The Wall

Of all the rights and freedoms guaranteed to American citizens by the U.S. Constitution, few are more important than the separation of church and state. Along with freedom of speech, assembly, press and petition, freedom of religion is established by the First Amendment of the Bill of Rights, indicating the high esteem in which America’s founding fathers held it. These statesmen believed that religion and government both flourished best when they were kept separate from each other, and that the freedom of private citizens to choose their own beliefs guided by conscience, without government intervention, was of supreme importance to democracy; and the continuing vigor and liveliness of the political system they founded more than bears them out.

Sadly, the framers’ original vision is today under increasingly concerted attack by militant religious groups. These would-be theocrats, who are as a rule associated with the so-called religious right, resent that the First Amendment prevents them from imposing their will on society, and so are plotting to undermine or outright destroy it. In place of the marvelous and exuberant liberty that has defined the United States throughout its history, as exemplified by our original national motto – “E Pluribus Unum” or “Out of Many, One” – these fundamentalist enemies of freedom have as their goal a society homogenized by law, where opinions differing from their own are suppressed while favored beliefs are given official government approval and protection. Though such attacks are not a new phenomenon – the Bill of Rights has been under assault practically since the ink was dry on it, which is in a way the greatest testament to its success – the groups waging them have never been more determined or well-funded than they are now, nor have they ever been more certain that their goal is in sight.

Were these groups simply attempting to roll back the constitutional safeguards that have protected American citizens for over two hundred years, that would be bad enough. But most of them have gone even farther than this by waging a propaganda campaign intended to convince Americans that separation of church and state never existed in the first place – that it was no part of the founders’ original vision, and has only been sustained by a systematic two-hundred-year misinterpretation of their intent. Only ignorance of history or a deliberate desire to distort the facts could lead a person to make such statements. The evidence could not be clearer that separation was an integral part of the founders’ vision and fully deserves its prominent place in the history of jurisprudence and law. The American theocrats’ attempts to rewrite history have no foundation in the facts and cannot be truthfully sustained.

Demonstrating that this is so will be the purpose of the third section of this essay. But first, since this is a topic about which misunderstandings run rampant, the first section of this essay will explain what separation of church and state is, what it means and, at least as important, what it does not mean. The second section will show why separation is vital to democracy by casting a light on the long history of atrocities that inevitably result from mixing church and state.

Part One: What Separation Is and What It Isn’t

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

With these stirring words, the first of ten amendments to the U.S. constitution collectively called the Bill of Rights, America’s founders took the bold step of writing into law the principle that religion and the state would be kept forever separate. Never before in the history of the world had such a thing been done. Indeed, the European countries from which America’s first immigrants arrived all had official state churches, and most treated dissenters from those churches harshly. That religion and government should be unified seemed obvious, a matter of common sense. It seemed impossible that a new country incorporating such a bizarre and reckless idea could ever survive.

And yet, in little more than two hundred years, these expectations have been reversed, the old paradigm overthrown. Today, the United States is a global power and freedom of religion is recognized around the world as a fundamental human right, and though its implementation has in many cases been flawed or imperfect, that just goes to show how strong the idea has become that even many dictators feel the need to at least pay lip service to it.

Despite this, separation of church and state is a frequently misunderstood idea. Some of these are honest misunderstandings, but others are deliberate distortions stemming from a propaganda campaign waged by the religious right with the intent of prejudicing voters and politicians. These errors fall into two categories: interpreting separation overbroadly, believing it prevents more than it actually does, and interpreting it too narrowly so as to conclude that it allows activities it actually prohibits. Both types of errors will be addressed in this section; but first, we will begin with a concise summation of what separation actually is, so as to more clearly show how the mistaken interpretations stray from it. Supreme Court Justice Hugo Black provides such a description:

“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 organization or groups and vice versa.”
—Justice Hugo Black, majority opinion, Everson v. Board of Education, 330 U.S. 1 (1947)

Justice Black’s opinion neatly sums up what separation of church and state means, the key point being that the government must be neutral with respect to religion. It may not promote one religion over others, or religion in general over non-religion. It may not act in a way that conveys the impression that any variety of religious belief is officially endorsed or approved. It may not give preferential treatment to people based on their religious beliefs. It may not act in a way that coerces or pressures people to adopt any variety of religious belief, or that tends to do so. And it may not assist any person or group to do things that it could not itself legally do. Separation of church and state applies to every branch and level of government and all agencies and organizations that are part of the government, including public schools, courthouses, the military, and legislatures. It also applies to individuals acting in the capacity of government agents or employees. Private organizations that want to be eligible for government funding or assistance must also adhere to it.

Contrary to many popular beliefs, this is what separation means and this is all it means. Among reasonable people, there may always be slight differences of opinion as to the exact extent of these principles and how to apply them in specific cases. However, interpretations that construe it as saying substantially more or substantially less than this are mistaken. Some of the more common erroneous interpretations are the following:

  • Separation of church and state means banning all religion from the public square, or making atheism the official government “religion”.
    Probably the most commonly heard distortion on this subject is that a government which incorporates separation is somehow discriminating against religious people, or banning all mention of God. Nothing could be further from the truth. The appropriate response to such claims is that the Constitution mandates, not government hostility toward religion, but government neutrality. There is a major and significant difference. For the government to prevent a person from practicing their religion as they see fit would violate the principle of separation, so long as that practice does not break any other laws or infringe on others’ equal right to do the same.

    In America, private individuals may use their constitutional right of free expression to practice and promote their own religious beliefs to their heart’s content. Evangelists may preach on public sidewalks, religious groups may use public parks for prayer meetings and baptism ceremonies, churches and homeowners may erect signs and displays on their private property, and public school students may pray non-disruptively during school hours (no, prayer is not “banned from schools”, as so many religious right spokesmen assert). Even elected officials may promote their religion freely, so long as they maintain a distinction between their personal views and their official duties. What the Constitution forbids is for the government, whose purpose is to represent all citizens, to treat a particular religious tradition in a way that conveys endorsement or special reverence. The government’s First Amendment purpose is to guarantee a level playing field for all religious points of view, not to privilege any above the rest.

    For example, if the President was an evangelical Christian and expressed his belief that every American should convert to evangelical Christianity, that would be legal. It would, of course, show a shocking lack of respect for the diverse beliefs of the citizens he is supposed to be representing – but it would not violate the separation of church and state. On the other hand, if the President urged every American citizen to become an evangelical Christian and signed into law a bill offering a tax break for any who were willing to do so, that would be an unconstitutional violation of church-state separation.

    Likewise, it would not violate separation for a public school teacher to serve as advisor or mentor to an after-school student Bible study club. On the other hand, if that teacher used his authority to pressure students to join the club, or if he diverted class time intended for instruction to promote the club – or if the school allowed only student clubs that expressed certain religious opinions, while forbidding others solely because they expressed different opinions – that would violate separation.

    A similar, though equally mistaken, position states that for the government to refuse to favor any specific religion is equivalent to making atheism the official religion of the state. Such a claim fails to grasp that there is a major difference between neutrality toward religion, which is what the First Amendment mandates, and rejection of religion, which is what atheism consists of. For example, refusing to post the Ten Commandments in a courthouse is not an official denial of the religious message of the Ten Commandments; it is a statement that the government is neutral on the matter, and neither endorses nor rejects that message. Similarly, for a court to order the removal of illegally posted Ten Commandments displays does not show hostility toward that message, but instead is a correction of the unconstitutional endorsement implied by such a display, to return the government to its proper posture of neutrality toward religion. Individual citizens can make up their own minds as to whether the Ten Commandments’ religious message is true, but the government itself will say nothing on the matter one way or the other.

