Tani Newton
The State of Louisiana has passed a law requiring all public school classrooms to display a copy of the Ten Commandments, sparking the predictable fury and the usual claims that the state legislature is violating the First Amendment to the Constitution and the principle of the separation of church and state.
For anyone who doesn’t know, the phrase “separation of church and state” does not occur in the First Amendment, or anywhere in the United States Constitution. It has a long and interesting history, but that’s not where it starts. The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
So what exactly is prohibited here? As Voltaire said, “If you wish to converse with me, define your terms.”
Let’s begin with the obvious. The United States of America was founded as a federation of self-governing states, with a congress of representatives to rule on matters affecting the whole federation. The Constitution, among other things, limited the federal government’s powers, and the First Amendment added to the established limits by precluding any federal legislation “respecting an establishment of religion”.
Alright, Voltaire. “Establishment of religion” means having one religion which is recognised as the official religion of a state. And “respecting” means “regarding”; it doesn’t mean “in favour of” and it doesn’t mean “against”. Congress shall make no law either for or against a state having an official religion is what it means. The federal government is restrained from acting towards the states to compel them or to forbid them to establish a religion.
Furthermore, the First Amendment does not say (or mean) “Congress must prohibit the free exercise of religion.” That is the precise opposite of what it says. “Separation of church and state” also doesn’t mean prohibiting the free exercise of religion, or separation of religion from the public sphere. It means having separate administrations for church and state. This is different from what we see, for example, in England, where the monarch appoints bishops and some bishops sit in the upper house of Parliament, and so on. It is possible to have an established church and also have separation of church and state, as they do in Scotland.
I don’t pretend to know the whole of American judicial history from 1776 to 2024 – although it baffles me why the Supreme Court now effectively makes the law, when the business of the courts is to enforce the law, one would think. No doubt case law will be thoroughly argued in the upcoming legal furore. But if people want to talk about the First Amendment, it would be honest to begin by acknowledging what it actually says (and means). That is that the State of Louisiana can go so far as to make a Christian church its established religion if it so chooses, and grant it all the privileges of an established church, and the federal government cannot stand in its way.
