Revisiting the Use of the Metaphor of a Wall of Separation between Church and State
With the possible exception of some poor soul who has been living in a cave for the past eighty years, virtually every American is aware of the "Wall of Separation between Church and State" (the "Wall Metaphor"). It has been used to try to summarize the relationship between the government and religion under the United States Constitution. Yet, as most everyone also knows (except for the aforementioned cave-dweller), the Constitution does not use the words "wall" or "separation" of church and state. This post will give a brief examination of the source of the Wall Metaphor and why it has been misused since 1947.
Jefferson's Letter to the Danbury Baptist Association
The Wall Metaphor entered into the Constitutional lexicon as a result of two court decisions regarding the First Amendment and religion: First, in Reynolds v. United States, 98 U.S. 145 (1878), and later in Everson v. Board of Education, 330 U.S. 1 (1947). Both of these decisions relied upon an 1802 letter written by President Thomas Jefferson to the Danbury Baptist Association of Connecticut. The letter is not long, and is repeated here in its entirety.
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.Reynolds v. the United States use of Jefferson's Wall
Gentlemen The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.
Th Jefferson Jan. 1. 1802.
In Reynolds, the Supreme Court examined whether it was Constitutional to apply a law prohibiting polygamy against Mr. Reynolds, a member of the Mormon church, who claimed that he was exercising his freedom of religion when he married more than one women. The Supreme Court, per Chief Morrison Justice Waite, evaluated the legal issue by examining the work of James Madison and Thomas Jefferson with respect to promoting religious freedom in Virginia in 1784, i.e., prior to the enactment of the Constitution. When pushing for religious freedom in Virginia, Jefferson persuaded the House of Delegates of that state that it could not interfere with the free exercise of religion unless the exercise of particular religious practices "break out into overt acts against peace and good order." Chief Justice Waite noted that he believed that the distinction between beliefs and bad acts should inform the basis of understanding the First Amendment's religious provisions.
After quoting from a portion of the second paragraph of Jefferson's letter, Chief Justice Waite noted the importance of the letter with respect to the free exercise of religion by noting that "it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." He, with a unanimous court, ruled that the practice of polygamy was odious and an offense against society. Therefore, polygamy was not beyond the reach of the federal government to regulate because it was (and remains) a practice which constituted "overt acts against peace and good order."
What is critical to understanding the use of the Wall Metaphor in Reynolds is that Reynolds is a Free Exercise case. If you are unfamiliar with that terminology, the Religion protection found in the First Amendment has two clauses. The first states, "Congress shall make no law respecting an establishment of religion" which is generally known as the Establishment Clause. This is the clause that is really about whether and to what extent the United States government can support a state religion (although it has been expanded well beyond that original purpose by Supreme Court decisions). The second clause reads, "Congress shall make no law...prohibiting the free exercise [of religion]." This is known as the "Free Exercise Clause."
As a Free Exercise case (i.e., whether the attempt to prohibit polygamy in the territories under control of the United States government unduly infringe upon Reynolds' right to freely practice his religious beliefs), Reynolds uses the Wall Metaphor effectively and meaningfully.
The Over-reach of Everson v. the Board of Education
The Wall Metaphor remained pretty much on the back burner between 1878 and 1947 largely because the First Amendment, by its own terms, represents only a restriction on the acts of Congress. Since Congress did not have the power to pass legislation concerning religion inside of the various states, the court did not have much opportunity to make many decisions regarding the scope of the First Amendment until Everson in 1947. By that time, the court had begun to expand the scope of the First Amendment through the process of incorporation whereby various provisions of the first eight amendments of the United States Constitution were incorporated into the "liberty" interest of the Due Process Clause of the Fourteenth Amendment. Explaining the process by which most of the first eight amendments became incorporated is beyond the scope of this post, but those interested may want to review by reading "The Bill of Rights and the Fourteenth Amendment: The Evolution of the Absorption Doctrine" by Alex B. Lacy, Jr. from the Washington and Lee Law Review, (1966) Vol. 23, Issue 1, pp. 37 and following. All one needs to know is that by the time Everson reached the court, it was already well established that many of the rights found in the first eight amendments to the Constitution applied against the States through the Fourteenth Amendment.
