Just Where is that Wall of Separation between Church and State?

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Where is that Constitutional Wall of Separation between Church and State?

By Burke A. Christensen

Copyright © Burke A. Christensen 2006

How do you reconcile the provision in the Constitution of the United States mandating a wall of separation between church and state with the following examples of institutionalized religion intruding onto the government side of the wall? 

Both houses of the United States Congress open their sessions with a prayer and each employs an official chaplain. 

1. The official motto of the United States is “In God We Trust.” 
2. That motto proclaiming the citizen’s trust in God is on our money and on government buildings throughout the United States.
3. The pledge of allegiance to our flag, which is recited by politicians and school children daily, contains the phrase “under God.”
4. The United States Supreme Court opens its term with the words “God save the United States and this Honorable Court.” 
5. At public expense, the U.S. military hires chaplains and builds chapels for their religious services.

How is it that our government can do these things if there is a constitutional wall of separation between church and state? 

The reason you can’t reconcile these government-sponsored religious activities with the words “a wall of separation between church and state” is not because the government should stop doing those things.  It is because the words “a wall of separation between church and state” do not appear anywhere in the Constitution.  You can’t reconcile the words and the acts because there is no conflict to reconcile.

If there is no such language in the Constitution creating a wall between church and state, why are federal, state and local government officials throughout the country banning Christmas crèches on the courthouse lawn, prohibiting prayer in schools, and removing religious iconography of all sorts from the town square?

You can blame it on the Baptists as I will explain shortly.

What the U.S. Constitution does say about religion is in the First Amendment.  This is the complete text of the amendment, but for our purposes, the first sixteen words are the most important.

“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.”

The plain language of the first sixteen words of the amendment creates a one-way barrier that has two rules.  Note that these rules impose restrictions upon the government; not upon religion.

Rule number one is that Congress shall create no law that establishes any religion over another religion.  In the eighteenth century, to “establish” a religion was understood to mean that one religion was selected by the government as the official religion of a nation.  The established religion was directly supported by taxation.

Rule number two is that Congress shall create no law which prohibits or restricts a person’s freedom to practice his or her religion. 

The careful reader will note that nothing in the First Amendment is intended to prevent religion from influencing government.  That is the one-way nature of the barrier created by the First Amendment.  The reason is that the Founding Fathers hoped and expected that religion would continue to play an important role in providing a moral basis for the citizens of this country. 

How do we know that?  One answer is the Farewell Address given on September 19, 1796 by President George Washington in which he stressed the importance of the influence of religion and morality upon a free people and their elected leaders.  He said:

“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness -- these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

This is clearly not the language of a person who would have supported a wall of separation between church and state.  Washington believed morality was based upon religion and religion was an indispensable support for political prosperity.  Rather than separating religion from the state, Washington would have politicians respect and cherish the role of religion in support of good government.

The actual language of the First Amendment doesn’t look like it gives Congress (or the courts) the power to prohibit citizens from putting the Ten Commandments, the Star of David, a crescent moon, or a cross on the lawn in front of the courthouse.  In fact such a prohibition on religious expression sounds like a restriction on the free exercise of religion.  And that is expressly forbidden by the second clause of those 16 words.

Let’s go back in time and see how the Baptists got involved.  In 1801, Thomas Jefferson had just been elected President of the United States.  In October of that year, the Baptist Association of Danbury, Connecticut wrote Jefferson a letter. 

The Baptists were a religious minority in a state where the local government had established another church, the Congregationalists.  If you are wondering why a state government could have established a religion in this country in 1801, when the First Amendment had been adopted in 1791, it is because the First Amendment is a restriction on the U.S. Congress; not the states.  The extension of the First Amendment to the states did not happen until after the passage of the 14^th Amendment.

The Baptists wrote to assert that the state of Connecticut was restricting their freedom to practice their religion.  The Baptists complained to Jefferson that under the governance of the Federalist party in the State of Connecticut “religion is considered as the first object of legislation; and therefore what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen.” 

So, what did the Baptists want?  The Baptists did not seek to restrict the rights of the Congregationalists to practice their religion.  Indeed, because they knew that the First Amendment applied only to the federal government, they didn’t even ask that the Congregationalists be “disestablished” as an official religion of Connecticut.  Instead, they sought freedom for all religions to practice their own beliefs.  They believed that government should not have the power to restrict the practice of religion because “the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors.” 

The Baptists’ letter recognized that Jefferson had no power to change the laws of Connecticut, but expressed the hope that his example as an ardent champion for freedom of religion would have a positive influence in obtaining freedom of religion for them in Connecticut.

In his response, written on New Years Day in 1802, Jefferson included the following paragraph.

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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.”

 

It is the last ten words of this paragraph which have been substituted for the actual language of the First Amendment.

 

What was the purpose of the wall in Jefferson’s letter?  It was certainly not a wall which gave the government the right to restrict people from exercising their religion.  It was most certainly not a wall intended to remove religion and its moral influence from our political lives.

 

Jefferson and his successor in the presidency, James Madison, as well as the other Founding Fathers were united in their opposition to the establishment of a “national religion”.  But they were decidedly not in favor of separating religion from the state.  Both Jefferson and Madison attended church services held weekly in the chambers of the House of Representatives. 

