Church and State: The Separation Illusion
- Church and State: The Separation Illusion
The goal of First Amendment was to protect religious expression,
not restrict it. In the last 50 years, though, "non-establishment" has
been redefined as "separation," effectively amending the Constitution
and isolating Christians from the political process.
"Will You Be a Casualty in Their Religious War?" read the headline of
an advertisement that almost covered an entire page of the L.A. Times.
Underneath were pictures of Jerry Falwell, Pat Robertson, and Lou
Sheldon, along with condemning quotes substantiating their apparent
jihad against irreligious secularists.
The text of the advertisement read:
"The radical religious right has declared war on America. It is a
war of ideas. A war of conscience. It's a religious war. This war
strikes at the very heart of our Constitution and threatens the
freedoms we hold most dear. Freedom to worship as we please and to
believe what we want to believe. The freedom to determine for
ourselves what religious and moral views our own children are exposed
to. The freedom to conduct our lives as we see fit without having our
privacy violated. For some time now, the radical religious right has
claimed that there is no such thing as church/state separation in our
Constitution. They are wrong. Find out why."
It goes on to promote a book by Robert Boston entitled Why the
Religious Right Is Wrong About Separation of Church and State .[i]
The ad is correct on a couple of points. There is a sense in which the
"religious right" is at war, but the battle is not against America,
it's about America. And it is a war of ideas: Is there a legitimate
separation of church and state, and what does that mean?
What Does "Separation of Church and State" Mean?
The current understanding of "separation of church and state"--the
view that the state is thoroughly secular and not influenced by
religious values, especially Christian--was completely foreign to the
first 150 years of American political thought. Clearly the Fathers did
not try to excise every vestige of Christian religion, Christian
thought, and Christian values from all facets of public life. They
were friendly to Christianity and encouraged its public practice and
It wasn't until 1947 that the United States Supreme Court first used
the concept of "separation" to isolate government from religion.[ii]
In Everson v. Board of Education, the court lifted a phrase from a
letter Thomas Jefferson wrote to a Baptist church in Danbury,
Connecticut. The Court ruled, "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....In
the words of Jefferson, the clause against establishment of religion
by law was intended to erect `a wall of separation between church and
The Infamous Danbury Letter
In the Everson v. Board of Education decision, the Supreme Court
quoted Jefferson's separation language as a normative guideline for
understanding the First Amendment. As David Barton points out,
"There's probably no other instance in America's history where words
spoken by an individual have become the law of the land. Jefferson's
remark now carries more weight in judicial circles than does the
writing of any other Founder."[iv]
Thomas Jefferson wasn't a member of the Constitutional Convention, and
the phrase "separation of church and state" does not appear anywhere
in the Constitution or the Bill of Rights. Where did it come from?
On January 1, 1802, Jefferson wrote a letter to the Danbury Baptist
Association of Danbury, Connecticut, in which he used the phrase "a
wall of separation between church and state." His note was meant to
quell the fears of the Danbury congregation who were concerned that a
national denomination would be established. Here is the text in question:
I contemplate with solemn 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
What did Jefferson have in mind here? Is there an impregnable barrier
erected by the founders[vi] that excludes religious-minded people from
the political process, an ideological enmity between church and state?
The First Amendment
In contrast to the present confusion about separation, the First
Amendment is startling in its clarity, offering no limit to the impact
of religious and moral conviction of individual citizens on public
policy. It is worth reading often. Here it is:
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
Please forgive me for stating the obvious: The First Amendment
restricts the government, not the people. Jefferson's wall is a
one-way wall. Any religious person, any religious organization, any
religious conviction has its place in the public debate. It's called
pluralism in the classic sense.
Notice there are not two distinct provisions here, but one.
Non-establishment has no purpose by itself. Freedom of religion is the
goal, and non-establishment is the means. The only way to have true
freedom of religion is to keep government out of religion's affairs.