  • Americans have freedom of religion, but not freedom from religion; we still must hold some form of religious belief.
    A particularly egregious misreading of the First Amendment holds that we have freedom of religion but not freedom from religion, the apparent message being that people are allowed to be anything except atheists. Such a viewpoint finds no support in America’s legal history or the writings of the founding fathers, and indeed is actively contradicted by them. As Thomas Jefferson wrote in Notes on the State of Virginia:

    “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” (full text available online; see section 17)

    Or consider these words Jefferson wrote in his autobiography in reference to the 1786 Virginia Act for Establishing Religious Freedom, a bill which would later become the template for the First Amendment:

    “The bill for establishing religious freedom… still met with opposition; but, with some mutilations in the preamble, it was finally passed; and a singular proposition proved that its protection of opinion was meant to be universal. Where the preamble declares that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word ‘Jesus Christ,’ so that it should read ‘a departure from the plan of Jesus Christ, the holy author of our religion.’ The insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination. (emphasis added)

    If these clear statements are not enough to convince readers that this interpretation is wrong, consider the practical difficulties in implementing it. If it was the law of the land that citizens had freedom of religion but not freedom from religion, how would such a law be enforced? Would the state maintain a list of the approved belief systems, and incur the responsibility to judge whether each new belief that arises is acceptable or not? Such a mechanism could easily be used to oppress minority belief systems by declaring them not “religious enough” to satisfy the state (which is exactly what the Roman empire did to the first Christians); and any such list would inevitably exclude some people who are, in fact, deeply and sincerely religious. And would government agents go around inspecting each household to ensure that its members hold only approved religious beliefs? This would be an inquisition on a scale undreamed-of. Such an ideal of government, which would trample constitutional rights not only of freedom of religion but also privacy and freedom of speech, is absolutely untenable. It is a contradiction in terms to say that people can have freedom of religion but not freedom from religion. The former necessarily implies the latter.

  • Separation of church and state means only that Congress cannot declare an official state religion, but allows teacher-led school prayer, Ten Commandments monuments in courthouses, etc.
    Proponents of this argument hold that while the government cannot establish an official state church, it may promote religion in other, less direct ways, such as through state-sponsored prayer and posting of religious rules in public buildings. However, such enactments would be just as unconstitutional as an official declaration of which church is legally approved. The Ten Commandments, for example, are emphatically not secular laws – the very first one commands “Thou shalt have no gods before me”, referring to the Judeo-Christian god Yahweh. If that is not an establishment of religion, then what is?

    A similar problem would exist with any mandatory or teacher-led school prayer. No statement that qualified as a prayer could possibly be nondenominational enough to include everyone. Any choice by the government on the wording of such a statement would inevitably be favorable to the viewpoints of some religious groups and exclude those of others – which is exactly what “establishment” of religion means.

  • Separation of church and state means that the government may favor religion in general as long as it has no official religion.
    As with the above point, arguments of this nature overlook the clear intent of the First Amendment’s Establishment Clause, which is to forbid the government from favoring the viewpoints of some religious, or non-religious, groups over others. Supporting religion in general over atheism does exactly that. Both the Supreme Court and America’s founding fathers have consistently stated that the non-religious enjoy the same constitutional protections as the religious. Just because the government broadens the scope of its establishment of religion does not make such an action any more constitutional.
  • The phrase “separation of church and state” is not in the Constitution.
    It is true that this exact wording does not appear in the Constitution. However, the principle that this phrase expresses most emphatically does appear there, in the free exercise and establishment clauses of the First Amendment. “Separation of church and state” is a convenient way to sum up the meaning of these two clauses.

    In much the same way, terms such as “Trinity” and “Rapture” do not appear in the Bible. Would a Christian therefore concede that these ideas are later inventions that are no part of authentic Christianity? On the contrary: they would probably argue, rightfully, that these terms are convenient descriptive shorthand for concepts that do appear in the biblical text. “Separation of church and state” bears the same relation to the Constitution: although those exact words are not there, the idea is.

    In addition, proponents of this argument overlook the fact that the phrase “separation of church and state” is not a recent invention. On the contrary: the phrase originated with Thomas Jefferson himself, America’s third president, author of its Declaration of Independence, and one of its most renowned founding fathers. And what is more, the phrase originated in a letter Jefferson wrote whose precise purpose was to explain the meaning of the First Amendment. See the section Jefferson’s Letter to the Danbury Baptists for more.

  • America is a Christian nation whose laws derive from the Bible.
    Perhaps the favorite claim of anti-separationists is that to separate religion from government is to turn our backs on America’s Christian heritage and, they claim, the fact that most of its laws were derived from biblical precepts. To properly recognize this history, they say, we should accord religion in general and Christianity in particular favored status within the halls of government.

    The quickest way to debunk such a claim is to ask: what heritage and what precepts? Nearly all the concepts fundamental to the American system – such as a democratic republic, separation of powers into executive, legislative and judicial branches, checks and balances, a bicameral legislature, a constitution incorporating a bill of rights, and guarantees such as freedom of speech, freedom of assembly, trial by jury, and yes, separation of church and state – are all utterly foreign to the Bible. In the Bible, people have no rights of any kind, and the approved form of government is divine-right absolutist monarchy, where all legislative, executive and judicial power is vested in one individual who is hereditarily chosen and is the head of both church and state. This is precisely what America’s founders were rebelling against when they brought forth this nation. It is the complete opposite of everything the Constitution guarantees.

    If the United States of America is a “Christian nation”, it is only in the trivial sense that it is and has always been populated mostly by Christians. But this is a far cry from saying that Christianity was ever intended to enjoy a privileged place in government. In reality, the United States was conceived and brought forth as a secular country, a nation of the people, by the people and for the people, where the leaders rule by consent of the populace and not by a divine mandate. The Constitution never once mentions God, Jesus or Christianity, and its only reference to religion is where it mandates that no religious test shall ever be a qualification for any public office or trust. Had the founders meant for this country to be a Christian nation, they could simply have said so, but they did not.

  • Most of America’s founding fathers were Christians.
    Anti-separationist writers and websites often compile lists of American founders purporting to prove that a majority held Christian beliefs. Some pro-separation sites, in order to counter this tactic, claim instead that a majority of them were deists or agnostics. However, both of these tactics miss the point. It is no doubt true that most of America’s founding fathers belonged to some Christian denomination, just as most Americans throughout history have. But this, by itself, says nothing about whether they supported separation of church and state. There is no reason why a person cannot be a Christian, or otherwise be religious, and still support separation – in our history, a great many have and a great many still do. Even if some of America’s founders believed that religion was a necessary inducement to morality, that does not mean they felt that such a view should be written into law, since they obviously did no such thing.

    Of course, listing the founders’ names in this fashion to imply that they would have supported the aggressive historical revisionism of today’s religious right is nonsense. A person’s political philosophy cannot be determined by examining where they go on Sundays; the only way to determine that is based on the totality of their work and especially the principles they wrote into law, and these records clearly show that our founders bequeathed us a heritage of government separation from religion.

Part Two: Why We Need Separation

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
—Justice Robert H. Jackson, majority opinion, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

“Although the magistrate’s opinion in religion be sound… if I be not thoroughly persuaded thereof in my own mind, there will be no safety for me in following it. No way whatsoever that I shall walk in against the dictates of my conscience will ever bring me to the mansions of the blessed. I may grow rich by an art that I take not delight in; I may be cured of some disease by remedies that I have not faith in; but I cannot be saved by a religion that I distrust and by a worship that I abhor…. In vain, therefore, do princes compel their subjects to come into their Church communion, under pretence of saving their souls. If they believe, they will come of their own accord, if they believe not, their coming will nothing avail them. How great soever, in fine, may be the pretence of good-will and charity, and concern for the salvation of men’s souls, men cannot be forced to be saved whether they will or no. And therefore, when all is done, they must be left to their own consciences.”
—John Locke, A Letter Concerning Toleration, 1689

The founding fathers’ recognition of the need for church-state separation did not arise out of a vacuum. On the contrary, it was a hard-won lesson of history, purchased only at the cost of much bloodshed. Prior to the founding of the United States and the enactment of the Bill of Rights, the history of the Western world can accurately be described as an unending series of religious wars. When and wherever the church was entwined with the state, vicious persecution and harsh treatment of dissenters, up to and including torture and execution, was the default approach.

