Church and State: The Separation Illusion

The goal of First Amendment was to protect religious expression, not restrict it. In the last 50 years, though, “non-establishment” has been redefined as “separation,” effectively amending the Constitution and isolating Christians from the political process.

“Will You Be a Casualty in Their Religious War?” read the headline of an advertisement that almost covered an entire page of the L.A. Times. Underneath were pictures of Jerry Falwell, Pat Robertson, and Lou Sheldon, along with condemning quotes substantiating their apparent jihad against irreligious secularists.

The text of the advertisement read:

“The radical religious right has declared war on America. It is a war of ideas. A war of conscience. It’s a religious war. This war strikes at the very heart of our Constitution and threatens the freedoms we hold most dear. Freedom to worship as we please and to believe what we want to believe. The freedom to determine for ourselves what religious and moral views our own children are exposed to. The freedom to conduct our lives as we see fit without having our privacy violated. For some time now, the radical religious right has claimed that there is no such thing as church/state separation in our Constitution. They are wrong. Find out why.”

It goes on to promote a book by Robert Boston entitled Why the Religious Right Is Wrong About Separation of Church and State.

The ad is correct on a couple of points. There is a sense in which the “religious right” is at war, but the battle is not against America, it’s about America. And it is a war of ideas: Is there a legitimate separation of church and state, and what does that mean?

The current understanding of “separation of church and state”–the view that the state is thoroughly secular and not influenced by religious values, especially Christian–was completely foreign to the first 150 years of American political thought. Clearly the Fathers did not try to excise every vestige of Christian religion, Christian thought, and Christian values from all facets of public life. They were friendly to Christianity and encouraged its public practice and expression.

It wasn’t until 1947 that the United States Supreme Court first used the concept of “separation” to isolate government from religion.[The phrase was mentioned once before in the discourse of the Court in the 1878 case of Reynolds v. The United States when Mormons attempted an unsuccessful defense of polygamy based on the non-establishment clause of the First Amendment. The non-establishment clause protected Mormon beliefs, not Mormon practices (e.g., polygamy). This conduct was still proscribed by prevailing morality, specifically Christian morality.] In Everson v. Board of Education, the court lifted a phrase from a letter Thomas Jefferson wrote to a Baptist church in Danbury, Connecticut. The Court ruled, “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another….In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.’” [Everson v. Board of Education, 330 U.S at 15-16 (1947).]

The Infamous Danbury Letter

In the Everson v. Board of Education decision, the Supreme Court quoted Jefferson’s separation language as a normative guideline for understanding the First Amendment. As David Barton points out, “There’s probably no other instance in America’s history where words spoken by an individual have become the law of the land. Jefferson’s remark now carries more weight in judicial circles than does the writing of any other Founder.” [David Barton, The Myth of Separation, (Aledo, TX: WallBuilder Press), p. 44.]

Thomas Jefferson wasn’t a member of the Constitutional Convention, and the phrase “separation of church and state” does not appear anywhere in the Constitution or the Bill of Rights. Where did it come from?

On January 1, 1802, Jefferson wrote a letter to the Danbury Baptist Association of Danbury, Connecticut, in which he used the phrase “a wall of separation between church and state.” His note was meant to quell the fears of the Danbury congregation who were concerned that a national denomination would be established. Here is the text in question:

I contemplate with solemn 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 and state. [Thomas Jefferson, Jefferson Writings, Merrill D. Peterson, ed. (NY: Literary Classics of the United States, Inc., 1984), p. 510, January 1, 1802.]

What did Jefferson have in mind here? Is there an impregnable barrier erected by the founders [Note that the word “founders” is not capitalized here because I’m not referring to the 55 members of the Constitutional Convention, but to the broader group responsible for the passage of the Bill of Rights.] that excludes religious-minded people from the political process, an ideological enmity between church and state?

The First Amendment

In contrast to the present confusion about separation, the First Amendment is startling in its clarity, offering no limit to the impact of religious and moral conviction of individual citizens on public policy. It is worth reading often. Here it is:

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.

Please forgive me for stating the obvious: The First Amendment restricts the government, not the people. Jefferson’s wall is a one-way wall. Any religious person, any religious organization, any religious conviction has its place in the public debate. It’s called pluralism in the classic sense.

Notice there are not two distinct provisions here, but one. Non-establishment has no purpose by itself. Freedom of religion is the goal, and non-establishment is the means. The only way to have true freedom of religion is to keep government out of religion’s affairs. This provides for what Steven Monsma calls “positive neutrality.” This view “defines religious freedom in terms of a governmental neutrality toward religion in which no religion is favored over any other, and neither religion nor secularism is favored over each other.” [Stephen Monsma, Positive Neutrality–Letting Religious Freedom Ring, (Grand Rapids: Baker, 1993), p. 203.]

