Church and State

[OrangeEmpire]

Heritage Foundation

No metaphor in American letters has had a more profound influence on law and policy than Thomas Jefferson’s “wall of separation between church and state.” Today, this figure of speech is accepted by many Americans as a pithy description of the constitutionally prescribed church–state arrangement, and it has become the sacred icon of a strict separationist dogma that champions a secular polity in which religious influences are systematically and coercively stripped from public life.

And here is the premise:

What is the source of this figure of speech, and how has this symbol of strict separation between religion and public life come to dominate church–state law and policy? Of Jefferson’s many celebrated pronouncements, this is one of his most misunderstood and misused. I would like to challenge the conventional, secular myth that Thomas Jefferson, or the constitutional architects, erected a high wall between religion and the civil government.

There it is and the case for challenging the conventional, secular myth that Thomas Jefferson, or the constitutional architects, erected a high wall between religion and the civil government?

On New Year’s Day, 1802, President Jefferson penned a missive to the Baptist Association of Danbury, Connecticut. The Baptists had written the President a “fan” letter in October 1801, congratulating him on his election to the “chief Magistracy in the United States.” They celebrated Jefferson’s zealous advocacy for religious liberty and chastised those who had criticized him “as an enemy of religion[,] Law & good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ.”

In a carefully crafted reply, Jefferson endorsed the persecuted Baptists’ aspirations for religious liberty:

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.[3]
Although today Jefferson’s Danbury letter is thought of as a principled statement on the prudential and constitutional relationship between church and state, it was in fact a political statement written to reassure pious Baptist constituents that Jefferson was indeed a friend of religion and to strike back at the Federalist–Congregationalist establishment in Connecticut for shamelessly vilifying him as an infidel and atheist in the recent campaign. James H. Hutson of the Library of Congress has concluded that the President “regarded his reply to the Danbury Baptists as a political letter, not as a dispassionate theoretical pronouncement on the relations between government and religion.”[4]

Jefferson’s Understanding of the “Wall”

Throughout his public career, including two terms as President, Jefferson pursued policies incompatible with the “high and impregnable” wall the modern Supreme Court has erroneously attributed to him. For example, he endorsed the use of federal funds to build churches and to support Christian missionaries working among the Indians. The absurd conclusion that countless courts and commentators would have us reach is that Jefferson routinely pursued policies that violated his own “wall of separation.”

Jefferson’s wall, as a matter of federalism, was erected between the national and state governments on matters pertaining to religion and not, more generally, between the church and all civil government. In other words, Jefferson placed the federal government on one side of his wall and state governments and churches on the other. The wall’s primary function was to delineate the constitutional jurisdictions of the national and state governments, respectively, on religious concerns, such as setting aside days in the public calendar for prayer, fasting, and thanksgiving. Evidence for this jurisdictional or structural understanding of the wall can be found in both the texts and the context of the correspondence between Jefferson and the Danbury Baptist Association.[5]

President Jefferson had been under Federalist attack for refusing to issue executive proclamations setting aside days for national fasting and thanksgiving, and he said he wanted to explain his policy on this delicate matter. He told Attorney General Levi Lincoln that his response to the Danbury Baptists “furnishes an occasion too, which I have long wished to find, of saying why I do not proclaim fastings & thanksgivings, as my predecessors [Presidents Washington and Adams] did.” The President was eager to address this topic because his Federalist foes had demanded religious proclamations and then smeared him as an enemy of religion when he declined to issue them.

Jefferson’s refusal, as President, to set aside days in the public calendar for religious observances contrasted with his actions in Virginia where, in the late 1770s, he framed “A Bill for Appointing Days of Public Fasting and Thanksgiving” and, as governor in 1779, designated a day for “publick and solemn thanksgiving and prayer to Almighty God.”

How can Jefferson’s public record on religious proclamations in Virginia be reconciled with the stance he took as President of the United States? The answer, I believe, is found in the principle of federalism. Jefferson firmly believed that the First Amendment, with its metaphoric “wall of separation,” prohibited religious establishments by the federal government only. Addressing the same topic of religious proclamations, Jefferson elsewhere relied on the Tenth Amendment, arguing that because “no power to prescribe any religious exercise…has been delegated to the General [i.e., federal] Government[,] it must then rest with the States, as far as it can be in any human authority.” He sounded the same theme in his Second Inaugural Address, delivered in March 1805:

In matters of religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general [i.e., federal] government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it; but have left them, as the constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies.