This lesson did not arise exclusively from the history of Europe, but from experience on America’s own shores as well. The original states were European colonies, founded by European settlers, who brought their parent countries’ ideas about theocracy and religious establishment to their new home. The first generation of Americans had a chance to observe firsthand the oppressive, unjust effects of this system, and this played a large part in their successors’ decision to guarantee freedom of conscience for all citizens. This section will review some of the havoc religious establishment wrought both in Europe and the New World, to cast into sharper relief how vital church-state separation is and what exactly it is protecting us from.

Religious Persecution in Medieval Europe

In an 1814 letter, Thomas Jefferson famously said, “In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own.” In an equally uncompromising passage from his 1781 Notes on the State of Virginia, he wrote, “Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effects of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth.”

If such a judgment seems excessively harsh today, it is only because two centuries of church-state separation and resultant peace have blunted most religions’ desire to control the state, as well as dimmed the memory of what life was like beforehand. But for Americans in Thomas Jefferson’s day, the era of religious oppression was not just a vivid memory; it was current events. As late as 1781 – the very year Jefferson wrote the above passage – the Spanish Inquisition was still burning heretics at the stake (Pfeffer 1967, p.22). In England at that time, Roman Catholics, Jews, and in fact all denominations other than Anglicans were legally barred from holding any public office, whereas in France the Edict of Fontainebleau, which banned the practice or teaching of all Protestant religions, was still in effect.

The truth is that throughout history, whenever religion became mixed with nationalism – whenever the private beliefs of citizens became the official concern of the state – the near-universal result was persecution, bloodshed, and the death of innocent people. Whether religion was used to advance political aims or vice versa, the result was sadly predictable: sects that sought to further their own interests by imposing their beliefs on others eagerly grasped for power and wielded it mercilessly. Even denominations that might otherwise have remained peaceful were often drawn into the fray simply to protect themselves; but the tools of defense were far too easily used for offense, and when the oppressed gained power, they too often forgot their origins and became the oppressors themselves in turn. As historians have put it, “The whole history of medieval Europe revolved around the continual struggle for supremacy between prince and Pope, and the resulting religious wars and persecution of heretics and nonconformists” (Pfeffer 1967, p.16-17). In other words, “religion in those days was not so much a matter for quiet discussion and debate as it was a matter of martyrs and deserts, of muskets and swords, of burning and butchery” (Gaustad 2003, p.1).

This pattern plays out in history again and again. Throughout the ages, an astonishing number of prominent Christians advocated tolerance and religious liberty when their beliefs were in the minority, only to swiftly reverse course and call for dissent to be suppressed by force as soon as their followers gained secular power.

Consider, for example, the third-century church father Tertullian, who among other things coined the term “Trinity”. When Christians were still a persecuted minority, Tertullian wrote that “…it is a fundamental human right, a privilege of nature, that every man should worship according to his own convictions: one man’s religion neither harms nor helps another man. It is assuredly no part of religion to compel religion…” (quoted in Pfeffer 1967, p.15; originally from chapter II of Ad Scapulum). And yet years later, when Christians had begun to take power, Tertullian wrote: “Heretics may properly be compelled, not enticed to duty. Obstinacy must be corrected, not coaxed” (ibid., p.15; originally from Scorpiace).

Or take Martin Luther, founder of the Lutheran Church and the one person primarily responsible for the existence of Protestantism. At first, while threatened with excommunication and even assassination by the enraged Catholic church, Luther fiercely defended religious liberty: “I say, then, neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done with his own consent. Whatever is done otherwise is done in the spirit of tyranny… I cry aloud on behalf of liberty and conscience, and I proclaim with confidence that no kind of law can with any justice be imposed on Christians, except so far as they themselves will…” (Pfeffer 1967, p.23). But once he gained the support of secular powers, his tone changed markedly: “Heretics are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise” (ibid, p.23).

Likewise John Calvin, founder of the Christian denomination that bears his name. At first, Calvin said that the church “has no power of the sword to punish or to coerce, no authority to compel, no prisons, fines, or other punishments like those inflicted by the civil magistrate” (Pfeffer 1967, p.25). And yet, when he established his own theocracy in Geneva in the 1540s, missing a sermon was a crime punishable by banishment, and blasphemy was a crime punishable by death. In fact, in Calvin’s ideal state, denying that blasphemy should be punished by death was itself punishable by death: “Whoever shall now contend that it is unjust to put heretics and blasphemers to death will, knowingly and willingly, incur their very guilt” (ibid., p.25). When an anti-Trinitarian Christian named Michael Servetus who had escaped the Inquisition in the French city of Vienne came to Geneva, Calvin had him arrested and burned at the stake.

And many Christians, of course, were dead-set against freedom of conscience from the beginning. When the French king Henry IV issued the Edict of Nantes in 1598, granting some limited religious liberty to Protestants, the Edict was condemned by Pope Clement VIII as “the most accursed thing that can be imagined, whereby liberty of conscience is granted to everybody, which is the worst thing in the world” (Pfeffer 1967, p.27). Similarly, Pope Boniface VIII stated in the 1302 bull Unam Sanctum that it is “absolutely necessary” for every human being to be “subject to the Roman Pontiff”, and that “in this Church and in its power are two swords; namely, the spiritual and the temporal” of which “both… are in the power of the Church… the former in the hands of the priest; the latter by the hands of kings and soldiers, but at the will and sufferance of the priest.” (The correspondence with Jefferson’s words is striking.) In the 1200s, Pope Innocent III wrote that God had granted the pope “the government not of the Church only but of the whole world”, going so far as to ask the king of France to invade England when the English King John refused to approve Innocent’s nominee for the position of Archbishop of Canterbury (ibid., p.18). Even as late as 1864, Pope Pius IX’s Syllabus of Errors proclaimed, “No man is free to embrace and profess that religion which he believes to be true, guided by the light of reason… It is necessary even in the present day that the Catholic religion shall be held as the only religion of the state, to the exclusion of all other forms of worship” (quoted in Sagan 1994, p.43).

The full history of religious tyranny in Europe would be a book in itself, and a long one at that; but a few representative episodes can be given. This section will list some of the more infamous examples to show that America’s founding fathers had ample evidence to guide their decisions when they created a nation in which church and state would be kept forever separate.

The Inquisition

In accounts of European history, the Inquisition has become the quintessential example of religious tyranny and cruelty, and deservedly so. It is important to note, however, that there was not just one Inquisition, but several, each differing in their characteristics. Some were initiated directly by the Pope, while others were more under the control of local rulers. Their objectives differed as well. In France and Italy, the Inquisition mainly targeted heretical sects such as the Cathars, a Gnostic sect that believed in dueling good and evil powers, and the Waldensians, a Christian denomination that preached poverty and rejected the authority of the priesthood and the complicated rituals and ornate structures of the Catholic church. In Spain, the Inquisition focused on conversos – Jews and Muslims who claimed to have converted to Christianity but, it was believed, still practiced their former religions in secret. All told, the various Inquisitions occurred over a period of several hundred years. However, what united all the Inquisitions were their methods: the terror and secrecy of their proceedings, the absolute and arbitrary power of their inquisitors, and the near-impossibility of proving one’s innocence once accused of guilt.

In most cases, the inquisition began with a procedure called inquisitio generalis, in which an inquisitor visited a town on a given day so that all people who believed themselves guilty of even the most minor heresy could assemble in public (Burman 1984, p.57). Those who confessed their sins at this stage often received lighter punishment. Those who did not confess, and were accused of heresy by others, were usually then arrested and subject to secret trials in which the inquisitor was both prosecutor and judge (Pfeffer 1967, p.21). Guilt was assumed, and no defense lawyers were allowed; a confession was virtually the only way to escape alive, but generally the accused person was not told the charges against them, forcing them to guess blindly at what they might have been accused of. Even then, it was almost impossible to be released without implicating others, allowing the process to continue (a necessary step, since the various Inquisitions funded themselves mainly by confiscating property and assets from convicted heretics).

