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Schools have a knee-jerk reaction to suppress anything that has to do with ‘God,’ ‘Christ’ or anything religious for that matter. In 2003, 8-year-old Johnathan Morgan in Plano, TX was banned from giving out candy canes to his classmates during a winter party because the package had a poem about Jesus attached to it. The Fifth Circuit Court of Appeals began listening to arguments last Monday and 17 judges will eventually decide if Plano Independent School District violated Jonathan Morgan’s First Amendment rights.

‘The Plano ISD policy does not allow individual dissemination of any information or media by students in the classroom,’ school district officials said in a statement. But lawyers with the Liberty Institute are seeking to prove the district only enforces their policy when Christian media is disseminated.

If the outcome of a recent case is any indication, maybe Jonathan Morgan has a decent shot at winning his case:

Renee Griffith, 2008 valedictorian of Butte High School was barred from speaking at her own graduation after she refused to change her references to ‘God’ and ‘Christ’ in her valedictory speech. Griffith subsequently sued and a Yellowstone County District Court judge found against her. This case went to the Montana Supreme Court and Rutherford Institute provided legal counsel. Supreme Court justices ruled that the officials violated her rights to free speech and to freedom of religion under the U.S. and Montana constitutions.

Time and again, the schools cite ‘separation of church and state’ as the basis for censoring religious messages and/or activity. But this phrase is the most misused and misconstrued quote attributed to our third president, Thomas Jefferson.

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Back in 1802 on New Year’s Day, Thomas Jefferson replied to a “fan” letter from the Baptist Association of Danbury, Connecticut, offering him congratulations on his election to the ‘chief Magistracy in the United States.’

This is the text of the letter written by Thomas Jefferson
:

To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & 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 & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.

Daniel L. Dresbach, Professor of Justice, Law, and Society at American University in Washington D.C., and author of Thomas Jefferson and the Wall of Separation Between Church and State writes an article for The Heritage Foundation that brilliantly elucidates Jefferson’s famous trope.

To provide some context, “the Baptists who supported Jefferson were outsiders — a beleaguered religious and political minority in region where a Congregationalist-Federalist axis dominated political life.” They were seeking reassurances of a religion friendly disposition from their new president who was horribly vilified during the election as an “infidel and atheist.” This rumor had become so widespread during the presidential campaign, New England housewives were known to have buried their family Bibles in the backyards so fearful that the new Administration would confiscate their Holy Scriptures.

So this famous letter having to do with the ‘wall of separation between church and state’ was a political statement giving his reassurances to the Baptists that he was a friend to religion, and a response to the vilification he received from the Federalist Congregationalist establishment in Connecticut. This was not a definitive manifesto on the relationship between government and religion.

In fact, his actions as president run counter to how modern day historians and justices construe this letter. President Jefferson supported the use of federal funds to be used to build churches and to help Christian missionary work among the Indians. So the modern day perception of Jefferson’s wall directly flies in face of how Jefferson behaved in his political life.

During the course of American judicial history, particularly with the landmark decision of Everson v. Board of Education, Jefferson was subtly and erroneously attributed with the remark ‘high and impregnable’ wall. The force behind the misguided interpretation comes from the anti-Catholic former Ku Klux Klan member, Justice Hugo Black: The ‘high and impregnable’ wall central to the past 50 years of church-state jurisprudence is not Jefferson’s wall; rather, it is the wall that Justice Hugo Black built in 1947 in Everson v. Board of Education. The full quote by Justice Hugo Black is, ‘The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.’ In essence, Justice Hugo Black with his often quoted remark conflated Jefferson’s trope of separation between church and state with the First Amendment which references the non-establishment clause and free exercise of religion. Those were two entirely separate concepts at the time in 1802.

Jefferson’s wall in actuality had federal government on one side of the wall and the state government and religion on the other side. The barrier was impervious in only one direction — meaning federal government was to have no control over the religious activities inside the individual states. This was in line with Jefferson’s strict interpretation of the non-establishment clause. His view was so absolute, Jefferson as president never set aside days in the public calendar for prayer, fasting, or thanksgiving. This adds further weight that the conclusion reached by justices in the 20th century about Jefferson’s wall cannot be true.

Freedom of speech is often touted as the defense for unpopular views, but religious speech somehow is excluded from the same defense. Instead of using the wall as a way to restrain the federal government from meddling in the religious activities within the states, it has been the complete opposite. It has given the federal government imprimatur to control how and what we can say about religion in our public life. Jefferson’s metaphor for decades has been sadly used as the justification for stifling religious speech in a country that is well-known as the marketplace of ideas. At what point will our judges, politicians, citizens, and society at large come to the realization our Constitution has been under attack by our own judicial system?

I leave you with these remarks from Justice Rehnquist, in Wallace v. Jaffree:

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the Constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.

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