 

Preachers of many protestant denominations as well as Catholic priests conducted services in the Congress.  In fact, on Sunday, January 3, 1802, just two days after signing the “wall of separation” letter to the Danbury Baptists, Jefferson attended a church service held in the House of Representatives conducted by John Leland, a Baptist preacher.  It seems unlikely that one who allegedly wanted to keep religion and government completely apart would participate in a church service where the government provided the building where the service was held. 

 

That Jefferson’s “wall of separation” statement could not be understood to mean that government should prohibit religious practices on government property is evident by the fact that Presbyterian communion services and the church services of several other denominations were held in the first Treasury Building until 1814, when it was burned by the British.  This use of executive branch governmental buildings for religious purposes could not have been done without Jefferson’s consent as well as the consent of the presidents before and after him. 

 

The diary of John Quincy Adams for February 2, 1806 reports his attendance at a Presbyterian Church service held in the chambers of the United States Supreme Court.  From 1865 through 1868, the First Congregational Church held its services in the House of Representatives.  It seems clear that “a wall of separation between church and state” as it is interpreted today is not what was intended by Jefferson.

 

Since the federal government has permitted many different churches to use government buildings as houses of worship in every one of the 205 years since Jefferson’s wall of separation letter, how have the words in that letter come to be substituted for the actual words of the First Amendment and mean that Americans now cannot have any religious symbols in any government buildings?

 

In 1878, Reynolds v. U.S., a religious freedom case involving the practice of polygamy, quoted the paragraph from Jefferson’s letter which contained the “wall of separation” language.  However, the purpose of the quotation was to support the idea that the free exercise of religion clause of the First Amendment could not be used to condone an action that was otherwise illegal.  Neither the “wall of separation” language nor the establishment clause was a factor in the Reynolds decision.

 

Nevertheless, in 1947, when the Supreme Court decided Everson v. Board of Education, the Everson opinion cited the Reynolds case as speaking to the prohibition against government establishing a religion.  This was clearly not the issue in Reynolds.  Considerable dicta in the Everson majority opinion by Justice Black began the substitution of the non-constitutional “wall of separation” language in Jefferson’s letter for the actual words of the First Amendment. 

 

Nevertheless, the Court held that the State of New Jersey could spend public funds to reimburse parents for the bus fare they incurred to send their children to Catholic schools and that such an expenditure of public funds did not constitute an establishment of religion.  Although Washington, Jefferson and Madison would have disagreed with much of the dicta in the opinion, this conclusion is certainly consistent with the use of the term “establishment of religion” as it was understood by these Founding Fathers. 

 

To be specific, with respect to the adoption of the First Amendment, James Madison is quoted in 1 Annals of Congress 370 as stating that “he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience (emphasis added).” 

 

In 1948, the Supreme Court decided McCollum v Board of Education.  Justice Black again authored the majority opinion.  In this case, the State of Illinois permitted any religion to offer released time instruction during school hours and on school property to any student who wished to attend the classes.  The school provided only a room for the classes to be held.  The religious instructors and any class materials were provided by the religions sponsoring the classes.  The Court held that this use of public property constituted an unconstitutional “establishment” of the religions that chose to provide teachers for the classes. 

 

Mr. Jefferson would not have agreed, and as Justice Reed wrote in his McCollum dissent, “The history of American education is against such an interpretation of the First Amendment.” 

 

Justice Reed’s dissent also notes that both Jefferson (as founder) and Madison (as trustee) encouraged religious instruction on the campus of the University of Virginia; a public educational institution governed, managed and controlled by the State of Virginia.

 

Much has been made by some of the involvement of Jefferson and Madison in 1785 as the opponents of a bill in the Virginia Assembly.  The bill imposed a tax upon the citizenry of Virginia to support certain preachers of religion.  Madison wrote a Memorial and Remonstrance against Religious Assessments to oppose the bill.  The Remonstrance does not support the idea that Madison wanted religion and government to be completely separate.  Justice Reed’s dissent in Everson summarizes the proper understanding of Madison’s position.  “Throughout the Remonstrance, Mr. Madison speaks of the ‘establishment’ sought to be effected by the act.  It is clear from its historical setting and its language that the Remonstrance was a protest against an effort by Virginia to support Christian sects by taxation.  Issues similar to those raised by the instant case [Everson] were not discussed.  Thus, Mr. Madison’s approval of Mr. Jefferson’s report as Rector [of the University of Virginia] gives, in my opinion, a clearer indication of his views on the constitutionality of religious instruction in public schools than his general statements on a different subject.”

 

Madison certainly did not seek a wall of separation between church and state.  History is quite clear that Thomas Jefferson could not have intended his “wall of separation” language to mean what it is interpreted to mean today.  Even less could he have meant that the text of his letter should replace the words of the First Amendment. 

 

Since the founding of this nation, church services have been permitted on government property.  The establishment clause was intended by its authors only to prohibit government from imposing a tax to directly support a religion; it was not intended to require government to suppress religious expression. 

 

The courts may continue to reinterpret the establishment clause of the First Amendment as prohibiting the citizens from freely exercising their religious beliefs, but they cannot blame that interpretation on Thomas Jefferson.

 

Blame it on the Baptists.

About the Author

Burke A. Christensen, JD, who holds a bachelor’s degree in History from the Utah State University and a Juris Doctorate from the University of Utah College of Law, is the Robert B. Morgan Professor of Insurance in the College of Business and Technology at Eastern Kentucky University in Richmond, KY

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