If the accused person refused to confess, torture could be and was used, as authorized by the 1252 papal bull Ad Extirpanda. Common methods of torture included the ordeal of water, in which the accused was forced to swallow gallons of water via a funnel forced into the throat, the ordeal of fire, in which the accused’s grease-coated feet were held above open flames, the rack, the strappado, and an especially vicious form of torture called the stivaletto in which wooden wedges were used to slowly crush the leg bones (Burman 1984, p.65). If at any stage the inquisitor felt his victim had been less than truthful, he could send them back to prison indefinitely – sometimes for years (ibid., p.59).

When this process was completed, the inquisitors decided on sentences, which were then pronounced and carried out in large public spectacles – the infamous auto de fe. Some heretics were required to wear yellow crosses prominently on their clothing, guaranteeing that they would be permanently shunned by friends and associates; others were sentenced to go on long pilgrimages or sent to prison, often for life. And for truly infamous or unrepentant heretics, there was, of course, burning at the stake. This method of execution has become iconic to the Inquisition, and it did occur, although not as frequently as some accounts claim. The best estimates are in the neighborhood of 3000 to 5000 for the Spanish Inquisition and comparable numbers for the others (Burman 1984, p.155) – still a horrific number, to be sure.

The Reformation and the Thirty Years’ War

When Martin Luther (about whom we have heard already) nailed his 95 theses to a church door in Wittenberg, Germany in 1517, he ignited a whole new era of religious warfare in medieval Europe. While France and Spain remained predominantly Catholic, England and the princes of Germany became largely Protestant, and the result was a series of bloody combats in which religion was fused with nationalism.

In France, for example, wars broke out repeatedly in the late 1500s between the Catholic royalty and the Protestant group called the Huguenots. A contemporary observer reported that “it would be impossible to tell you what barbarous cruelties are committed by both sides” (Haught 1990, p.94), describing rivers overflowing with the bodies of Protestants killed by Catholics and a Protestant military captain who wore a necklace made of Catholic priests’ ears. As part of the anti-Protestant effort, King Henry II created a heresy court that became known as the Chambre Ardente – French for “Burning Chamber”. In the 1572 St. Bartholomew’s Day Massacre, the Huguenot military leader Gaspard de Coligny was lured to Paris under the pretense of attending a wedding and murdered, along with thousands of Parisian Protestants, in a wave of mob violence. Upon hearing of this, Pope Gregory XIII proclaimed a day of thanksgiving in Rome and commissioned the artist Giorgio Vasari to paint a mural commemorating the massacre.

In England, meanwhile, schisms broke out first between the Catholic Church and the Church of England, then between the Church of England and the Puritans, with both giving rise to persecutions, wars and massacres. The first schism occurred when Henry VIII, angered by the Pope’s refusal to grant him a divorce, split with Rome and created the Anglican church, which became the kingdom’s official religion. The 1534 Act of Supremacy declared the king to be the head of this church, and defined any public avowal of allegiance to the Pope or any other religious authority to be treason, punishable by death.

Around the same time, Henry proclaimed himself king of Ireland and attempted to forcibly suppress Catholicism there. Though the conquest of Ireland was largely completed by Henry’s daughter Elizabeth I, the population still remained stubbornly Catholic, and violent uprisings such as the Nine Years’ War and the Desmond Rebellions resulted. Finally, her successor James I decided to finish the task by confiscating land from Catholics in the northern district of Ulster and giving it to imported Protestant lords (Haught 1990, p.180). The bitterness inspired by this event, and the animosity between these two groups, is what gave rise to the terrible Northern Ireland bloodshed that continued virtually unabated down to the present day.

King James’ son, Charles I, was a fierce persecutor of the increasingly powerful Puritans, handing down harsh sentences in the secretive court known as the Star Chamber for religious dissenters. Finally, when Charles attempted to arrest several Puritan members of Parliament, the result was the English Civil War. The anti-royalist faction was led by the fanatical Puritan Oliver Cromwell, whose soldiers, called Ironsides, were known for carrying Bibles and singing hymns before entering into combat. Cromwell captured and executed Charles, then established a dictatorship known as the Protectorate, which was equally intolerant of religious dissent. Among other things, Cromwell (who hated Catholics as well as Anglicans) invaded Ireland to put down Catholic rebels, capturing the town of Drogheda and executing its Catholic defenders who had surrendered, as well as all Catholic priests in the town and many civilians. Cromwell called his victory “a righteous judgment of God upon these barbarous wretches” (Haught 1990, p.121).

The last spasm of religious war in Europe was also the most terrible: the Thirty Years’ War, fought in the first half of the seventeenth century, which involved virtually every major power in Europe. The war began as an internal conflict within Germany (the Holy Roman Empire at the time) between Catholic and Protestant factions, and broke out into open conflict with the ascension of Ferdinand II as Holy Roman Emperor. A devout Catholic, Ferdinand attempted to suppress Protestantism in areas under his control with support from Catholic Spain and Poland, precipitating a civil war with Lutheran and Calvinist nobles who tried to replace him with the Protestant Frederick V. After a fierce but brief period of combat, Frederick was defeated and fled the country. But fighting continued, and Ferdinand’s victory was brief as the Protestant kings of Denmark and Sweden entered the war. Finally, France, though itself a Catholic nation, entered the war on the Protestants’ side to weaken its German and Spanish political rivals, leading to a Spanish counterattack on France itself.

All told, the Thirty Years’ War was a human catastrophe, not just because of the people directly killed in combat but because of those who died from famine, disease and other side effects of war. Civilian casualties are estimated to have been between 15 and 20 percent; by one estimate, Germany’s entire population dropped from 18 million to 4 million (Haught 1990, p.107). The only positive outcome was that the Peace of Westphalia, which ended the war, established once and for all the principle that no religious authority could control secular governments. From this point on, there would be no more major religious wars in Europe.

Test Acts and the Bloody Statute

In 1539, just after England’s break with the Pope, King Henry VIII enacted into law the Act of Six Articles, subtitled “An act for abolishing diversity of opinion”, more commonly known as the Bloody Statute. This act established six statements of dogma to which all English citizens were legally required to give assent: that the real body and blood of Jesus Christ was present in the bread and wine used at communion; that priests should not marry; that vows of chastity should be maintained; that private masses should be continued; and that people should confess their sins to priests. The punishment for denying any of these articles was imprisonment for a first offense, and for a second offense, the offender was put to death by burning at the stake (Pfeffer 1967, p.27). As Robert Ingersoll wrote, the act “was made by law, in order that all men might know just what to believe by simply reading the statute. The church hated to see the people wearing out their brains in thinking upon these subjects.”

The Act of Six Articles was later repealed, but an equally intrusive law remained on the books: the 1534 Act of Supremacy, which legally established the king of England as the head of the Anglican church, and required office-holders and the nobility to swear both political and religious allegiance to him. Like the Act of Six Articles, the Act of Supremacy mandated death for those who refused to take this oath. The Catholic Thomas More, among others, was convicted of treason and beheaded for refusing.

What was the effect of these religious tests? As American founding father Oliver Ellsworth astutely observed, test acts are a perfect example of a perverse incentive. The only religious dissenters excluded from office by such laws are the honest and principled ones who will not lie about what they believe – the very ones, it could be argued, that any government needs. The unprincipled and dishonest ones will, of course, cheerfully lie under oath in order to gain the power and prestige of public office. The result, as Ellsworth writes, was that in England the “most abandoned characters” would take communion to become eligible for office, and the clergy were legally obliged to administer it to them.

