Is There a Wall of Separation Between Church and State?

Until 1947, few Americans knew about Thomas Jefferson’s comment, made in a private letter to the Danbury Baptist Association, that the First Amendment’s guarantee against a federally established church made a “wall of separation between church and state.” It was in that year, in the case of Everson v. Board of Education, that the Supreme Court overturned a continuous line of cases stretching to the founding era and beyond by applying the First Amendment’s religion clause, aimed at limiting federal power, against the states. The Court dredged the Danbury letter from obscurity, claiming that it, though written well after the Constitution’s adoption and by a man who took no part in drafting it or its amendments, somehow summed up the meaning and requirements of religious liberty.

Sadly, many Americans mistakenly believe that the phrase “wall of separation between church and state” is literally written into the United States Constitution. Even worse, for decades they have been browbeaten into believing that this separation requires that religion be driven from the public square. But what does it even mean to build a wall of separation between church and state? Even minimal, superficial examination of the facts of history shows that it means far less than today’s radical secularists would have us believe.

In Jefferson’s time there were clear examples of the melding of church and state power (or “church establishment”) that the United States clearly did not want to follow. Indeed, Jefferson’s own political weakness for the French Revolution itself points to a useful rejection of an unhealthy fusion of church and state. That fusion was made by the French monarchy during the early modern period. French Kings had worked for centuries to undo the Catholic Church’s partial victory during the “investiture crisis” of the eleventh and twelfth centuries. In this conflict the Church won the power to name her own bishops, rather than merely accepting monarchs’ own, self-interested choices. That victory enabled the Church to play a balancing role, checking the secular powers throughout Europe even as it developed its own system of ecclesiastical law governing marriage, charity, and internal church administration. The separation of sacred from profane powers and institutions provided the grounds, and spawned legal thought and practice establishing the rights of towns, corporations, and individual persons against an overreaching state. It also greatly annoyed monarchs.

The Catholic Church’s self-government became a moot point in Protestant countries after the Reformation. There secular governments became the sole powers operating in the political sphere. Luther and his followers insisted that princes should listen to counselors with religious wisdom. But only one legal structure remained, now, to govern marriage and contract, poverty and commerce, religious and secular associations. In Catholic countries the story was different. Conflicts between religious and secular leaders continued, which some monarchs saw as a source of weakness for the kingdom, rather than strength for the faith and rights of the Church and the people. Yet, in both Catholic and Protestant nations, friends of ordered liberty recognized that religious institutions must retain the ability to govern their own internal relations free from royal decrees if faith is to survive, let alone flourish.

French kings in particular worked to take back power over the Church within their demesnes. By the time of the French Revolution, the practice of “Gallicanism” had allowed Kings in France to sell Church offices, interfere in ecclesiastical issues and cases, and virtually eliminate the power of the Church to check royal power. Whatever the claims of modern secularists, the result was far from a theocracy, for the Church had in fact lost much of her power to defend herself, with many of her officers captured, in many ways even ruled by the state. Thus, the power of religious persons and officers to protect the peasants and middle classes against royal overreach was disastrously curtailed, and all too many church officials, having gotten their offices through the state, became corrupt servants of that state.

England, too, had a fully established, (Anglican) Church, whose officers were explicitly the creatures of state action and favor. Americans well knew the dangers of such an arrangement. Many of them had come to the New World specifically to escape laws requiring that they attend Anglican services and imposing a variety of legal, commercial, and political disabilities on dissenters. That said, no one who knows the first thing about American history can reasonably claim that the Calvinist settlers of New England had the slightest desire to set up secular communities. Church governance was central to public life throughout most of the colonies and shaped American conceptions of constitutionalism and liberty itself. The Church, by which Calvinists meant the myriad, largely self-governing congregations spread throughout the northern colonies (and spreading to the south over time) was to be free, to have her rights, and to play a crucial role in determining the fitness of rules and rulers alike.

Jefferson, along with his political ally James Madison (who, of course, actually did play an active role in drafting the Constitution and its amendments) had acted to put their aversion to church establishment into practice. Both men wrote and sought legislation in Virginia in order to prevent the state from imposing a tax on property holders for the purpose of subsidizing the established Episcopalian Church. Much has been made by secularists about Madison’s use of the rhetoric of individual conscience in this debate. But his language choice is of extremely limited relevance given that it was used in fighting, at the legislative and not the constitutional level, overt church establishment in one state—at a time when other states were, in fact, establishing churches in the sense of seeing to their financial support from general state revenues. Throughout most of the colonies and early states, the hierarchy of formal, exclusivist Episcopalian establishment raised concerns, but support for religious education was essentially universal, even at the federal level; in this respect the Northwest Ordinance declared that federal support should be given for religion in frontier lands.

Madison himself stated during debates over First Amendment language in the first Congress that his goal was protection against establishment of a “national church” and protection of the “full and equal rights of conscience,” by which he meant protection of the civil rights of all Americans, regardless of their religious belief or worship. The summary of the debate shows Madison believed the religion clause language to mean 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.”

These are, in fact, highly valuable restrictions on the powers of the federal government. But the “wall of separation between church and state” they establish, if indeed it can properly be called such, is extremely low and permeable. The goal is not, as with so much contemporary hand-wringing over public expressions of common faith, to empty the public square of religious expression. It was, rather, to prevent precisely the kinds of anti-religious rules becoming increasingly common in the United States. The framers of our Constitution would have no problem with school prayer or tax subsidies for all schools, including parochial schools. What they would have a problem with, and what we should have a problem with, are rules that invade churches’ proper sphere of self-government. Thus, to take one prime and timely example, Obama Administration rules requiring that the order of Catholic nuns, Little Sisters of the Poor, allow the government to use its health care plan to distribute contraceptives and abortifacients are the natural outgrowth of all too many people’s ignorance of their own constitutional order. These rules chain the Little Sisters of the Poor to conduct they find morally abhorrent on religious grounds. Worse, given the current logic, such rules can only lead in one direction: toward forcing churches to abide by supposedly neutral rules, for example regarding discrimination in who the church may agree to join in marriage, or who it may ordain as priests.

In “neutral” fashion, with the stated aim of “protecting individual rights,” we are very quickly moving toward a society in which faith is relegated to the realm of mere belief, in which the acts of religious people will enjoy no protection from the latest, potentially deadly desires of those in power. In justifying a totalitarian Leviathan state, Thomas Hobbes argued that no one can have any complaint should the sovereign force them to say or do something they find objectionable because they always would be “free” to believe as they wish. Such freedom is worse than specious, it is a damnable lie. Sadly, it is a lie by which we increasingly are asked to live.

Editor’s note: This column first appeared September 20, 2015 on The Imaginative Conservative website and is reprinted with permission.

Bruce Frohnen

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Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

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