Because they knew what it was like for the state to favor one form of religion.  They knew that the best way to kill vital religion was for the state to prop it up….

This nation has the strongest, most vital religious intuitions in the world.  While it has the most religious freedom, it has the least religious conflict, the largest number of people in church/synagogue/temple/mosque every week, the highest percentage of voluntary religious participants, the most missionaries and people-helpers sent out to other countries, and the best record of giving for religious causes of any nation on the face of the earth!  This is what happens when a nation takes seriously what Roger Williams called “the lively experiment.”  It works!  The First Amendment is not broken-it doesn’t need fixing.  This has been a Baptist passion.[32] 

Ten Commandments

            Is it appropriate for a branch of the federal or state governments to install a large display of the Ten Commandments in court houses or other government buildings, as was done by the Chief judge of the Alabama Supreme Court?  The First Commandment carved into the rock is “I am the Lord your God.  Thou shalt have no other gods before me.”   Although the Ten Commandments contain sound moral principles concerning man’s relationship to fellow man on such matters as murder, stealing, adultery, coveting, and bearing false witness, they also contain commands specifically concerning man’s relationship with God – and not just any god—but Jehovah God, the god of the Jews and the Christians. The command to honor the Sabbath, likewise, is not one that has any meaning to people other than those who are Jewish or Christian.  How then can one argue that the Ten Commandments are not particular to any one religion and that placing them in a public building by an official act of government officials does not “respect” one religion over another?

            Writing for the Baptist Joint Committee on Public Affairs, Executive Director, J. Brent Walker, states that the debate that led to the Ten Commandments being moved is not about whether the Commandments teach sound theology or wholesome ethics but rather, “the question is who is the right teacher – the government or the families, churches and synagogues?  I can thing of few things more desirable than for people to read and obey the Ten Commandments.  I can think of little worse than for government officials to tell citizens to do so.”[33]

            Mr. Walker says “The Ten Commandments display in Alabama   clearly violates the First Amendment’s Establishment Clause.  But important theological and practical reasons should convince people of faith to object to government getting involved in displaying, and thereby endorsing holy writ.”  For one thing, he says, “It puts government officials in the role of secular high priests deciding which rendition of the Ten Commandments will be enshrined as orthodox.  Which one, Exodus 20 or Deuteronomy 5?  Which version, Jewish, Catholic, or Protestant?”[34] He concludes, “For those who take the Ten Commandments seriously, let us write them on our hearts, as the prophet Jeremiah instructed, instead of displaying them in government courthouses.  Then we’ll be able to incarnate the love of God perfectly revealed in Jesus Christ, and make a real difference in our world.”[35] 

            A recent conversation I had with a Seventh Day Adventist gave me some useful insight into how some of us justify choosing one set of religious commandments over another to place into public buildings.  I asked what he thought of the Ten Commandments display in the Alabama courthouse.  He said he supported it. I then asked how he would feel if the display had been of the Roman Catholic version of the Ten Commandments instead of the Protestant version.  The Roman Catholic version omits the Second Commandment of the Protestant version and divides the 10^th commandment of the Protestant version into two separate commandments so as to have a full ten commandments.   His response was, “Well, that wouldn’t be right because theirs isn’t the correct version of the commandments. They changed them.” 

            Clearly, there is a lack of agreement between Christian denominations as to how to number the Ten Commandments and even what the precise wording should be for each of the Commandments.  I’m sure the Catholics likewise feel that the Protestant version isn’t quite right. After all, they had the Ten Commandments posted in their churches and literature for over a thousand years before the Protestants came along in the 1500’s with Martin Luther and interpreted them differently and “changed them.”  

            Thus, in choosing one faith’s version of the Ten Commandments over those of another faith, the Alabama judge took action “respecting” the establishment of one religion over another.  He chose Commandments that resemble the Jewish and Protestant versions more than they do the Catholic version.  One can surmise from this that he is not Catholic and that he would share the opinion of the woman I interviewed with respect to the Catholic version.” Theirs isn’t right.” After all, he’s a judge.  And in this case he judged religion and chose one over another – on behalf of the highest court in his state.  

