Whence Cometh “Separation of Church and State”?

For some reason, over the last few days I’ve gotten a number of irascible Facebook posts, nasty emails, and all around ugly comments aimed in my direction.

This one was more politely worded than most:

Would you be so kind as to show me where In the Constitution or the Bill of Rights you find this? The key to my question is very simple, it must be in the those two Founding Documents, not some other papers, such as in Personal Letters or what someone thinks those two Documents say. But word for word what you stated above.

And to help you, I will post the Amendment which you are speaking to:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

 

Okay, I’ll bite. This is actually a common complaint from the religious far right, especially those who think that since their particular brand of religion is dominant in this country, the rest of us should all bow our heads, shut up, and go along with it.

The questioner apparently knows that the phrase “separation of church and state” was used by Thomas Jefferson in his 1802 letter to the Danbury Baptists. It has been used by many others to express the intent and function of the Establishment Clause and Free Exercise Clause of the First Amendment to the Constitution of the United States. It has been quoted by courts, and, to the dismay of the questioner and his ilk, is now the law when it comes to matters of the Establishment and Free Exercise Clauses of the First Amendment:

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

These are vitally important words. I’ll explain why “separation of church and state” became the phrase used in the law.

Jefferson’s letter read, in toto:

To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.

The phrase that Jefferson used, “a wall of separation between church and state,” has been repeatedly cited by the Supreme Court of the United States. In Reynolds v. United States, an 1879 decision by the U.S. Supreme Court, the majority wrote that Jefferson’s comments “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.” Reynolds was the case that conclusively decided that Mormons could not engage in polygamy because bigamy was illegal.

Mr. Reynolds claimed that his religion required him to engage in polygamy, and therefore he had a religious duty to violate the bigamy law. Citing Jefferson’s Danbury letter, the U.S. Supreme Court made a distinction between belief and action. Believing in polygamy was fine, and no law would ever stop anyone from believing whatever they believed. Faith, as Jefferson said, “lies solely between Man & his God,” and no person had to “account to any other for his faith or his worship.” However, acting on that belief contrary to the law and public policy was not permitted. Again, as Jefferson had said to the Danbury Baptists, “the legitimate powers of government reach actions only,” and actions taken contrary to law could be punished by the government.

In Everson v. Board of Education (1947), erudite U. S. Supreme Court Justice Hugo Black referred to the Danbury Baptists letter when he wrote: “In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.” This supreme court case made it clear that the Constitution and all of its amendments, including the First Amendment, applied to the states as well as to the federal government.

The Everson case had to do with reimbursements to parents whose children took public transportation to school. The U.S. Supreme Court split in a 5-4 decision over whether the reimbursements to parents taking public transportation to private school were unconstitutional, with the majority deciding that the reimbursements did not establish religion. What everyone on that court agreed to, though, was that a wall of separation between church and state was critically necessary.

Justice Black’s language was the broadest and most clear:

The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.

There have been lots of decisions since these two, lots prior to these two, and lots between these two. Separation of church and state is not just a catchphrase; it’s the law.

Some people, like the commenter who (more politely than most these last few days) wrote to me, object to the letters of the men who drafted the Amendment being used to interpret it. Courts often look to the intent of the people who wrote the  laws in question to determine what was intended. The phrase found in legal opinions that do this is “looking to the legislative intent.” When applied to the constitution, it is called the “looking to the intent of the framers.”

Because court decisions have historically interpreted the Establishment Clause to erect this wall of separation between church and state, and since Congress has never passed any law contravening it, “separation of church and state” is the law of the United States of America.

To demand that the constitution say exactly the verbiage we commonly use is absurd; the document was never intended to cover every possibility, but rather to broadly enumerate basic rights. If anyone wants a more thorough explanation of why the Constitution is worded the way it is, I suggest reading the Federalist Papers compiled by James Madison, Alexander Hamilton, and John Jay during the Constitutional Convention of 1789. The Federalist Papers are a collection of 85 essays written during the Constitutional Convention that describe the process or creating the foundational legal document on which the rest our laws rest. Often the essays of the Federalist Papers were being written in the same room as the debates raged among the attendees of the convention. The Federalist Papers are free in various formats from numerous sites. Get them in ebook format from Project Gutenberg and from the Library of Congress, download a free PDF from Penn State, or get the audio books from Project Gutenberg   or Librivox.

