Keeping Faithful to the First Amendment and Faith Based Initiatives
Professor Kevin Lewis responds to New York Times article, “Keeping the Faith, Ignoring the History.”
Biola University professor of theology and law, Kevin Lewis, responds to The New York Times opinion article, written by Susan Jacoby, “Keeping the Faith, Ignoring the History.” In her article, Jacoby offers that amid the discussion of President Obama’s faith-based community initiatives, little discussion is taking place regarding the assumption that government spends money on religiously based enterprises. Lewis offers a response amounting that Jacoby is actually ignoring the basic history of faith-based initiatives and the First Amendment.
Keeping Faithful to the First Amendment, Ignoring the New York Times
The NYT’s OpEd section couldn’t resist lodging another grievance with religion in America by publishing Susan Jacoby’s unremarkable article, “Keeping the Faith, Ignoring the History.” There Jacoby offers the usual trite clichés of the secularist elites against religion in public life.
Jacoby begins by asserting there is a “widespread reluctance to question the basic assumption that government can spend money on religiously based enterprises without violating the First Amendment.” And after questioning the wisdom and constitutionality of federal funding for the Faith Based Initiative program, she concludes that the U.S. is “moving blindly ahead with faith-based federal spending as if it were not a radical break with our past.” And then, dismayed over the issue, she publicly frets that this practice will lead to the “First Amendment” being replaced by “a sacred cash cow.”
So does the federal funding of Faith Based Initiatives violate the historic understanding of the First Amendment? Clearly not!
But if you ask a legal layman to explain the meaning of the First Amendment Religion Clauses, you will probably hear the well-worn mantra of “separation of church and state”—and not much more. But this modern cliché is not a substitute for the real First Amendment. The Religion Clauses state “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” By this language, the architects of the First Amendment intended only to preclude the establishment of a national denomination, funded by the government. It was never intended to restrain public religious expressions by the people or the government or exclude religion from public life. Most of the Founding Fathers of this country may be cited to prove this fact. But the most persuasive witness on the matter for secularists is Thomas Jefferson.
Thomas Jefferson on the First Amendment
Thomas Jefferson enjoys a near superhero status among secularists. Jefferson’s alleged superpower was his ability to create impenetrable walls of separation between the church and state, thus securing a secular form of government. However, the greatest irony is that Jefferson himself did not and would not have embraced Jacoby and company’s secularist interpretation of the First Amendment.
Jefferson’s famous “wall of separation” language, egregiously misrepresented by the U.S. Supreme Court in Everson v. Board of Education (1947), was used in his letter to the Danbury Baptists (1802) to assure them that the federal government would not interfere in their church. So what does the “wall of separation” language mean? In a letter to Samuel Miller (1808) Jefferson says:
Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the General [i.e. Federal] government. It must then rest with the States.
Jefferson was clear. The Federal Government had no right whatsoever to tell the state governments what to do with their religious life.
But what about the Federal Government? Did Jefferson erect the mythological wall in the Federal Government? He did not! Instead, Jefferson provided federal funding for religious activities. Among other things, Jefferson signed a treaty with the Kaskaskia Indians that provided federal funds to support the Tribe’s Roman Catholic priest and church. This type of federal funding was common in the 18th and 19th centuries. Then, Congress regularly appropriated public funds in support of sectarian Indian education administered by religious organizations.
So would Jefferson conclude that the First Amendment precluded the federal government from appropriating funds for federal Faith Based Initiative programs? Hardly!
Unfortunately, Jacoby and her ideological allies on the United States Supreme Court have ignored the original meaning of the First Amendment and have replaced it with their own make-it-up-as-you-go version. Of course, legal scholars cannot use terms like “make-it-up-as-you-go”. They must use terms such as “Critical Legal Studies” and “Living Breathing Document” to hide the fact that a majority of secularists on the court are superimposing their own anti-religious preferences on the people.
The Supreme Court’s Black Box: Selective Incorporation
So how did the U.S. Supreme Court magically acquire the authority to decide religion questions for the states and to reinterpret the First Amendment as a secularizing constitutional provision? The answer is the judicial doctrines of Substantive Due Process and Selective Incorporation of the Bill of Rights. While there is much to be said about these two judicial concepts, the practical result of these doctrines is that a religiously hostile U.S. Supreme Court in the 1940s simply assumed the right to decide First Amendment religious issues by appealing to the Due Process Clause of the 14th Amendment (1868). And shortly after the Supreme Court “incorporated” these Clauses, the country began to see a decline in religious liberty and an increased secularization of public life.
So in the final analysis, it is Jacoby who errs regarding the history of the First Amendment and the constitutional legality of Faith Based Initiative Programs. Thus, Jacoby should quit ignoring history and make it her personal discipline to keep faithful to the original understanding of the First Amendment.
Kevin Lewis is a professor of theology and law for Biola’s Christian Apologetics Program. Lewis specializes in the topics of systematic and polemical theology, theology and law integration, jurisprudence, and Christian apologetics. He is the Founder and Director of the Evangelical Law Institute (www.lawandjustice.org), an organization dedicated to the task of restoring the theological foundations of law and justice in society and providing Christians with the resources necessary to do law, justice, and public policy from a foundation of evangelical theology.
Compiled by Jenna Bartlo, Media Relations Coordinator. Jenna can be reached at (562) 777-4061 or through email at jenna.l.bartlo@biola.edu.
The opinion and viewpoint expressed in this article is that of the author. As a diverse community and within the context of our own theological convictions and community standards, Biola University encourages freedom of thought and expression by its faculty as first responders to relevant news and events.