            Ironically, the rendition of the Ten Commandments Alabama Court Chief Justice Judge Roy Moore carved onto the rock he placed in the courthouse should not be pleasing to any faith since there were a total of eleven commandments on his rock, apparently attempting a compromise between the Jewish and Protestant versions.  So, they are quite Jewish.  They aren’t quite Protestant.  They aren’t Catholic.  And let’s not forget that they are most certainly not Hindu or Buddhist commandments.  The “God” referred to in the Commandment, “Thou shalt have no other God before me” is most certainly understood by Jews and Christians to mean Jehovah God.  Justice Moore, as a Christian has made it abundantly clear that this is how he understands it and what he meant when he had the words carved.

            It is difficult to imagine, therefore, how he could possibly argue that the highest court of his state was not giving preference and “respecting the establishment” of religion that serves Jehovah God over Hindus and Buddhists who serve other gods.  Some might even question whether Jehovah of the Jews and Christians is the same God as Allah of the Muslims.  If not, then once again, posting the Ten Commandments in a government building is fostering and giving preference to Judeo-Christian religion over the religion of Islam. 

            Hypothetical for Contemplation.

            Perhaps a series of hypothetical scenarios might help the reader to better appreciate the issues and arguments presented in this paper.  Sometimes the best way to learn what we genuinely believe is to subject ourselves to a series of hypothetical situations to observe how we react.  With this in mind, please consider each hypothetical below and observe how you feel.

Hypothetical 1 -- Assume that you are a Christian resident of a community in Michigan that is predominantly Muslim and that a majority of the judges serving in the local courthouse are Muslim.  Assume further that the chief judge there decides to place a set of commandments derived from the Koran, the Muslim Holy Book, onto a large plaque and post it in the entry to the courthouse.  Assume further that the mayor is Muslim as are a majority of the town council and that they decide to post a similar Muslim plaque on the wall of the council chambers.  Finally, the principal of the school is Muslim and decides that these are sound moral principles for every girl and boy to study and to apply to their lives. So he posts a similar plaque in every class room. 

(1) As a Christian parent, how do you feel about your children seeing these Muslim plaques in the courthouses, official government offices, and schools? 

(2) If you oppose their placement into these buildings, what is the basis for your opposition? 

(3)  If you say you oppose them because America is a “Christian nation” are you suggesting that you believe the Judeo-Christian faiths are to be favored over the Muslim religion? And, if so, how does that square with the Constitution’s First Amendment prohibiting the government from favoring one religion over another?

            Hypothetical 2 -- Assume that you are a Christian living in an area of the United States with a majority population that is Muslim such as Dearborn , Michigan , or Buddhist, as are some areas in California .  The principle of the local public elementary school in the Muslim neighborhood decides that the kids need to be exposed to some good moral guidance.  Since the majority of students are Muslim, the principle selects verses containing commandments from the Koran, the Holy Book of Islam, for the new poster to be displayed in the entry way to the school.  How do you feel as a Christian having your children reading from the Koran each day?  Do you feel this might undermine your teaching of the Judeo-Christian Commandments, and give greater clout and credence to the Islamic faith since the principle has selected readings from the Koran as the commandments to be posted in the school? 

            Hypothetical 3 -- What if the local School Board passed an ordinance in this same town requiring that each school post a set of commandments from that Holy Book that is used by the majority of students in the school?  The principle of each school will be asked to take a survey of the students to determine what religion their family subscribes to and will then be required to go along with the majority as to which Holy Book readings will be posted.  Since the will of the majority (which turns out to be Muslim) has been respected, are you satisfied that you and your religion have been treated fairly and that you will not object to your child reciting Scripture from the Koran?