Religious Persecution in the American Colonies

Though it is obvious at a glance that Europe’s history is one of interdenominational strife and bloodshed, many Americans like to think our history has been free of such bloody entanglements. And it is true that, despite all the things that have divided us, Americans have never fought in a religious war. But this does not mean our history is free of religious persecution; in fact, the opposite is true.

The first American settlers were Europeans, who brought their home countries’ ideas about religion and government to the shores of the New World. The two major streams of religious establishment in the colonies were the Congregationalists (Puritans) in the north, and the Anglicans in the south. These two sects were by far the most powerful in colonial America, and most denominations other than these two, denominations that today seem the epitome of mainstream – Baptists, Presbyterians, Quakers, Unitarians, Methodists, Roman Catholics, Jews – were oppressed and despised minorities hounded from place to place, often denied the right to conduct religious services even in their own homes. Many of these groups, after the American Revolution, would become some of the staunchest supporters of church-state separation, and it is not difficult to see why.

The Puritans: Theocracy in New England

Any discussion of American religious history must include the Puritans, a group of Calvinist Protestants disenchanted with what they saw as the excessive emphasis on hierarchy and ritual in the Church of England. The Puritans are often remembered as coming to America in search of religious freedom, but this is a half-truth at best: the Puritans disagreed with the English government not because it was a theocracy, but because it was not their theocracy. The only freedom they sought was the freedom to write their own beliefs into law rather than those of the established Anglican church. They wanted tolerance for themselves, but had no intent or desire to extend that tolerance to any other sect.

When the Puritans began to arrive in Massachusetts Bay in force in the 1620s, they wasted no time putting this vision into practice. The General Court, the colony’s legislature, quickly passed laws limiting voting rights to Puritan church members, although the tests for membership were so strict that even many Puritans did not qualify, and in practice “the colony was governed by a small church oligarchy in the best theocratic tradition” (Pfeffer 1967, p.75). Nonattendance at church services, unauthorized preaching, and disagreement with any of a long list of creedal statements were made punishable offenses.

The colonial legislature soon set draconian punishments for members of other religions who intruded on their “city on a hill”. A series of laws condemning Quakers, who were considered a “cursed sect of heretics” by the Puritans, made it a crime for any Quaker to enter the colony, punishable by twenty lashes of the whip and hard labor. Another 1647 law declared that any Jesuit or Catholic priest that entered Massachusetts would be imprisoned until he could be banished, and put to death if he returned (Pfeffer 1967, p.76). Other punishments for religious dissenters included tortures and mutilations such as cropping of ears and burning of tongues (Gaustad 2003, p.9).

These policies were not meant only as threats to frighten off dissent; they were deadly serious. In 1651, Boston authorities sentenced a Baptist to thirty lashes of the whip, and in 1659, four Quakers were hanged in Boston Common for returning to preach after being banished (Gaustad 2003, p.xiii). In 1661, a group of English royal commissioners sent to observe, coming from a country not itself noted for tolerance, wrote back to the crown that the people of Massachusetts were “exceedingly cruel” to Quakers, beating several “to jelly” and executing others (Pfeffer 1967, p.76).

Punishments such as these were not limited to outsiders. On the contrary, the Puritans were equally willing to exact them even against their own for the crime of questioning the established order. Take, for example, the case of Roger Williams. Though a Puritan minister himself, Williams was far in advance of his day, arguing fervently against persecution on account of religion and in favor of an ideal of voluntarism and church-state separation very similar to what exists today. For this crime, Williams was banished from the colony in 1635, and though he nearly perished during a harsh winter in the wilderness, he survived and later founded the colony of Rhode Island, which guaranteed freedom of conscience to all its citizens from the beginning (Gaustad 2003, p.8).

Another Puritan who dared to stand up to the established order was a woman named Anne Hutchinson. Hutchinson’s crime was holding religious meetings in her home in which she advocated a “covenant of grace” centered on an individual having a personal relationship with God, rather than a corporate, hierarchical relationship through the intermediary of the state. For this sin, she was convicted of heresy in 1638 and expelled from Massachusetts, ending up in New York, where in 1642 she and several of her children were killed by hostile Native Americans. Governor Winthrop of Massachusetts, when he heard this news, piously stated that God had chosen to make an example of her (Pfeffer 1967, p.76). Hutchinson’s lineage lives on, however: several U.S. presidents, including Franklin Roosevelt, George H.W. Bush and George W. Bush, are direct descendants of hers.

The Anglicans: Theocracy in Virginia

While the Puritans were creating their ideal state in New England, settlers from the orthodox Church of England in the southern colony of Virginia were enacting their own preferred version of theocracy into law. As per Governor Thomas Dale’s “Laws Divine, Moral and Martial” decreed in 1612, Virginia’s settlers were legally required to attend morning and evening prayers every day and to refrain from work on Sundays. A first offense would merit the loss of a day’s rations – no minor matter for settlers already struggling on the edge of starvation – while a second offense would be punished with whipping, and a third, six months of slavery aboard an ocean galley (Gaustad 2003, p.3). Penalties were also assessed against those who failed to present their infant children for baptism.

Blasphemy was an even more serious crime. To “speak impiously” of God, the Trinity, or any article of Anglican faith was punishable by death. To speak disrespectfully of any minister carried a sentence of three public whippings, along with appearing before the congregation three consecutive Sundays to confess one’s offense and publicly ask forgiveness. Public cursing could draw the penalty of having a “bodkin… thrust through the tongue” (Pfeffer 1967, p.78).

Like Massachusetts Bay, Virginia also created laws designed to exclude those of other faiths. Puritans were summarily banished, Quakers were imprisoned, and Catholics were barred from entering the colony. All others who entered the colony were required to present themselves to an Anglican minister so that their faith could be examined; if it did not conform to the official creed, the offender was to be whipped every day until he repented of his error (Pfeffer 1967, p.78).

It is true that these harsh laws were relaxed, somewhat, upon appeal to the English crown. However, their replacements were scarcely less intrusive. Even the newer laws imposed fines for nonattendance of Anglican services, created compulsory tithes and taxes on every resident to support the church establishment, and required Presbyterians, Baptists, Methodists and other dissenters from England to obtain a license before they could preach, or else be jailed, which many were (Gaustad 2003, p.5). As late as the 1770s, Baptists in Virginia and the Carolinas were still being beaten, imprisoned and kicked out of town after town (Kramnick and Moore 1996, p.120).

Other Religious Establishments

Although Massachusetts and Virginia provide the two most striking examples, the evil effects of religious police states were visible elsewhere in the American colonies as well. For example, consider New York, which was originally founded by Dutch settlers in 1613. Under Dutch rule, the Dutch Reformed Church was the official religion of the state, and all residents were compelled by law to contribute to its support and to have their children baptized by a Reformed minister in a Reformed church. Members of unapproved religious sects such as Baptists and Lutherans were not allowed to build their own churches, and were subject to fines, whippings and imprisonment for holding private religious services in their homes (Pfeffer 1967, p.79).

Even colonies where religious liberty flourished in somewhat greater measure were subject to harsh laws of this type. The colony of Maryland, for example, was founded by two Catholic converts seeking sanctuary for their beliefs. But despite all the persecution witnessed and experienced by its founders, Maryland was no more tolerant of unorthodox beliefs than any other American colony. In 1649, Lord Baltimore, the colony’s governor and one of its original founders, passed into law the Act of Toleration, which despite its name was anything but tolerant. Among other provisions, this act decreed fines or imprisonment as the penalty for working on the Sabbath, and death for denying the Trinity or the divinity of Jesus. More interestingly, speaking “reproachful words” against the Virgin Mary was also punishable, though not by death (Pfeffer 1967, p.83).

