Separation of church and state?

Published On: August 19, 2016|Categories: MRFF's Inbox|1 Comment|

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Dear Sir,
At no time and in no place is there any mention in the U.S Constitution of “separation of church and state”. There is a prohibition of a state religion, a la the Church of England. Your persecution of the Air Force major who had an open bible on his desk is beyond the pale. If the “33 very scared families” are this terrified of an open bible, how are they making it through the day with the constant threat of intifada from the Muslims who are being allowed to serve openly in the US military, without any complaint from you or others of your ilk, I might add. These offended military personnel took an oath to preserve and defend the Constitution of the U.S. How do they square this with persecuting a fellow officer for his religious beliefs? How do you sleep at night knowing that the “work” you do is helping to tear apart the fabric of the country you once took an oath to protect with your life? When and if these men and women who are party to this frivolous lawsuit are sent to a war zone, with instructions to kill the enemies of this country, what then? Will they do as commanded, or cower in fear because they might happen to see an open Koran or Torah? They are being paid, yes, but the job they do is not an everyday 9 to 5 job like most of us do. They are supposedly the tip of the spear that protects this country, which is the greatest country in recorded history. It isn’t their place to tell people what they can and can’t have open on their desks, no more than it should be your place to be an agitator seeking fortune by using your legal skills to bring misfortune upon innocent, decent, God-fearing people. The major was not proselytizing by having an open Bible on his desk. But you, on the other hand, ARE proselytizing by spreading your hatred of Christians. It is evident that one of the “victims” was able to look at the book often enough to claim it was open to the same place all the time. That appears to be the act of a person seeking to be offended. Try seeking honest work, sir, and doing some good for the country you profess to love, and quit spreading hatred.
(name withheld)

 Response by MRFF Advisory Board Member John Compere, Brigadier General, US Army, Retired
Please see the attached. Thank you. 
John Compere
Brigadier General, US Army, Retired
MRFF Advisory Board Member


Response from MRFF Advisory Board Member Joan Slish
Dear (name withheld),
Where do you get your information?
We are neither an atheist organization nor are we anti-Christian. Mikey is Jewish (and prays to the same Father we do 3 times a day) and 80% of the Board, Advisory Board, volunteers and supporters (300 in total) of the Military Religious Freedom Foundation (MRFF) are Christians. In fact, 96% of our 47,000+ soldier clients are Christians – Catholics, Episcopalians, Presbyterians, Methodist, Lutherans, Baptists, Evangelicals, etc. We fight for the rights of these Christians more than any other religion but it never makes the news. 
Check out our Mission statement:
Check out the distinguished military personnel we rely on for their expertise on religious neutrality in the military:
We are defenders of the Constitution, Supreme Court rulings and military law. When the military oversteps these bounds, we step in to force them to obey.
Here are the laws that the military – with the help of the media – are deliberately ignoring in order to make our military “soldiers for Christ” and “government paid missionaries.”
“…but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” (Article I, III)
This means that from the President to Congress to the military – no one’s job is based on their religion.
“Congress shall make no law respecting an establishment of religion (Establishment Clause), or prohibiting the free exercise thereof (Free Exercise Clause).”(First Amendment)
The Establishment Clause means that you cannot favor one religion over another even though it is in the majority. This clause respects the RIGHTS of all religions. Our military is SECULAR and there are people of other faiths that don the uniform that love this country. 
The Free Exercise Clause (which is subservient to the Establishment Clause) means that our soldiers are free to exercise any religion they want or no religion at all but cannot elevate one God above others.
“Because religious belief, or non-belief, is such an important part of every person’s life, freedom of religion affects every individual. Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the “wall of separation between church and state,” therefore, is absolutely essential in a free society.” Thomas Jefferson, to the Virginia Baptists (1808) ME 16:320. 
This is his second known use of the term “wall of separation,” here quoting his own use in the Danbury Baptist letter.
This wording of the original was several times upheld by the Supreme Court as an accurate description of the Establishment Clause.
“Jefferson’s concept of “separation of church and state” first became a part of Establishment Clause jurisprudence in Reynolds v. U.S., 98 U.S. 145 (1878). In that case, the court examined the history of religious liberty in the US, determining that while the constitution guarantees religious freedom, “The word ‘religion’ is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.” The court found that the leaders in advocating and formulating the constitutional guarantee of religious liberty were James Madison and Thomas Jefferson. Quoting the “separation” paragraph from Jefferson’s letter to the Danbury Baptists, the court concluded that, “coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.
In 1878 “Separation of Church and State” became part of the Establishment Clause by law.
The Supreme Court heard the Lemon v. Kurtzman case in 1971 and ruled in favor of the Establishment Clause.
Subsequent to this decision, the Supreme Court has applied a three-pronged test to determine whether government action comports with the Establishment Clause, known as the Lemon Test:
Government action violates the Establishment Clause unless it:
1. has a significant secular (i.e., non-religious) purpose,
2. does not have the primary effect of advancing or inhibiting religion
3. does not foster excessive entanglement between government and religion
Parker v. Levy: 
 “This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society… While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. … The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it… Speech [in any form] that is protected in the civil population may nonetheless undermine the effectiveness of response to command.  If it does, it is constitutionally unprotected.” (Emphasis added) Parker v. Levy, 417 U.S. 733, 1974
AFI (Air Force Instruction) 1-1, Section 2.12:
 2.12. Balance of Free Exercise of Religion and Establishment Clause. Leaders at all levels must balance constitutional protections for their own free exercise of religion, including individual expressions of religious beliefs, and the constitutional prohibition against governmental establishment of religion. They must ensure their words and actions cannot reasonably be construed to be officially endorsing or disapproving of, or extending preferential treatment for any faith, belief, or absence of belief. 
To place the opened, highlighted, underlined Christian Bible on a military desk 24/7 for other service members to see elevates the Christian God above all others and is in violation of the Constitution, Reynolds v. U.S., Lemon v. Kurtzman, the Lemon Test, Parker v. Levy and AFI 1-1, Section 2.12. These are the laws in effect today and must be followed.
There are means within the military to ask for religious exemptions. Maj. Lewis never asked for one like Monifa Sterling who was court-martialed for having Bible verses at her desk and refusing to take them down.
You said “It is evident that one of the “victims” was able to look at the book often enough to claim it was open to the same place all the time. That appears to be the act of a person seeking to be offended.”
He wasn’t “seeking to be offended” because he and others were faced with it on a daily basis.
This is religious proselytization on par with a religious tract.
Joan Slish
MRFF Advisory Board