            Hypothetical  4 –. A state law in your state has been enacted to allow each school district to set aside time during the first class of the morning, for teachers to provide an opportunity for someone from the class to volunteer to lead prayer, and lead spiritual readings.  The majority population in your town is Buddhist, and over 80 percent of the students in your local elementary school are Buddhists.  The elementary school principle decides that since the majority of students are Buddhists, each morning during class time, a Buddhist student volunteer will present a reading from the writings of Buddha and will then lead a time of Buddhist contemplation and meditation. Christian students are welcomed to participate.  But, if they prefer, they may sit quietly during this period of time or may move their chairs to the hallway and wait until the Buddhist mediation is completed. 

            (1) How do you feel about this? 

            (2) Are you concerned that your child might be influenced by teachers that he or she respects or by the majority of students who are meditating with Buddhist teachings? 

            (3) Changing the hypothetical slightly, the principle does not select a student from the majority religion to lead the class but instead announces that he will treat all religions equally, and that responsibility for leading  prayer and readings will rotate daily to a different student, so that each student in class has an opportunity to be the leader.  Since 20 of the 30 students are Buddhists, your Christian child will be led in Buddhists teachings and meditations 20 out of 30 days, but will in turn have an opportunity to lead the class in Christian  readings and prayer.  How do you feel about this?

            (4)  You move to a new neighborhood in Michigan where most of the students in your local elementary school are Muslim.  Consider each of the above three hypotheticals, only this time your child will be reading from the Koran and praying to Allah when the Muslim children lead the class.  Does this affect your answers to any of the hypotheticals? 

            (5)  Could the readings from Buddha or the Koran and the mediations to Buddha and prayers to Allah in the classroom undermine your teaching of Christian beliefs in your home?  Are you comfortable with that?

An Actual Example

            Government support of religion may wildly backfire for Christians because in  reality we as a nation can never allow a minority religion to be harmed by government action.  Instead, the minority (and even cult religions) will be put on equal footing.  Moreover, they may be for the first time seen as religion with the seal of approval of the government -- and with their vast new federal financing under faith-based initiatives will be able to compete aggressively against the better funded mainline religions.  In fact, even the Wicca "religion" has already benefited from the new thinking.  A judge in Virginia recently ruled that since the Board of Supervisors of Chesterfield County invited Jews and Christians to lead prayer before a local county board meeting, the Wiccans were entitled to the same privilege and must be put on the agenda to lead prayer.  As explained by the Judge who wrote the decision in the case, “[I]f the government establishes a forum to which it invites a class of speakers for a specific purpose, it cannot exclude some class members because of a difference in viewpoint…. Here, [Simpson] is a representative of an acknowledged, albeit minority religion.  Nevertheless, she stood prepared to offer an invocation consistent with the only guidelines government could constitutionally command under the circumstances.  She was presumptively excluded because of a stated governmental preference for a different set of religious beliefs and viewpoint, albeit the beliefs of a larger segment – if not the majority – of the population.  Such a policy of exclusion cannot survive constitutional scrutiny.”[36] 

            Some Christians argue that the hypotheticals presented above can never occur in real life because the United was founded as a Christian or Judeo-Christian nation and thus there is no basis for placing non Judeo-Christian religious monuments and commandments on properties, or for leading anything other than Judeo-Christian prayer and mediations in schools.  But that argument falls on its face since it clearly prefers one religion over another -- precisely what the First Amendment seeks to avoid.  Even if the First Amendment is interpreted narrowly, as some like to do, to argue that it only means that the government is not to impose a national religion, that interpretation is unworkable in our currently pluralistic society in which all religions need to have equal protection and equal freedom. 

