Category: Laws

For some reason, over the last few weeks I’ve gotten a number of irascible Facebook posts, nasty emails, and all around ugly comments aimed in my direction.

This one was more politely worded than most:

Would you be so kind as to show me where In the Constitution or the Bill of Rights you find “separation of church and state”? The key to my question is very simple, it must be in the those two Founding Documents, not some other papers, such as in Personal Letters or what someone thinks those two Documents say. But word for word what you stated above.

And to help you, I will post the Amendment which you are speaking to:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

 

Okay, I’ll bite. This is actually a common complaint from the religious far right, especially those who think that since their particular brand of religion is dominant in this country, the rest of us should all bow our heads, shut up, and go along with it.

The questioner apparently knows that the phrase “separation of church and state” was used by Thomas Jefferson in his January 1, 1802 letter to the Danbury Baptists. It has been used by many others to express the intent and function of the Establishment Clause and Free Exercise Clause of the First Amendment to the Constitution of the United States. It has been quoted by courts, and, to the dismay of the questioner and his ilk, is now the law when it comes to matters of the Establishment and Free Exercise Clauses of the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

These are vitally important words. I’ll explain why “separation of church and state” became the phrase used in the law.

But first, a history lesson.

Many of us think that out state constitutions more or less mirror the United States Constitution. This is not true, especially for those states that were originally colonies. In late 1801, when the leaders of the Danbury, Connecticut, Baptist Church wrote the president, Connecticut did not have a state constitution at all. What Connecticut did have was a state religion, through which pretty much all government worked.

Connecticut had been founded by Puritans from the Massachusetts Bay Colony and most of its population still worshipped in Calvinist Congregational churches at the turn on the 19th century. Until it adopted its first formal state constitution in 1818, Connecticut operated under its original 1638 colonial charter, known as the Fundamental Orders, and by a Royal Charter issues about 30 years later. Colonial laws passed by the Puritan founders of the colony required all residents not only to attend Sunday church services, but also to pay taxes to support the local Congregational Church – unless a certificate was signed by an official of a different recognized Christian church, such as Episcopalian or Quaker. The certificate had to state that the resident regularly attended and supported that non-Congregational church. Baptists were frowned upon, and if any minister left the Congregationalist church to preach some unrecognized dissenting form of protestantism, he would be whipped, fined, imprisoned. and otherwise punished. Despite the prevalence of Quakers and Baptists in the neighboring colonies of New York and Rhode Island, Connecticut had only four (yes, 4) Baptist churches by 1731.

An evangelical protestant movement called “the Great Awakening” began in the 1730’s. As with later evangelical religious movements, people left the established churches in droves for the progressive ideas spread in new churches and at revivals. Converts to this new flavor of protestantism chafed under the burdens of Connecticut law that required them to pay taes to support the Congregationalist churches they had left behind,

Jefferson’s letter read, in toto:

To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.

The phrase that Jefferson used, “a wall of separation between church and state,” has been repeatedly cited by the Supreme Court of the United States. In Reynolds v. United States, an 1879 decision by the U.S. Supreme Court, the majority wrote that Jefferson’s comments “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.” Reynolds was the case that conclusively decided that Mormons could not engage in polygamy because bigamy was illegal.

Mr. Reynolds claimed that his religion required him to engage in polygamy, and therefore he had a religious duty to violate the bigamy law. Citing Jefferson’s Danbury letter, the U.S. Supreme Court made a distinction between belief and action. Believing in polygamy was fine, and no law would ever stop anyone from believing whatever they believed. Faith, as Jefferson said, “lies solely between Man & his God,” and no person had to “account to any other for his faith or his worship.” However, acting on that belief contrary to the law and public policy was not permitted. Again, as Jefferson had said to the Danbury Baptists, “the legitimate powers of government reach actions only,” and actions taken contrary to law could be punished by the government.

In Everson v. Board of Education (1947), erudite U. S. Supreme Court Justice Hugo Black referred to the Danbury Baptists letter when he wrote: “In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.” This supreme court case made it clear that the Constitution and all of its amendments, including the First Amendment, applied to the states as well as to the federal government.

The Everson case had to do with reimbursements to parents whose children took public transportation to school. The U.S. Supreme Court split in a 5-4 decision over whether the reimbursements to parents taking public transportation to private school were unconstitutional, with the majority deciding that the reimbursements did not establish religion. What everyone on that court agreed to, though, was that a wall of separation between church and state was critically necessary.

Justice Black’s language was the broadest and most clear:

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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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.

There have been lots of decisions since these two, lots prior to these two, and lots between these two. Separation of church and state is not just a catchphrase; it’s the law.

Some people, like the commenter who (more politely than most these last few days) wrote to me, object to the letters of the men who drafted the Amendment being used to interpret it. Courts often look to the intent of the people who wrote the laws in question to determine what was intended. The phrase found in legal opinions that do this is “looking to the legislative intent.” When applied to the constitution, it is called the “looking to the intent of the framers.”

Because court decisions have historically interpreted the Establishment Clause to erect this wall of separation between church and state, and since Congress has never passed any law contravening it, “separation of church and state” is the law of the United States of America.

To demand that the constitution say exactly the verbiage we commonly use is absurd; the document was never intended to cover every possibility, but rather to broadly enumerate basic rights. If anyone wants a more thorough explanation of why the Constitution is worded the way it is, I suggest reading the Federalist Papers compiled by James Madison, Alexander Hamilton, and John Jay during the Constitutional Convention of 1789. The Federalist Papers are a collection of 85 essays written during the Constitutional Convention that describe the process or creating the foundational legal document on which the rest our laws rest. Often the essays of the Federalist Papers were being written in the same room as the debates raged among the attendees of the convention. The Federalist Papers are free in various formats from numerous sites. Get them in ebook format from Project Gutenberg and from the Library of Congress, download a free PDF from Penn State, or get the audio books from Project Gutenberg or Librivox.

For those who need a history refresher, James Madison was the Secretary of State who negotiated and supervised the Louisiana Purchase and later was president of the U.S. during the War of 1812; Alexander Hamilton was the nation’s first Secretary of the Treasury until he was killed in an ill-advised duel with Jefferson’s former Vice President Aaron Burr; and John Jay was the first Chief Justice of the U.S. Supreme Court. Very colorful characters were midwives to the birth of this nation’s laws – gentlemen, rogues, scoundrels, and philosophers all played a part.

But how does a court get to decide what the constitution means? The quick answer is that courts are the arbiters of disputes, and therefore must be able to interpret laws. The 1803 U.S. Supreme Court case of Marbury v. Madison, decided by the famous Supreme Court Chief Justice John Marshall, established judicial review of administrative and legislative actions and cemented the separation of equal powers between our three branches of government – ensuring that each branch checked and balanced the other two.

The Supremacy Clause of the U.S. Constitution establishes the Constitution, treaties, and the laws of the United States as the supreme law of the land. The power of judicial review is implied when Article III, pertaining to the judiciary, and Article VI, containing the Supremacy Clause, are read together. The Supremacy Clause says:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Therefore, until the United States Supreme Court decides otherwise, “separation of church and state” is the law of the United States of America.

When I was in law school almost three decades ago (now I feel really old!) I clerked in the law office of my older cousin. He is a garrulous, opinionated fellow who regularly both pissed me off and taught me a lot. He once told me, standing in front of a case full of dense law books, that Constitutional Law was only good for cocktail party conversation. Of all that he ever said to me – and I disagreed with him a lot – this is the only thing I seriously take issue with.