Church and State: The Establishment Clause

How many times have we heard the phrase “separation of church and state” or “a wall of separation?” How many would be surprised to learn that nowhere in the United States Constitution is the phrase used? How many would be surprised to learn the phrase is from a letter written by Thomas Jefferson, a man who was not involved in the writing of the Constitution? This is perhaps the most historically misunderstood concept in American constitutional history.

In order to understand the genesis of the problem, one needs to go back in time to the founding of this country. I realize this is an originalist argument that has come under attack in some circles, but our founders grappled with wording and issues we confront today. I have argued in other contexts that the debate over certain clauses in the Constitution or the Bill of Rights sheds great light on what the writers intended as far as the practical effects were to be. But equally important were the actions and the laws that were absolutely no problem despite the Bill of Rights at the time. The further we get away from that generation of Founders- as the immediate generation died off- the confusion over these clauses begins.

First off, none of our Founders believed that a connection to religion was evil or unwanted. They opposed a federally established church because they feared that it would prohibit the free exercise of religion, which was their primary goal in enshrining religious freedom in the Bill of Rights. There is ample evidence that religion and its connection to government was held in high regard. George Washington in his both his Inaugural Address and his Farewell Address referenced religion as the moral compass that should guide the nation. On the very day they took up the Bill of Rights in Congress, they also took up the Northwest Ordinance. Best known for its land grants for the creation of schools, the wording specifically allowed for the public funding of public and religious schools and the government acted accordingly. This state of affairs lasted until 1845, but it should be noted that the Founders- those most intimately close to the enactment, debate and understanding of the Establishment Clause- had no problems whatsoever with government funding of religious schools. In short, actions speak louder than words. Their only concern was that once government funded religious schools, it had to be done across the board and government could not selectively fund religious schools lest it be interpreted as an “establishment.”

One needs to also look at the development of the Establishment Clause in that Congress that passed the Bill of Rights. Samuel Livingston of New Hampshire proposed this wording: “Congress shall make no laws touching religion or the rights of conscience.” This eventually morphed into the House version: “Congress shall make no laws establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” Meanwhile over in the Senate, they had their own version which stated “”Congress shall make no law establishing articles of faith, or a mode of worship, or inhibiting the free exercise of religion.” Clearly, the Senate version was more expansive and laid the legal groundwork for direct government financial support of religion. It was the conference report between the House and Senate that decided upon the final language we are familiar with today.

However, it needs to be noted that the wording changed in that conference report. Some drafts included clauses that stated Congress would show “no preference.” This would suggest that “establishment” per se was not evil in and of itself, just that government could not show that established religion any preference in treatment. Instead, they opted for the word “respecting” which is the key word. Even liberal constitutional lawyers like Lawrence Tribe now contend that the clause prohibits Congress from establishing a national religion OR disestablishing a state religion. Remember that the Bill of Rights was taken up and passed in response to concerns that certain state powers would become subservient to the federal government and many states at the time had established religions. As Tribe explains, the Clause protects these state religious establishments from national displacement AND it prevents Congress from aiding some, but not all religions.

This sounds counterintuitive towards the free exercise aspect of the same Amendment. However, the establishment of a state religion does not infer an infringement of religious liberty. In fact, at the time the young Republic was probably the most religiously tolerant country in the world and remains so to this day. If anyone doubts this, ask any number of immigrants to this country and there is no comparison. Being American, many Americans take this religious freedom and tolerance for granted. It is true that there was localized discrimination against certain religions, particularly Catholics and Jews in the early days of America. However, Madison and others believed that this could be overcome through political representation. As Madison predicted, that is exactly what happened and is especially prevalent today. How often do we hear about the “Jewish vote” or the “Catholic vote” or the “evangelical vote?” As expected and planned, religious groups have formed political blocks thus confirming Madison’s answer to concerns about localized discrimination. Of course today, there is less localization. These formerly localized sects are now more diffuse through the states. Evangelicals, Catholics and Jews live in all states. But, there is still some vestiges of localization. For example, there are large Jewish populations centered in major metropolitan areas, Catholics in the northeast and evangelicals in the south and midwest.

Given this historical context, one wonders why this phrase about a “wall of separation between church and state” is so sacrosanct in American thought. The phrase is derived from a letter by Thomas Jefferson to the Danbury Baptist Convention and is today considered by many Liberals to be the definitive statement on the relationship between religion and government. Unfortunately, that view flies in the face of history. It behooves me to think that this should be the authoritative statement given the fact that Thomas Jefferson had no say in the writing of the Constitution or in the Bill of Rights. In fact, the concept was not even referenced by the Supreme Court until 1879, well after those most intimately tied to its writing, debate and implementation were long gone.

The result has been a series of bad constitutional interpretations by the courts. For example, a moment of silence (not even prayer) is disallowed, but Congress can hire and pay a chaplain. Religious schools cannot receive government money for maintenance, but churches can receive tax-exempt status. Prayer before a public high school football game is verboten, but a court official can declare “God save this Court.” Instead, we have a Supreme Court flailing about starting with the so-called Lemon Test which states the practice is not an establishment of religion if the action has (1) a secular purpose, (2) it neither advances or inhibits religion and (3) there is not excessive entanglement with religion. The practical effects leads to a lot of head scratching and even more litigation. For example, phrases like “God save this court” are permissible because they supposedly have lost their religious meaning through rote repetition over time. If that is a constitutional “test,” the Supreme Court should be ashamed of itself.

Another idea is the so-called “coercion” theory. Here, they state the clause is intended to disallow coercion to practice religion or to join or favor a particular sect. As Madison himself understood the Establishment Clause, Congress could express religious ideas provided they did not coerce anyone towards that particular religious belief. Naturally, there is going to be overlap between religious belief and government policy. Abortion is a perfect example. Liberals often cite that pro-life legislation is establishing a religious doctrine, specifically that of the Catholic Church although I would argue that many evangelical Protestants are more militantly pro-life than your average Catholic. Regardless, because a religion takes a stance on something in the political sphere does not constitute “establishment.” That would be a perversion of the Constitution and Madison’s understanding of the Clause.

The final theory is that it is not establishment unless it sends the message to a reasonable person that non-adherents are not part of the political community. Again, the problems are obvious. What is a “reasonable person?” An “adherent?” The “political community?” The fact remains that to assert this country is not a Christian nation ignores historical fact. It was founded by Christians of differing sects NOT for Christians, but for all religions which is the true beauty of the Establishment and Free Exercise clauses enshrined in the First Amendment. History and the practical effects of those words have made this country a beacon of religious toleration despite being a “Christian nation.” It is absolutely ludicrous how a moment of silence in school creates an establishment. It is absolutely silly how posting the Ten Commandments in a courthouse (a good portion of our law derives from those Commandments) is an establishment of religion. It defies logic how a Nativity scene in front of a city hall is an establishment of religion. It offends my sensibilities that people today shy from saying “Merry Christmas” lest they offend someone and opt for the more generic “Happy Holidays.” And it is offensive that the law, as it stands today, is predicated upon one or two votes on the Supreme Court because of Court politics, not adherence to history or principle.

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