No Separation Clause

A recent letter to the editor in my local newspaper demonstrates an oft-recited and widely-held interpretation of the Establishment Clause ("Congress shall make no law respecting an establishment of religion"). The term "separation of church and state" is so commonly stated in association with the First Amendment, that many assume the phrase is part of the text. This phrase actually originates with an 1802 letter written by then-President Thomas Jefferson to the Danbury Baptist Association in Connecticut; in its original context, it was intended to reassure the association that the federal government (the First Amendment was not interpreted as applying to state governments at the time) would not impede their religious freedoms.

A common method in interpreting the intent of laws is to examine statements made during Congressional debates and committee hearings by the legislators who authored the law and by supporters of the law. In the case of the Constitution, the writings and statements made by the Framers are often cited, which is why the Supreme Court quoted the "separation of church and state" clause from Jefferson's letter in Everson v. Board of Education (1947).

However, Jefferson's use of the phrase does not justify the way that it is typically used in current political debate, where manger scenes are banned from Christmas displays on municipal property, student-led prayers at high school sporting events are disallowed, and lawyers file lawsuits to stop the opening prayer at county council meetings. Again, we look at the the original writers for context.

The First Amendment was authored by the 1st Congress in 1789. Therefore, in response to, for example, objections to opening council meetings with prayer, we can look to see how the 1st Congress stood on the issue -- this gives us the context for interpreting the original intent of the writers. Interestingly, the 1st Congress, in the same session in which it crafted the First Amendment, established the office of Senate Chaplain, and began the practice of opening every session of Congress with a prayer. Therefore, to argue that the intent of the First Amendment was to eradicate religious expression from the public square is not correct.

In terms of Jefferson's "separation" statement, did this mean that he objected to the use of government facilities for religious-associated activity? An online Library of Congress exhibit points out that church services were commonly held in the US Capitol in 1801, soon after its construction and during Jefferson's presidency. Jefferson himself was commonly attending these services at the time that he wrote the Danbury letter. Therefore, to argue that Jefferson's take on the First Amendment justifies the removal of manger scenes and so forth from public property is, again, not correct.

Even a cursory glance at American history tells us that the Framers clearly did not want any form of theocracy (despite frequent hysterics from the ACLU, we are hardly moving in that direction), but equally clear is that they did not wish a public sector sterilized of all vestiges of God or religion. One need only read President Washington's farewell address to see this. There is a balance that must be struck: a government that allows the free expression of religion, even by its agents, without impeding on those same rights belonging to others. The fear of theocracy expressed by people like the writer of the letter to the editor cited earlier should not be allowed to push us dangerously too far in the opposite direction. Both extremes lead to the destruction of religious liberty.

Merry Christmas!