With the advantage of hindsight, we can today look back on efforts such as this and notice the one thing they have in common: they all failed. Not one of these medieval or colonial theocracies survived; not one ever succeeded in abolishing dissent. Exactly as Thomas Jefferson put it, the only result of all the attempts down through the centuries by kings, emperors and popes to compel religious uniformity has been the oppression of free minds and the shedding of innocent blood, while uniformity remains as far from reach as ever. This alone should be enough to prove that such laws are not just a terrible idea, they are also an inevitable failure.

America’s founders were fully cognizant of this lesson of history, which is why they were so diligent and careful to write a Constitution that secured the blessings of religious freedom and separation of church and state for their posterity. The next section of this essay will demonstrate that this is so.

Part Three: Separation: The Evidence

Though it should by now be obvious why separation of church and state is needed, that does not prove that it actually has an established place in America’s history. To prove that, we turn to the historical evidence, which shows beyond any reasonable doubt that separation of church and state was conceived of as a fundamental part of our political system since the beginning.

The Godless Constitution

Any discussion of separation of church and state in America must begin with America’s founding document, the Constitution itself. This essay has already quoted the First Amendment, origin of the separation of church and state, but there is a broader point to be made here. Any search of the Constitution’s text (using a hypertext version such as this one) will readily reveal that it contains absolutely no mention of the terms “God”, “Jesus”, “Christ”, “Bible” or the like. The word “religion” and its variants are used in only two places: in Article VI, which states that no religious test shall ever be required as a qualification for any public office, and in the First Amendment, which forbids Congress from passing any law respecting an establishment of religion.

In short, the Constitution is literally a godless document. It does not claim that the ideas it contains were the product of divine revelation or sacred scripture. It does not label any religion superior to any other, nor does it promote theism in general over atheism, nor does it state that religious belief is necessary for personal morality or societal order. It does not encourage its citizens to belong to any particular religion or belief system, nor does it discourage them from belonging to any. It does not assert that God has shown any special favor to America. It does not even say anything about whether God exists.

If, as the religious right asserts, America’s founders intended to create a Christian nation, this is where they would have said so. But they did not; the Constitution says not a word on the topic. This fact alone should dash the absurd claims of dominionists. No matter how many quotes they present from the founding fathers expressing approval of Christianity, no matter how many occasions they discuss where founders stood on the same podium as religious leaders or attended church services, they cannot show any evidence of America being intended to be a Christian nation in the one and only place where it would matter. Simply put, the Constitution is the law of the land, and since it does not say that the United States of America is a Christian nation, then we are not – period.

This omission could not have been accidental. Religious language was omnipresent in other foundational legal documents of the day – whether proclaiming the existence of God, asserting his special favor, or creating explicit religious tests for office and established state churches. For example, the Articles of Confederation, the precursor to the Constitution, praise the “Great Governor of the World” for seeing fit to approve them. Even more surprisingly, at the time the Constitution was ratified, eleven of the thirteen states had explicit religious tests in their constitutions (Kramnick and Moore 1996, p.27). (The exceptions were New York and Virginia.) Delaware’s, for example, required all elected or appointed public officials to affirm “faith in God the Father, and in Jesus Christ His only son, and in the Holy Ghost, one God blessed forevermore”, and Massachusetts’ proclaimed, “It is the duty of all men in society… to worship the Supreme Being”. And these were among the more inclusive religious test oaths – the majority allowed only Protestants to hold office. Even the American Declaration of Independence made reference to a deistic Creator. And of course, the colonies’ mother country, England, had an established state church, and influential legal documents such as the Magna Carta contained numerous references to God and his favor.

Given the prevalence of religious language in legal documents of the time, the only reasonable explanation for the total absence of such language in the Constitution is that its authors deliberately left it out. The founding fathers of America were brilliant men, and would not have thoughtlessly forgotten to mention God if they had intended to include such a reference. No, there is only one reasonable conclusion: the Constitution’s “utter neglect of religion was no oversight; it was apparent to all” (Kramnick and Moore 1996, p.27). Furthermore, the Constitution’s failure to mention religion was no minor blip on the political radar screen. It was a major and live issue at the time, one for which the document’s enemies angrily attacked it, and for which its defenders stood firm against criticism, proving that they knew exactly what they were doing and did so intentionally. This will be addressed further in the next section.

The Ratification Controversy

As we have seen, America’s Constitution is a godless document in every sense of the word, and was written that way deliberately. Language establishing religious tests, state churches and official creeds was ubiquitous in legal documents and political thinking of the time. Against this background, the Constitution’s total omission of such concepts is all the more striking, and can only be viewed as intentional.

But there is additional evidence supporting this conclusion. This evidence comes in the form of a historical controversy that, although little remembered today, was one of the most important and passionate debates our nation ever experienced.
Christian-nation advocates claim that separation of church and state is a recent legal invention, and that our original tradition, our original laws, were meant to establish a Christian state. If this is true, we would expect that Christian religious leaders who lived at the time of the Constitution’s ratification would have supported it. To be sure, many did. But others did not, and the basis of their objections constitutes the second major piece of evidence in favor of separation being part and parcel of the founders’ original intent. When the Constitution was being ratified, it was bitterly attacked by many religious leaders who denounced its godlessness and warned that it was courting disaster to create a new nation whose government did not submit to God’s sovereignty. In short, the religious right of the day objected to the Constitution precisely because they knew it did not grant Christianity any special status. This fact stands in stark contradiction to dominionists’ wishful assertions of a Christian past.

As already mentioned, the Constitution has nothing whatsoever to say about God, Jesus, Christianity or the Bible, and references religion only by forbidding religious establishments and religious tests. For many of its opponents, that was its gravest flaw, and the focal point of all their criticisms of it. The following is a representative sample of the arguments made against it on that basis:

  • An anonymous anti-federalist writer in October 1787 complained about the Constitution’s “general disregard of religion” and “indifference towards religion”; in November another opponent of the Constitution who went by the pen name Philadelphiensis echoed these complaints, criticizing its “silence” and “indifference about religion” in November 1787 (Kramnick and Moore 1996, p.33).
  • In January of 1788, an anti-federalist warned in a Boston newspaper that since God was absent from the Constitution, America would suffer the curse pronounced by Samuel in 1 Samuel 15:23 (“Because thou hast rejected the word of the Lord, he hath also rejected thee”). A March 1788 letter to the Massachusetts Gazette similarly criticized the Constitution’s “inattention” to religion and asserted that it would be impossible to establish an enduring government without “publick protection” for religious belief (p.36).
  • In 1789, a group of Presbyterian elders wrote to George Washington to complain that the Constitution contained no reference to “the only true God and Jesus Christ, who he hath sent” (p.102).
  • Dr. John Mason, a New York clergyman, protested in 1793 that “from the Constitution of the United States, it is impossible to ascertain what God we worship, or whether we own a God at all” (p.144), and that this was “an omission which no pretext whatever can palliate” (Jacoby 2004, p.30).
  • In 1811, Rev. Samuel Austin, later to be president of the University of Vermont, claimed that the Constitution’s “one capital defect” was that it was “entirely disconnected from Christianity” (Kramnick and Moore 1996, p.144).
  • In 1812, Rev. Timothy Dwight, the president of Yale and grandson of the infamous fire-and-brimstone preacher Jonathan Edwards, lamented that America had “offended Providence” by forming a Constitution “without any acknowledgement of God; without any recognition of His [sic] mercies to us, as a people, of His government, or even of His existence…. Thus we commenced our national existence under the present system, without God” (p.105).
  • The president of Transylvania University, a Kentucky Presbyterian clergyman, in 1815 publicly deplored the fact that nowhere in the Constitution was “God the Savior recognized” (p.144).
  • The chaplain of the New York State legislature in 1820 denounced the founders for their “ingratitude… without parallel” in writing a Constitution “in which there is not the slightest hint of homage to the God of Heaven” (p.144).

Remember that these are not the words of radical atheists or secularists, but of religious opponents of the Constitution. They wanted a Christian nation and were complaining because they did not get one. Where, then, was the Christian heritage today’s religious right says existed from the beginning? If America was founded as a Christian nation, why was anyone raising these complaints?

