The Wall (and the Atheists of Palisades Park)

"All in all it's just another brick in the wall." – Pink Floyd

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The topic refers, of course, to the "wall of separation between church and state" – not to the Pink Floyd song. It is a term coined by Thomas Jefferson and so widely circulated by Establishment Clause "absolutists" the average American erroneously assumes it appears somewhere in the Constitution or some other founding document.

I make this the topic of my first commentary piece for the Becker Law Firm's Freedom X project because it is one of those "big idea" statements atheists cling to – along with "war is not the answer" and "coexist" – in order to justify removing religious expression from publicly-owned property, including public parks. Indeed, it was the message of one of the signs atheists displayed to protest Nativity displays in Palisades Park in Santa Monica, California (read about the lawsuit here).

I am not going to belabor the history of Jefferson's phrase or why atheists have misunderstood it. Daniel L. Dreisbach has already written the definitive account in Thomas Jefferson and the Wall of Separation between Church and State. My purpose here is to describe what the courts have to say about it. The next time you see or hear someone proclaim the existence of a "wall of separation between church and state," feel free to answer them with these quotes from the U.S. Supreme Court and 9th Circuit Court of Appeals.

• "The Establishment Clause prevents the government from treating religious speech more favorably than nonreligious speech. But both the Establishment and Free Speech Clauses prevent the government from treating religious speech less favorably."[1]
• Indeed, it is well-established that "private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression."[2]
• "Religious speakers have the same right of access to public forums as others."[3]

The "wall" is a metaphor. It has no intrinsic legal significance. As Judge Benjamin N. Cardozo wrote: "Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it."[4]

Rights are often taken away not in a single act of legislation but over time through the accretion of wrongly decided court precedents. As I write about here, when U.S. Supreme Court Chief Justice Morrison Remick Waite composed his analysis of the Establishment Clause in Reynolds v. United States, 98 U.S. 145 (1878), he relied on Jefferson's letter to the Danbury (Connecticut) Baptist Association and its reference to the metaphorical wall. Strange that he would examine the Establishment Clause at all since it was not in issue in the case, which centered on an issue concerning the Free Exercise Clause of the First Amendment (the constitutionality of polygamy).

As Justice Waite even observed, Jefferson was not even in the country when the language of the First Amendment was finalized and adopted. It was James Madison's language that we venerate today.

When Justice Hugo Black lifted the Reynolds analysis 67 years later in Everson v. Board of Education (1945), he resisted the urge to contrast Jefferson's metaphor with the views of other founding fathers and accepted it as an uncontested idea. Black's adoption of Jefferson's metaphor was demagoguery based on an absolutist ideological viewpoint that is not supported by any historical record. (For an excellent elucidation of the problem of the metaphor, turn to former Chief Justice William Rehnquist's dissent in Wallace v. Jaffree, 472 U.S. 38, 91 (1985)).

The "wall" metaphor, nevertheless, is waved like Holy Scripture by sanctimonious pseudo-constitutionalists every time they want to drive Christians out of the public square. Each case decided their way redounds to the detriment of religious speech and amounts to an erosion of First Amendment vitality. Atheists have been building their wall for decades one brick at a time. Eventually, that wall will completely divide Americans from each other. We see evidence of it today in our Balkanized relationships with people who do not share our views.The atheists of Palisades Park managed to add one more brick to the wall that divides us.

The Establishment Clause of the First Amendment was never intended to divide us. It was never intended to partition believers from non-believers. Its purpose was to promote democracy and to make it plain that America is not a theocracy. My message to the atheists of Palisades Park is: Mr. Atheist, tear down this wall! If they get their way in Palisades Park permanently, all in all, it will be just another brick in the wall that divides, rather than unites, people of faith and people who ought to respect longstanding traditions enjoyed by most of the community.