The First Amendment and “Separation of Church and State”

With Kim Davis in the spotlight, there has been a flood of people hollering for the “Separation of Church and State.” Mrs. Davis, a county clerk in the State of Kentucky, refuses to issue marriage licenses to same-sex couples because of her religious belief that marriage is to be between one man and one woman.

I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. (Source)

As a side-note, this definition of marriage also happens to be Kentucky State law.

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. (Source)

When i ask people what is meant when they say there is to be a “separation of Church and State,” they argue, typically, that those who rule are to keep their religious beliefs to themselves; religious thinking should not influence their governing. And when i ask people where this so-called “law” comes from, they almost always cite the First Amendment of the U.S. Constitution. Does the First Amendment support this idea that civil magistrates cannot rule according to religious beliefs?

In short: No. Not even close.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…

Allow me to let Constitutional scholar and historian Dr. Brion McClanahan explain the meaning of this portion of the First Amendment:

The First Amendment is arguably the most famous and most debated amendment in the Bill of Rights. Madison combined five civil liberties into the First in order to condense the various proposals from the State Ratifying Conventions. There are several important components to the First Amendment, not the least of which is the first five words, “Congress shall make no law….” This established a precedent for the next nine amendments and amplified the preamble to the Bill of Rights. They were designed to limit the powers of the general government only. States were exempt and could, if the several legislatures wished, pass laws establishing a church, limiting the press, outlawing seditious speech or restricting the right of assemblage. Madison attempted to incorporate portions of the Bill of Rights into the State constitutions – for example prohibiting the establishment of State churches – but this was rejected. As with the other amendments in the Bill of Rights, the intent of the First is easy to ascertain and only made cloudy by silver-tongued lawyers and judges bent on political gain.

“The first liberty protected by the First Amendment, “freedom of religion,” has received the most attention. What did the Founders mean by the “establishment of religion”? The Virginia and North Carolina proposals made clear their definition. “No particular religious sect or society ought to be favored or established, by law in preference to others.” ln other words, the Congress would not be able to legally establish a “religious sect or society” – that is a specific Christian denomination – as the “Church of the United States” in the manner of the established Church of England. But this did not by any means imply that the Founders intended public life to be devoid of religion.

“Amos Singletary said in the Massachusetts Ratifying Convention that he was troubled that “there was no provision that men in power should have any religion: and though he hoped to see Christians, yet by the Constitution, a Papist, or an Infidel was as eligible as they…in this instance we were giving great power to we know not whom.” Thomas Lusk lamented in the same convention that “Roman Catholics, Papists, and Pagans might be introduced into office and that Popery and the Inquisition may be established in America.” Isaac Backus, a leading proponent of freedom of conscience in colonial America, answered that because the Constitution forbade religious tests (Article Vl, Clause 3), “Popery or some other tyrannical way of worship…” could not be established by the Congress. Daniel Shute, however, provided the clearest explanation of the word “religion.” “Far from limiting my charity and confidence to men of my own denomination in religion, l suppose, and l believe, sir, that there are worthy characters among men of every denomination – among Quakers, the Baptists, the Church of England, the Papists; and even among those who have no other guide, in the way of virtue and heaven than the dictates of natural religion.”

“Virginia and North Carolina were the two States that proposed an amendment guaranteeing religious freedom, so their views might deserve special weight. ln North Carolina, Henry Abbot equated “religion” with denomination. “I believe the majority of the community are Presbyterians. l am, for my part, against any exclusive establishment; but if there were any, I would prefer the Episcopal.” North Carolina’s governor Samuel Johnston defined “religion” the same way and commented that the “religions” of the States included members of the Presbyterian, Baptist, and Episcopalian churches, as well as Quakers and other “sects.” Some members of the Convention used the word “religion” in its broader sense. But there was unanimity that morality and religion were bed rocks of a stable society.

“Madison made the most revealing Statement in regard to the intent of the “establishment clause” during debate over the amendment in 1789. He proposed that the word “national” be inserted before “religion.” This would, he hoped, “satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.” For Madison, the purpose was to prevent the establishment of a national “Church of the United States.” ln no way was it to inhibit the constitutionally protected “free exercise” of religion. And again, the First Amendment applied only to the general government. States had free rein on this issue, and most had either an established church or a strict religious test for office holders.” (Source)

The very fact alone that many States had “either an established church or a strict religious test for office holders” should silence the “separation of Church and State” drones, once and for all. But they choose to either ignore the history or twist it. One simply cannot reconcile the twisted “separation of Church and State” mantra with the State Constitutions. Here is a sample of these “established church(es)” and “strict religious test(s) for office holders” from various States:

1776 Constitution of Pennsylvania

SECT. 10. A quorum of the house of representatives shall consist of two-thirds of the whole number of members elected; and having met and chosen their speaker, shall each of them before they proceed to business take and subscribe, as well the oath or affirmation of fidelity and allegiance hereinafter directed, as the following oath or affirmation, viz:

I do swear (or affirm) that as a member of this assembly, I will not propose or assent to any bill, vote, or resolution, which stall appear to free injurious to the people; nor do or consent to any act or thing whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared in the constitution of this State; but will in all things conduct myself as a faithful honest representative and guardian of the people, according to the best of only judgment and abilities.