These two statements were, in essence, Jefferson’s own commentary on the Danbury letter, insofar as they grappled with identical issues. Thus, as a matter of federalism, he thought it inappropriate for the nation’s chief executive to proclaim days for religious observance; however, he acknowledged the authority of state officials to issue religious proclamations. In short, Jefferson’s “wall” was erected between the federal and state governments on matters pertaining to religion.

Federal government, not state government…and the wall was between the federal government and the state governments not between the government as a whole and the church.

So, how did we get to this ‘wall’ that we (seemingly) have today?

Justice Hugo L. Black, who authored the Court’s ruling, likely encountered the metaphor in briefs filed in Everson. In an extended discussion of American history that highlighted Virginia’s disestablishment battles and supported the proposition that “separation of church and state is a fundamental American principle,” attorneys for the American Civil Liberties Union quoted the single clause in the Danbury letter that contains the “wall of separation” image. The challenged state statute, the ACLU ominously concluded, “constitutes a definite crack in the wall of separation between church and state. Such cracks have a tendency to widen beyond repair unless promptly sealed up.”[8]

The trope’s current fame and pervasive influence in popular, political, and legal discourse date from its rediscovery by the Everson Court. The Danbury letter was also cited frequently and favorably in the cases that followed Everson. In McCollum v. Board of Education (1948), the following term, and in subsequent cases, the Court essentially constitutionalized the Jeffersonian phrase, subtly and blithely substituting Jefferson’s figurative language for the literal text of the First Amendment.[9] In the last half of the 20th century, it became the defining motif for church–state jurisprudence.

The “high and impregnable” wall central to the past 50 years of church–state jurisprudence is not Jefferson’s wall; rather, it is the wall that Black—Justice Hugo Black—built in 1947 in Everson v. Board of Education.

Helped along by the ACLU…

Which means:

By extending its prohibitions to state and local jurisdictions, Black turned the First Amendment, as ratified in 1791, on its head. A barrier originally designed, as a matter of federalism, to separate the national and state governments, and thereby to preserve state jurisdiction in matters pertaining to religion, was transformed into an instrument of the federal judiciary to invalidate policies and programs of state and local authorities. As the normative constitutional rule applicable to all relationships between religion and the civil state, the wall that Black built has become the defining structure of a putatively secular polity.

Also, the assertion that Justice Hugo Black and the ACLU turned the First Amendment on its head in 1947 is a bit of a stretch. The First Amendment was actually first "turned on its head" in 1925 (or perhaps even sooner, as I will demonstrate below), in the case of Gitlow v. New York, twelve years before Black became a Supreme Court Justice.

In Gitlow v. New York, the Court decided that certain provisions of the First Amendment (Free Speech and Free Press) applied to state governments by way of Privileges and Immunities Clause of the Fourteenth Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Many historians believe that this clause was originally intended to apply the Bill of Rights to state governments. Since there is some evidence to support this, including statements made by the Fourteenth Amendment's framers, it may be argued that the First Amendment was first "turned on its head" as early as 1868!

So, if you wish to restore the original meaning of the First Amendment, you will first have to do one of two things: you must either convince historians that the Fourteenth Amendment does not refer to the First Amendment, or you will have to repeal the Fourteenth Amendment itself.

And by turning the 1st Amendment on it’s head means:

Second, the very nature of a wall further reconceptualizes First Amendment principles. A wall is a bilateral barrier that inhibits the activities of both the civil state and religion, unlike the First Amendment, which imposes restrictions on civil government only. The First Amendment, with all its guarantees, was entirely a check or restraint on civil government, specifically Congress. The free press guarantee, for example, was not written to protect the civil state from the press; rather, it was designed to protect a free and independent press from control by the federal government.

Similarly, the religion provisions were added to the Constitution to protect religion and religious institutions from corrupting interference by the federal government and not to protect the civil state from the influence of, or overreaching by, religion. The wall, however, is a bilateral barrier that unavoidably restricts religion’s ability to influence public life; thus, it necessarily and dangerously exceeds the limitations imposed by the First Amendment.

And why should you care?

Why should we care about this metaphor today? We should care because the wall is all too often used to separate religion from public life, thereby promoting a religion that is essentially private and a state that is strictly secular. This would have alarmed the founders because they viewed religion, to paraphrase George Washington’s words, as an indispensable support for social order and political prosperity.

