<<It wasn't until 1947, when Hugo Black incorporated a phrase in a letter from
Thomas Jefferson (the infamous "wall of separation"--a phrase which is NOT in
our Constitution) into official First Amendment jurispriduence that the slide
into suppression of religious speech began.>>
And Justin Keller responded:
<<This makes it sound like an arbitrary decision by Black (who was a Sunday
school teacher in a Baptist church) to use the wall metaphor, which was
hardly the case. Black had been searching for Framers' Intent in his
opinion, and used the wall metaphor as a metaphor--to illustrate the
principle articulated in his opinion.>>
The question, though, is whether the metaphor is correct, and what it in fact
means. Chief Justice Burger, in the Lemon case (1971), criticized it thus: "We
must recognize that the line of separation, far from being a 'wall,' is a
blurred, indistinct and variable barrier depending on all the circumstances of
a particular relationship." This is probably closer to the truth.
I find most interesting Justice Douglas's take in all of this. In Zorach v.
Clauson (1952), a mere five years after Everson, Douglas (part of the Everson
majority), had this to say:
"The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously defines
the manner, the specific ways, in which there shall be no concert or union or
dependency one on the other. That is the common sense of the matter. Otherwise
the state and religion would be aliens to each other--hostile, suspicious, and
even unfriendly. Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire protection to
religious groups. Policemen who helped parishoners into their places of
worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me God" in our
courtroom oaths--these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the
First Amendment. A FASTIDIOUS ATHEIST OR AGNOSTIC COULD EVEN OBJECT TO THE
SUPPLICATION WITH WHICH THE COURT OPENS EACH SESSION: 'GOD SAVE THE UNITED
STATES AND THIS HONORABLE COURT." (Emphasis added).
Further on, Douglas states:
"We are a religious people whose institutions presuppose a Supreme
Being....When the state ENCOURAGES religious instruction or cooperates with
religious authorities by adjusting the schedule of public events to sectarian
needs, it FOLLOWS THE BEST OF OUR TRADITIONS. For it then respects the
religious nature of our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find in the Constitution
a requirement that government show a callous indifference to religious groups.
That would be preferring those who believe in no religion over those who do
believe." (Emphasis added).
We are a "relgious people whose institutions presuppose a Supreme Being,"
wrote Douglas. And the role of government is NOT "indifference," but
"encouragement" of certain religious activities. I think Douglas had it right
(Black, of course, dissented).
<<If proponents of intelligent design could come up with a theory with the
cohesiveness, systematicity, empirical grounding, and explanitory power
that evolution has, then I don't think, based on my reading of the Supreme
Court's decisions, that discussion of that theory could be kept out of
public schools. >>
In the regard, critiques of the theory, e.g. "Pandas" and "DOT," are
permissible (nay, necessary), IMO.
Jim