Idea of constitutional church-state wall fueled by misinformation
Editor’s note: This is one in a series on the Constitution and Federalist Papers in today’s America.
Many of those who sought refuge on the shores of colonial America were fleeing religious persecution and, in some instances, wars waged over religious beliefs.
Consequently, it was no accident that their descendants were conscious of the dangers of alliances between church and state and of religious warfare.
That awareness of the dangers of both state-sponsored religion and doctrinal conflict animated the Founding Fathers to create a balanced approach to religion in the Constitution. The importance they attached to that balance can be seen by the placement of religion within the First Amendment, which states in relevant part: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
The Founders set the provisions of non-establishment and free exercise of religion, respectively, in tension to achieve the balance they sought. Their achievement met with immediate success in accommodating the diversity within Protestantism, at a time and place when no single denomination claimed as much as a fifth of the population.
The Founders’ achievement, though, is best understood and appreciated retrospectively. When the Constitution entered into force, the nation was almost exclusively Protestant. Right now, Catholics are the largest faith community, Jews have been absorbed into the nation’s religious mainstream, and Hindus, Muslims, atheists and others have found sanctuary here as well.
President Thomas Jefferson coined the phrase “a wall of separation between Church & State” in a letter to the Baptist Assembly in Danbury, Connecticut, on Jan. 1, 1802. The letter was published in newspapers across the country. The phrase was a metaphor to assure the Assembly that its religion would be protected from the locally prevalent Congregationalism, which was the official state religion until 1818. Shortly thereafter, the metaphor came to be used colloquially as a synonym for the non-establishment clause.
This is an unfortunate example of misinformation. Jefferson’s phrase, stripped of its context, connotes the creation of some sort of impermeable barrier “between Church & State,” which is a concept alien to Jefferson’s letter and is incompatible with the free exercise clause.
More than a century later, Supreme Court Justice Hugo Black wrongly cited Jefferson’s metaphor in the 5-4 decision, Everson v. Board of Education (1947) noting: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.” In addition to promulgating disinformation, the Supreme Court gave it unwarranted constitutional status.
In our day, Justice Sonia Sotomayor has fueled the disinformation campaign, writing in Carson v. Makin (2022): “This Court continues to dismantle the wall of separation between church and state that the framers fought to build.” Justice Black’s disinformation emanated from his anti-Catholicism, Justice Sotomayor’s, from her world view.
Given the unfortunate history of the phrase, perhaps one can understand how most Americans (55% in a recent survey) wish to retain a wall of separation between church and state — despite its lack of grounding in any of the founding documents. The depth of the misinformation was made clear by multiple commentaries on the high court’s Dobbs abortion decision that included the idea it somehow violated the separation of church and state.
The purpose of the effort is, of course, to suppress religiously motivated discourse from the public square. Its proponents believe that religion is a private affair that should be confined to the church, synagogue or mosque. In doing so, they advocate for illiberal positions that encroach not only the free exercise of religion but also upon free speech and redress of grievances, as well.
They undermine the 200-year-old consensus in America about religious jurisprudence, and they undo the great accomplishment effectuated by the First Amendment.
This is exposed most clearly in Masterpiece Cake v. Colorado (2018). In that case, Colorado took the position that it must be able to compel the speech of a baker to violate his religious convictions. Fortunately, the baker prevailed in a 7-2 decision in the Supreme Court.
Only a nation that has lost sight of its own founding document could have allowed Colorado’s position to have taken root at all, let alone having to rise to the highest court of the land to be adjudicated.
It’s not getting better. Two days after Rep. Mike Johnson of Louisiana became the speaker of the House, ABC News, among others, mocked him, a constitutional lawyer, for correctly describing the wall as a “so-called wall.” Rep. Jamie Raskin, Maryland Democrat, a lawyer who should know better, cajoled the new speaker by declaring, “This is what a theocracy looks like.”
The late Sen. Dianne Feinstein displayed the same edge of intolerance when she said to Judge Amy Coney Barrett at her Supreme Court confirmation hearing, “The dogma lives loudly in you.”
The Constitution’s approach to religion — enabling its free exercise and precluding the government from establishing an official doctrine — stands as one of the Enlightenment’s greatest gifts to the world. We must resist those who would unravel it.
• David S. Jonas is a partner at Fluet in Tysons, Virginia. He is an adjunct professor at Georgetown and George Washington University Law School. Patrick Rhoads has 40 years of experience in or with the federal government with backgrounds in engineering, management, and policy. The views expressed are solely those of the authors.