But this faction did not stop at merely criticizing the Constitution. Instead, they attempted, during the ratification conventions in each state, to change it to bring it in line with their wishes. Their proposed modifications show precisely what they felt was missing:

  • At the Constitutional Convention in Philadelphia in 1787, Maryland delegate Luther Martin noted that “there were some members so unfashionable as to think that a belief in the existence of a Deity and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that in a Christian country it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism” (Kramnick and Moore 1996, p.29). However, of course, no such distinction exists in the Constitution.
  • The Connecticut delegate William Williams similarly proposed that the Constitution’s preamble be enlarged to reflect a specifically Christian view of politics: “We the people of the United States in a firm belief of the being and perfection of the one living and true God, the creator and supreme Governor of the World, in His universal providence and the authority of His laws… do ordain, etc” (p.37). This modification also was rejected by the drafters of the Constitution.
  • In April and May 1788, a Virginia initiative attempted to change the wording of Article 6, which banned religious tests, to say that “no other religious test shall ever be required than a belief in the one only true God, who is the rewarder of the good, and the punisher of the evil” (p.37). This proposal also failed.

The fact that modifications such as these were proposed shows that the Constitution was not, as some Christians have claimed, a document “so godly that any mention of the Supreme Being… would have been as superfluous as acknowledging the sky overhead” (Jacoby 2004, p.33). But the fact that these modifications were all rejected shows unequivocally that this was not the founders’ intent. The first generation of Americans understood the importance of separation of church and state, and it is indeed sad that so many today do not.

The Christian Amendment

Although attempts to Christianize the Constitution during the state ratification conventions failed, the proponents of such a view did not give up. This pressure came to a head in 1863, during the American Civil War, when a group of Protestant clergymen from seven states formed the National Association for the Amendment of the Constitution, soon renamed the National Reform Association. The goal of this group was simple: to mend the “atheistical Constitution” by enacting a constitutional amendment that would declare America a Christian nation. By early 1864, they had agreed on a proposed amendment similar to William Williams’, which would change the preamble to the following:

“We, the people of the United States, humbly acknowledging Almighty God as the source of all authority and power in civil government, the Lord Jesus Christ as the Ruler among the nations, His revealed will as the supreme law of the land, in order to constitute a Christian government… do ordain and establish this Constitution for the United States of America” (Kramnick and Moore 1996, p.146).

Had the Constitution contained such explicitly religious language, it would be undeniable that America was indeed a Christian nation. But this effort, like the earlier ones, would end in failure. The National Reform Association brought its proposed changes to President Lincoln in February 1864; the great president received them cordially, listened to their proposal diplomatically, and then proceeded to utterly ignore it for the remaining fourteen months of his life. Congress, too, made no effort to act on the group’s petitions. The proposed amendment was reintroduced in 1869 and again in 1874, then yet again in 1894 and 1910, each time being rebuffed by Congress. Astonishingly, as recently as 1954, the National Association of Evangelicals was still attempting to amend the Constitution to include language such as “This nation divinely recognizes the authority and law of Jesus Christ, Savior and Ruler of Nations, through whom are bestowed the blessings of Almighty God” (p.148).

The continual failure of these efforts can mean only that America is not a Christian nation, which is as the founders intended. But what is truly astonishing is that the religious right, which only fifty years ago was trying to alter the Constitution to declare America a Christian nation, has completely reversed its strategy and is now claiming that America was a Christian nation all along. Isaac Kramnick and R. Laurence Moore accurately label this breathtaking audacity the “staggering historical flip-flop” it is. The religious right “now celebrates that Constitution by denying its godless foundation, which so many religious leaders in the past clearly recognized and lamented. Having lost many times in its efforts to put God and Christ into the persistently vilified godless Constitution… the Christian right today embraces the Constitution and its authors, rewriting history as it does so” (p.148). To such an incisive observation, even an atheist could say “Amen!”

The Treaty of Tripoli

Although it is powerful evidence for church-state separation, the controversy over the Constitution’s ratification is little-known today, and the religious right has obliged by ignoring it. However, there is another piece of evidence devastating to their case that they have found more difficult to overlook: the 1797 Treaty of Tripoli.

The situation that led to the Treaty of Tripoli was this. In the 1700s, the major shipping lines in the Mediterranean Sea were threatened by the Muslim states of North Africa – Tripoli, Algiers, Tunis and Morocco – which sent pirate ships to board merchant vessels, stealing their cargo and enslaving or ransoming their crew. After the Revolutionary War, America no longer had the protection of the British navy, and commerce suffered due to the pirates’ raids. Lacking a significant navy of its own at the time, America attempted to negotiate with the Barbary states, promising to pay an annual tribute in exchange for the right to sail in safety. The Treaty of Tripoli, worked out by American ambassador Joel Barlow with the pasha of Tripoli and approved by Congress in 1797, was one outcome of these negotiations. (The pasha later violated the treaty, demanding additional tribute, and the pirate states were eventually conclusively defeated in the Second Barbary War in 1815.)

The reason the Treaty of Tripoli has entered into the church-state arena is its Article 11, which in the English translation reads as follows:

As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.” (from the Wikipedia article Treaty of Tripoli)

This forthright language was made all the more remarkable by the reaction to it – or rather, the lack of one. The Treaty of Tripoli was unanimously ratified by the U.S. Senate on June 10, 1797, and signed into law by President John Adams on the same day (see http://candst.tripod.com/boston4.htm). The full text of the treaty was read aloud on the floor of the Senate, and printed copies were distributed to the senators, prior to the vote. The text of the treaty was also reprinted in several U.S. newspapers. Not a single dissenting voice is on record, no one protesting that America was a Christian nation or that this article was a perversion of our heritage. This uncontroversial acceptance shows clearly that America is a secular country and was recognized as such by its founding generation.

Recognizing how damaging this evidence is to their position, the religious right has been relentless in its attacks on the treaty. Some enemies of separation have pointed to the fact that the treaty’s translation into Arabic was later discovered to be badly garbled, and Article 11 is missing from the translated version, which is true. But this is plainly irrelevant: the Congress and President Adams did not vote on the Arabic text, but on the English text. And the English text, which does contain Article 11, was ratified unanimously and without a whisper of recorded protest. The fact that some translator later bungled the task of transcribing it does not affect this in the slightest.

Another occasionally heard objection is that the treaty was renegotiated after eight years, and no clause similar to the original Article 11 appears in the updated version. (A variant of this argument holds that treaties negotiated with Algeria and Tunis at the same time contain no similar language.) This argument likewise fails. The fact remains that the original Treaty of Tripoli did have this provision, and no contemporaneous or later treaty with the Barbary states ever repudiated it, nor did any lawmaker or politician of the time express opposition to it. The other treaties simply say nothing about this provision at all, and to assert that their silence should be understood as a rejection of the original language is a textbook example of a fallacious argument from silence. It is even possible that the founding fathers felt the point about America not being a Christian nation was clearly made and felt no need to keep restating it.

One final attempt to salvage the religious right’s argument comes from Christian apologist J.P. Holding, who claims that the United States was in a rush to conclude peace negotiations with Tripoli and that there was no time to renegotiate it, despite the fact that there may have been objections to it. However, this argument flounders on the undisputed unanimity with which the treaty was ratified. Again, not a single member of Congress expressed reservations about the treaty’s language, or stated that they were voting for it under duress. As far as we know, not a single lawmaker even stepped forward to challenge the provision as factually inaccurate; there was no discussion or argument about it recorded in the proceedings of the Senate, and the vote in favor was unanimous. If Holding was correct, we would expect at least some recorded controversy, but there is none.

