CORRY: A time for joy, a time for cheer, a time for atheist lawsuits

December 4, 2009

By Jessica Peck Corry

With Thanksgiving behind us, we can at last turn our homes into endless seas of red and green without fear of retribution by overzealous homeowners’ associations. We all throw guilt to the wind, allowing even the most devout vegan to indulge in gluten-rich, non-organic, processed, absolutely divine treats. December just wouldn’t be the same without one of America’s most time-honored holiday rituals: angry lawsuits from misinformed Atheists.

This column isn’t about proclaiming a certain religious truth, nor is it about proving one wrong. So save the angry emails for a moment. Rather, it’s about raising a very simple question with a very complicated answer. Have American courts royally screwed up what our nation’s founders intended as the proper relationship between government and religious freedom?

Perhaps you think it doesn’t matter. Before you tune out, however, take a moment to check out “Under God: George Washington and the Question of Church and State,” a book co-authored by attorneys Joseph C. Smith and Tara Ross.

Smith and Ross make the case that American courts have wrongly depended on Thomas Jefferson’s reference to “separation of church and state” to purge religion from the public square.

While it’s tempting to believe that the reference must have first appeared in the U.S. Constitution, this simply isn’t true. Its first and only notable appearance came in Jefferson’s letter to the Danbury Baptists in 1802. With the exception of this communication, Smith and Ross conclude, Jefferson never publicly advocated again for a “wall of separation” between government and organized religion.

The letter, in fact, was ignored almost entirely for years after its writing. It took another five decades, until Emerson v. Board of Education, for American jurisprudence to embrace “separation of church and state” as legal authority.

“So what?” some Atheists might ask. Whether “separation of church and state” came from the U.S. Constitution or the courts, it’s still an important part of America’s legal fabric. But the philosophy’s origins do matter, as Smith points out. “Whether any particular government policy that accommodates or promotes religion is wise or effective, remains a debatable question,” he told me. “What is less debatable, in many circumstances at least, is whether such policies are constitutionally permissible. Many of them clearly are.”

Smith and Ross are not arguing for a religious state. Notably, they come from different religious traditions. Smith is a devout Roman Catholic, while Ross is a protestant and her husband is Jewish. They count agnostics and Atheists among close friends. “It’s between you and God,” Smith believes.

Instead, the authors argue the true intent of our nation’s founders was a broader embrace of religion in our society, focusing on the views of the man in charge at the time, George Washington.

As Washington saw it, religion — albeit not a specific denomination or theology — was a key foundation to an effective self-governing society, proclaiming in 1796, “of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.”

While the First Amendment demands that Congress “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” this clause does not require an exclusion of religion either. America’s religious diversity grows by the second, and once the government starts to boot Joseph, Mary, and every menorah from all public displays, it’s only a matter of time before the Unitarians, Wiccans, Scientologists, and yoga instructors are kicked out too.

While defining religion can be tough, it is generally seen as a collective philosophy providing us lowly humans an explanation or ultimate truth to help us understand how or why we got here. Most religions observe a devotion to a higher power. Given that many Atheists revere the individual as the source of such truth, however, couldn’t they also be vulnerable to being ordained with religious status? It’s only a matter of time before the issue is litigated.

Across the nation, public holiday displays represent a hodgepodge of different faiths. At first glance, they are cheesy and over-the-top. Upon closer examination, they are everything good about America, representing our ability to come together to celebrate not only religion, but also the lessons of morality, generosity, and the peace it attempts to teach us. If only we will listen.

Jessica Peck Corry (, is a Denver attorney and serves as a public policy analyst with the Independence Institute.


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