This provides for what Steven Monsma calls "positive neutrality." This
view "defines religious freedom in terms of a governmental neutrality
toward religion in which no religion is favored over any other, and
neither religion nor secularism is favored over each other."[vii]
The First Amendment was rewritten twelve times to make clear its
intent. The concept set forth in the Bill of Rights is
"non-establishment," not isolation. We should strike the "separation"
language from our vocabulary.
Separation: Original Intent or Recent Invention?
A Fatal Flaw
The constant appeal to Jefferson's Danbury letter by hard core
separationists reveals a fatal flaw in their approach. Quoting
Jefferson's opinion only matters if Jefferson's original intent still
applies today. If it doesn't, then the Danbury citation is irrelevant.
If it does, then Jefferson's full views on the issue have merit in
It's clear, though, that the Everson Court used Jefferson's words, not
his ideas. The separation language itself was not in common use at the
time. It does not show up in any notes of the Constitutional
Convention or of the Congress responsible for the Bill of Rights or
the First Amendment.
What was Jefferson's intent? To show that the Federal government
couldn't establish a national denomination. That's all. In another
letter, this one to Samuel Miller in 1808, Jefferson expanded on his view:
Certainly, no power to prescribe any religious exercise, or to
assume authority in religious discipline, has been delegated to the
General Government. It must then rest with the States, as far is it
can be in any human authority.[viii]
This is a stunning revelation for advocates of a Jeffersonian model of
separation. According to Jefferson, the Federal Government couldn't
prescribe religious exercise or discipline, but the states could. It
wasn't until 1947 that the Everson Court made the federal provision
binding on the states, expressly contrary to Jefferson, though they
quoted him for support.
For nearly two centuries state and federal governments have had such a
benevolent attitude towards religion in general and Christianity in
particular--including the almost universal practice of school
prayer--that it would make a 1990s fundamentalist blush.
The Northwest Ordinance of 1787, passed by the very same Congress
which enacted the First Amendment, stated the following in Article
III: "Religion, morality, and knowledge being necessary to good
government and the happiness of mankind, schools and the means of
education shall forever be encouraged." Notice that religion and
morality were equal with knowledge as proper subjects of public education.
All but three states invoke the name of the almighty God in the
preambles to their constitutions. Note these examples:
We the people of the State of California, grateful to Almighty God
for our freedom, in order to secure and perpetuate its blessings, do
establish this Constitution.
We the people of Alabama...invoking the favor and guidance of
Almighty God, do ordain and establish...
The people of Connecticut, acknowledging with gratitude the good
providence of God, in having permitted them to enjoy a free government...
If Jefferson's view of non-establishment mattered today, then dozens
of court decisions restricting religious freedom would be annulled.
The present notion of separation is not conservative, seeking to
return to earlier principles, but activist, seeking to redefine--and
Separationists' Achilles Heel
Separationists attempt to take the Constitutional high ground by
quoting Jefferson and others like him. They claim that the founders
envisioned a high wall of separation. Recent court decisions simply
enforce those original intentions.
Is the "religious right" imposing a new standard favoring religion
that undermines our basic Constitutional freedoms, as the L.A. Times
ad claimed? You can get to the heart of the matter by asking another
question: Do these recent legal actions stop something from being
added, or do they remove things already there? They remove them.
Courts have removed prayer from school, crèches from the lawns of city
halls, and crosses from public parks. Separationists have managed to
get personal Bibles off of teachers' desks, the Ten Commandments out
of school rooms, and references to God eliminated from students'
This is their Achilles' heel: Things can only be removed that were
already there to begin with. How did they get there? They were allowed
by citizens, legislatures, and courts who saw no harm in them, no
intolerance, no danger, and no breech of any Constitutional principle
for almost 175 years.
This observation tells us two things. First, from the beginning,
religious symbols and religious thought were woven into the fabric of
government and society with no sense of Constitutional impropriety.