Jefferson’s Letter to the Danbury Baptists

In 1801, a congregation of Baptists in Danbury, Connecticut wrote to the newly elected President Thomas Jefferson congratulating him on his victory, and also asking him for assistance. The Connecticut state constitution, which preceded the federal Constitution, created a system of forced taxation to support the Congregationalist church, and though it was possible to obtain exemptions, doing so was a lengthy and difficult process. The Danbury Baptists wanted this system to be repealed entirely. Though they knew the president had no power to alter the laws of the states, they asked him to use his position as a bully pulpit, to speak out in favor of religious liberty and against religious establishment.

Jefferson did not disappoint. His reply contained a resounding passage in support of the First Amendment, from which one of the most famous metaphors in the history of American jurisprudence is derived:

“Believing with you 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 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.” (Kramnick and Moore 1996, p.97; emphasis added)

This passage shows conclusively that separation of church and state is no liberal myth or later invention. On the contrary, it was a phrase coined by one of the founding fathers precisely to explain the meaning of the religion clauses of the First Amendment.

Some opponents of separation have tried to minimize the importance of this letter by passing it off as a hasty or poorly-thought-out composition, one that did not reflect Jefferson’s true beliefs. This rationalization, however, is strongly contradicted by the evidence of care and deliberation with which Jefferson wrote it, as well as an explicit statement by him of its intended effect.

We know that before Jefferson sent the letter, he first submitted it to his attorney general, Levi Lincoln (a distant relation of the later president), for review. In the note sent along with the letter, Jefferson explained to Lincoln that the reason he wrote letters such as this one was in order to “mak[e] them the occasion, by way of answer, of sowing useful truths & principles among the people, which might germinate and become rooted among their political tenets” (Pfeffer 1967, p.134), and asking Lincoln to suggest any alterations that might improve its effect. In other words, Jefferson knew that this letter would be taken as an authoritative explanation of the purpose of the First Amendment, and intended it to be so. As the Supreme Court said of this letter in 1878 in Reynolds v. United States, “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.”

Washington’s Letter to the Newport Jews

In August of 1790, a Jewish congregation in Newport, Rhode Island – still an unusual phenomenon at this era in American history – wrote to President George Washington in praise, describing how throughout the ages the Jewish people had been persecuted and denied the rights of free citizens, and expressing their gratitude for the existence of a country that would at last allow all people liberty of conscience to worship as they pleased and retain an equal part in society. Washington’s reply thanked them for their compliments and expressed clearly his opinion on matters of religion and government:

“The citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.” (full text available online)

This ringing endorsement of religious freedom speaks strongly to Washington’s views on separation of church and state. Susan Jacoby points out how his reply expressed the view that freedom of religion was viewed “not as a grudging concession or even as a generous gift from the American government but as a right” (Jacoby 2004, p.32). As George Washington himself points out, the American government requires only that its citizens should conduct themselves according to the rules of civic life, a standard which atheists and theists alike can meet. It “gives to bigotry no sanction, to persecution no assistance” – which can only mean viewing all religious sects as equal in the eyes of the law, preferring none over any others.

Conclusion

We are today in the early years of the twenty-first century. The United States of America has survived and flourished for two hundred years and more, and so we are in a good position to look back on history and judge how the founders’ grand experiment has fared. If they could see us today, I wonder, what would they think? If Thomas Jefferson, George Washington or any of those great men could be transported to our time, if they could see what we have made of their nation, would they be proud of us?

Though I would never arrogate to myself the right to speak for these statesmen, I like to think that they would indeed be proud of their descendants. Sadly, for all the founding fathers’ achievements, in their time there were still large sections of society excluded from the wonderful guarantees of liberty the Constitution promised. But in the two centuries since, we have made substantial progress in redressing that balance, progressively extending that liberty to one group after another and welcoming them into our national community. And this continual broadening of our horizons, I believe, is one the founders would have wholeheartedly supported – they understood, as well as anyone can understand, the importance of recognizing in law what the human spirit already knows. What they began, we have continued.

The separation of church and state is a perfect example of this trend. Though it was promised to all citizens at our nation’s founding, that promise was not fulfilled, at least not immediately. Until the ratification of the Fourteenth Amendment, the Bill of Rights was technically binding only on the federal government, not the states, and for several decades after the American Revolution, several states retained their own official churches. The last of these to be disestablished was Massachusetts, in 1833. Blasphemy laws continued to be intermittently enforced for several decades after that. And it was not until the 1960s that it was finally found unconstitutional for states to compose prayers and require students to recite them in school every day. But all these changes we have made, as well as others, building the wall of separation high and strong as it was always meant to be.

Do these changes mean we have diverged from the founders’ original intent? Not at all: the writings which they have left us show clearly that, if anything, we are now closer to their original vision than we have ever been. We have made many of the reforms that they would have wanted; it was only theocratic opposition in their own time that kept them from enacting those reforms themselves. In truth, it is amazing that they managed to achieve as much in the name of liberty as they did, in light of the hostility they faced. (Thomas Jefferson, for example, was regularly reviled as an atheist and an enemy of Christianity while running for president, and Thomas Paine, one of the bravest and truest patriots our country has ever had, was rewarded with widespread hatred and even assassination attempts for his views on religion.) It is the apex of absurdity that today’s religious right tries to wrap itself in the mantle of these men and claim they would have supported its malignant grasping for power and intolerance of differing views. On the contrary, those who fight to defend freedom of religion from these attacks, even when they are perceived as unpopular or unpatriotic for so doing, are the true defenders and heirs of the Constitution – not the greedy, power-hungry leaders of the religious right who cynically employ faith for political gain. Though America has always been a nation mostly of religious people, it has also always been a nation where each citizen is free to choose and practice their own beliefs for themselves free of interference. To fight against this is to turn one’s back on everything this country stands for.

But our work in implementing the founders’ vision is not yet complete. Their wall of separation, still and always, needs to be reinforced and shored up. Today, we still have government agencies diverting taxpayer dollars to discriminatory and sectarian religious charities, many of dubious credentials. We still have would-be theocrats agitating for exclusionary Ten Commandments monuments in courthouses and coercive prayer in public schools. We still have anti-science reactionaries trying to water down the teaching of evolution with creationist pseudoscience. We still have an altered Pledge of Allegiance that links patriotism with monotheism. And we still have, as we have always had, ignorant and bigoted Christian fundamentalists who think that the government is discriminating against their religion by not giving them special treatment, and that the government is persecuting them when it does not allow them to force their religion on others.

These attacks are nothing new. Freedom of religion, like most of the rights guaranteed by the Constitution, has been under assault since its inception, and so far it has held firm. But that does not mean we can become complacent. If our rights have survived, and if they are to continue to survive, it is only because of the untiring efforts of ordinary citizens, the true American patriots who understand why preserving them is so important. The saying has never been more apt that vigilance is the eternal price of liberty.

What many in the religious right do not understand is that America achieved greatness not in spite of these freedoms, but because of them. History teaches that human ingenuity and valor always achieve their fullest flowering in states where many different ideas and beliefs can coexist harmoniously, without government oppression. Separation of church and state is not a value in opposition to America’s ideals, but the true essence of them; and we are all, atheists and theists alike, better off when that wall is kept high and strong. If all goes well, we can rely on that wall being maintained for a very long time to come.

Works Cited

Burman, Edward. The Inquisition: Hammer of Heresy. Dorset Press, 1984.

Gaustad, Edwin. Proclaim Liberty Throughout All the Land: A History of Church and State in America. Oxford University Press, 2003.

Haught, James. Holy Horrors. Prometheus Books, 1990.

Jacoby, Susan. Freethinkers: A History of American Secularism. Metropolitan Books, 2004.

Kramnick, Isaac and R. Laurence Moore. The Godless Constitution: The Case Against Religious Correctness. W.W. Norton, 1996.

Pfeffer, Leo. Church, State and Freedom. Beacon Press, 1967.

Sagan, Carl. Pale Blue Dot: A Vision of the Human Future in Space. Random House, 1994.


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