The Truth About Separation of Church and State
Copyright 2002 Christian Law Association, used by permission."
Attorney David C. Gibbs, Jr.
Your legal missionary
Americans are generally uninformed when it comes to the United States Constitution. The results of a 2001 survey show that 84% of adults don’t know that freedom of religion is one of the five rights guaranteed by the First Amendment! On the flip side, the majority of Americans wrongly believe that the phrase “Separation of Church and State” is actually found in the Constitution
Here is what the First Amendment actually says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,- or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As Christians we have come to associate the phrase "Separation of Church and State" with the government's current hostility towards religion in the public arena. It is important, there- fore, that we understand the "truth" about how this phrase be- came a part of constitutional case law and our culture.
The First Amendment was intended to forbid the federal government from establishing a national religion. The American people favored this because they had seen the harmful effects of established churches in most of the colonies. In Massachusetts, for example, Baptist pastors such as Isaac Backus were imprisoned for refusing to pay state taxes to support the established (Congregational) church.
In Virginia, the established Church of England had used the Divine, Moral, and Martial Laws of 1611 to compel daily church attendance. Willful failure to attend divine services could result in a loss of wages, whipping, imprisonment, or even death! Although Christians not belonging to the Church of England won the right to practice their faith in Virginia without fear of persecution in 1699, the state government still tried to exercise control in religious matters.
In the 1780s, the Virginia legislature considered a general tax bill for the support of "Teachers of the Christian Religion." Payment was mandatory. As a result, Baptists, Presbyterians, Quakers, and other denominations vehemently opposed the bill. In 1785, James Madison expressed their sentiments well:
[T]hat religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right... We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.
The bill not only failed, but also served to promote the successful passage of Thomas Jefferson's- "Bill for the Establishment of Religious Freedom" in 1786. Under this Virginia law, the people could not be forced to sup- port any religious worship, place, or ministry whatsoever. There could be no punishment for religious opinions or belief. Freedom of religious expression replaced the sin and tyranny of compelling a man to contribute to the spread of opinions that he disbelieved and abhorred.
Virginia's religious freedom law laid a foundation for the passage of the First Amendment. By 1791, when the First Amendment was ratified, most of the colonies saw the merits of not establishing a national religion. The 1631 sentiments of Rhode Island’s Roger Williams were echoed in all but Maryland, Connecticut and Massachusetts:
God requireth not a uniformity of religion to be enacted and enforced in any civil state; which enforced uniformity (sooner or later) is the greatest occasion of civil war, ravishing of conscience, persecution of Christ Jesus in his servants, and of the hypocrisy and destruction of millions of souls.
In 1801, the Danbury Baptist Association in the state of Connecticut rejoiced at the election of Thomas Jefferson as the third president of the United States. On October 7, they wrote to Jefferson, their fellow believer in religious liberty, saying:
[W]e believe that America’s God has raised you up to fill the Chair of State. The Danbury Baptists complained to Jefferson of religious laws made by Connecticut’s government. They feared the Congregationalists Church would become the state-sponsored religion and expressed approval for Jefferson's refusal to "assume the prerogative of Jehovah and make laws to govern the Kingdom of Christ.” Although the Danbury Baptists understood that Jefferson, as President, could not "destroy the laws of each state,” they expressed hope that his sentiment would affect the states “like the radiant beans of the sun.”
It was Jefferson’s response to the is letter that is the origin of the infamous phrase “Separation of Church and State.” Jefferson’s reply on January 1, 1802, showed his agreement with the Danbury Baptists that:
Religion is a matter between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting or prohibiting the free exercise thereof,' thus building a wall of separation between church and State.
In referring to this “wall of separation" Jefferson was borrowing from the metaphor of Roger Williams, a fellow Baptist and Rhode Islands champion of religious freedom. Williams had previously written of “a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world.”
Christian scholars interpret Jefferson’s Danbury letter in its context. They accept Jefferson’s view that religion is a personal matter that should not be regulated by the federal government and that the federal government has no power to change law in the States. They interpret the “wall of separation” in the same way as Roger Williams: as a wall to protect God's garden from the world, to protect the church from the government.
