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How high is the "wall" separating church from state in this country? According to a California school district, it's higher than the Downey High baseball field's outfield fence.
Ed DiLoreto, a local businessman, bought advertising space on the fence two years ago with the intent of posting the Ten Commandments. School officials, claiming fear of litigation, directed him to check on its legality—which he did, and government agencies from the local school board to the state Attorney General all replied that the district could not refuse his sign.
But rather than post the Commandments, district officials rescinded their policy of selling ads and removed every placard in the district. Mr. DiLoreto is suing, on the grounds that the move violates his rights to free speech and religious expression. The district counters that any religious message displayed on the grounds of a public school would violate the Constitutional "wall" separating church and state. Would it? Only according to some peculiar rulings of the modern Supreme Court.
The "wall of separation," which in the liberal imagination is more formidable than the Great Wall of China, was not intended by our Founding Fathers to preclude any connection between religion and public life in this country. It was meant primarily to do two things: make political rights independent of religious belief, and thereby avert the bloody religious conflicts that had convulsed Europe for centuries; and secure every individual's fundamental right of conscience.
The actual text of the First Amendment makes this perfectly clear: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Notice, incidentally, that the phrase "wall of separation" does not appear. Those famous words actually occur in a letter Thomas Jefferson wrote, while serving as President, to a religious association—a message he ends with a prayer!
So how high did Jefferson view the wall? Not so high to prevent him from including prayers in both of his inaugural addresses, and in many of his other public pronouncements. Nor so high to preclude religious services, which as President he sometimes attended, from being held in the Hall of the House of Representatives.
As countless similar examples prove, neither he nor the other Founders thought that such activities violated the First Amendment. In fact, the very day that Congress passed that Amendment (Sept. 24, 1789), it issued the first call for a National Day of Prayer. As the Founders understood, forbidding the establishment of religion is not the same thing as outlawing all public expression of religious sentiment. Far from desiring the latter, they believed that government had a duty actively to encourage religious belief.
The consensus among them finds its best expression in the Northwest Ordinance, the law that governed the first U.S. Territory—the future states of Illinois, Indiana, Michigan, Ohio and Wisconsin. The beginning of Article III reads, "Religion, morality, and knowledge being necessary to good government . . ."
To execute this doctrine, the Ordinance specifies that in each township a lot of public land "be given perpetually for the purposes of religion." Of course, this could never happen today—the Supreme Court has seen to that.
In 1947, the Court ruled it unconstitutional for government "to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion," and thereby transformed the "establishment clause," as it was until then known, into the "separation clause"—despite the fact that this kind of radical separation is neither mandated nor mentioned.
Subsequent decisions, largely thanks to the efforts of ideologues at the ACLU, have extended this doctrine to the point that government cannot be involved in even the most indirect way with anything remotely religious.
Which brings us back to Mr. DiLoreto. He wants to put up the Ten Commandments where kids can see them because he believes that they are good rules to live by. Even those who oppose his lawsuit don't disagree. But because the Commandments are "associated with religion" (a modern way of saying that they are the word of God), school officials don't want them posted on public property. They invoke the authority of the Supreme Court and say, in effect, "it's not our decision—it's the law."
Is it? Not according to either the letter or spirit of the Constitution—nor even the findings of all those government lawyers whom the district had Mr. DiLoreto to consult. Mr. DiLoreto deserves to win his lawsuit, just as the American people deserve to have the original intent of the establishment clause restored to them.
