Let’s Build This Wall
The venue is buzzing, hundreds of people with red, white, and blue attire gather on stage and in the rows of seats. Many a red MAGA hat is seen. When President Trump walks on stage, the chant begins, “Build—The—Wall! Build—The—Wall!” Of course, the wall will be built once Mexico writes the check for it. Let’s turn our attention here, however, to a very different wall.
Thomas Jefferson wrote a letter dated January 1, 1802 to the Danbury Baptist Association in Connecticut. It was subsequently published in a Massachusetts newspaper. Jefferson wrote: “I contemplate with sovereign reverence that act of the 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 and State.”
This statement referenced the First Amendment of the U.S. Constitution, where those exact words are found. Interestingly enough, Jefferson was himself quoting Roger Williams, the founder of the Baptist church in America. Williams advocated in 1644, “…a hedge or wall of separation between the garden of the church and the wilderness of the world.”
The concept of separation of Church and State was first put to the test in a Supreme Court case in 1879, Reynolds v. United States. George Reynolds, secretary to Brigham Young, stepped forward as a test case to uphold the Mormon Church’s practice of plural marriage. His defense centered on the right to freely practice his religion, as restricting all marriages to monogamy did not allow him to do so. Reynolds lost the case.
As the Supreme Court ruled against George Reynolds, it quoted Thomas Jefferson, our man of the hour. Jefferson wrote that there was a distinction between religious belief and the action that flowed from religious belief. The former “…lies solely between man and his God,…” therefore “…the legislative powers of the government reach actions only, and not opinions….” The Court believed the First Amendment forbade Congress from legislating against opinion, but allowed it to legislate against action. (Wikipedia is the source of this historical context.)
More recently, in one court case after another, the Supreme Court has exhibited a sharp turn to the right. It has been more inclined to protect the practice of religion, particularly that of the Christian faith. This results in sacrificing adherence to equal application of the law. Where did all those Constitutional Originalists go?
This slippery slope of recent Supreme Court rulings find their substance and rationale in the Religious Freedom Restoration Act (RFRA) of 1993. RFRA was passed almost unanimously by Congress, and was intended to protect Native American rights to use peyote in religious ceremonies. It was introduced by Senator Chuck Schumer and accompanied by a similar bill by Senator Ted Kennedy. President Bill Clinton signed the bill. We must be very careful when pointing fingers at those we believe are destroying the wall of separation.
We are suffering the slings and arrows of RFRA misuse and misapplication today. Two cases in point include the Supreme Court rulings in the Hobby Lobby suit and the Masterpiece Cakeshop decision. The Supreme Court justices who ruled in the majority on behalf of Hobby Lobby did so in support of the right of religious groups to determine what medical benefits they offer employees, based on their faith values. This ruling was in opposition to federal law in the Affordable Care Act.
The Masterpiece Cakeshop decision on June 4 centered on the narrow issue of religious neutrality in legal proceedings. The Colorado Civil Rights Commission was subjected to a 7-2 ruling against them by virtue of its comments about the baker and his religious interpretations of the Bible, which the Justice majority deemed “hostile.”
Jane Schacter, a Stanford University law professor, reflected in an interview with the Washington Post, “Both cases pit religious liberty against equality claims. In Hobby Lobby, the business argued that for religious reasons it objected to the Obamacare mandate to offer insurance that covered contraception—something many women argue is essential to gender equality.
“But that case was decided not under the First Amendment, but the federal Religious Freedom Restoration Act....That act grants stronger protection to religious liberty than does the First Amendment’s free-exercise clause. But because of an earlier precedent, the Supreme Court uses First Amendment as a standard in cases like Masterpiece involving the states....The conflict will almost certainly continue. The narrowness of the stated grounds in Masterpiece will invite continued litigation.”
This tidal wave of cries for “religious liberty” will certainly crash on the shore of equality rights, assuring further lawsuits to be settled by a conservative-majority Supreme Court. Those opposed to this agenda must decide what hat they will wear.
Our new man of the hour, Supreme Court nominee Brett Kavanaugh, now comes into the picture, further muddying the wall of separation between Church and State. We must raise our voices louder and louder: Build—The—Wall! Build—The—Wall! ▼
David Garrett is a straight advocate for equality and inclusion. He is also the proud father of an adult transdaughter. Email David Garrett