            Unfortunately, a surprising number of people don’t seem to understand and appreciate that the Constitution is intended to treat all religions equally regardless of how weird the majority of the population might think those religions are.  Indeed, the Constitution is designed to protect the minority against the “tyranny of the majority.” For example, in response to the request by Ms. Simpson to the Chesterfield Board of Supervisors  to have her name added to the list of volunteers to lead prayer, the Chesterfield County Attorney wrote to her stating: “ Chesterfield ’s non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition.  Based upon our review of Wicca, it is neo-pagan and invokes polytheistic, pre-Christian deities.  Accordingly, we cannot honor your request to be included on the list of religious leaders that are invited to provide invocations at the meetings of the Board of Supervisors.”  In deciding against the county the court was no doubt influenced by the County Attorney’s letter which rather candidly admits that the government favors one divinity over another and one set of religious beliefs over another – exactly what the Virginia Constitution prohibits, and what the First Amendment to the U.S. Constitution, (as made applicable to the states by the Fourteenth Amendment) prohibits.[37]   

Pledge of Allegiance – “One Nation under God.”

            As the nation awaits a decision by the U.S. Supreme Court on the constitutionality of reciting in public schools our “pledge of allegiance” that includes the words “under God.”  The issue on appeal is not whether it is acceptable under the Constitution to include the words “under God” in the pledge, but whether it is Constitutionally acceptable to recite the pledge with those words in public schools.  If the Court gets beyond procedural issues that may justify dismissing the case without a decision on the merits, the substantive question the Court will decide is whether it is constitutional for public school teachers to lead the pledge.

            Ninth Circuit Court of Appeals judge Alfred Goodwin, wrote an opinion accompanying that Court’s most recent ruling on the case, stating: “The pledge to a nation ‘under God,’ with its imprimatur of governmental sanction, provides the message to Newdow’s young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father’s beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom.”

            In commenting on the pledge of allegiance, Richard Land, president of the Southern Baptist and Religious Liberty Commission, called the 9^th Circuit Court’s decision “outrageous even for the looniest of all the federal appeals courts in the land.”[38] 

            In stark contrast to that Southern Baptist view, J. Brent Walker, Executive Director of the Baptist Joint Committee on Public Affairs, states that although ceremonial deism may be legal, it isn’t necessarily advisable for Christians to advocate.  If the Supreme Court gets beyond procedural issues that may justify dismissing the case without a decision on the merits, Christians (including Baptists) are clearly divided in how they feel about the issue. Mr. Walker says, “The vitality of religion in America is diminished by blurring the allegiance to government with our ultimate allegiance to God.  Are we any more religious today than we were before ‘under God’ was put into the pledge in 1954?  I’m not sure.  But if we are, it has more to do with a commitment to full-orbed religious liberty than with the mere repetition of God’s name in our pledge of patriotism.”[39] 

            As stated by Barry W. Lynn, Executive Director of Americans United for Separation of Church and State, the pledge of allegiance case “gives the Supreme Court an opportunity to remind all Americans of the importance of freedom of conscience….”  He says, “No one should feel coerced to take part in a religious exercise to express patriotism.  A country founded on religious freedom should not be afraid to recognize that love of God and love of country are not the same for some people.  Requiring a daily religious loyalty test for school children is simply wrong.”[40]

            Mr. Lynn also makes the point that the Pledge of Allegiance as it was originally written by a Baptist minister in 1892 was secular and did not include the words “under God.”  Those words were only added in 1954 as part of America ’s response to communism.  This was at the end of the McCarthy era in which Joe McCarthy led Congress on a witch hunt against American citizens accusing them, without due process, of being communists.  After McCarthy was disgraced, and the embarrassing era of McCarthyism was drawing to an ignoble end, Congress apparently decided that one way to require Americans to prove that they are not communists, and that they are loyal to the country was to add allegiance to God to one’s allegiance to the nation.  So the last breath of McCarthyism was to stick us with a revised pledge of allegiance forcing every citizen to acknowledge God if they were to acknowledge allegiance to the United States . 