And each member, before he takes his seat, shall make and subscribe the following declaration, viz:

I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration. (Source)

1776 Constitution of Delaware

ART. 22. Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall take the following oath, or affirmation, if conscientiously scrupulous of taking an oath, to wit:

” I, A B. will bear true allegiance to the Delaware State, submit to its constitution and laws, and do no act wittingly whereby the freedom thereof may be prejudiced.”

And also make and subscribe the following declaration, to wit:

” I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.” (Source)

1777 Constitution of Vermont

And each member, before he takes his seat, shall make and subscribe the following declaration, viz.

” I ____ do believe in one God, the Creator and Governor of the Diverse, the rewarder of the good and punisher of the wicked. And I do acknowledge the scriptures of the old and new testament to be given by divine inspiration, and own and profess the protestant religion.” (Source)

1776 Constitution of North Carolina

XXXII.(5) That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State. (Source)

1778 Constitution of South Carolina

XXXVIII. That all persons and religious societies who acknowledge that there is one God, and a future State of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State. That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges. To accomplish this desirable purpose without injury to the religious property of those societies of Christians which are by law already incorporated for the purpose of religious worship, and to put it fully into the power of every other society of Christian Protestants, either already formed or hereafter to be formed, to obtain the like incorporation, it is hereby constituted, appointed, and declared that the respective societies of the Church of England that are already formed in this State for the purpose of religious worship shall still continue incorporate and hold the religious property now in their possession. And that whenever fifteen or more male persons, not under twenty-one years of age, professing the Christian Protestant religion, and agreeing to unite themselves In a society for the purposes of religious worship, they shall, (on complying with the terms hereinafter mentioned,) be, and be constituted a church, and be esteemed and regarded in law as of the established religion of the State, and on a petition to the legislature shall be entitled to be incorporated and to enjoy equal privileges. That every society of Christians so formed shall give themselves a name or denomination by which they shall be called and known in law, and all that associate with them for the purposes of worship shall be esteemed as belonging to the society so called. But that previous to the establishment and incorporation of the respective societies of every denomination as aforesaid, and in order to entitle them thereto, each society so petitioning shall have agreed to and subscribed in a book the following five articles, without which no agreement fir union of men upon presence of religion shall entitle them to be incorporated and esteemed as a church of the established religion of this State: 

1st. That there is one eternal God, and a future State of rewards and punishments.

2d. That God is publicly to be worshipped.

3d. That the Christian religion is the true religion

4th. That the holy scriptures of the Old and New Testaments are of divine inspiration, and are the rule of faith and practice.

5th. That it is lawful and the duty of every man being thereunto called by those that govern, to bear witness to the truth. (Source)

This isn’t ‘old’ news either. Six States still have “religious tests” in their Constitution: (click on “Article” for source links)


Article 19, section 1: “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any Court.”


Article 37: “That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.”


Article 14, section 265: “No person who denies the existence of a Supreme Being shall hold any office in this State.”

North Carolina

Article VI, section 8: “The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.”


Article 1, section 4: “No person who acknowledges the being of a God and a future State of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.”

Note: While this Constitution does not require a religious test, it clearly allows for religious thought with its officers. A person is not disqualified if they do not adhere to the “separation of Church and State” myth.

South Carolina

Article XVII, section 4: “No person who denies the existence of a Supreme Being shall hold any office under this Constitution.”


Article IX, section 2: “No person who denies the being of God, or a future State of rewards and punishment, shall hold any office in the civil department of this State.”


Article 1, section 4: “No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.”

No matter how loud the God-hating, Facebook activists want to scream, there simply is no getting around all this. This blending of religion and State has always existed and is still acknowledged in a number of current Constitutions. And it does not violate the U.S. Constitution because the First Amendment never granted the federal government the power to prohibit it in the first place. In fact, the Bill of Rights were insisted upon by most of the Founding Fathers for the express purpose of clarifying the restrictive powers of the federal government. Granting the federal government the power to squelch religious thought in their State governments would have been unthinkable.

Those who scream the loudest that Kim Davis is supposedly ‘breaking the law’ are actually the ones ignoring many State laws, twisting the intent of the First Amendment, and applauding the arrest of a county clerk by a federal government that has overstepped its legal, Constitutional bounds. THEY are the ones that can’t seem to leave people alone and have no problem forcing their immoral beliefs and practices on everyone else, even at the point of a gun and threat of prison.