This proves that the new court actions are revisionist, an attempt to
change the traditional practice, not a return to our historical and
Second, conservatives are in a defensive posture, not an offensive
one. The "religious right" has not declared war. The war has been
declared on an American way of life held dear to many, and they won't
surrender it without a fight.
Separating the Church Right Out of the State
In 1976, I and three others ventured behind the iron curtain in a
clandestine operation bringing aid to persecuted Christians in Soviet
Bloc countries. On Friday, July 23, we were detained at the border
station of Leushen, Moldavia, USSR, because we had Russian Bibles in
After ransacking our car and personal belongings and strip-searching
one of our group, border officials took us inside for questioning by a
female interpreter. Where did we get the Bibles? Who were they for?
Didn't we know that such trafficking was illegal? The questions went
on for hours.
When we explained the Bibles were for believers in the Soviet Union,
she wanted to know their names.
"We planned to look the churches up in the phone directory."
"We don't have churches listed in our phone directories."
We pointed out that in the United States, where there is freedom of
religion, all of the churches are listed. Didn't they have freedom of
religion in the Soviet Union?
"Yes," she assured us, "of course we have freedom of religion, but we
have separation of church and state." This was not the first time we
were to hear this cryptic phrase.
The interpreter explained that the government printed all the Bibles
needed for Soviet Christians. "We have our department of atheism and
spend a large amount of money each year teaching them these things. We
don't allow any other propaganda."
"But you print Bibles in the USSR?"
"Yes, our believers get all the Bibles they need, but they are given
out only through the church and we must have all their names."
"But you do have religious freedom?"
"Yes, we have religious freedom."
"And we can't bring in Bibles?"
"No, we don't allow that propaganda in our country."
"The Bible is propaganda?"
"But you print Bibles in your own country."
I was surprised she couldn't see what was coming. "Then that means you
are printing anti-communist propaganda right in your own country."
Her immediate reply was the cryptic, "But we have separation of church
This mantra was her blanket reply justifying all government
interference with our activities. How were we interfering with
separation? What did it actually mean? My partner's definition was
probably the most accurate. "They're separating the church right out
of the state," he quipped.
As I look back on that incident 20 years ago, I'm struck by the
contrast. Today there is more de facto religious liberty in former
communist countries than we experience here in the United States. Now
it is American courts that chant the mantra of separation to prohibit
religious conduct in the public square.
The ACLU, in a letter to California State Senator Newton Russell,
objected that "teaching that monogamous, heterosexual intercourse
within marriage is a traditional American value is unconstitutional
establishment of a religious doctrine in public schools."[ix]
The Supreme Court opens each session with the words, "God save this
honorable court." Yet in June, 1994, the same Supreme Court let stand
a lower court ruling removing the Ten Commandments from a courtroom.
This is rather ironic, considering a bas-relief of Moses holding the
tablets of the Old Testament Law broods over the Chief Justice's seat.
Engraved upon the lower half of each entrance door is the same Ten
Commandments banished by the court.
Twisted logic like this is "separating the church right out of the state."
How Five People Can Amend the Constitution
Amending the Constitution is an arduous process. Changes require an
appeal by two-thirds of both Houses or by the Legislatures of
two-thirds of the states to even get started. Ratification requires a
three-fourths majority of either the states' legislatures or special
That's what the founders intended. The Constitution's
provisions--including the Bill of Rights--were considered so weighty
that only the most united and energetic efforts of the nation could
Today, de facto Constitutional amendments only require five
non-elected citizens--a simple majority of the nine-member Supreme Court.
The High Court wouldn't dream of simply deleting the Bill of Rights.
That would be despotism. Yet they don't balk at so redefining its
meaning that the original disappears, though the words remain the
same. Like dupes in a magician's shell game, the citizens miss the
sleight of hand and don't even know they've been robbed.