The First Amendment was rewritten twelve times to make clear its intent. The concept set forth in the Bill of Rights is “non-establishment,” not isolation. We should strike the “separation” language from our vocabulary.

A Fatal Flaw

The constant appeal to Jefferson’s Danbury letter by hard core separationists reveals a fatal flaw in their approach. Quoting Jefferson’s opinion only matters if Jefferson’s original intent still applies today. If it doesn’t, then the Danbury citation is irrelevant. If it does, then Jefferson’s full views on the issue have merit in this discussion.

It’s clear, though, that the Everson Court used Jefferson’s words, not his ideas. The separation language itself was not in common use at the time. It does not show up in any notes of the Constitutional Convention or of the Congress responsible for the Bill of Rights or the First Amendment.

What was Jefferson’s intent? To show that the Federal government couldn’t establish a national denomination. That’s all. In another letter, this one to Samuel Miller in 1808, Jefferson expanded on his view:

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 is it can be in any human authority. [Thomas Jefferson, The Writings of Thomas Jefferson, Albert Bergh, ed. (Washington D.C.: The Thomas Jefferson Memorial Association, 1904), vol. XI, p. 428, letter on January 23, 1808, quoted in Barton, p. 42.]

This is a stunning revelation for advocates of a Jeffersonian model of separation. According to Jefferson, the Federal Government couldn’t prescribe religious exercise or discipline, but the states could. It wasn’t until 1947 that the Everson Court made the federal provision binding on the states, expressly contrary to Jefferson, though they quoted him for support.

For nearly two centuries state and federal governments have had such a benevolent attitude towards religion in general and Christianity in particular–including the almost universal practice of school prayer–that it would make a 1990s fundamentalist blush.

The Northwest Ordinance of 1787, passed by the very same Congress which enacted the First Amendment, stated the following in Article III: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Notice that religion and morality were equal with knowledge as proper subjects of public education.

All but three states invoke the name of the almighty God in the preambles to their constitutions. Note these examples:

We the people of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.

We the people of Alabama…invoking the favor and guidance of Almighty God, do ordain and establish…

The people of Connecticut, acknowledging with gratitude the good providence of God, in having permitted them to enjoy a free government…

If Jefferson’s view of non-establishment mattered today, then dozens of court decisions restricting religious freedom would be annulled. The present notion of separation is not conservative, seeking to return to earlier principles, but activist, seeking to redefine–and liberalize–the past.

Separationists’ Achilles Heel

Separationists attempt to take the Constitutional high ground by quoting Jefferson and others like him. They claim that the founders envisioned a high wall of separation. Recent court decisions simply enforce those original intentions.

Is the “religious right” imposing a new standard favoring religion that undermines our basic Constitutional freedoms, as the L.A. Times ad claimed? You can get to the heart of the matter by asking another question: Do these recent legal actions stop something from being added, or do they remove things already there? They remove them.

Courts have removed prayer from school, crèches from the lawns of city halls, and crosses from public parks. Separationists have managed to get personal Bibles off of teachers’ desks, the Ten Commandments out of school rooms, and references to God eliminated from students’ graduation speeches.

This is their Achilles’ heel: Things can only be removed that were already there to begin with. How did they get there? They were allowed by citizens, legislatures, and courts who saw no harm in them, no intolerance, no danger, and no breech of any Constitutional principle for almost 175 years.

This observation tells us two things. First, from the beginning, religious symbols and religious thought were woven into the fabric of government and society with no sense of Constitutional impropriety. This proves that the new court actions are revisionist, an attempt to change the traditional practice, not a return to our historical and Constitutional roots.

Second, conservatives are in a defensive posture, not an offensive one. The “religious right” has not declared war. The war has been declared on an American way of life held dear to many, and they won’t surrender it without a fight.

Separating the Church Right Out of the State

In 1976, I and three others ventured behind the iron curtain in a clandestine operation bringing aid to persecuted Christians in Soviet Bloc countries. On Friday, July 23, we were detained at the border station of Leushen, Moldavia, USSR, because we had Russian Bibles in our possession.

After ransacking our car and personal belongings and strip-searching one of our group, border officials took us inside for questioning by a female interpreter. Where did we get the Bibles? Who were they for? Didn’t we know that such trafficking was illegal? The questions went on for hours.

When we explained the Bibles were for believers in the Soviet Union, she wanted to know their names.

“We planned to look the churches up in the phone directory.”

“We don’t have churches listed in our phone directories.”

We pointed out that in the United States, where there is freedom of religion, all of the churches are listed. Didn’t they have freedom of religion in the Soviet Union?

“Yes,” she assured us, “of course we have freedom of religion, but we have separation of church and state.” This was not the first time we were to hear this cryptic phrase.

