The Separation of Church and State is a Myth

By Senator Mike Lee 

After the final seconds ticked off the clock in Bremerton High School’s homecoming loss to the Centralia Tigers, assistant football coach Joe Kennedy walked to the 50-yard line and knelt in prayer. He was soon joined by almost 50 players and spectators, from both teams, who gathered with him to exercise their God-given, constitutionally protected right to pray in public. For this act, Kennedy was placed on administrative leave for the remainder of his contract. Why? Because the Seattle, Washington-area public school district that employs Kennedy is under the mistaken impression that the First Amendment, and the apocryphal “separation of church and state” doctrine, forbids prayer in public school. Nothing should be further from the truth. When the First Amendment was ratified by the states in 1791, and for nearly 150 years thereafter, there was no question whether public schools could or should allow prayer. In fact, it was not until the middle of the twentieth century that anyone doubted that the public affirmation of religion, including in public institutions like schools, was not only constitutionally permissible, but essential to a healthy, virtuous society. So what changed? A member of the Ku Klux Klan was appointed to the Supreme Court. Fourteen years before President Franklin Roosevelt appointed him to the Court in 1937 to solidify his New Deal agenda, Justice Hugo Black became a member of the Klan on a dark September evening in 1923. That night, in addition to swearing to “valiantly shield and preserve” white supremacy “by any and all justifiable means and methods,” Black and his fellow 1,500 Klan inductees also swore to preserve “the sacred constitutional rights” of “free public schools” and “separation of church and state.” It is often forgotten today, but the Klan of the early 1920s was just as concerned with the perceived flood of Catholic and Jewish migrants arriving at Ellis Island as they were with African-Americans. The Klan’s imperial wizard at the time called the Catholic Church “actively alien, un-American and usually anti-American,” insisting that the United States “must remain Protestant if the Nordic stock is to finish its destiny.” Just ten years after he was first appointed to the Court, Black saw his chance to transport the Klans’ version of “sacred constitutional rights” into federal jurisprudence. In Everson v. Board of Education, the Supreme Court upheld the constitutionality of a New Jersey statute that allowed school boards to reimburse parents for the costs of their children’s transportation to school, including public and parochial schools. Despite the fact that this holding benefitted Catholic schools, Black saw an opportunity to shape future Supreme Court cases by writing the majority opinion. In that opinion, Black claimed that the First Amendment’s establishment clause “was intended to erect ‘a wall of separation between church and State.’” The phrase “wall of separation” is not found anywhere in the First Amendment. Instead, Black found it in an obscure letter from Thomas Jefferson who Black claimed played a “leading” role in the “drafting and adoption” of the First Amendment. This was all pure fiction. Jefferson was in France while the First Amendment was being written. When he was governor of Virginia, Jefferson used state funds to pay Catholic priests ministering to native Americans. And his use of “wall of separation” in the letter Black found was used to explain why he chose not to issue religious proclamations when he was president, not governor. Black wasted little time putting his farcical history of the First Amendment to his own bigoted uses. Just one year later, in McCollum v. Board of Education, Black authored a majority opinion invalidating a Protestant, Catholic, and Jewish run program that offered voluntary religious education classes taught on public school grounds. Then in 1962, Black authored the majority opinion in Engel v. Vitale, which banned voluntary prayer in public schools. That is why school districts across the country are so vigilant about banning prayer from school grounds: because of the handiwork of one justice who swore allegiance to the Ku Klux Klan. Americans should be free to pray wherever they want. Even in the middle of a field after a high school football game. Hopefully Coach Kennedy will challenge his forced leave. Hopefully the Court will reverse its own error.