Response from MRFF Legal Affairs Coordinator Tobanna BarkerDear (name withheld) –


I am writing in response to your August 19, 2016 email to the Military Religious Freedom Foundation (“MRFF”).  You make a number of claims in your email and I hope to address each of them.


First, while you are correct that the phrase “separation of church and state” does not appear in the Constitution, you are incorrect that such separation is not embodied in the Constitution via the Establishment Clause and Free Exercise Clause.  The phrase “separation of church and state” was first used by Thomas Jefferson to explain the intent and function of these two clauses of the First Amendment:


I contemplate with sovereign reverence that act of the whole 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 & State.


The phrase was later adopted by the Supreme Court as an “authoritative declaration” of the scope and effect of the First Amendment.  Reynolds v. U.S., 98 U.S. 145 (1879).  Therefore, the separation of church and state is a very real and important part of our constitutional jurisprudence.


Similarly, Supreme Court case law makes it clear that the Establishment Clause prohibits more than the legislation of a state religion.  Instead, any act or policy of a government entity violates the Establishment Clause if any one of the following is shows: (1) its purpose is not secular; (2) its principal/primary effect either advances or inhibits religion; or (3) it fosters an excessive entanglement with religion.  Lemon v. Kurtzman, 403 U.S. 602 (1971).  Consequently, any act by a state actor – including the military, acting through military leaders – that endorses one religion over others constitutes a violation of the Establishment Clause.


It is the mission of MRFF to protect this wall of separation between church and state.  As you accurately point out, our service members do not have an “everyday 9 to 5 job.”  As a civilian, if my boss creates a religious display on his or her desk or otherwise endorses a particular religion, I can complain directly to him or her.  Moreover, I would have legal protections and remedies if my complaint was ignored or if I suffered any retaliation as a result of expressing it.  An enlisted service member simply does not have the same freedom to complain to a commanding officer.  Further, any complaint brought pursuant to the chain of command would require the offending officer to police himself/herself, the name of the complainant would be public record, and there would be no protection against retaliation from other superiors or fellow enlisted service members.


For these reasons, service members who experience religious proselytizing or coercion bring their complaints to MRFF.  Our clients are not, as you put it, “terrified of an open bible,” but are legitimately concerned about having their careers ruined as retaliation for complaining about constitutional violations.  You are correct that “military personnel took an oath to preserve and defend the Constitution of the U.S.”  So, shouldn’t their constitutional rights also be preserved and defended?  By ensuring that military leaders obey the mandates of the Establishment Clause, MRFF protects the religious freedom of all our brave men and women in uniform.


This mission is not about “spreading hatred of Christians.”  In fact, over 96% of our clients are Christians who suffer religious discrimination or persecution at the hands of their military superiors.  We not only do not hate Christians, we fight for the rights of Christian service members, as well as service members who practice other religious faiths, or no religious faith, to practice the religion of their choice free from coercion by their superiors.


On the note of religious freedom, the fact that Muslims are allowed to both serve in the military and openly practice their religion does not constitute a “constant threat of intifada.”  You wax poetic about defending the Constitution and “persecuting a fellow officer for his religious beliefs,” yet you simultaneously claim that Muslim service members who are “allowed to serve openly in the U.S. military” necessarily pose a threat.  It is clear that you only support the religious expression of CHRISTIANITY within the military and would have no problem with the “persecution of a fellow officer” for expressing non-Christian religious beliefs.


Likewise, you claim that those service members who noticed that Major Lewis’s Bible was consistently open to the same pages must have been “seeking to be offended.”  However, it was clearly Major Lewis’s intent that those visiting his desk take note of the highlighted passages on those particular pages.  Why is it that his intent is an innocent expression of his religious belief, but anyone who notices the very thing he intended them to notice must be “seeking to be offended?”


That said, if a commanding officer created a religious display by keeping a highlighted copy of the Quran on his or her desk, MRFF would respond just as vigorously on behalf of any service members who complained of the situation.


I hope that I have adequately addressed each of the concerns you raise in your email.  If you have any questions concerning the mission of MRFF, the mandates of the Establishment Clause, or the constitutional implications in this case, I will be happy to answer them.


Blessed be,


Tobanna Barker

MRFF Legal Affairs Coordinator






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One Comment

  1. G August 19, 2016 at 6:18 pm

    Being a teacher is not a 9 to 5 job either. Many teachers have to work past 5 pm to correct papers, prepare for next day’s work, etc. In addition, teachers have to work on the holiday, weekends to correct paper, prepare for next week, etc. In addition, they have to keep their credentials up to date; otherwise, they will not be allowed to teach.

    In addition, too many teachers are poorly paid despite the fact that you need a college degree before you are allowed to go to teaching school. Many teachers have Ph.Ds, and master degrees and are still poorly paid. Finally, many teacher help purchased school supplies for their pupils out of their own lousy salaries. Amazing how we throw so much money at the military but we can’t do it for our own schools.

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