Commentary
'Separation of Church and State'
not a true constitutional doctrine

Editor's Note: Writer Sheila Orysiek uses the construction "G-D" instead of 'God' as an indication of  her profound respect. Where she refers below to the word 'G-d, readers should understand she is referring to instances where, in actuality, "God" was utilized.

By Sheila Orysiek

SAN DIEGO—September 17 was Constitution Day, the day the United States Constitution was signed in 1787 by thirty nine Framers from twelve states (Rhode Island did not send delegates but did eventually ratify in 1790).  So, this is a bit late for Constitution day, - I plead pre-occupation with the High Holy Days of Rosh Hashanah and Yom Kippur.  However, there is a connection between celebrating religious holidays and Constitution Day.  It’s the Constitution which enabled me to celebrate those holidays. The key word is “enabled” - the Constitution is not a disinterested third party.

The section of the Constitution that deals with religion is within the first of ten amendments - the Bill of Rights - which was passed by Congress on Sept. 25, 1789 and ratified on December 15, 1791.  So, as I write this we are within the time frame between the signing of the Constitution and the ratification of the first ten amendments; a good time to think about what the Constitution says - and doesn’t say - about religion.

The phrase “separation of church and state” is often used when discussing government, religion and the Constitution. Let’s look at the Amendment concerning religion as it is written:

Amendment I:  “Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof.”

Establishment Clause:  The government is forbidden to establish an official religion.

The government can make laws that affect all religions - such as the tax code, or a building code, etc., but not establish a religion.  Laws that affect religion and laws that establish religion are two different things.

Free Exercise Clause:  The government cannot prohibit you from practicing the religion of your choice, but can affect how you practice it such as a when a religious group disturbs the public peace, blocks a public road, uses illegal substances, animal sacrifice, polygamy, coercion, etc.

Nowhere are the words, phrase, intent or a doctrine of “separation” mentioned - or implied. Not only does a doctrine of “separation” not exist in the Amendment, it doesn’t exist in practice.

The House and Senate open each day of legislative business with a prayer.  The chaplains are government supported.  The House Chaplain web page can be found here: The chaplain of the Senate is a full time officer of the Senate: These chaplains not only provide a prayer for the day, but also pastoral services to the members.

At an inauguration a president puts his hand on a Bible as do our representatives, senators and judges.  After the assassination of President Kennedy the item that held up Lyndon Johnson’s taking the Oath of Office was a search for a Bible.

The fourth verse of the national anthem contains the word “G-D”  and twice more as “Heaven-rescued” and “Praise the Power.”  Six states include “G-D” in their mottos.  On June 6, 1944, President Roosevelt spoke to the nation and asked the people to join him in prayer - a lengthy, beseeching and heartfelt prayer -which can be read here:   No one was interested in “separation” on that day and no one accused him of “establishment.”  And then there are the acres filled with Crosses and Stars of David on the public land of a national cemetery.

I think the Amendment is best described as “benign neutrality.”

The “benign” component of government neutrality toward religion is exampled by the tax exemption of religious property as well as the contributions by congregants.  Were only neutrality or separation the intent then religious property would be taxed as is other property - the government would see no difference.  Since it was recognized that taxing religious property might open the door to the possibility of interference or partiality the government opts out.  But the government goes further than simple neutrality and gives an exemption to congregants which can certainly be seen as encouraging organized religious participation.  Certainly this isn’t “separation” or simple “neutrality.”

It is not unusual for the government to foster through the tax code that which is deemed of community benefit such as exemptions for charitable giving, donations to non-profit groups such as arts, libraries, schools, etc., as well as mortgage interest, tuition, savings plans, etc, and religious affiliation and activity is included in this list.

There is a history of a Prayer Breakfast at the White House through several presidencies, beginning with Eisenhower, across the political spectrum.  The United States Military employs chaplains integrated as officers within the military structure.  Prisons at all levels of government employ chaplains.  The word “G-D” appears on our coinage, in our national motto, on courthouses and oaths taken in legal proceedings.  Though a participant in a legal procedure can opt not to use a Bible, the fact that it is allowed and is seen as a positive element in “truth telling” is evidence of the benign component in the neutrality of the government.

The word “G-D” is abundantly evident in speeches and national papers from the Declaration of Independence onward.  Government libraries house religious books. The San Diego Public Library has just concluded an exhibition of Bibles and other devotional books and has loaned Bibles and other materials from its collection to the Natural History Museum for the Dead Sea Scrolls.  Here is the website

None of the above connections and/or interactions between government and religion has established an official religion in 220 years nor kept anyone from practicing his/her religion of choice.

The Constitution enshrined benign neutrality - not separation.  As I see it: “benign” means that a religious service can be held at a public park - “neutrality” means that any religious service can be held at a public park.  Were there “separation” - no religious service of any kind could occur in a public park. There is no separation and never has been. 

Why did the Framers write the Establishment Clause?  They were students of history and their forebears had directly suffered as Catholics and Protestants warred bloodily for centuries for the soul of England and Europe. They experienced religious coercion from the Puritan based culture of New England to the mandatory taxation in the Virginias to support the Church of England.  There was a great deal of religious bias throughout the colonies.  Quakers and others had been flogged, prohibitions enacted against Catholics, Jews scorned - many people had brought over to this new soil the dirt of the old.  The Framers didn’t want this new government to revisit those sins: neither imposing a particular religion nor preventing a particular religion.

Why were the Framers concerned with government prohibiting the free exercise of religion?  Because they were deeply religious and as themselves members of various religious groups didn’t want government to bar the door to any particular religion.  However, they were not against religion in the public arena - just coercion (establishment) and prevention.  Benjamin Franklin suggested that a prayer open each day’s session of the Constitutional Convention.

So, where did this idea originate that separation is part of our Constitutional doctrine?  What is the origin of the phrase “Wall of separation between Church and State?”  It does not appear anywhere in the Constitution but it does appear in a letter Thomas Jefferson wrote in 1803 (long after the Constitution was drafted and ratified)  in answer to a letter written to him by the Danbury (Connecticut) Baptists asking his opinion on the matter.  Jefferson did not write the Constitution - nor help with its framing and he did not attend the Constitutional Convention in Philadelphia.  He was in France as our Ambassador to the French government. 

However, Jefferson did write (as part of a committee) the Declaration of Independence in which the words “G-D”  and “Creator” are used and he was a Signer. His writings indicate that he considered himself a Christian, a religious man, if not a dogmatic one and that he believed in the divinity of a Creator, but not the mystical/miraculous aspects of religious teaching.

Benign neutrality is a very different thing than separation or a wall of separation.  Separation is not a neutral act - it is a wall, ghetto, segregation, apartheid, gentleman’s agreement, covenant neighborhood, glass ceiling, distinctive clothes, taxation and discrimination.  Whereas, benign neutrality encourages the existence of various segments which make up the community of the body politic to co-exist and seeks neither to influence nor prohibit any particular part of it but does encourage the whole of it. 

Through the centuries Jews have certainly suffered from governments which imposed or favored another religion or prevented or encumbered the practice of Judaism.  But we have flourished in the United States because of the benign neutrality of the First Amendment.  One might posit this is a broader view even than in Israel where one segment of Judaism tries to tell the others what to eat, do, dress, marry, divorce, what is legal and what is not, who is a Jew and who is not.  And, who can stand where while praying at the Temple Wall.

I believe it is benign neutrality, not separation, which allows for differences not only to exist, but to flourish.