Today, the wall is the cherished emblem of a strict separationist dogma intolerant of religious influences in the public square. Federal and state courts have used the “wall of separation” concept to justify censoring private religious expression (such as Christmas crèches) in public fora; stripping public spaces of religious symbols (such as crosses); denying public benefits (such as education vouchers) for religious entities; and excluding religious citizens and organizations (such as faith-based social welfare agencies) from full participation in civic life on the same terms as their secular counterparts. The systematic and coercive removal of religion from public life not only is at war with our cultural traditions insofar as it evinces a callous indifference toward religion, but also offends basic notions of freedom of religious exercise, expression, and association in a democratic and pluralistic society.

The “high and impregnable” wall constructed by the Supreme Court inhibits religion’s ability to inform the public ethic and policy, deprives religious citizens of the civil liberty to participate in politics armed with ideas informed by their spiritual values, and infringes the right of religious communities and institutions to extend their prophetic ministries into the public square. Jefferson’s metaphor, sadly, has been used to silence the religious voice in the marketplace of ideas and, in a form of religious apartheid, to segregate faith communities behind a restrictive barrier.

The wall metaphor provides little practical guidance for the application of First Amendment principles to real-world church–state controversies, short of recommending a policy of absolute separation. Few courts or even separationist partisans, however, contend that a total and perfect separation is practical or mandated by the Constitution. In short, the wall is incapable of providing specific, practical guidelines that can be implemented in difficult disputes that require a delicate balancing of competing constitutional values, such as the freedoms of speech, association, religious exercise, and the non-establishment of religion.

The wall is politically divisive. Because it is so concrete and unyielding, its very invocation forecloses meaningful dialogue regarding the prudential and constitutional role of religion, faith communities, and religious citizens in public life. The uncritical use of the metaphor has unnecessarily injected inflexibility into church–state debate, fostered distortions and confusion, and polarized students of church–state relations, inhibiting the search for common ground and compromise on delicate and vexing issues.

Jefferson’s figurative language has not produced the practical solutions that its apparent clarity and directness lead the wall builders to expect. Indeed, this wall has done what walls frequently do—it has obstructed the view. It has obfuscated our understanding of constitutional principles. There is little advantage in metaphor if it is unable to bring clarity to an ambiguous or confusing text or if it fails to aid in the interpretive process.
Absent Jefferson’s metaphor, church–state debate might well be more candid and transparent. The separation principle would not necessarily be deemed an essential feature of the First Amendment; rather, it would be understood as only one among several plausible constructions of the amendment. Moreover, separationists would be compelled to articulate precisely the assumptions and rationales of their perspective rather than gloss over them with a metaphoric slogan.

I believe first amendment should return to its original meaning. However, I'm not comfortable with any leader (like Bush or otherwise) that says "God speaks through me." That's blasphemy.

Abraham Lincoln said it better. "I won't say that God is on my side, but rather I hope to be on the side of God."

Still, nasty business religion and state working too closely together. Look at the middle east

God bless America, maybe that's exactly why we shouldn't change it. Religion should be private. In fact, maybe it can only be private. As Jefferson said in the letter you quoted, "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." Religion lies between Man & his God, not between Man, his God, and the US Congress.

 

[OWB]

That very well could be the longest post in Volnation history.

 

[OrangeEmpire]

Sorry,

:wassup: :tease2: :wacko: :wink2: :yuck: :whistling: :snoring: :shakehead: :no: :moon2: :hi: :disappointed: :clapping: :cry: :aggressive:

 

[therealUT]

Great post!

 

[GAVol]

I don't think I've ever seen a post that long that consisted of actual thought.

 

[OrangeEmpire]

:dunno: Just one of those days. :twocents:

 

[jdsa]

Sources?

Thank you for posting it, that was a good read.

 

[MyBloodRunnethOrange]

Federal and state courts have used the “wall of separation” concept to justify censoring private religious expression (such as Christmas crèches) in public fora;

Even I think that's going a little too far

stripping public spaces of religious symbols (such as crosses);

The cross and the ten commandments have no place in a government building. The purpose of those places is to conduct the business of government, not to promote christianity.

denying public benefits (such as education vouchers) for religious entities;

Example?

and excluding religious citizens and organizations (such as faith-based social welfare agencies) from full participation in civic life on the same terms as their secular counterparts.

Examples please? Most of the social welfare agencies that I see ARE faith based.

The systematic and coercive removal of religion from public life not only is at war with our cultural traditions insofar as it evinces a callous indifference toward religion, but also offends basic notions of freedom of religious exercise, expression, and association in a democratic and pluralistic society.