For those who need a history refresher, James Madison was the Secretary of State who negotiated and supervised the Louisiana Purchase and later was president of the U.S. during the War of 1812; Alexander Hamilton was the nation’s first Secretary of the Treasury until he was killed in an ill-advised duel with Jefferson’s former Vice President Aaron Burr; and John Jay was the first Chief Justice of the U.S. Supreme Court. Very colorful characters were midwives to the birth of this nation’s laws – gentlemen, rogues, scoundrels, and philosophers all played a part.

But how does a court get to decide what the constitution means? The quick answer is that courts are the arbiters of disputes, and therefore must be able to interpret laws. The 1803 U.S. Supreme Court case of Marbury v. Madison, decided by the famous Supreme Court Chief Justice John Marshall, established judicial review of administrative and legislative actions and cemented the separation of equal powers between our three branches of government – ensuring that each branch checked and balanced the other two.

The Supremacy Clause of the U.S. Constitution establishes the Constitution, treaties, and the laws of the United States as the supreme law of the land. The power of judicial review is implied when Article III, pertaining to the judiciary, and Article VI, containing the Supremacy Clause, are read together. The Supremacy Clause says:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Therefore, until the United States Supreme Court decides otherwise, “separation of church and state” is the law of the United States of America.

When I was in law school almost three decades ago (now I feel really old!) I clerked in the law office of my older cousin. He is a garrulous, opinionated fellow who regularly both pissed me off and taught me a lot.  He once told me, standing in front of a case full of dense law books, that Constitutional Law was only good for cocktail party conversation. Of all that he ever said to me – and I disagreed with him a lot – this is the only thing I seriously take issue with.

About Anne

Writer. Voracious reader. Lawyer. Jack’s mom. Irreverent. Coffee drinker. Cat owner. Grudging dog owner. Chief cook and bottle washer. Over-educated. Irish-Italian. Irreligious. History buff. Paleontology freak. Science fiction fan. Political junkie. Part-time avenging angel. Tea lover. Music nut. Tale spinner. Movie addict. Opinionated. Wordy.

Got a legal question related to religion? Contact me at anne@aramink.com

  • Azkyroth

    The key to my question is very simple, it must be in the those two Founding Documents, not some other papers, such as in Personal Letters or what someone thinks those two Documents say.

    This is idiotic. It’s tantamount to asserting that 220-odd years of Supreme Court decisions don’t have any bearing on the meaning of the Constitution.

  • http://atheistlogic.wordpress.com OmniZ

    “[...] the U.S. Supreme Court made a distinction between belief and action. Believing in polygamy was fine, and no law would ever stop anyone from believing whatever they believed. [...] However, acting on that belief contrary to the law and public policy was not permitted.”

    Question: How did the US end up with religious exemptions in place given that Supreme Court decision? For example, drugs that are required for religious ceremonies or the exemptions given to religious organizations for providing healthcare under the Obama mandate.

    Also, minor nitpick: “From Whence” is redundant. “Whence” means “from what source”.

    • http://www.aramink.com Anne

      I changed the title for you. Yes, I’m a perfectionist. What of it?

    • Stogoe

      Back to the depths of grammar idiocy from whence you came, foul beast.

  • Kodie

    That was very good. I have a question though – without relying on any papers, letters, essays, known intentions, or precedents, how else is there to interpret the establishment clause? I don’t get why this is difficult for people to understand what the words mean.

    • Ibis3

      Exactly. If Jefferson hadn’t written that phrase, it would have been necessary to invent it.

    • Nox

      Pastors and pseudohistorians have told them separation of church and state is a secularist myth. And the absence of the actual words “separation of church and state” in these documents is often seen as a trump card. It’s one of those arguments that sounds convincing if you don’t think about it at all.

