Lawsuits over violations of the separation of church and state rely on arguing that these are violations of people's constitutional rights. This means that confusing people with myths about what the Constitution really says and means is an important tool for those who want to undermine church/state separation and secularism in favor of some sort of theocratic order. Americans need to understand what the Constitution guarantees and why church/state separation is important for them. We can only defend our constitutional rights if we understand our constitutional rights.
That is true, the phrase "separation of church and state" does not actually appear anywhere in the Constitution. There is a problem, however, in that some people draw incorrect conclusions from this fact. The absence of this phrase does not mean that it is an invalid concept or that it cannot be used as a legal or judicial principle.
American courts treat accused criminals as innocent until proven guilty; this ensures that they are accorded all the rights they are due. There is nothing in the Constitution about a right to be treated innocent until proven guilty, though. The concept comes from English common law, and several parts of the Constitution, such as the right to remain silent and the right to a jury trial, only make sense in light of a presumption of innocence; without this presumption, what’s the point?
Opponents of church/state separation sometimes claim that the Constitution embodies or reflects fundamental Christian morals and principles. Their point seems to be that we should regard the Constitution as a Christian document, not as a secular document. Since the Constitution is the foundation of the American government, the implication is that American government is Christian in nature, not secular, and so it's only right if Christian beliefs are promoted by the state. Is any of this true?
Accommodationists and others opposed to the separation of church and state sometimes argue that government support and defense of Christianity is justified because the American Constitution refers to Christianity: in Article VII, the Constitution is dated with the words "the Year of our Lord one thousand seven hundred and Eighty seven." What relevance does this point have for the debate over religious liberty? Absolutely none. This was simply the dating convention, not an ideological statement.
Article I, section 7 of the Constitution is the "
Sundays Excepted Clause" and is sometimes used by opponents of church/state separation to argue that the Constitution was designed to reinforce Christianity. The Sundays Excepted Clause states: "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he had signed it." Similar wording can be found in many state constitutions.
This myth relies on one of two misunderstandings. The first is that the First Amendment guarantee of religious liberty is only about preventing the government from setting up some particular church to which all must belong. The second is that the First Amendment does not prohibit “multiple establishments” — showing equal preference for many different religions or denominations.
Many opponents of church/state separation try to defend actions by state and local governments that promote or endorse religion by arguing that the First Amendment doesn't apply to them. These accommodations and theocrats insist that the First Amendment only applies to the Federal Government and therefore all other levels of government are unrestrained, able to mix with religious institutions as much as they wish. This argument is awful in both its logic and its consequences.
One tactic used by opponents of church/state separation is to discredit the origin of the phrase "wall of separation," as if that would be very relevant to the importance and value of the principle itself. Roger Williams was probably the first to articulate this principle in America, but the idea is forever associated with Thomas Jefferson because of his use of the phrase "wall of separation" in his famous letter to the Danbury Baptist Association. Just how important was that letter, anyway?