If the responsibility of all branches of government is to preserve,
protect, and defend the Constitution of the United States, ought not
those branches preserve, protect, and defend the Constitution that was
actually delivered, rather than some fanciful remake? If our Republic
is guarded by the Constitution, then we are left defenseless when the
words of the Constitution are redefined at will.
The authors of the First Amendment did not seek to expunge every shred
of religious sentiment from the public arena. They did just the
opposite, decorating their buildings with biblical imagery,
punctuating their public discourses with biblical quotes, and
grounding their laws on biblical morality.
Christian religion was the cement holding the very foundation stones
of the Republic together. That cement is being chipped out, piece by
piece, leaving a building without mortar, a stack of bricks ready to
topple at the slightest quake.
An "Unconstitutional" President Lincoln
To show how far we've declined, I close with the words of President
Lincoln in his Proclamation for a National Day of Fasting,
Humiliation, and Prayer, March 30, 1863:
We have been the recipients of the choicest bounties of heaven. We
have been preserved, these many years, in peace and prosperity. We
have grown in numbers, wealth and power, as no other nation has ever
grown. But we have forgotten God. We have forgotten the gracious hand
which preserved us in peace, and multiplied and enriched and
strengthened us; and we have vainly imagined, in the deceitfulness of
our hearts, that all these blessings were produced by some superior
wisdom and virtue of our own. Intoxicated with unbroken success, we
have become too self-sufficient to feel the necessity of redeeming and
preserving grace, too proud to pray to the God that made us! It
behooves us, then to humble ourselves before the offended Power, to
confess our national sins, and to pray for clemency and forgiveness.*
A hundred years and sixteen Presidents had passed, yet our country's
chief executive could still call his nation to humble repentance
without the slightest hint of embarrassment, impropriety, or apology.
By today's standards, though, the words of one of our greatest
Presidents could not be spoken at certain government functions. The
very same advice could not be given by a teacher to his junior high
class. This alone is enough to show that the popular understanding of
separation of church and state is foreign to the Constitution and to
the world view that gave it birth.
*Source: The Collected Works of Abraham Lincoln, edited by Roy P.
Basler. Full text can be viewed at
[i] Robert Boston, Why the Religious Right Is Wrong About Separation
of Church and State, (Buffalo, NY: Prometheus Books, 1993).
[ii] The phrase was mentioned once before in the discourse of the
Court in the 1878 case of Reynolds v. The United States when Mormons
attempted an unsuccessful defense of polygamy based on the
non-establishment clause of the First Amendment. The non-establishment
clause protected Mormon beliefs, not Mormon practices (e.g.,
polygamy). This conduct was still proscribed by prevailing morality,
specifically Christian morality.
[iii] Everson v. Board of Education, 330 U.S at 15-16 (1947).
[iv] David Barton, The Myth of Separation, (Aledo, TX: WallBuilder
Press), p. 44.
[v] Thomas Jefferson, Jefferson Writings, Merrill D. Peterson, ed.
(NY: Literary Classics of the United States, Inc., 1984), p. 510,
January 1, 1802.
[vi] Note that the word "founders" is not capitalized here because I'm
not referring to the 55 members of the Constitutional Convention, but
to the broader group responsible for the passage of the Bill of Rights.
[vii] Stephen Monsma, Positive Neutrality--Letting Religious Freedom
Ring, (Grand Rapids: Baker, 1993), p. 203.
[viii] Thomas Jefferson, The Writings of Thomas Jefferson, Albert
Bergh, ed. (Washington D.C.: The Thomas Jefferson Memorial
Association, 1904), vol. XI, p. 428, letter on January 23, 1808,
quoted in Barton, p. 42.
[ix] Majorie C. Swartz, Francisco Lobaco, American Civil Liberties
Union Legislative Office, April 18, 1988. Copy on file. Note: The
courts have not agreed with the ACLU on this point.
This is a transcript of a commentary from the radio show "Stand to
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