“Wall of separation” is the exact phrase used by Thomas Jefferson in his letter to the Danbury Baptists, whereas “separation church and state” is the popular phraseology. My use of these phrases in this article should not be construed in any way as an endorsement of either agreeing with them or using them. I actually argue for Christians to disabuse ourselves from using them as a gloss of the First Amendment. For when it is so used, it is at best a tawdry and misleading replacement of the amendment’s beautiful words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” I use it only because the article necessitates that I do.
In the 1947 Everson v. Board of Education case (1947 – 330 U.S.1), the Supreme Court applied the establishment[1] clause to the states. It also imbued this guarantee with a firm Separationist reading. Justice Hugo Black’s words for the Everson majority proved a prophetic distillation of the establishment cases for the next four decades: “The establishment of religion clause of the First Amendment means at least this: 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 state.”[2] (italics added)
The Separation model is based upon application of the First Amendment to all of public life, via the due process part of the Fourteenth Amendment. As explained in The Heritage Guide to the Constitution, the Fourteenth Amendment was drafted in response to President Andrew Johnson’s veto of the Civil Rights Act of 1866. When Congress voted to overturn that veto, they wrote an amendment to the Constitution that would be protected from legislative action. “Congress had drafted the act to overturn the effects of the infamous ‘Black Codes’ enacted by the reconstituted Southern state governments in 1865 and 1866 under President Johnson’s Reconstruction policies. Those codes limited in important ways the basic civil rights of the freed slaves to contract, to own property, and to sue. To stop these evils, the Civil Rights Act of 1866 provided: ‘That all citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other.'”[3]
Thus, Justice Hugo Black elevated Jefferson’s wall of separation to [an] authoritative gloss on the First Amendment religion provisions by rephrasing it and conflating the first and fourteenth amendment.[4] This ruling provided legal recourse for excessively and unconstitutionally delimiting the theretofore freedom and influence of religion in all American culture. The problem with the metaphor is threefold. First, it is inadequate to completely and accurately capture the language of the First Amendment. Second, Black de-historicized[5] the phrase and thereby distorted its original meaning. Third, while he relied upon Jefferson’s metaphor, he expanded the applicability of it and the First Amendment beyond what Jefferson intended and thereby reconceptualized the First Amendment.
I think that while most people are aware of Jefferson’s use of the phrase “wall of separation” in a letter to the Danbury Baptists, they are unaware of the historical background. Baptists had worked closely with Jefferson in Virginia for full religious liberty and as a group were very supportive of his presidency because of their mutual commitment to religious liberty. Jefferson was not only well aware of the Baptists’ insistence upon complete religious liberty of conscience, he embraced it. His letter was actually a response to a letter from the Baptists congratulating him on his presidential election. The following places the phrase “wall of separation” in its proper cultural milieu.
One cannot understand the phrase wall of separation unless one understands, along with Roger Williams, the Baptists and their insistence on “the voluntary principle in religion” which means “that for faith to be valid, it must be free.”[6] They suffered and fought for the freedom to worship according to the dictates of one’s own conscience. They suffered abroad and in New England because they refused to baptize babies. They “insisted upon their right to worship in their own way and in their own churches”, and were “haled before the Salem Court.”[7] “Henry Dunster, first president of Harvard College, was compelled to resign his office in 1654, after twelve years of service, because he had accepted Baptist views and refused to remain silent on the subject of baptism. Dr. John Clarke, the founder of the Baptist church at Newport, was fined; and Obadiah Holmes was imprisoned and whipped in Boston for having preached against infant baptism.”[8]
The Massachusetts Bay Colony in 1691 had religious toleration and not freedom, consequently Baptists were not exempted from support of state churches with their taxes. They thought this unconscionable and fought it for years, experiencing both victories and setbacks.[9] Beginning in 1768 in Virginia until the outbreak of the Revolution, initiated by irate clergymen of the established church, some “thirty-four ministers were imprisoned, some on several occasions.”[10] “There is one case at least where a sheriff whipped a minister, John Waller, so severely that he carried the scars to his grave; but there is no proof that he was carrying out an order of the court.”[11]
The following experiences provide the context of the thoughts in the letter to President Jefferson.