In Everson, Justice Hugo Black in a 5-4 decision held that a New Jersey law which permitted reimbursements of money to parents who sent their children to school on buses operated by the public transportation system which served to benefit children who attended a Roman Catholic school did not violate the Establishment Clause of the First Amendment. Justice Black, in what is among the greatest over-reaching statements in Supreme Court history, gave a broad definition of the meaning of the Establishment Clause, concluding by citing the Wall Analogy in Jefferson's letter to the Danbury Baptist Association.
The "establishment of religion" clause of the First Amendment means at least this: 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. Neither can 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. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. 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." Reynolds v. United States, supra, at 98 U. S. 164.Justice Black closed his opinion with a bit of additional overkill that would forever color discussions of how far apart the First Amendment required church and state to remain separate: "[The Wall of Separation of Church and State] must be kept high and impregnable. We could not approve the slightest breach." One might think that the fact that the Board of Education won the case shows that the wall was not so high and impregnable as the Black stated, but I suspect that the case was decided in favor of the parties who received a small benefit religiously because the court was using the case to set a principle. It is much of what happened in Marbury v. Madison where the Supreme Court grabbed the larger prize of gaining the power of judicial review while giving the administration of Thomas Jefferson the smaller prize of winning the case as a means of keeping Jefferson from complaining. Here, the parties receiving tax-subsidized bus rides that happened to help students get to religious schools received the victory in the case, so they didn't complain too much when Justice Black extended the Wall Metaphor to Establishment Clause cases, and then compounded the injury by making broad reaching, unsupported statements about the limits of the Establishment Clause.
As noted above, Everson, unlike Reynolds was an Establishment Clause case. This makes a huge difference because, as I shall argue below, the Wall Metaphor was not intended to be applied to Establishment Clause cases, and its inappropriate use in Everson has led to an improper understanding of the true, intended nature of church/state relationships under the First Amendment.
Jefferson may not be the best authority
Through these two decisions, and primarily through the decision of Everson, the Wall Metaphor became the understanding of the meaning of both of the First Amendment's religion clauses. The question arises: is the Wall Metaphor sufficiently firm and grounded to support the weight that the Supreme Court has laid upon it? I believe that the answer is no for a few reasons.
First, while it is certainly true that Jefferson was a fighter for religious freedom and authored the Virginia Bill for Religious Liberty, Jefferson had no part in the drafting of the United States Constitution or the First Amendment. Jefferson was serving as minister to France during the Constitutional Convention, and he was not part of the First Congress that drafted the First Amendment. Thus, while Jefferson was clearly an important thinker and the primary drafter of the Declaration of Independence, he was not directly involved in passage of the Amendment with which his letter concerned. Thus, it is difficult, but not impossible, to look to him for the authoritative explanation of the purpose of the First Amendment's provisions. *Second, there are only limited notes about the passing of the First Amendment, but nowhere in the notes available of the discussions is any reference to any of the Congressmen who drafted the First Amendment referring to a wall of separation. As noted by David Barton of Wallbuilders.com:
The Congressional Records from June 7 to September 25, 1789, record the months of discussions and debates of the ninety Founding Fathers who framed the First Amendment. Significantly, not only was Thomas Jefferson not one of those ninety who framed the First Amendment, but also, during those debates not one of those ninety Framers ever mentioned the phrase “separation of church and state.” It seems logical that if this had been the intent for the First Amendment – as is so frequently asserted - then at least one of those ninety who framed the Amendment would have mentioned that phrase; none did.Jefferson's response, moreover, was not written as some deep philosophical understanding of the meaning of the First Amendment. Rather, he wrote a letter that was intended to be published in newspaper as a political document as evidenced by the fact that (1) he ran a draft of the letter past his political advisors, (2) his first draft of the letter shows a much more overtly political bent, and (3) he intended to publish the letter in response to attacks that had been made on him. See, 'A Wall of Separation' by James Hutton.
