A Delicate Balance

A History of the Separation of Church and State in the US

By Rob Boston
Vol. XXXIII – No. 2 2012

Separation of church and state, TV preacher Pat Robertson declared in a 1993 speech in South Carolina, is a myth.
According to Robertson, the “radical left … kept us in submission because they have talked about the separation of church and state. There is no such thing in the Constitution. It’s a lie of the left, and we’re not going to take it anymore.”

Two other televangelists, the late Jerry Falwell and D. James Kennedy, were no fans of church-state separation, either. W.A. Criswell, a once-prominent Southern Baptist pastor in Texas, famously declared during the Republican National Convention in 1984, “I believe this notion of the separation of church and state was the figment of some infidel’s imagination.”

In more recent times, David Barton, a Texas-based pseudo-historian, has made a comfortable living peddling books and dvds to fundamentalist Christians arguing that the United States was founded to be a “Christian nation” and that separation is a myth.

Evangelical Christians would not exist in America were it not for the separation of church and state—a concept many of them now assail. The irony is rich.

The Catholic bishops rarely assault the separation of church and state by name. The party line is that they’re for it. But the bishops have a long history of advocating for policies that would elevate church dogma over secular law. They’ve demanded var¬ious forms of taxpayer aid that would compel all Americans—Catholic or not—to support the church’s schools and other ministries and have doggedly sought to conform US abortion policy to church teachings. Lately, they’ve even taken to arguing that the church has a “religious freedom” right to receive con¬tracts from the government to provide social services to the public without meeting any accountability or oversight rules that they find offensive.

The late Cardinal Anthony Bevilacqua of Philadelphia summed up the bishops’ position well in a 1989 sermon: “In spite of attempts to separate one from the other, to put an impene¬trable barrier between, [church and state] knew from the beginning that they needed each other, and along the way they became even more convinced of this truth…In their quest for their respective kingdoms, church and state are seen as walking with an inviolable, impenetrable and towering wall between them. This opposition, this impregnable wall between two friends traveling the road of our American experiment, cannot endure much longer. If it does, both will suffer and crisis will be upon us.”

How did this happen? How did religious organizations that have benefitted so greatly from the separation of church and state come to the point of either heaping disdain on it or advocating policies that would shred it?

It’s a case of too much success. Once small and marginalized, both evangeli¬cals and Catholics grew and prospered under America’s free and open theological marketplace. As they grew, they tasted political power—and promptly forgot their roots. It’s an old story.

The story of how religious freedom and the separation of church and state grew alongside one another in America, intertwined and mutually dependent, is an old one too. But it’s worth telling again. Apparently, too many Americans have forgotten their history—or perhaps never learned it.

Opinion polls tell a sad tale: Many Americans believe the Constitution, a wholly secular document, contains a dec¬laration that America is a “Christian nation.” Others are confident that founders like George Washington, Thomas Jefferson and James Madison, were really right-wing “born-again” Christians. The United States, one hears all too often, was founded on the Bible, the Ten Commandments and the teachings of Jesus.

None of this is true.

The First Amendment guarantees five core freedoms: religion, speech, press, assembly and petition. In the case of freedom of religion, that fundamental right is expressed in just 16 words: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

Originally a limit on Congress, the First Amendment—and indeed other portions of the Bill of Rights—has now been extended to the states through the Fourteenth Amendment. The words of the religion clauses encompass two key concepts: The government will not make laws that foster an “establishment” of religion (or give any or all religions special preference), and the government will protect the right to engage in religious activities.

This is the genesis of the separation of church and state. Note that the First Amendment does not simply say that the government will not create an official church, as existed in Great Britain and many other nations at the time the amendment was drafted. Rather, it bars laws “respecting an establishment of religion.” The Founders wanted something stronger than a mere ban on a national church, and their words have been interpreted to mean that government will not make laws that advance religion or interfere in theological matters.

How did this two-pronged guarantee of liberty come about? It was forged by bitter experience. The founders were influenced by the situation in many European nations, which retained state-established churches, and examples in American colonies, many of which also had official churches or attempted to regulate theological behavior through the law.

Many conservative Christians today point to colonial Massachusetts with pride and even fondness as they seek the return of a “Christian America.” Indeed, actor Kirk Cameron recently produced an entire documentary arguing that the Pilgrims got it right and that our nation fails to emulate their biblical vision at its peril.

