Tear Down That Wall!

By Anna Sklyarsky

“Believing that religion is a matter which lies solely 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 an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

Since the mid-twentieth century, those last seven words have been the source of the Supreme Court’s perversion of the Establishment Clause. The excerpt above is from a letter addressed to the Danbury Baptist Association, written by Thomas Jefferson on January 1, 1802.  The idea that there is a “wall of separation between Church and State” is commonly thought to be the foundational principle which determines that both the Federal government and state governments can not “establish” a national or state religion nor “prefer” one religion over another.

The case that forever changed the previously accepted interpretation of the Establishment Clause is Everson v. Board of Education, 330 U.S. 1 (1947). Prior to Everson, the Establishment Clause of the First Amendment which states that “Congress shall make no law respecting an establishment of religion,” was universally accepted to mean that a state was allowed to promote and even establish religion.  In reviewing the words of the Founders, one could clearly determine that the Establishment Clause was included in the Bill of Rights so that Congress could not interfere with established state churches or the promotion of religion by the states.

The state law at issue in Everson was a New Jersey statute that authorized a reimbursement to parents of fares paid for the public transportation of children who attended public and Catholic schools.  The Supreme Court upheld the statute, reasoning that it was not unconstitutional for a state to spend tax money on fares for students who attend either public or parochial schools because the reimbursements were given to all students regardless of religion and the payments were given to parents and not to any religious institution. Writing for the majority opinion, Justice Black stated that if state funds can be allocated to police departments which protect children going to and from schools (including religious schools) or to other general government services such as sewage disposal or fire protection, then so too can states apportion taxes to provide for these students’ public transportation.  Even though the Court found no constitutional violation in this case, the way in which they came to that decision set new precedent (common law) that would forever change the legal interpretation of the Establishment Clause.

Justice Black’s use of the doctrine of “selective incorporation” to incorporate the Establishment Clause through the Fourteenth Amendment meant that, for the first time in American history, the states could not make a “law respecting an establishment of religion.” Citing Reynolds v. United States, 98 U.S. 145 (1878), which was not a case that dealt with the Establishment Clause, but rather the Free Exercise Clause (also found in the First Amendment) , specifically the use of religion (Mormonism) as a defense against the crime of bigamy, Justice Black broadly interpreted that the Establishment Clause means that neither the Federal nor state government can:

“set up a church…[nor] pass laws which aid one religion, aid all religions, or prefer one religion over another…[nor] force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion… [that] no person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non—attendance. [That no] tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. [That neither] a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” (emphasis added)

Stating that because the Free Exercise Clause had already been incorporated under a previous decision, Justice Black concluded that “[t]here is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause” (emphasis added).

Everson has had a major effect on state involvement with religion. Since the ruling, the Court has struck down a number of state laws that attempted “to acknowledge, accommodate, or promote religion.” Chris Bartolomucci, Note: “Rethinking the incorporation of the Establishment Clause: A Federalist View,” 105 Harv. L. Rev. 1700 (1992) Examples include: prohibiting – the display of a nativity scene in a city courthouse; organized Bible reading and reciting the Lord’s prayer in public schools; and a requirement of public officials to declare a belief in God.

However, the Court has occasionally “retreated from Everson’s strict separation stance and on several occasions has upheld state involvement with religion.” Ibid.  Confusingly, this includes: a city’s display of a nativity scene; the employment of a chaplain to open state legislative sessions with a prayer; and a tuition tax deduction for public and private elementary and secondary school education that included parochial schools.  These seemingly contradictory rulings have left the Establishment Clause without clear definition and open to a departure from the intent of our Founders and the Framers of the Constitution.

The intent of the Framers when they drafted the Establishment Clause was to prevent Congress from interfering with the relationships between states and churches.  They wanted to leave religion within the purview of the states, not the Federal Government, because the states can more effectively deal with the needs and desires of their constituents.  In addition, the Founders themselves were deeply spiritual men.   One might argue that by “un-incorporating” the Establishment Clause from the Bill of Rights, the states could also limit the free exercise of religion. But in fact, while


First synagouge in America - Touro Synagogue (1763)

“nine of the original thirteen colonies had religious establishments, several of which were still in existence when the Constitution was drafted in 1787… each of the original thirteen states provided constitutional protection for the freedom of religion or conscience, [and] none mandated separation of church and state.” Ibid. (citations omitted) (emphasis added)

The same year that Congress ratified the Constitution, it also passed the Northwest Ordinance which, among other things, promoted the belief that religion ought to be taught in schools:

“Article 3: Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

This principle was emphasized again in President George Washington’s Farewell Address in 1796:

“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.” (emphasis added)

Even the author of the infamous “wall of separation between Church and State,” Thomas Jefferson, explained in his second Inaugural Address in 1805, that the subject of religion was, as prescribed in the Constitution, in the jurisdiction of the states:

“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 State or Church authorities acknowledged by the several religious societies.