The Wall Metaphor was originally applied only to a Free Exercise Situation
Jefferson's letter itself is addressed to the Danbury Baptist Association in response to their concerns that the government would be interfering with their association. The Association wrote:
Our Sentiments are uniformly on the side of Religious Liberty – That Religion is at all times and places a Matter between God and Individuals – That no man ought to suffer in Name, person or effects on account of his religious Opinions – That the legitimate Power of civil Government extends no further than to punish the man who works ill to his neighbour: But Sir our constitution of government is not specific. Our antient charter, together with the Laws made coincident therewith, were adopted as the Basis of our government at the time of our revolution; and such had been our laws & usages, & such still are; that Religion is considered as the first object of Legislation; & 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. It is not to be wondered at therefore; if those who seek after power & gain under the pretence of government & Religion should reproach their fellowmen – should reproach their chief Magistrate, as an enemy of religion Law & good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ.What the Danbury Baptists were saying (in the rather stilted language of the time) is that they believed that the protection of religious liberty was part of the God-given rights as free men - as expressed in the Declaration of Independence. However, they were concerned that by mentioning religious freedom in the First Amendment, it could be interpreted to mean that religious rights were granted by government. They were appealing to Jefferson for his assurances that government (and specifically Jefferson as president) would not "assume the prerogative" of God and attempt to legislate the church. Thus, the focus of the Danbury Baptist Association in writing to Jefferson, as well as Jefferson's response back to that organization, was that the government had no right to interfere with the church or religious belief. i.e., the people had the right to freely exercise their religion and that the government was without power (except where the person or church "works ill to his neighbour") to regulate the church. The Danbury Baptists concerns had nothing to do with the church's ability to influence the state. In fact, the very act of writing to the President (and his response) constitutes prima facie evidence that both parties believed it to be perfectly permissible for the church to try to influence the state.
The substance of Jefferson's letter shows that he was responding to the concerns voiced by the Danbury Baptists. He begins his letter by agreeing that religion should be beyond the scope of the government by saying, "religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship." He the continues to make the belief/practice distinction that Chief Justice Waite fleshed out in Reynolds. After using the Wall Metaphor, Jefferson resorted to natural law theory - a theory that most of the founding fathers took for granted. He stated that he would work to "restore to man all his natural rights," (which would include the right to worship God without government interference) "convinced he has no natural right in opposition to his social duties," i.e., true worship of God will not lead someone to engage in practices that would disrupt the social peace so the government should never have a reason to interfere with such practices.
Roger Williams' Wall
Incidentally, Thomas Jefferson was not the first to use the "wall" metaphor in describing the relationship which should exist between church and state. Roger Williams, the founder of Rhode Island, used the same phrasing when discussing the relationship between church and state in 1644. Williams wrote that the Christian Church is separate from the world, and "when they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wildernes of the world, God hath ever broke down the wall it selfe, removed the Candlestick, &c. and made his Garden a Wildernesse, as at this day." ["Mr. Cotton's Letter Lately Printed, Examined and Answered," Roger Williams, 1644, London, from "The Complete Writings of Roger Williams," Vol. I, edited by Reuben Aldridge Guild, Russell & Russell Inc., New York: 1963, page 108.]
While some see Williams' language as simply reinforcing the view that there should be a high, impenetrable wall between church and state, this does not appear to be the way Rev. Williams' intended his phrase to be understood. In Religious Liberty by John T. Noonan and Edward McGlynn Gaffney, they point out that Rev. Williams' wall was a rather one-sided one. The wall existed not to protect the wilderness of the world (i.e., a "howling wilderness, in frost and snow") from the church, but the beautiful garden of the church from the wilderness of the world.
The wall or hedge, which God himself would break down if a gap was allowed in it, was thought of as a structure protecting the holiness of the church, keeping it from contamination by the world. [Religious Liberty (2001), p. 125.]It is likely that the metaphor from the writings of the pre-eminent founder of the State of Rhode Island would have been known to Thomas Jefferson, and it is quite likely that he understood it in much the same way.
While I have, in the past, advocated that the Wall Metaphor be removed from the Constitutional discussion just as Justice Rehnquist stated in the meme, above, I now believe that it is actually better to understand it and use it consistent with the manner in which Jefferson almost certainly intended when he used it in the letter to the Danbury Baptists, and in the manner in which Williams originally used the phrase in his 1644 letter. Specifically, I believe that the Wall Metaphor is only useful when dealing with situations involving the Free Exercise Clause of the Constitution. It helps to remind the state that it cannot reach into the church or into the lives of individual practitioners unless the practices of those churches or church members are violative of good order. However, the use of the metaphor in Establishment Clause cases is inappropriate because the metaphor was neither used nor originally intended to be used in that context.
The wall as used by Jefferson and as understood by Williams was and is one-sided to limit the reach of the state into the dealings of the church and church members. It was not designed to limit the church's ability to influence the state.