In contrast, non-Christian schools lift the Danbury letter out of its historical context. They turn the “wall” metaphor on its head and use it to protect the government from the church. This results in a concerned effort to rid government of any religious influence. Hence, the opposition to Bible reading in schools, the Boy Scouts, official proclamations promoting religious events, nativity scenes in public displays, the posting of the Ten Commandments on public buildings, prayer in public places, etc. They fail to recognize that the Danbury Baptists would never have rejoiced at Jefferson’s election if he stood for removal of religious influence on the government.
In 1947, the Supreme Court made the situation worse. This is when the Court gave the "wall" metaphor constitutional standing in Everson v. Board of Education. In this case, the court said:
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. (Note: no breach of the wall was found in Everson. The New Jersey statute permitting the state to reimburse parents for the expense of busing their children to and from private, including parochial, schools was upheld.)
In the Everson case the Supreme Court held for the first time that the Establishment Clause of the First Amendment applied to individual states through the Due Process Clause of the Fourteenth Amendment. Prior to this only the federal government was precluded from establishing a religion. It is this Supreme Court case that stands in the way of individual states passing legislation that favors religion.
The Everson decision is a clear departure from the view of the Founding Fathers. The First Amendment was not intended to stop the states from establishing a church or favoring a particular religion. Both Jefferson and the Danbury Baptists understood this. Jefferson's reference to the legislature of "the whole American people" shows his understanding that the First Amendment applied to the federal government exclusively. Indeed, on January 23, 1808, Thomas Jefferson wrote to Rev. Samuel Miller saying:
Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority…
The Danbury Baptists did not even ask Jefferson to apply the First Amendment to the states. They acknowledged, "the national government cannot destroy the laws of each State." Rather, they looked to Jefferson's power of persuasion to prevail in Connecticut.
In the battleground to find the true meaning of the "wall of separation between Church and State" it is useful to consider the actions of the founders after the First Amendment was passed. A review of a sampling of their activities makes it clear that the founders had no intention of neutralizing government from all religious reference:
· The House of Representatives called for a national day of prayer and thanksgiving on September 24, 1789 - the same day that it passed the First Amendment.
· From 1789 to today, Congress has authorized chaplains, paid by public funds, to offer prayers in Congress and in the armed services.
· Jefferson closed the Danbury letter, written in his official capacity as President, with a prayer: "I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man."
· On the very day Jefferson sent his letter to the Danbury Baptists he was making plans to attend church services in the House of Representatives.
· Jefferson signed a treaty into law in 1803 that provided for a government-funded missionary to the Kaskaskia Indians.
· In response to Congress’ request of July 9, 181, President James Madison issued a proclamation recommending a day of public humiliation and prayer to be observed by the people of the United States, with religious solemnity.
· In 1832 and 1833, Congress approved land grants to Columbian College (later George Washington University) and Georgetown University, Baptist and Jesuit schools respectively.
· The Ten Commandments are inscribed on the wall of the United States Supreme Court.
· The Supreme Court begins each session with the prayer: "God save the United States and this Honorable Court."
· The ongoing use of the New England Primer in public schools despite its many religious references.
· Every president has invoked God's name in a prayerful manner in his inaugural address.
This month as we celebrate President's Day, let us also consider the views of our first three Presidents on matters of church and state:
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports... And let us with caution indulge the supposition that morality can be maintained without religion... reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. It is substantially true, that virtue or morality is a necessary spring of popular government.
-George Washington, Farewell Address to the United States, 1796
[W]e have no government armed with power capable of contending with human passions unbridled by morality and religion... Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
-John Adams, October 11, 1798
In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it, but have left them, as the Constitution found them, under the direction and discipline of the church or state authorities acknowledged by the several religious societies.
-Thomas Jefferson, Second Inaugural address, March 4, 1805
The intent of the First Amendment and the words and actions of our Founding Fathers, including Thomas Jefferson, clearly demonstrate how the words "the separation of church and state" were originally understood. These words were never intended to remove God from government; rather they were intended to keep government from controlling and manipulating religious practices. Unfortunately today, two hundred years after Jefferson wrote the phrase, these words have turned on those they were intended to protect.