            As we all know, there has been many a soldier that did not believe in God but willingly died fighting for the United States .  Faith in God has not proven to be a prerequisite for having allegiance to the nation.  What are we doing to the conscience of  a soldier or any other citizen that does not believe in God when we require him or her to recite a pledge of allegiance acknowledging “under God” whom the McCarthy era writers of that clause intended to be the God of Jews and Christians?  Do we really think we are serving this Jehovah God when we require those who are Hindus, Buddhists, polytheists, deists, Wiccans, or other religions to falsely profess a belief in Jehovah God in order to pledge allegiance to their country which they genuinely love? What happened to the idea of soul freedom, and freedom of conscience, that has been so important to Baptists historically?  

            Hypotheticals for Contemplation.

            Hypothetical 1 – Congress appoints an advisory committee to revise the Pledge of Allegiance to make it more politically correct and acceptable to people of all religions including those who have subscribe to no religion.  The people on this advisory committee are carefully selected from virtually every special interest group and religious group.  Following the recommendations, Congress enacts legislation adopting a new Pledge of Allegiance.  It reads: “I pledge allegiance to America , one nation under the influence of unknowable, impersonal, higher powers, indivisible, with liberty and justice for all.”   Perhaps the reference to this unknown higher power is to the God worshipped in the fictional Church of the Enigma, imagined by Tim LaHay and Jerry Jenkins in their Left Behind series of books. 

            (1) You desire to pledge your allegiance to the country which you still love despite the fact you feel godless people are taking over, but can you reconcile saying the Pledge when it includes acknowledgement to some higher power that is “unknowable and impersonal” if you believe in a God that is so personal that you are confident that he sent his only son, Jesus Christ, to be your personal savior and establish you into such a personal relationship with God that He becomes “knowable” to you?

            (2)  The new pledge is to led by every teacher in every public school each day.  How do you feel about your child saying it?

            (3)  The new pledge will not be officially led by school teachers, but will instead be led by any student volunteer who may choose to lead it.  Does this resolve any qualms that you may have?

            (4)  A law is passed requiring all citizens to recite the pledge at their polling place before voting and at the induction center before enlisting in the military.  It is widely assumed that this new law is to help weed out terrorists who have such a strong (widely thought to be fanatical) faith in a single, monotheistic God that they could not possibly recite a pledge that acknowledge higher unknown  powers (plural).  How do you feel about this?

Faith-Based Grants

            President Bush has been advocating Faith-Based Grants to expand the “charitable choice” programs that were first made a part of the Welfare Reform Act of 1996.  When the president did not succeed in getting Congress to approve legislation that he wanted for this purpose, he issued, in December of 2002, an Executive Order expanding the ability of federal agencies to provide funding to religious organizations such as  churches and mosques that provide social services.  Executive Orders concerning programs such as federal grants can be issued directly by the President without concurrence of Congress.

            There is a major difference between what is permissible under this Executive Order and what has previously been done in the way of federal funding for social services provided by religious organizations. Prior to the “charitable choice” programs, the government only contracted with organizations such as hospitals and charities that have religious ties if the services to be provided did not include religious content as part of the services.

            Under the Executive Order funding will be permitted to religiously based groups provided even if their religious work is intertwined with their social work, provided that certain conditions are met.  One condition is that there be written assurances from the organization receiving the federal funds that no federal funds will be spent on “inherently religious” activities.  Guidelines issued by the Administration states that “a faith-based organization should take steps to ensure that its inherently religious activities, such as religious worship, instruction or proselytization, are separate – in time or location – from the government-funded services that it offers.” 

            As with any federal grant program, the recipients of faith-based grant funds are advised by the guidelines that they must also be prepared according to the Guidelines to be audited and to account for how the grant funds were expended, proving with documentation, for example, that the funds were used only for those non “inherently religious” purposes approved by the grant agreement.

