First Amendment includes separation of church and state

  The phrase “separation of church and state,” once a widely shared article of civic faith in the United States, has become a flashpoint for culture-war debates over the role of religion in American public life.

  On one extreme are those who insist that “separation of church and state” isn’t in the First Amendment. On the other extreme are those who interpret “separation” to mean eliminating religion from the public square entirely.

  The truth falls somewhere in between. The drafters of the Bill of Rights didn’t use the words “separation of church and state” in the First Amendment. But by prohibiting the federal government from passing any law “respecting an establishment of religion” — what is now called the establishment clause — the Framers clearly and unambiguously separated the institutions of government and religion on the federal level.

  That doesn’t mean, however, that members of Congress who voted to adopt the “no establishment” provision of the First Amendment all agreed on the meaning and scope of separation. Some supported the establishment clause in order to bar the federal government from interfering with the right of the states to maintain religious establishments. (All states eventually disestablished under state constitutions; the last to do so was Massachusetts in 1833.)

  Others, most notably James Madison, believed that separating church from state is a core condition for full religious liberty. Madison tried, but failed, to extend protections for liberty of conscience to the states. But he and other advocates of religious freedom had to settle for half a loaf by ensuring that the federal government could not pass any law respecting (having to do with) an establishment of religion.

  It would not be until 1947, in Everson v. Board of Education, that the U.S. Supreme Court would explicitly apply the establishment clause to the states through the due-process clause of the 14th Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).

  In the first several decades following Everson, the Supreme Court frequently relied on the views of James Madison and Thomas Jefferson to define the principle of separation underlying the establishment clause of the First Amendment. The famous metaphor “wall of separation” invoked by the Court in Everson and other cases was taken from a letter Jefferson wrote to the Baptists of Danbury, Conn., in 1802. Agreeing with the Baptists that the establishment of religion in Connecticut was a violation of their natural rights of conscience, Jefferson described the passage of the First Amendment as “building a wall of separation between Church & State.”

  Today, strict separationists continue to advocate the “high and impregnable” wall between church and state envisioned by the majority in Everson. But many “accommodationists” work for a more porous wall, one that would allow, for example, non-preferential government aid to religious groups. It is fair to say that the Supreme Court in recent years has moved closer to the accommodationist position, upholding, for example, the use of government vouchers to pay for education in religious schools. Most Americans — 66 percent in a recent State of the First Amendment poll taken by the First Amendment Center — agree that the First Amendment “requires a clear separation of church and state.” But when applying “separation,” the vast majority of Americans oppose keeping religious expression out of the public square. Seventy-five percent of respondents in the poll, for example, agree that students should be allowed to speak about their faith at public school events.

  In other words, most Americans appear to understand that the First Amendment’s establishment clause separates church from state, but not religion from politics or public life. There is an important constitutional difference between government actions endorsing religion (which the establishment clause prohibits) and religious expression by private citizens in the public arena (which the free-exercise and free-speech clauses protect).

  It is unfortunate, even dangerous, that the principle of separation has been demonized in the culture wars as something alien to the Constitution. Church-state separation is, after all, a founding principle of the United States. It was not Thomas Jefferson, but Roger Williams, founder of Rhode Island, who first used the language of separation in 1640 when he called for “a hedge or wall separation between the garden of the church and the wilderness of the world.”

  What Williams argued then is even truer today: Entanglement of church and state corrupts faith and violates conscience. By separating church from state, the United States has made possible humankind’s boldest and most successful experiment in religious liberty. Our disagreements over the size and shape of the “wall” should not cause us to lose sight of that remarkable achievement.

  About the author: Charles C. Haynes is the founding director of the Religious Freedom Center of the Freedom Forum Institute in Washington, D.C.

  Editor's note: This article first appeared in the Capital City Free Press on November 16, 2010.

  This article was published by the Freedom Forum Institute.