The Misleading Wall of Separation

I would venture to guess that there is no phrase more frequently used and misunderstood in political dialogue than “separation between Church and State.” Politicians do not often appeal to it, but in what must be a reflection on the failures of American civic education, young people, both in liberal and libertarian camps, often use it to preclude religious arguments from political discussion or argue for socially liberal positions.

For example, a friend yesterday claimed that religious groups should not enter into the abortion argument because “church and state are separate.” Similar modes of argument criticize those who oppose gay marriage or federal funding for gender reassignment surgery based on their religious views. (Oddly enough, those who base their support for expanded social programs or opposition to war in their faith are often spared the lecture, notes Jonah Goldberg in his book The Tyranny of Cliches). They believe the Constitution and other post-Enlightenment era principles prohibit any religious influence in the public sphere. Unfortunately, their analysis represents a misunderstanding both of the term itself and the place of religion in the United States as a whole.

First, one should note that “separation of Church and State” is found nowhere in the United States Constitution. Religion is mentioned a total of three times: first, Article Six prohibits religious tests for office; the second and third references are found in the Establishment and Free Exercise clauses of the Constitution. Neither applied to the states until the Fourteenth Amendment was ratified in 1868, approximately 80 years after the Founding, and even then, incorporation of the Bill of Rights was a lengthy process. The religious parts of the First Amendment read thus: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Neither clause prevents religious influences and elements in government under any prominent understanding.

The term comes from a letter written by Thomas Jefferson in 1802, describing “a wall of separation of Church and State.” The letter was in response to concern on the part of the Danbury Baptists that the lack of protection of religious freedom in the state constitution of Connecticut would put their ability to worship in jeopardy. Though there is extensive debate about his religious views, Jefferson never would have understood his phrase to mean that laws could not have religious influence or motivations. This is the same man who supported the Revolutionary War on the basis of God-given rights and with appeals to divine Providence — he may have been against established churches receiving special treatment, but certainly not a completely secular public square.

The first time the letter was used in the context of the Constitution was in Reynolds v. United States in 1879. The letter, as one of many on the issue of religion at the time of the Founding, has since been questioned as to its merits in Constitutional jurisprudence. Thomas Jefferson was not in the United States for the Constitutional Convention or the writing of the Bill of Rights, and his input, though often accepted by the other Founders, was regularly ignored. Even so, even legal proponents of the wall see it as precluding government from aiding and promoting religion, either in terms of a specific creed or irreligion. No law has ever been struck down because it was religiously motivated, only because it promoted or discriminated against religion or irreligion.

Using the letter in political arguments is a form of Constitutional originalism, so it is especially surprising that the same people who support the majority in Obergefell v. Hodges and Lee v. Weisman would appeal to it. Though I am glad people are looking to the Founders for a better understanding of the country’s principles, it is of no value if people misuse or critically misunderstand the words of the Founders. Unfortunately for radical secularists, the United States has no Constitutional protections against appeals to a Higher Being and no issue with laws motivated by belief.

Most laws, including our entire Constitution, are based on faith. Natural law theory and natural rights undergird the Constitution. Most people who support minimum wage laws or laws against discrimination or statutes promoting better educational opportunities do so on the basis of beliefs about justice and human dignity. Whether those beliefs come from a religious background or another philosophical system, they are still no more than beliefs. The only reason that citing Bible verses is not a compelling argument to everyone is because of their views on the situation.

It is true that the Supreme Court could not use “the Catholic Church said so” as a reason to make abortion illegal, however, there is nothing in the Constitution or the beliefs of Thomas Jefferson that preclude a town from shutting businesses on Sunday or preventing a politician from standing up against abortion because he believes in certain Christian doctrine. There is nothing that invalidates the arguments of Martin Luther King Jr. and several other pastors of African American churches in favor of civil rights. And there is no problem with people voting completely and utterly based on their religious beliefs. The wall of separation might still be popular among certain legal minds, but it is not as high as some liberals build it up to be.

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