This is a partial transcript from "Hannity & Colmes," Dec. 9, 2004, that has been edited for clarity.

Watch "Hannity & Colmes" weeknights at 9 p.m. ET!

SEAN HANNITY, CO-HOST: We had a huge crowd in Cupertino (search), California, last night for our "Take Back America" special. And as you know, a fifth-grade teacher there sued the school district after they banned him from showing his students the Declaration of Independence (search).

Now he says the school didn't want him to use the documents that reference God. Well, this issue isn't going to go away. But you may not know that by watching the other networks out there.

So what's coming next here? Joining us now, defense attorney Mercedes Colwin and also joining us, former prosecutor Paul Callan.

Mercedes, tell me that a teacher has every right, duty and obligation to take the Declaration of Independence and use that at supplemental materials for children.

MERCEDES COLWIN, DEFENSE ATTORNEY: They can use it, but it's in the methodology of which they use it. They can't start segmenting the documents...

HANNITY: Why not?

COLWIN: Here's a God reference. Here's another God reference, students. Here's another God reference.

HANNITY: But we had the teacher on. He said that's not the case. This case here is, he had to, because a student asked the question about God and he answered it, relevant to current events, for four minutes in a classroom. Then he had to submit all materials to the principal, and the principal said, "You can't use the Declaration because it mentions God."

COLWIN: He had a pattern and practice in which that he would segment parts of his class to preach to these students.

HANNITY: Where do you getting your information from? Less than 5 percent of his materials had any reference to God. Less than five.

COLWIN: But we're not talking about the documents. The documents have a historical significance, no doubt. But it's in the manner in which you use it, Sean. And that's extremely critical.

HANNITY: You know something?

COLWIN: We have a separation of state and church. We have had it for years and years.

HANNITY: Yes, and where in the Constitution does it say it? Where?

COLWIN: The establishment clause says that we...

HANNITY: Where does it say, "separation of church and state" in the Constitution? It's not in there, is it?

COLWIN: That's how it's interpreted.

HANNITY: It's never been in there, counselor, has it, though?

COLWIN: The establishment clause says clearly that there's a separation.

HANNITY: Counselor, the phrase "separation of church and state" has never been in the Constitution, has it?

COLWIN: It has a phrase in there that says it has been established.

HANNITY: Where?

COLWIN: In the establishment clause.

HANNITY: It says no establishment of a state religion, but it also talks about the free exercise thereof, Paul.

PAUL CALLAN, PROSECUTOR: Well, the establishment clause says Congress shall pass no law recognizing the establishment of a religion. And it was passed originally so that this country wouldn't have a state religion.

But the Constitution guarantees freedom of religion. It doesn't guarantee freedom from religion.

HANNITY: That's right. And the free exercise thereof is...

CALLAN: Absolutely. And I think, when you have a teacher who is using the Declaration of Independence and historical documents to teach children, and there happen to be references to God in those documents, well, that's part of the history of this country.

HANNITY: See, I think this is a pivotal moment for this country, Mercedes. Maybe we will never going to be able to resolve them.

But if that's the case, then this is an end and goodbye to government schools. If your decision on the left is that you guys are going to be that intolerant that you are not going to allow teachers to use real historical documents, then I'm saying, "Free America's children from government schools and the intolerance of the left."

COLWIN: Sean, it's the opposite. If you're going to concentrate on teaching children about God as the Christian God that our founding fathers are mentioning in these historical documents, you are going to have an issue with children that don't have that same philosophy, or whose parents don't.

It cannot be that the school is going to teach religion. It should be up to the parents...

HANNITY: Who is the author of the Bill of Rights? Do you know? It's James Madison. James Madison hired the first chaplain for the United States Congress.

Certainly, if we want to get back to the original intent of our founders, he didn't have a problem with the reference or a mention of God.

COLWIN: This has to be a fluid document. Look, there has to be a fluid document. The Constitution has to be fluid. It has to change.

HANNITY: What about original intent?

COLWIN: You know what? In the 1940s, blacks couldn't be in the same restaurants. Blacks couldn't be in the schools.