            According to an article by the Associated Baptist Press, a senior administration official said that monitoring of the grant funds would be done just as it is with any other government contracting or grant program. “I think they will monitor these programs the way we monitor programs today,” the official said.[41]

            So how does the government currently monitor other grant programs today?  I can tell you more about this than you want to know since I have been a federal grants law expert for 20 years.  For five years (1982-1986), I served in the Office of General Counsel of the U.S. Environmental Protection Agency, handling all kinds of legal matters related to EPA grants under the Clean Water Act, Asbestos in Schools Programs, Superfund program, and other programs.  During my time there I was a member (sort of an administrative law judge) on the Grant Appeals Board, responsible for deciding whether the recipients of EPA grants had to give money back to the Agency based on audit reports by the Inspector General’s Office and outside auditing firms hired by the Agency to audit grantees.  In the hundreds of decisions in which I was involved, grantees were required to refund to the EPA millions and millions of dollars in federal funds.  Much of this was due to lack of documentation to prove that the grantees (mostly cities and counties) had spent the money for eligible, allowable, and reasonable costs.

            After leaving EPA in 1986, I joined a law firm in Washington, D.C. where my practice has included representing EPA grantees who are trying to defend themselves against demands by the EPA to return federal grant money that was spent anywhere from ten to twenty years ago in building projects to clean up the environment.  The projects have been built, and they work fine.  The problem is that so much time went by before the projects were audited, and the rules and guidelines concerning the use and documentation of the funds has changed so many times, that few people at the EPA or the grantees know what was required and what documentation is needed.  The rule of thumb, however, is that the federal agency always wins unless the grantee can prove that it met all the requirements of the grant and can prove with written documentation satisfactory to the agency that the funds were spent consistent with all the requirements of the grant agreement.

            It might seem that the government should have the burden of proof if they want to recover money from a grantee based on accusations of grantee mismanagement or use of funds for ineligible or unallowable cost, or uses of funds for commingled purposes that cannot be specifically allocated to the grant purposes.  But that is not the case.  The burden is on the grantee.  I have often argued that this is the equivalent of requiring someone to “prove a negative” -- to prove, for example, that he doesn’t do some evil thing.  In criminal law, the government must always prove that a defendant did something against the law.  If the government doesn’t meet its burden of proof in a criminal case, the defendant wins even if he never takes the stand and never offers any evidence at all.  In stark contrast, however, in the Administrative Law involving federal grants, the burden is on the grantee, and unless the grantee can affirmatively prove that it spent the money the way the government intended, meeting all the little details of the rules, the grantee loses, and must then give the money back to the government.

            What makes all of this even worse is that a grantee must justify its failure to meet the grant requirements by proving that it relied upon government representatives who advised them concerning the expenditures as they were being made.  I have many cases in which cities that were grant recipients of wastewater treatment construction grants discussed in detail with the responsible federal government personnel the cities’  intention to execute change orders approving extra items and costs for contractors needed to complete the project.  Although the federal officials reviewed and approved the costs as they were expended, when the project was audited by audit teams many years later, the EPA came back and said essentially, “Gee we’re sorry.  Our auditors have told us we shouldn’t have approved those costs.  We’re sorry we told you it was OK to spend the money that way.  We were wrong, but that doesn’t excuse you from following the requirements.  You will have to pay the money back to the government.”  This has been frustrating for grantees and their attorneys.  But all arguments for fairness have generally failed. The government is not required to be fair, particularly in the context of federal grants, where the principle of equitable estoppel does not apply to prevent the government from changing its mind.

            What does all this mean for faith-based grants to pervasively religious organizations?  If large city governments with all there in-house attorneys and outside special-counsel cannot manage their grants in a way to please EPA and other federal agencies, I cannot imagine how small faith-based organizations with no experience managing federal grants, will possibly survive the federal audit process. 