Oh please :shakehead: . I get so sick of hearing the poor little persecuted christian routine. The christians aren't being persecuted, they are the ones trying to do the persecution by passing constitutional amendments designed to discriminate against certain segments of society, and trying to overturnj a woman's right to choose.

 

[MyBloodRunnethOrange]

The “high and impregnable” wall constructed by the Supreme Court inhibits religion’s ability to inform the public ethic and policy,

If only that were true the world would be a much better place.

deprives religious citizens of the civil liberty to participate in politics armed with ideas informed by their spiritual values,

Give me a freakin break :banghead: . Those religious citizens control all three branches of the freakin government, and are trying to use that to ramrod those "spiritual values" down the throats of the rest of us.

and infringes the right of religious communities and institutions to extend their prophetic ministries into the public square.

Oh please :banghead:

Jefferson’s metaphor, sadly, has been used to silence the religious voice in the marketplace of ideas

The last time I checked, it was the religious voices that were trying to silence the voices of anyone who disagrees with their TRUE God, Georgie Warmonger.

I believe first amendment should return to its original meaning

I'd like for you to explain how it has LEFT it's original meaning. Everyone has the right to worship God as they see fit,OR TO REFRAIN FROM WORSHIP IF THEY SO CHOOSE

However, I'm not comfortable with any leader (like Bush or otherwise) that says "God speaks through me."

He can claim to be God's mouthpiece if he wants to, that dosen't make it true though. What scares me is how many people buy into that drivel.

 

[therealUT]

Oh please :shakehead: . I get so sick of hearing the poor little persecuted christian routine. The christians aren't being persecuted, they are the ones trying to do the persecution by passing constitutional amendments designed to discriminate against certain segments of society, and trying to overturnj a woman's right to choose.

Why stop at abortion? Why not infanticide?

 

[therealUT]

I'd like for you to explain how it has LEFT it's original meaning. Everyone has the right to worship God as they see fit,OR TO REFRAIN FROM WORSHIP IF THEY SO CHOOSE

So public nativity scenes force you to worship?

 

[USMCvol]

Even I think that's going a little too far


The cross and the ten commandments have no place in a government building. The purpose of those places is to conduct the business of government, not to promote christianity.


Example?


Examples please? Most of the social welfare agencies that I see ARE faith based.


Oh please :shakehead: . I get so sick of hearing the poor little persecuted christian routine. The christians aren't being persecuted, they are the ones trying to do the persecution by passing constitutional amendments designed to discriminate against certain segments of society, and trying to overturnj a woman's right to choose.

Yes and that right to choose has resulted in 47,282,923 abortions since Roe V. Wade. That is getting into Stalinesqe numbers (or was that Mao?).

 

[hatvol96]

Hindus believe in the separation of Church and Steak.

 

[MyBloodRunnethOrange]

So public nativity scenes force you to worship?

If you take the time to go back and read my post, you'll see that I agree that the fight against Christmas scenes is carrying it too far. I have three kids, and I celebrate Christmas too, although I celebrate it as a secular and not a religious holiday. As a former christian I recognize the significance of the religious aspects of the holiday, and I think removing the religious takes away from the overall spirit of the season.

What I think is silly is the way some religious groups get their panties all in a wad over "Season's Greetings" or "Happy Holidays". Christianity is not the only religion celebrating a religious holiday during the month of Decenber.

 

[MyBloodRunnethOrange]

Yes and that right to choose has resulted in 47,282,923 abortions since Roe V. Wade.

Yes, and it is still a private decision between the woman and her doctor.

That is getting into Stalinesqe numbers (or was that Mao?).

Only if it can be proven that a fetus is a human being at the moment of conception. The scientific community can't even decide the exact moment at which a fetus becomes a living human being.

 

[therealUT]

If you take the time to go back and read my post, you'll see that I agree that the fight against Christmas scenes is carrying it too far. I have three kids, and I celebrate Christmas too, although I celebrate it as a secular and not a religious holiday. As a former christian I recognize the significance of the religious aspects of the holiday, and I think removing the religious takes away from the overall spirit of the season.

What I think is silly is the way some religious groups get their panties all in a wad over "Season's Greetings" or "Happy Holidays". Christianity is not the only religion celebrating a religious holiday during the month of Decenber.

So, you celebrate the birth of Christ as a secular holiday?