ALAN COLMES, CO-HOST: Hold on. Paul Callan...

COLWIN: And it wasn't the same thing. It had to be fluid. It had to be changed. It was changed by the courts of law.

COLMES: Let's get back to the crux of this story. The crux of this story, first of all, the Declaration as a document is not banned in this school. The school didn't say to him, "You cannot take the Declaration of Independence and introduce that in your classroom." Are you aware of that? They didn't say that. They said that they were supportive documents. He wanted selectively to bring in documents -- selectively -- and that's what the issue was.

CALLAN: Well, but I think, Alan, the problem is there's a secularist movement in this country now, which is really trying to sanitize history and take God out of history.

COLMES: But let's not make broad statements. The Declaration of Independence is not banned in this school.

CALLAN: No, no, it's not banned. But when you say to a teacher, "You can't use the portion of the Declaration of Independence that refers to God. You can't use George Washington's journal, which had God references."

Now, he was referring to a number of documents that the founding fathers were involved with that had references to God.

COLMES: But here is what happened.

CALLAN: And the school district doesn't like that.

COLMES: He selectively, Mercedes, brought in a bunch of documents -- George Washington's prayer journal was one of them and so was what John Adams wrote, John Adams's diary, including where it says the Christian religion is above all the religions that ever prevailed or existed.

So he selectively took documents, in order, it seemed, when you put them all together, selectively to promote the Christian religion. That's what the issue is here, not that he is being denied the right to teach the Declaration of Independence.

COLWIN: Exactly. And I think, if you look at his case, and you're fully right. It's the methodology in which he is teaching these documents. That's the problem is.

COLMES: Right.

COLWIN: It's not the fact that he is using these documents. Hundreds of thousands of teachers use these documents in every day, but they're not going to focus in on the presence of God within those documents.

CALLAN: Alan, if we're accurately teaching history, is there any document that the founding fathers had that said the Islamic religion is the superior religion? Is there any such document?

COLMES: I don't know.

CALLAN: Or is he teaching what the founding fathers actually said?

COLMES: The point is, Paul...

CALLAN: Maybe you don't like what the founding fathers said, but that's history, Alan. You have to teach it.

COLMES: You are clearly avoiding what the real issue is here.

CALLAN: I mean, we don't go into...

COLMES: But you're avoiding the issue here, which is, whether or not this teacher selectively used only certain documents and didn't give the full broad range in context and wanted to focus solely on those documents that talked about Christianity as a superior religion. That's what the issue is.

(CROSSTALK)

CALLAN: This is what I'm asking you, Alan. Where is the broad range? Where do the founding fathers refer to another religion other than Christianity?

COLWIN: But that's the problem, Paul. The problem is this.

CALLAN: So let's eliminate history as we know it?

COLWIN: No, no, no. The problem is that the country as it exists now is quite different than it was when our forefathers created those documents.

CALLAN: So we're going to make up feel-good history?

COLWIN: We have to be much more tolerant. We have to be far more expansive. We have to broaden the horizons.

HANNITY: We're getting to the point, Paul, where the only solution in this is going to be, stop forcing our kids into your government schools. You live up to your motto of being pro-choice. Let us choose where to send our kids to school. And you guys can have all the condom and cumber demonstrations and anti-God things...

COLWIN: OK. I didn't know we were going to talk about condoms.

HANNITY: You have your liberal values, and we'll have our schools, because we certainly don't agree.

CALLAN: You know, Sean, there's middle ground here.

HANNITY: Where?

CALLAN: Well, because everybody can practice their religion in this country.

HANNITY: All right.

CALLAN: But when you're teaching American history, teach it the way it happened. Don't make it up.

HANNITY: We've got to run.

Content and Programming Copyright 2004 Fox News Network, L.L.C. ALL RIGHTS RESERVED. Transcription Copyright 2004 eMediaMillWorks, Inc. (f/k/a Federal Document Clearing House, Inc.), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon Fox News Network, L.L.C.'s and eMediaMillWorks, Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.