Claims like this are nothing short of remarkable when one takes a moment to reflect on the colony’s dismal record on religious liberty.

Bay Colony Puritans had no use for religious freedom, as we understand the principle today. Under their system, church and state were melded into one. By law, only members of the Puritan church, which ultimately became the Congregationalists, could vote or serve in the state assembly and a series of reli¬giously inspired laws were rigorously enforced. Failing to attend church ser¬vices, blasphemy, working on Sunday and various sexual offenses were crimes.

The Puritans were heavily influenced by John Calvin, the French Reformation leader. They expected government officials to enforce religious dictates. They argued that if government did not curb sin, society would fall apart. In many ways, today’s Religious Right activists are their spiritual descendants.

In Massachusetts, the colony’s General Court levied a tax on all citizens to support religion and the clergy. Since ministers were paid by the government, any who rebelled were quickly cut off and replaced. There was no religious toleration. A group of Quakers who had been exiled from Boston dared to return and were promptly hanged.

Not every colony followed Massachusetts’ model. Some maintained estab¬lished churches but were less harsh in dealing with dissenters. Others allowed a broader measure of religious liberty.

During the post-Revolutionary War period, it became obvious that the church-state unions existing in many colonies were suppressing human freedom. This wasn’t a new idea. Roger Williams, a dissenting preacher who fled Massachusetts and founded Rhode Island, advocated for what he called “soul liberty”—freedom of conscience—in 1636. Later thinkers from political and religious spheres took the idea and ran with it.

Among the most prominent advocates of what became church-state separation were Thomas Jefferson and James Madison. They worked together (aided by dissenting clergy like John Leland) to end the established church in Virginia and pass a law guaranteeing religious liberty for everyone—Christian and non-Christian.

This 1786 law, the Virginia Statute for Religious Freedom, is considered by many scholars to have been a model for the First Amendment. Although Jefferson was in France when the Bill of Rights was written, his influence is felt through his collaboration and correspondence with Madison, who was in many ways Jefferson’s protégé. Jefferson, for example, wrote the Virginia Statute, but it was Madison who pushed it through the legislature and made it law.

Jefferson and Madison had nearly identical views on religious freedom. Both saw coercion and state sponsorship of religion as a great evil. In this thinking, they were motivated to act in part by their knowledge of the many centuries of religious warfare and bloodshed that had plagued Europe, as both men were keen students of history.

Yet Jefferson and Madison were not hostile to religion. Evidence for this is found in the great outpouring of support they received from religious leaders. Many members of the clergy were wary of government’s attempts to control religion and eagerly endorsed the efforts of Jefferson and Madison to sever this tie.

In 1785, Patrick Henry proposed a bill that would have taxed all Virginians to pay for “teachers of the Christian religion.” In response, Madison wrote one of the great classics of religious liberty—“The Memorial and Remonstrance against Religious Assessments.” Essen¬tially a list of 15 reasons why no one should be compelled to support religion, Madi¬son’s Memorial was circulated throughout the state, often by clergy. Letters of oppo¬sition to Henry’s bill flooded the Virginia legislature, and the religion tax was defeated. Madison then used his advan¬tage to successfully secure passage of Jef¬ferson’s religious freedom bill.

The experience undoubtedly influenced Madison’s actions during the deliberations over the wording of the religion clauses of the First Amendment in 1791. Madison wrote early drafts and played an active role in the discussion over its language.

Jefferson and Madison did not bequeath us a “Christian nation.” The United States has never had an established church, and our Constitution grants no special preference to Christianity. In fact, there is only one reference to religion in the Constitution proper, and it is supportive of separation: Article VI bans “religious tests” for federal office. The Constitution contains no mention of God.

None of this was done out of hostility toward religion. In fact, the founders believed that decoupling church and state would lead to a great flowering of religious freedom and diversity in America. Time has proven them right. Some scholars have estimated the number of distinct religious denomina¬tions and groups in the country to be as high as 2,000. People who say they have no religion account for a growing per¬centage of the population.

The phrase “separation of church and state” was used by both Jefferson and Madison to describe the impact of the First Amendment. Much attention has been given to Jefferson’s 1801 letter to the Danbury Baptists, in which he said the American people have built “a wall of separation between church and state.” This letter, which Jefferson knew would be made public, is an important pronouncement of his views on the relationship between religion and government.

