Backing Away from the Wall

It is an article of faith on the left that a "Wall" separating church and state justifies hounding religion out of the public square. But the federal courts have been backing away from that metaphor.

March 11, 2010 may go down as another politically historic day. On that date, the 9th Circuit Court of Appeals in San Francisco voted in a 2-1 decision that the phrase "under God" in the Pledge of Allegiance is constitutional.  This surprising verdict from the most overturned federal appeals courts in the nation must have come as a shock to Michael Newdow, who had previously won and then lost this argument before on the technical grounds of standing.

Newdow considered it American political bedrock that, as Thomas Jefferson had written to Danbury Baptists in 1802, the Constitution erected "a wall separating church and state." Such an edifice meant that he could remove the pledge from the public school classrooms for much of America.

In 1878, the U.S. Supreme Court for the first time made reference to this infamous metaphor when it defended its refusal to allow Mormons the free exercise of religion to practice polygamy in the Utah territories. In the Court's view, such a change in the religious establishment of marriage would have breached the wall protecting, among other things, the view that marriage is between one man and one woman. It was not, however, until 1947, in the Everson case, that the Supreme Court again used the metaphor of a wall separating church and state. Justice Hugo Black's vivid description of how a wall separating church and state "protects society from the dangerous excesses of religious communities" became the legal boilerplate that Newdow and so many other anti-religious advocates remain enamored of to this day. Though the 5-4 decision allowed the busing of Catholic students by the public school system, the rhetoric of Black captured the modern imagination in suggesting that the First Amendment religion clauses are supposed to "protect" the general public from the excesses of religion. 

Over the course of more than a dozen decisions, Justice Black etched into American jurisprudence a decidedly anti-religious view of the First Amendment religion clauses. He authored the majority opinion in Engel v. Vitale that outlawed prayers led by public school officials which remains one of the Court's most controversial pronouncements. For almost 25 years, until his retirement in 1997,  Black created and supported the distinctive view that the religion clauses constitute a barrier to religion in the public life of America. 

By the 1980s, justices such as Antonin Scalia were complaining that the erratic application of the "impregnable wall" concept was more akin to a "bulldozer" -- moving religion out of America's public life. The Supreme Court was almost immediately upon Black's retirement trying to take his ardent defense of the metaphor into retirement as well by adopting more mitigated views of church and state -- such as the famous Lemon Test. Despite the Court's increasing rejection of the metaphor -- with the notable exception of Justice John Paul Stevens -- advocacy groups such as "Americans United for Separation of Church and State" have made their political fortunes on the premise that such a metaphor is the best possible interpretation of the religion clauses.

For the reactionary left, the wall separating church and state is among the most visceral metaphors that anchors the movement. In the 1990s, I can recall graduate students assuring me in my lectures that the wall separating church and state was not really a metaphor, but the actual text of the Constitution. That peculiar intensity of literalization was an indicator of how powerful these advocacy groups were in impressing journalists, politicians, and the public as to what our constitutional rights are regarding religious liberty within the controlling metaphor of a wall. 

Much like the stunning Senate results in Massachusetts, the 9th Circuit decision from San Francisco about "under God" in the U.S. Pledge is a cultural shock to the reactionary left encountering the social limits of their agenda. 

The nation is not prepared to accept the secularization of American life or an insidious ethic whereby atheists simply insinuate an insult in every public utterance of religion so they can erase religious practice from the social landscape. Such a practice has more in common with the French Revolution than it does with the American political experiment. It does seem that the Wall is finally coming down. Even the 9th Circuit seems to have finally gotten the memo that the era of separation is over and the restoration of religious liberty can proceed in the United States of America -- one nation under God, indivisible, with liberty and justice for all.

Dr. Ben Voth is a professor of communication specializing in rhetoric and argument at Southern Methodist University.
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