In actuality, Jefferson did not intend to set up a wall between the state and the church.  He wrote that well-known letter to the Danbury Baptist Association when he was President, not a local politician, explaining that the Constitution prohibited the Federal Government from getting involved in the establishment of religion.


"Appeal to Divine Providence" (Watts, 2000) John Adams, Ben Franklin, Thomas Jefferson

2 Responses to “Tear Down That Wall!”
  1. While Jefferson and Madison may have pushed for a “separation of church” and local state in their own state, doesn’t mean that other states had to follow that reasoning. It’s up to each state to determine that.

    We don’t want for the _Federal_ government to be involved in people’s religious activities, but we want to acknowledge that the Founding Fathers and Framers of the Constitution allowed for the states to decide, for themselves, how much or how little their involvement should be. If it was the will of the people of Virginia to disestablish their state church, so be it. All the state churches were eventually disestablished. The point we’re getting into is the level of scrutiny placed on what some people claim to be the “promotion of” or the “establishment of” religion.

    When the Framers said “establishment of religion”, they literally meant establishment, they didn’t mean that even Federal government couldn’t participate (in a way promote) in religious activities. For example, the House of Representatives still has an opening prayer said by a chaplain, the first Capital was used for church services (even Thomas Jefferson himself attended services there as Vice-President and President, including one service that was two days after his Dansbury letter).

    When religious activities (ex: prayer at the beginning of a school graduation, a nativity scene at a public building, etc.) are struck down as “unconstitutional” under the Establishment Clause, they are in fact limiting people’s _freedom of religion_. It’s usually someone who doesn’t believe in G-d or any organized religion that sues their school, city, or state in these types of cases. Why do most of these “unconstitutional” religious activities offend these plaintiffs so much that they feel the need to completely silence them? This isn’t about preaching a certain denomination of Christianity to non-believers, though it may seem that way to them I suppose; it’s about allowing a group of people, who share common beliefs, the freedom, that they are entitled to have, to practice it peacefully and without any harm to others.

    Regarding the “separation of market and State” idea – agreed. The government should definitely take on a less active role in the free market system. Perhaps the only role I would allow them is to promote even more competition by means of anti-trust laws, but that’s a whole other topic.

  2. Aristides says:

    It is certainly true that the ratifiers of the Constitution did not take the First Amendment to mean that the several states could not establish religions, but I don’t think it’s accurate to deny that Jefferson believed in separation of Church and State at all levels of government. While his views may not have been shared by legislators in other states, Jefferson worked rather ardently to ensure complete neutrality on religion in his own state of Virginia. In his autobiography he even went so far as to claim that a reference to Jesus Christ was intentionally omitted from the Virginia Act for Religious Freedom in an effort to afford protection to “the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.” He criticized the immoral nature of any taxation which would force people to fund principles to which they were opposed. Jefferson was a man who did not feel that children should learn about religion until the age of seventeen, when they were better able to make sound judgments based on reason. He certainly had a personal stake in protecting complete religious freedom. His own Deist beliefs and his rejection of the divinity of Jesus led to frequent accusations of atheism from his political opponents.

    Jefferson’s long-time collaborator, James Madison, was similarly inclined with regard to ensuring religious neutrality in state government. In his “Memorial and Remonstrance” (a short document, widely available on the web) he made the case against taxation by the Commonwealth of Virginia for the purposes of Christian education. He offered strong arguments for the way in which such preferential treatment could actually backfire and serve to harm the spread of Christianity. He also made the more obvious case about the long history of abuses by religious institutions working in league with government.

    I would agree that the “wall of separation” on the state and local level was not part of the original intent of the Constitution. I would agree that the court cases to the contrary (using the incorporation doctrine of the 14th Amendment) are rather dubious, since the Establishment Clause refers directly to Congress. I think it’s a mistake, however, to imply that all of the Founders actually favored strong ties between Church and State outside of the federal scope of power. It’s also a mistake to assume that separation of Church and State is a bad idea just because it is not a constitutional mandate. This is not to say that people should not feel free to individually engage in religious practices in public places (for example a child or group of children voluntarily saying grace in school). I would think that attempts to stop such acts would actually run afoul of the 1st Amendment. Any official government act which implicitly or expressly favors one religion over another, however, becomes a coercive means of “passing the plate”.

    Rather than stop at “separation of Church and State,” I’d prefer to take things even further, with “separation of school and State” and “separation of market and State,” but that’s just me. I think the more we can extricate government from our lives and our personal choices, the better off we all become.

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