Well, since the fight against Nativity scenes is carrying it too far, exactly when in your life or in the news have you read about someone who is not allowed to refrain from worshipping. The problem is, there are many people who feel that in their presence everyone must refrain from worshipping. That is wrong.

 

[therealUT]

Yes, and it is still a private decision between the woman and her doctor.
Only if it can be proven that a fetus is a human being at the moment of conception. The scientific community can't even decide the exact moment at which a fetus becomes a living human being.

Why is the burden of proof on proving that the fetus in a human being and not on proving it is not a human being? The scientific community is completely split on the issue. Therefore, I personally would rather err on the side of not sponsoring the murder of 50 million 'potential' human beings, who are absolutely innocent of any wrong doing.

 

[therealUT]

Yes, and it is still a private decision between the woman and her doctor.

Also, why is it not a decision involving the father?

 

[therealUT]

I really enjoy MyBloodRunnethOrange's hit and run posts. Nothing like staying for the discussion...

 

[hatvol96]

Why is the burden of proof on proving that the fetus in a human being and not on proving it is not a human being? The scientific community is completely split on the issue. Therefore, I personally would rather err on the side of not sponsoring the murder of 50 million 'potential' human beings, who are absolutely innocent of any wrong doing.

The answer to that question is quite simple. To have a criminal act, like murder, you have to prove all elements of the offense beyond a reasonable doubt. The death of a human being is the essential element of the crime of murder. Thus, you have to prove a fetus is a viable human being for purposes of claiming a murder has taken place.

 

[therealUT]

Good answer from a legal perspective, however, it is an absolutely reprehensible way to view the killing of an unborn child.

 

[hatvol96]

Good answer from a legal perspective, however, it is an absolutely reprehensible way to view the killing of an unborn child.

We are a nation of laws, not a theocracy.

 

[OrangeSquare]

I don't support "A woman's right to choose" (Murder) over the life of her unborn child.

That being said, my wife had an abortion years before I knew her. I don't condem her for her decision, but I don't support it either.

As for the Chirstmas debate, the slogan Seasons Greetings has been around a LONG time. The problem that I, as a Christian have with it's usage now is that it's being used INSTEAD OF Merry Christmas in places that it shouldn't be. Non-Christians say that we are whining about the usage of Seasons' Greetings when in reality we are trying to save the day as a religious holiday, which was it's intent for a LONG, LONG time. The people and places that have suddenly decided to use Seasons Greetings, where they once used Merry Christmas, are either on purpose, or unknowingly offending Christians by suddenly moving away from the history of the day.

Non-Christians that are "offended" when someone says Merry Christmas to them are foolish, because the DAY is called Christmas, and the phrase "Merry Christmas" is simply wishing them a Happy Day.

 

[therealUT]

We are a nation of laws, not a theocracy.

It does not have to be a theocracy in order to see the flaw in that killing an animal is a felony but killing a fetus is celebrated. God forbid a woman actually takes responsibility for having choosing to have sex and carry the baby for 9 months then gives the baby up to one of the tens of thousands of couples who want to adopt.

 

[MyBloodRunnethOrange]

So, you celebrate the birth of Christ as a secular holiday?

I celebrate 25 December as a day to celebrate children. I further recognize that nobody can say for certain the exact date on which Jesus of Nazereth was born, but it is very likely that it was not in late December, since the shepherds were watching over their flocks by night. It is more likely that He was born sometime in the spring.

December 25 is the date of the Winter Solstice celebraion in the ancient world. It was also recognized as the birthday celebration of the god Mithra. Throughout the Roman Empire they celebrated the Saturnalia on Dec 25, in honor of the sun god Saturn. The early church didn't even celebrate the birth of Christ. The resurrection was the holiest day of the year to the early church. Sometime in the mid 4th century, after Constantine converted to christianity, the pope declared that 25 Dec would now be the birthday celebration of Christ, and called the new day Christ's Mass. Many of the traditions that are associated with the celebration of Christmas came from the Saturnalia, including gift giving, decorating evergreen trees, and the focus on children (the Juvenalia).

Well, since the fight against Nativity scenes is carrying it too far, exactly when in your life or in the news have you read about someone who is not allowed to refrain from worshipping. The problem is, there are many people who feel that in their presence everyone must refrain from worshipping. That is wrong.

I don't feel that anyone needs to refrain from worshiping. The problem realUT, is when the christian community uses the government to impose christian standards on others, like when the two men were arrested in Texas for having sex in the privacy of their own home. That is also wrong.