      If someone understands that “establishment”=”establishment” and “congress”=”the lawmaking body described in the Constitution”, there’s no honest way to read “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” without separation of church and state. If the state does not establish or prohibit religions, then the church and the state are separate.

  • A different Phil

    Do the words “fair trial” appear any place in the Constitution ? If not, what happens if we apply the Christian logic ?

    • RobMcCune

      Exactly, Christians wouldn’t be so cavalier about a narrow interpretation of freedom of speech or freedom of the press, which are part of the same amendment.

  • Theory_of_I

    I think it is also important to consider the implications of the First Amendment in the context of the legal and governmental powers inherant in Cannonical law and it’s protestant equivalent which had been in effect for centuries and was still the norm in the western world in the 1770′s

    Despicable attrocities were still legally being applied in Europe, Canada and Mexico by Christian leadership against witches and heretics at the time the Constitution was being framed. The torture and murder of the innocents in Salem Mass. for example, had occurred only 80 years earlier.

    It’s indisputable that, as both historical and current events, these horrors would have been much on the minds of the framers of the Constitution, so much so that IMO, the First Amendment was intended to deny all legal status for religion generally, and Christianity in particular, and, as affirmed in subsequent SCotUS decisions, to assert secular law as the supreme law of the land.

    Christians have a great propensity to conveniently deny, avoid or ignore their disgusting history and disavow their sordid legacy as it suits them.

    In their efforts to reassert legal theocratic governance in the US, the industry of religion and particularly the Christian Dominionist movement are strongly committed to eliminating both Article VI of The Constitution and the separation clause .

  • DaveL

    Other things “not found in the Constitution”:

    States’ Rights
    Limited Government
    Separation of Powers
    Double Jeopardy
    Freedom of Expression
    Right to Remain Silent

    • Zinc Avenger (Sarcasm Tags 3.0 Compliant)

      Straight into my rhetorical toolbox. Thanks.

    • phantomreader42

      Also, “Freedom of religion” isn’t in there either. I keep seeing idiots screeching “the Constitution says freedom OF religion, not freedom FROM religion”, then when it’s pointed out that it DOESN’T actually say that by their own ridiculous standard they run away. Never seen a one of them admit their mistake or even show the capability to read.

  • RuQu

    “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. ”

    So we can’t pass a tax and give the proceeds to any church, but we can exempt them from ~$71 billion in taxes per year? Makes sense.

    • John Horstman

      Ugh, and “faith-based initiatives” are just such a blatant violation, too.

  • Ryan

    I find that, for gaining insight into properly interpreting the clauses of the Bill of Rights, it is actually more useful and instructive to use the history of the legislative process through which the amendments were drafted. Conclusions drawn from that also have the luxury of being much stronger and thus more difficult to challenge. The legislative history of the Establishment Clause and Free Exercise Clause is quite illuminating, as many versions were debated and the ones that would have implied a less-than-full “wall of separation” were soundly rejected in favor of those that implied a broader application. It fully deflates the “Freedom OF religion doesn’t mean freedom FROM religion” argument when used to instantiate religious privilege in government and law.

  • Doug Indeap

    Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    • http://www.aramink.com Anne

      I wish I had said all that!

  • http://www.lordlingsofworship.com The Madison

    You don’t have to be an atheist to believe in the separation of church and state. The principle derives from Founding Fathers observing that imperial religions have consumed peoples and lands, justified by theocratic philosophies and tyrannical goals. The release of the book The Lordlings of Worship and their Catastrophic Mindrides has just been announced.
    http://www.lordlingsofworship.com
    Without separation of church and state, it is privilege that rules, and democracy and individual rights disappear. Thus both those who want the freedom to worship and those who want the freedom not to worship suffer.

  • Andrew Kohler

    “Therefore, until the United States Supreme Court decides otherwise, “separation of church and state” is the law of the United States of America.”

    The scary thing is, if Antonin Scalia had his foul little way….

    And for something completely different: I think “from whence” technically may not be incorrect, but “whence” by itself is just so much better regardless ;-)

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    Whence Cometh “Separation of Church and State”?

    • Glodson

      Answered above, in the post and comments. Thoroughly.

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