Was O'Donnell Right About the "Separation" of Church and State?

Yesterday, liberal blogs were delighted to find two occasions to mock Tea-Party-associated women.  The first was provided by Sarah Palin, who warned Tea Partiers that they should not yet “party like it’s 1773.”  This got a number of professionally opinionated people, from Markos Moulitsas (of “Daily Kos” fame) to Gwen Ifill, to marvel over Twitter about her stupidity.  Surely she meant 1776!?

Turns out she was referring to the actual Boston Tea Party, which took place in 1773.  In context, the referent is clear.  But bloggers and commentators did not bother to do a little research, so sure were they that they had found another example of the gobsmacking ignorance of Sarah Palin.  Yet they were the ones with egg on their faces.

The second example comes courtesy of Christine O’Donnell.  Now, I am not an O’Donnell fan.  I would rather she win than Coons, but she is not my kind of candidate.  Still, she should be represented honestly.  So what happened?

During a debate at a law school, her opponent, Chris Coons, said that one of the “indispensable principles” of Constitutional law is “the separation of church and state.”  Anyone who is familiar with conservative thought on faith and politics will know that this raises a red flag.  Christine O’Donnell obviously thought that she might be able to back Coons into a trap.

“Where in the Constitution is the separation of Church and State?” she asked O’Donnell.  As the video shows, there is laughter and disbelief in the auditorium; you can hear people in the crowd exclaim, “Oh my God!”  (Later they say, as though addressing her, “You know nothing!  You know nothing!”)  (Surveys consistently show that the great majority of people believe “the wall of separation” is in the Constitution; it is a shame that the same must be said of law students.)

Coons says this question “reveals her fundamental misunderstanding of what our Constitution is, how it is amended, and how it evolves.  The first amendment establishes the separation–” here he pauses, and shifts course, “–and the fact that the federal government shall not establish any religion, and decisional law by the Supreme Court over many decades clarifies and enshrines that there is a separation of church and state that our church and state must respect.”

Coons clearly understands the point she wants to make — that the phrase “separation of church and state” does not actually appear in the First Amendment or anywhere in the Constitution.  The “wall of separation” metaphor comes from a letter Thomas Jefferson wrote, many years after the Constitution and the Bill of Rights were written, to a group of Baptists from Danbury, Connecticut (James Madison also sometimes referred to “the separation of church and state”).  O’Donnell is trying to get him to say that “separation of church and state” is in the Constitution.  He is trying to avoid saying that, and wants to say instead that the principle of separation has become enshrined as a matter of Constitutional law through later Supreme Court decisions.

Thus when O’Donnell presses the issue, saying, “You’re telling me that the separation of church and state is found in the First Amendment?”–Coons responds: “The government shall make no establishment of religion.”

Those in the crowd, or at least the most vocal among them, clearly do not understand the debate behind the debate.  The Huffington Post also shows its ignorance, or its unwillingness to explain the nuances of the issue in the midst of its eagerness to paint O’Donnell as a moron, when it leads off its article:

“Republican Senate nominee Christine O’Donnell of Delaware on Tuesday questioned whether the U.S. Constitution calls for a separation of church and state, appearing to disagree or not know that the First Amendment bars the government from establishing religion.”

Yet these are two different things.  Barring the establishment of a state religion is not the same thing as separating religion and government.  Religion and government could work together in any number of ways without the establishment of a state church.  As Daniel Foster points out, O’Donnell has led two organizations that have lobbied Congress to incorporate Christian values into their legislation; she knows the First Amendment and is aware of debates over the issue.

Of course, when you’re in high dudgeon, it’s hard to be corrected.  William Saletan at Slate notes how O’Donnell emphasizes the word “first,” and argues she “it’s the citation that surprises her.”  She “seems incredulous not just at Coons’ position against government-established religion, but that he bases it on the First Amendment.”  To my mind, this is clearly wrong.  She is trying to nail him down, trying to get him to say that the first amendment separates church and state.  Then she will be able to show that he really doesn’t know what it is in the First Amendment.  Coons, to his credit, avoids the trap.  Yet he also gives only a very partial recitation of the First Amendment.

Behind this little tiff is a serious question – debated not only by the Christine O’Donnells of the world, but also be Supreme Court Justices such as Rehnquist and Scalia.  Perhaps a “wall of separation” is not the most helpful metaphor when it comes to the relationship between religious groups and the government.  The establishment and free exercise clauses prohibit the state from establishing an official church or from interfering in church matters; they do not prohibit the church from some forms of involvement in government, and that is why “separation” is a dubious metaphor. Even Jefferson, whose skepticism toward orthodox Christianity is well known, attended church services in the capitol.  He supported the use of government funds for the construction of churches, for chaplains in the military, and even to support missionaries to Native Americans.  None of this made him a Christian Reconstructionist or a Theocrat.

The establishment and free exercise clauses are arguably uni-directional; they prevent the state from interfering in the church.  The “separation” metaphor is bi-directional; neither side can influence the other.  In the context of Jefferson’s broader thought, even he, the coiner of the separation phrase, clearly believed that religion could be involved in some ways in government.  And there are indeed two live options on this issue today.  Liberals by and large want to minimize the role of religion in the public square.  Conservatives believe that religion has a vital, vital role to play in the public square, and that many attempts to chase religion from the public square actually “interfere with the free exercise thereof.”  Thus Scalia has objected that the “wall” metaphor has functioned as a “bulldozer” to remove religion from the public square.

Unfortunately, Coons was not willing to explain the issue fully, and O’Donnell never did.  This is a teachable moment over a legitimate disagreement on the Constitution and constitutional law, but, unsurprisingly, it is passing by with a lot of sound and fury but very little actual edification.