            If the Government demands a repayment of grant funds that the faith-based organization has long since spent, and that organization does not have the funds to pay it back, the government could very well take all the assets, including the property belonging to the organization.  It is possible that the Government could take over church and religious properties all over the country.  To protect against such tragic loss,  any organization that is considering accepting federal grant money should create a separate non-profit entity to be legally responsible for managing the federal grant money and the grant program.  The money and the program should at no time be commingled with the basic church or religious organization.   This is fundamental, prudent risk management.  Failure to take these basic steps, in my opinion, would be so imprudent as to constitute negligence or even malfeasance on the part of the directors and trustees of the religious organization accepting the federal money.  

            Waiving cross-cutting federal requirements, including employment discrimination laws.

            One of the concerns with taking federal money is that it comes with strings attached.  As stated by Tony Campolo, a well-respected Baptist sociologist, author, and evangelist, “Whoever pays the fiddler, calls the tune.”[42]  As further quoted in Report from the Capital[43] Campolo said churches and religious charities that think it is a good idea to take government money are looking to the wrong place for their funding. “The people of God have the resources to do what needs to be done, and we don’t need to be looking to the government….  If churches take Government money, we will lose our prophetic edge. Separation of church and state is crucial if the church is going to influence the government.”

            In virtually all federal grant programs, the grant recipient is required to comply with myriad federal laws that are called “cross-cutting” meaning that they cut across all federal programs.  These requirements, would normally, among other things, require grantees to comply with the Civil Rights Act of 1964 protecting against employment discrimination based on race, color, religion, sex and national origin.  But for his faith-based initiative, however, President Bush has insisted that he intends that the grant recipients be relieved of the employment discrimination prohibitions.[44]  He proposes to accomplish this by enacting statutes or amending statutes one program at a time (e.g., Head Start), to lift the civil rights protections applicable to faith-based organizations receiving grants under the particular program or programs funded by the various laws creating grant programs.

Tax Dollars will help eccentric, fringe and non-mainstream religious organizations more than the major mainstream organizations.

            As a federal grant program, the government will be required to treat all qualifying organizations equally.  It will not be permissible to deny grant funding to an organization because the government believes that the religion of that particular organization is a fringe religion, cult religion, or even a pagan religion.  If it is a religious organization, it is entitled to the full protection of the U.S. Constitution that makes all religions equal in the eyes of Constitution.  Merely because a majority of citizens or government officials think the beliefs of a particular religion are repugnant is not just cause to treat that religious organization differently than those whose beliefs are more widely accepted.

            Already, it is apparent that the Bush Administration does not agree with this fundamental principle of Constitutional Law.  According to a December 2, 2003 press release by the Americans for Separation of Church and State, White House “Faith Czar” James Towey was asked during an “Ask the White House” question-and-answer session about the possibility of Pagan groups getting tax funding to provide services to the poor and needy.  His reply suggested that it was not likely that Pagan groups would seek or receive federal grant funds.  In a similar vein government officials in Chesterfield County , Virginia thought it appropriate to permit clergy from main-line religions to give prayers before county supervisor meetings and exclude a Wiccan (sometimes referred to as witch or earth/nature worshipper) from offering the prayer.  A magistrate of the United States Court ruled that by creating an open forum for members of the Christian clergy to give prayers before meetings, the supervisors could not constitutionally deny a Wiccan the same opportunity because of her Wicca beliefs. 

            A similar situation has occurred in at an Army base where soldiers who were Wiccan (male and female) argued that since the Army base provide meeting space for Christian groups it also had to provide a place for the Wiccans to hold their meetings – involving chanting, and dancing in the nude.  The Army agreed to the request.  If the issue had gone to court it is likely the court would have ruled in favor of the Wiccans.  What does this have to do with federal grants to Wiccans?  The same constitutional principles that guarantee Wiccans equal rights with Christians to pray at public meetings or to meet in public buildings will likewise be applied by the courts to federal grant applications.