The interpreter explained that the government printed all the Bibles needed for Soviet Christians. “We have our department of atheism and spend a large amount of money each year teaching them these things. We don’t allow any other propaganda.”

“But you print Bibles in the USSR?”

“Yes, our believers get all the Bibles they need, but they are given out only through the church and we must have all their names.”

“But you do have religious freedom?”

“Yes, we have religious freedom.”

“And we can’t bring in Bibles?”

“No, we don’t allow that propaganda in our country.”

“The Bible is propaganda?”

“Yes.”

“But you print Bibles in your own country.”

“Yes.”

I was surprised she couldn’t see what was coming. “Then that means you are printing anti-communist propaganda right in your own country.”

Her immediate reply was the cryptic, “But we have separation of church and state.”

This mantra was her blanket reply justifying all government interference with our activities. How were we interfering with separation? What did it actually mean? My partner’s definition was probably the most accurate. “They’re separating the church right out of the state,” he quipped.

As I look back on that incident 20 years ago, I’m struck by the contrast. Today there is more de facto religious liberty in former communist countries than we experience here in the United States. Now it is American courts that chant the mantra of separation to prohibit religious conduct in the public square.

The ACLU, in a letter to California State Senator Newton Russell, objected that “teaching that monogamous, heterosexual intercourse within marriage is a traditional American value is unconstitutional establishment of a religious doctrine in public schools.” [Majorie C. Swartz, Francisco Lobaco, American Civil Liberties Union Legislative Office, April 18, 1988. Copy on file. Note: The courts have not agreed with the ACLU on this point.]

The Supreme Court opens each session with the words, “God save this honorable court.” Yet in June, 1994, the same Supreme Court let stand a lower court ruling removing the Ten Commandments from a courtroom. This is rather ironic, considering a bas-relief of Moses holding the tablets of the Old Testament Law broods over the Chief Justice’s seat. Engraved upon the lower half of each entrance door is the same Ten Commandments banished by the court.

Twisted logic like this is “separating the church right out of the state.”

Amending the Constitution is an arduous process. Changes require an appeal by two-thirds of both Houses or by the Legislatures of two-thirds of the states to even get started. Ratification requires a three-fourths majority of either the states’ legislatures or special Constitutional conventions.

That’s what the founders intended. The Constitution’s provisions–including the Bill of Rights–were considered so weighty that only the most united and energetic efforts of the nation could alter it.

Shell Game

Today, de facto Constitutional amendments only require five non-elected citizens–a simple majority of the nine-member Supreme Court.

The High Court wouldn’t dream of simply deleting the Bill of Rights. That would be despotism. Yet they don’t balk at so redefining its meaning that the original disappears, though the words remain the same. Like dupes in a magician’s shell game, the citizens miss the sleight of hand and don’t even know they’ve been robbed.

If the responsibility of all branches of government is to preserve, protect, and defend the Constitution of the United States, ought not those branches preserve, protect, and defend the Constitution that was actually delivered, rather than some fanciful remake? If our Republic is guarded by the Constitution, then we are left defenseless when the words of the Constitution are redefined at will.

The authors of the First Amendment did not seek to expunge every shred of religious sentiment from the public arena. They did just the opposite, decorating their buildings with biblical imagery, punctuating their public discourses with biblical quotes, and grounding their laws on biblical morality.

Christian religion was the cement holding the very foundation stones of the Republic together. That cement is being chipped out, piece by piece, leaving a building without mortar, a stack of bricks ready to topple at the slightest quake.

An “Unconstitutional” President Lincoln

To show how far we’ve declined, I close with the words of President Lincoln in his Proclamation for a National Day of Fasting, Humiliation, and Prayer, March 30, 1863:

We have been the recipients of the choicest bounties of heaven. We have been preserved, these many years, in peace and prosperity. We have grown in numbers, wealth and power, as no other nation has ever grown. But we have forgotten God. We have forgotten the gracious hand which preserved us in peace, and multiplied and enriched and strengthened us; and we have vainly imagined, in the deceitfulness of our hearts, that all these blessings were produced by some superior wisdom and virtue of our own. Intoxicated with unbroken success, we have become too self-sufficient to feel the necessity of redeeming and preserving grace, too proud to pray to the God that made us! It behooves us, then to humble ourselves before the offended Power, to confess our national sins, and to pray for clemency and forgiveness.*

A hundred years and sixteen Presidents had passed, yet our country’s chief executive could still call his nation to humble repentance without the slightest hint of embarrassment, impropriety, or apology.

By today’s standards, though, the words of one of our greatest Presidents could not be spoken at certain government functions. The very same advice could not be given by a teacher to his junior high class. This alone is enough to show that the popular understanding of separation of church and state is foreign to the Constitution and to the world view that gave it birth.

Written by Greg Koukl.