The established Congregational ministry continued to dominate the institutions of politics and public policy in Connecticut at the start of the nineteenth century. The Baptists reported their religious privileges were not recognized as inalienable rights. They bitterly resented policies that required them to petition the established powers for modest religious privileges extended to them. The Congregationalists and the Federalists were so closely allied that the party of the government and the party of the [ecclesiastical] Establishment were familiarly and collectively known as the Standing Order. Congregationalists enjoyed many privileges, and dissenters suffered many disabilities, both social and legal, under this regime. All citizens, Congregationalists and dissenters alike, had to pay taxes for the support of the established church, civil authorities imposed penalties for failure to attend church on Sunday or to observe public fasts and thanksgivings, and positions of influence in public life were reserved for Congregationalists. Dissenters were often denied access to meetinghouses, their clergy were not authorized to perform marriages, and dissenting itinerant preachers faced numerous restrictions and harassment by public officials. In the 1770s the legislature had begun to dismantle elements of the standing order. This development signaled a growing spirit of toleration. Dissenters were permitted to worship in congregations of their own choosing, tax exemption was extended to the estates of clergymen from all denominations, and the Toleration Act of 1784 exempted dissenters from the tax for the Congregational Church upon certification that they were active members of another religious body. These modest concessions did not fully satisfy the Baptists who were agitating for disestablishment and religious liberty. By the turn of the century, the standing order was beginning to unravel, although the Congregational Church was not formally disestablished until 1818. When they wrote to Jefferson in 1801, the Danbury Baptists understood that, as a matter of federalism, the national government had little authority to destroy the odious Laws of each State. Nevertheless, they hoped the new president’s liberal sentiments on religious liberty would shine & prevail through all these States till Hierarchy and tyranny be destroyed’. The issue to the Baptists was whether religious privileges (and the rights of conscience) are rightly regarded as inalienable rights or merely favors granted and subject to withdrawal by the civil state.[12]
The Bill of Rights placed “religion” jurisdictionally off limits to the national government; “congress shall make no law.” The misuse of Jefferson’s “wall of Separation” corrupted our most sacred constitutional protection. We dare not give any less to protecting religious liberty for our posterity than our Baptist ancestors did for us.
[1] About which Scalia says, The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). Kevin A. Ring, ed, Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice, (Washington, D.C.: Regnery Publishing, Inc., 2004), 183.
[2] John Witte Jr., Professor of Law, Emory University, Religious Liberty-Overview, First Amendment Center, http://www.firstamendmentcenter.org/rel_liberty/index.aspx, accessed 1/28/04, 9 of 12.
[3] David F. Forte and Matthew Spalding, eds., The Heritage Guide to the Constitution, The Heritage Foundation, (Washington, D.C.: Regnery Publishing, Inc., 2005), 386-387.
[4] Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State, (New York: New York University Press, 2002), 4.
[5] Justice Black would have been well served, as we all would have been, if he had followed Justice Holmes aphorism that “a page of history is worth a volume of logic” Ring, Scalia Dissents, 173. I would add that while ideas need to be logical and rational, mere logic cannot be the sole jurisprudential arbitrator because some things cannot be proven by mere logic. Scalia argued that “religious practices that existed at the time the First Amendment was drafted cannot reasonably be considered unconstitutional when carried out today.” See his dissent in Lee v. Weisman (1992), Ring, Scalia Dissents, 170. He argued that a valid interpretation of the Establishment Clause must be in light of, “[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage” and “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989). Ring, Scalia Dissents, 172-173.
[6] Roger Williams, The Bloudy [Bloody] Tenent of Persecution for Cause of Conscience, Richard Groves, ed., (Macon, GA: Mercer University Press, 2001), xiii-xiv.
[7] Robert G. Torbet, A History of the Baptists, third ed., (Valley Forge: Judson Press, 1963), 203.
[8] Ibid., 203-204.
[9] Ibid., 234-235.
[10] Wesley M. Gewehr, The Great Awakening in Virginia, 1740-1790, (Durham, N.C.: Duke University Press, 1930), 122, as quoted by Torbet, History, 240.
[11] Lewis P. Little, Imprisoned Preachers and Religious Liberty in Virginia; A Narrative Drawn Largely from the Official Records of Virginia Counties, Unpublished Manuscripts, Letters, and Other Original Sources, (Lynchburg, Va., J.P. Bell, Co., 1938), 180-181 as quoted by Torbet, History, 240.
[12] Selected text from Dreisbach, Thomas Jefferson, 32-34.