            The government simply will not be able to deny grants to any religious organization – regardless of how weird their beliefs may seem to the government officials. This could have the affect of giving the non-traditional religions greater financial backing to win support for their programs, and ultimately their beliefs.  Christians will see their tax dollars being used by Pagans and cult religions to foster beliefs that are contrary to Christian beliefs.  Until now government leaders have recognized that under the U.S. Constitution, no American may be forced (through payment of their tax dollars or otherwise) to contribute to religious organizations.

Conclusion

            For the reasons explained in this paper, Christians (particularly Baptists and Bible Church members) should stand firmly for the separation of church and state.  Christians and Christian organizations should not seek federal funding for their pervasively religious organizations to provide social services and they should not seek federal funding for their schools.  State support comes with many strings attached.  Even if current officials of this Presidential Administration issue guidelines waiving various requirements that have been routinely required of all federal grantees, there is nothing to stop a future President or Congress from changing the rules mid-stream, requiring, for example, the hiring of individuals that have beliefs and life styles inconsistent with those of the religious organization.  They may also add new documentation requirements and proof of a distinct separation between religious and social service aspects of the organization.

            Religious organizations that have become dependent on the federal handout may find it tempting to succumb to the new federal requirements rather than forfeit they money needed to pay mortgages, pay employees and pay off operating expenses.  Other organizations may simply take the money and fail to adhere to the new, more stringent rules of the next Administration.  They may be ordered to repay the government thousands, perhaps hundreds of thousands of dollars, pursuant to government audit reports finding violations of the federal requirements.  And they may be shocked to find no mercy from the government when they can’t find enough money to repay their grants.  They could very well find their buildings pad-locked by the government and sold to the highest bidder or taken over for government purposes.  Those who would cheer as the wall of separation of church and state is torn down may soon regret their rash actions.

            This paper is written with the firm conviction that America and the Christian faith are best served by maintaining a strong, high wall separating church and state.  This wall gives equal protection to all people to exercise their free will to exercise (or not exercise) religion as their conscience may dictate.  This wall also protects religion from interference of government that might otherwise cause one or more religions to become unduly influenced and beholden to the government by virtue to government actions and tax dollars being used initially to their benefit but ultimately to their demise.  One of our Nation’s great believers in religious freedom, Benjamin Franklin, wisely said, “When a religion is good, I conceive it will support itself; and when it does not support itself, and God does not take care to support it so that its professors are obliged to call for help of the civil power, ‘tis a sign, I apprehend, of its being a bad one.”[45]  Stated plainly, those today who believe that there religion is blessed by God should look to God and not the Government for their sole support. 

            Author’s Note:  Some who read this paper might jump to the conclusion that the writer, Kent Holland, is an atheist, a member of a non-Christian religion, or otherwise opposed to religion.  That is not the case.  He belongs to Southern Baptist Church, has served as a Sunday School teacher and men’s small group leader.  He is working toward a Master of Divinity degree at the John Leland Theological Seminary in Arlington , Virginia ,  and he is a Christian author.  His book, The Winning Way: A Spiritual Journey to a Life of Success and Significance, describing his own life-transforming spiritual experience (available at Amazon.com) attests to his faith as a “born again” Christian.

More about the Author:

            J. Kent Holland, Jr., is a nationally known construction and environmental lawyer.  He has served as Director of Risk Management Services for the Environmental and Design Professional Units of two major insurance companies formerly served as an attorney in the Office of General Counsel of the U.S. Environmental Protection Agency, with responsibility for assisting the Agency in legal and regulatory issues concerning the Superfund program. Mr. Holland is a frequent speaker on the subjects of environmental law and construction law, and has written extensively --  including his most recent 300 page book, Construction Law & Risk Management - Case Notes and Articles.   He is also a guest speaker for churches and Christian organizations and teaches a course entitled Working on Purpose, designed to help people find their purpose, set goals consistent with their purpose, and manage their time and energy appropriately to achieve their goals.  He   welcomes your comments to be directed to Kent@KentHolland.com.