Tear Down that Wall!
Thomas Jefferson listed on his tombstone three accomplishments: his authorship of the Declaration of Independence, the Virginia Statute for Religious Freedom, and the founding of the University of Virginia.
He did not list his authorship of the phrase, “the wall of separation between Church and State,” but that phrase has gained him as much notoriety as any of the three listed achievements.
Jefferson used the “wall of separation” metaphor only once—in a letter to a group of Baptists in Connecticut in 1802. He had not employed the metaphor before, and never returned to it. However, it has assumed a dominant position in American public life, and its supporters adhere to it with a religious like-fervor that is at times fanatical.
The extensive use of the metaphor dates to the 1947 Everson decision in which the Supreme Court extended the reach of the First Amendment to the states. Originally that Amendment applied only to the federal government. In that decision, Justice Black wrote: “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.’”
It is astonishing but true that judges, lawyers, and commentators have for more than sixty years translated the words of the First Amendment into a metaphor that they cannot define or even describe adequately. In 1948, Justice Felix Frankfurter snapped rather peevishly that “Separation means separation, not something less.” No one has been able to improve on that “definition.”
The metaphor not only confuses the meaning of the First Amendment, but also leads people in directions that are opposed to and incompatible with its meaning.
In declaring for a wall separating Church and Sate, the Court forgot that the words of the First Amendment do not deal with two entities–Church and State–but rather with one, the State: “Congress shall make no law.” The purpose was to leave the Church independent and free. The Church is not bound by the Amendment and cannot violate it.
A government with no jurisdiction in religion may not establish a church nor impose religious beliefs or doctrines on anyone.
By contrast, the “wall” metaphor endowed the government with power over religion. The power to separate is the power to control. Anyone who as a child was involved in picking teams knows that the one who separates those who play from those who do not exercises power.
In keeping with its assertion that the First Amendment gave power to the government to determine the proper spheres of both Church and State and to place a figurative wall between them, the Everson Court went on to give the government religious authority to determine what aided religion.
The First Amendment was enacted as a specific affirmation that the government had no power or jurisdiction in religion. The Everson decision turned the Amendment on its head and declared that the government was to define the sphere of the Church and to determine what aided religion.
In an astonishing statement, the Court added:
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.
This is the ultimate “separation,” which, fortunately, the government has not followed in practice. As written, the statement would mean that a fire department would have to stand by while a church burned because to extinguish the fire would involve the expenditure of tax money and would certainly qualify as support and aid for the religious activities of the church members.
The “wall” metaphor belongs to the extravagant rhetoric of the Court, but fortunately that rhetoric has not guided the Court in its decisions. Everson involved a New Jersey law that reimbursed parents for the transportation of their children to parochial schools by public transportation. In fact, the Court upheld the law, even if it aided parents to send their children to Catholic school. The Justices saw the law as “public welfare legislation” which indeed it was. It merely enabled parents to send their children to religious schools that the government already recognized as providing a public service by fulfilling the state’s requirement for the education of children.
In subsequent decisions the Court has been generally faithful to the purpose of the First Amendment which prohibits the exercise of government jurisdiction in religion. For example it struck down government-sponsored religion in schools. However, it upheld religious exercises by individuals and groups, even when they took place on government properties such as parks, schools and colleges. It allowed aid—books, computers, remedial education—to parochial schools in instances when such aid did not require government officials to exercise jurisdiction in religious matters. It forbade the payment of teachers in the same schools, something that very probably would have involved government officials in religious questions.
The “separation” rhetoric would ban every religious expression from the public sphere. This would not only prohibit the free exercise of religion by individuals and groups but it would involve government officials intimately in deciding religious questions.
The problem with modern Church-State relations is not so much the decisions the Court has made, but rather the extravagant rhetoric it has wrapped around them. The actual decisions of the Court are to a great extent consistent with the First Amendment’s purpose of denying the government jurisdiction in religious matters and confining it to its proper secular and limited sphere. The rhetoric of the Court, however, would give the government power over both Church and State, authority to define what aids religion, what organizations are “pervasively sectarian,” what is purely secular and not religious and what burdens people’s free exercise of religion. Fortunately the Court’s decisions do not in large part follow this rhetoric.
The “wall of separation” metaphor has corrupted discussion of religious freedom and threatens to undermine the First Amendment.
In 1985 the then Justice William Rehnquist wrote:
The ‘wall of separation between church and State’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.
Amen to that!