While the Danbury letter is important, it should not overshadow the achievements of Madison. As one of the primary authors of the First Amendment, Madison is considered authoritative on this matter. His views on church-state separation were very strict. As president, he vetoed attempts to give churches federal support and even expressed reservations about issuing proclamations calling for days of prayer and fasting. (Jefferson did not issue them at all.) These actions are important because they debunk claims from the Religious Right that the First Amendment was intended to prevent only the establishment of a national church. This was clearly not Madison’s view, and he considered the amendment to have a much broader interpretation.

Over the years, courts have struggled to interpret the separation of church and state and apply it to a variety of issues such as the role of religion in public schools, tax aid to religious institutions and the display of religious symbols.

Although they laid down a broad prin¬ciple of religious liberty that rests on the church-state wall, the Founders simply could not have anticipated the rise of some of the issues courts are confronted with today. Public education, for example, is of relatively recent vintage, as is the idea of education for the masses. The framers could not have foreseen the rise of modern technology, mass transit and a nation stretching from coast to coast with a population exceeding 300 million. Their genius is that they bequeathed us a governance document that can adapt to changing circumstances.

In a multi-faith and diverse society, the doctrine of church-state separation contains three central concepts that grow out of the First Amendment:

No coercion in religious matters: Individuals must be free to embrace or reject any faith. People have the right to change their minds about religion. The decisions people make about religion—which group to join or whether to join any—are private and are no business of the government.

No one should be expected to support a religion against his or her will:
 Support for religion—financial, physical and emotional—must be voluntary. No American should be taxed to pay for the faith of another. All religious groups must be supported through voluntary channels.

Religious liberty encompasses all religions:
 Americans may join any number of religious groups. In the eyes of the law, all religions are equal. Larger groups do not have more rights than smaller ones. No group was meant to have favored status or a special relationship with the government.

The Supreme Court has, in a line of decisions that stretch back many decades, attempted to flesh out these principles with rules and legal tests that can be applied in various circumstances.

In 1971, the high court handed down a decision in a case called Lemon v. Kurtzman that dealt with tax aid to religious schools. In this case, the court fashioned a three-part test for determining if a law violates church-state separation. The “Lemon Test” consists of the following prongs:

A law must have a valid secular purpose.A law must not have the primary effect of advancing or inhibiting religion.

A law must not foster excessive entanglement between church and state.

A law or government action is deemed to violate church-state separation if it runs afoul of any of these prongs. The Lemon Test has its critics—and some of them sit on the Supreme Court—but it has never been explicitly overturned, although the court has augmented it with other tests over the years.

Recent church-state cases have exposed a sharply divided Supreme Court. In a 2002 case, Zelman v. Simmons-Harris, the court upheld an Ohio law that gives vouchers (tax aid) to private religious schools. The result was a disappointment to advocates of church-state separation. On the other hand, the high court has continued to recognize the need for church-state separation in public education and has struck down various laws and policies that impose religious worship onto unwilling student participants.

A host of “culture war” issues confronts the courts today. These controversies, including same-sex marriage, access to contraception and intervention in elections by houses of worship, could never have been anticipated by the founders. Yet they left us a mechanism, a process for separating church and state, that addresses them all.

Not everyone is a fan of this process; some of its loudest critics are Religious Right leaders and some Catholic bishops who are angry that the government does not promote their theology. They complain a lot, and they often assail Jefferson’s church-state wall—yet they have never been able to articulate a coherent vision for replacing that wall. Alternatives include a union of religion and government—in other words, a theocracy (Which religion?
By what mechanism? With what provisions for dissenters?) or an established church. Either avenue is unacceptable in America for obvious reasons. Theocracies crush freedom of conscience, and established churches—based on experiences in Great Britain, Sweden, Norway and other European nations—turn religion into little more than a showy prop for the state.

In a nation of more than 300 million people that ranges from the extremely devout to the wholly atheistic and everything in between, there is but one way to keep the peace: a government that is neutral on matters of theology and is officially secular.

These words, “neutrality” and “secularism,” are dirty ones to many Americans today. They shouldn’t be. They
provide the crux of the separation of church and state. They are the platform upon which freedom of conscience rests. Without them, we can have no real religious liberty.

There was a time when most religious leaders in America understood that principle. Unfortunately, too many have
turned their backs on it, and worse, they’ve led their flocks astray. Leading them back may be the biggest challenge advocates of church-state separation face today.

Catholics for Choice