Time To Overturn Our Church And State Confusion

While most people were focused on the modern version of ICE capades taking place in Minnesota or the path and severity of America’s recent megastorm, a notable First Amendment case was heard. The entire panel of the 5th U.S. Court of Appeals heard oral arguments on mandatory Ten Commandment display laws from Louisiana and Texas. And given the controversies earlier “church and state” cases have caused, it is likely to ultimately be decided by the Supreme Court.

The case is important because over the past almost 80 years, that litigation has revealed, as Josh Hammer put it, “just how far America has fallen from its founders’ vision.” That becomes clear when we note that neither the words nor the concept of “separation of church and state,” or its application to states (as in the current case) as well as to the federal government, is contained in “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  

The central reason for that divergence is that The Supreme Court redefined the Establishment Clause in Everson v. Board of Education (1947), supposedly based on Thomas Jefferson’s famous letter to the Danbury Baptists, even though Jefferson contradicted the interpretation it imposed on his words.  

Justice Hugo Black’s majority opinion there simply invented the separation of church and state precedent, adding, “That wall must be kept high and impregnable. We could not approve the slightest breach.”

Justice Wiley Rutledge went further, writing that “a complete and permanent separation of the spheres of religious activity and civil authority” was required.

The contrast with prior precedent, as in Reynolds v. United States (1878), that Jefferson’s letter asserted that “the rightful purposes of civil government are … to interfere [only] when principles break out into overt acts against peace and good order,” is dramatic. Essentially, Everson thus transformed a restriction preventing the federal imposition of a religion on citizens (the Establishment Clause) into a barrier to virtually any public role for religious belief.

Using Jefferson’s quote to rewrite the Constitution was highly questionable for several reasons. Jefferson was not in America when the Constitution was written and debated. His letter was written much later, at a time when some states still had established religions, without Constitutional challenge. It was in personal, private correspondence, rather than in any official capacity. And no other phrase from private correspondence has been allowed to transform explicit Constitutional language into a vague and slippery, and thus heavily litigated, legal concept.

Further, Jefferson’s letter also quoted the Establishment Clause immediately before “thus building a wall of separation between Church & State.” Since the clause restricted only Congress and not any religious group, Jefferson’s wall was necessarily a “one way” wall (echoing Roger Williams that “When they have opened a gap in the … wall of separation between the Garden of the Church and the wilderness of the world, God has ever made his Church a wilderness”). It kept Congress from intruding into religious matters but did nothing to impede believers’ public influence. And it did not apply to state governments, as does the current case.

The Baptist inquiry’s premise was, similar to the Reynolds precedent, that “the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor,” in order to defend “religious privileges we enjoy … as inalienable rights.” Jefferson endorsed their view, which is blatantly inconsistent with many subsequent church and state interpretations. But the fact that the federal government has been allowed to expand far beyond its delegated Constitutional limits and has been extended to states as well, has allowed a progressive crowding-out of public influence of faith, erroneously claiming that is in defense of the Constitution.

Everson’s strained interpretation is also inconsistent with Jefferson’s views stated elsewhere. For instance, it is in direct opposition to Jefferson’s second Inaugural Address, where he stated, “[religion’s] free exercise is placed by the Constitution independent of the powers of the general government, I … have left them, as the Constitution found them, under the direction and discipline of State or Church authorities.”

As Justice William Rehnquist concluded, “the wall is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”

But Everson has shriveled faith’s permitted influence in America. Instead of protecting rights of religious expression against federal encroachment, the result has often been, in scholar Philip Hamburger’s words, “transforming the constitutional guarantees against discrimination on grounds of religious differences into provisions that necessitate it.”

The Supreme Court has offered inconsistent guidance to the Establishment Clause over the years. Those inconsistencies have prevented the promulgation of any clear precedent today, such as we once had. It is time they offered one. The absolute separation of church and state, invoked so routinely today to justify crowding out religious influences rather than protecting citizens’ rights to religious expression against federal encroachment, does not come from the Constitution. It was conjured into existence much later. It is time for the Supreme Court to once again take the clear meaning of that core part of the First Amendment to be what it actually said.

Gary M. Galles is a professor of economics at Pepperdine University.