Contributor: The 1st Amendment was never meant to separate church and state

On Tuesday, the complete, 17-judge U.S. Courtroom of Appeals for the fifth Circuit heard consolidated oral arguments in a crucial case that’s all however assured to make it to the Supreme Courtroom. The predictable controversy surrounding the litigation, which includes related however distinct necessary Ten Commandments show legal guidelines arising out of Texas and Louisiana, is revealing as to simply how far America has fallen from its founders’ imaginative and prescient.

In 2024, Louisiana Gov. Jeff Landry signed into regulation a invoice requiring that the Ten Commandments be displayed in each public college classroom — from kindergarten by means of the college stage — all through the state. As Landry explained at the time, “If you wish to respect the rule of regulation, you gotta begin from the unique lawgiver, which was Moses.” Final 12 months, the Lone Star State adopted by passing a nearly identical statute. Texas Gov. Greg Abbott, who as Texas legal professional common in 2005 successfully defended a Ten Commandments monument on the Texas State Capitol grounds earlier than the Supreme Courtroom, echoed Landry in signing Texas’s invoice: “Religion and freedom are the inspiration of our nation.”

Aggrieved liberals and secularists instantly filed 1st Modification lawsuits, and district court docket judges promptly enjoined enforcement in each states. The query now pending earlier than the New Orleans-based fifth Circuit, the place I as soon as served as a regulation clerk, is whether or not the Ten Commandments legal guidelines might as soon as once more be enforced in order that the Decalogue can grasp on all classroom partitions all through Texas and Louisiana.

Let’s begin with first rules. The primary clause of the first Modification, extensively often called the Institution Clause, reads, “Congress shall make no regulation respecting an institution of faith.” The 2 related phrases within the Institution Clause are “Congress” and “institution.”

The phrase “Congress” is related as a result of the Institution Clause was unambiguously supposed solely to use to Congress — and, by extension, the federal authorities at massive. As Justice Clarence Thomas and others have persuasively argued, the unique understanding of the clause was to ban Congress from establishing a nationwide faith in order that the states might accomplish that themselves — constant, in fact, with prevailing free train protections and the No Non secular Take a look at Clause of Article VI of the Structure. From the founders’ perspective, the Institution Clause was a essential federalism provision for a fledgling, religiously pluralistic republic.

The phrase “institution” is related as a result of it could solely imply what the founders meant: a literal nationwide established church, such because the Church of England. Generations of People have been taught that the first Modification secures the “separation of church and state,” however that pernicious phrase is nowhere to be discovered within the modification. As an alternative, the notion of a “wall of separation between Church & State” has its origins in a pithy 1802 letter Thomas Jefferson despatched to the Danbury Baptist Assn. in Connecticut. As Justice William Rehnquist defined in his dissent in Wallace vs. Jaffree (1985):

Thomas Jefferson was in France when the Invoice of Rights was handed by Congress and ratified by the States. His letter to the Danbury Baptist Assn. was a brief be aware of courtesy, written 14 years after the Amendments have been handed by Congress. He would appear to any indifferent observer as a lower than preferrred supply of latest historical past as to the that means of the Faith Clauses of the First Modification.

In actuality, Jefferson’s “separation” language didn’t take maintain till a horrible 1947 Supreme Courtroom determination referred to as Everson vs. Board of Schooling, which for the primary time undermined each “Congress” and “institution” by adopting Jefferson’s insidious language after which “incorporating” it to the states as nicely. The outcome has been almost eight many years of damaging constitutional inversion and a protracted ethical assault on America’s biblical inheritance all through our public squares. In a regulation assessment article printed final summer time, my co-authors and I referred to as for the Supreme Courtroom to overturn Everson and finish our failed nationwide experiment in “separationism.”

None of that is even essential to resolve the fifth Circuit case. The USA was based on ecumenical biblical principles, and the Ten Commandments — the wellspring of a lot of Western morality — embody that ecumenicism. Launched to the world by Judaism and unfold all through the world by Christianity, the Ten Commandments are the shared inheritance of Jews and Christians of all stripes — Orthodox, Protestant and Catholic. The Supreme Courtroom itself famously includes a frieze of Moses carrying the Ten Commandments tablets. It might be the peak of hypocrisy for the court docket to disclaim to Texas and Louisiana the flexibility to try this which it does itself. Sectarian public shows maybe increase different considerations, however the Ten Commandments merely don’t.

On the exact same day in 2005 that Abbott and then-Texas Solicitor Common Ted Cruz efficiently defended the Texas State Capitol grounds Ten Commandments monument, the court docket determined a very similar case out of Kentucky that inexplicably went the opposite method. For many years, the court docket has made a muddled hash of the first Modification’s Institution Clause. It’s been trending within the right direction in recent years, and the justices ought to finally have a possibility right here for a landmark, clarifying ruling. However for now, the fifth Circuit should do the precise factor and aspect with Texas and Louisiana.

Josh Hammer’s newest e book is “Israel and Civilization: The Destiny of the Jewish Nation and the Future of the West.” This text was produced in collaboration with Creators Syndicate. X: @josh_hammer