The Myth of a "Wall of Separation" Between Government and Religion

Robert L. Wichterman

Robert L. Wichterman writes from Lancaster, Pennsylvania.

What is known as the Establishment Clause, which shields all religions in America from government control, is part of the First Amendment to the U. S. Constitution. It reads: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . ." The first half of the phrase simply means that the U.S. Congress has no authority to use the government's powers to promote one religion over another, nor to authorize or create an "Official American Church."

In 1947, U.S. Supreme Court Justice Hugo Black wrote in the case of Everson vs. Board of Education of Ewing Township, N.J., "The Establishment Clause was inserted [in the First Amendment] as a bulwark to keep out the evils which have afflicted Europe." In England, for example, Quakers were imprisoned, and dissenters [to the Church of England] were compelled to pay taxes to support that government-sponsored church. In other countries, Jews and Roman Catholics were persecuted by the authorities, and often forced to recant their beliefs. In Spain and France, the Protestants faced the same treatment. Thankfully, our Founders, and most Americans, accept the premise that everyone's faith is sacrosanct.

Justice Black's assessment that the Establishment Clause erected a "wall of separation" was supported in the same 1947 case by U.S. Supreme Court Justice Wiley Rutledge, who wrote:

The First Amendment aimed to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.

Fortunately, that never happened.

Justices Black and Rutledge had been influenced by a letter President Thomas Jefferson wrote in 1802 to the Baptist Association of Danbury, CT. Jefferson asserted:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and 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 and state.

His letter was in reply to the Baptist Association's concern that the phrase "free exercise of religion" meant that "free exercise" was given to the people by the government, and therefore, could also be removed -- taken back -- by them. If "free exercise" had been given by God, the right was inalienable, and could not be rescinded. If it came from the state, it was alienable, and could be deleted. That worry is still quite strong in some evangelical Christian fellowships.

In President Jefferson's 1805 Second Inaugural Address, he stated:

In matters of religion, I have considered that its free exercise is placed by the Constitution, independent of the powers of the general (federal) government.

Jefferson believed that God, not the state, was the author and source of our rights, and the government was to be prevented from interfering with those rights. The "wall" in the Baptist Association letter was not to restrict religious activities in public, but to limit the power of the state to interfere with or prohibit them. During the September, 1789, Congressional debates about the First Amendment, the phrase "separation of church and state" was never used. Yet, it is accepted by the public, including many influential jurists, as a virtual rule of Constitutional law.

Moreover, the use of Jefferson's private letter to set national policy is a first in American history. The only motive for employing it here is, to my mind, to lower the positive perception the public holds regarding religions in general, and especially Christianity.

Justice Black's 1947 opinion has generated many lawsuits, as everyone has sought to learn exactly where are the boundaries of that "wall." Further, with every decision relating to this partition, the subject has become more muddied. As the courts have attempted to explain exactly what the Establishment Clause permits and denies, the issue is more convoluted. The Clause was included to avoid religious controversies; but the courts, with the aid of lawyers, are the obstacle to achieving that goal. The "separation" phrase is being implemented by the courts today in an opposite manner from what the Founders intended, and how President Jefferson understood it.

These are a few of the thorny inquiries being raised: May a state provide books and other services to "special needs" students attending private or parochial schools? May a student, or faculty member, give a non-denominational prayer to a Supreme Being at a public school function? Or may a school district rent any of its buildings to a religious group? The questions are endless, and the hair splitting is eternal.

There are instances when certain actions taken by religious groups do call for government or local police involvement. In 1878, the U.S. Supreme Court's majority opinion in a Separation of Church and State suit read:

The rightful purposes of civil government are for its officers to interfere when principles break out into overt acts against peace and good order.

Some of those situations noted were possible human sacrifice, or bigamy, or polygamy. They should be stopped, as they were "subversive of good order," and were "overt acts against peace."

The paramount debate is whether there should be an absolution separation between the government of the United States and the many diverse religions within its borders. The obvious answer is "No." On the national level, the government and all active religions already cooperate with each other. It is to the government's advantage to maintain a strong religious community. Thus, as "non-profit organizations," neither the church's income nor their members contributions are taxable. These policies promote religions, as those who attend regularly are the more responsible and law-abiding citizens. Additionally, the government provides the G.I. Bill and Pell Grants to church-affiliated colleges.

During the War for Independence, General Washington recognized that church services for his men would help them cope with hardships. He wrote to Congress, asking them to supply and pay for chaplains from every denomination. Today, the chaplains in all branches of the military are paid from tax receipts.

George Washington's views regarding the church-state issue are close to those accepted by most of our country's Founders, including Thomas Jefferson. Mr. Washington realized that our nation needed faith in Divine Providence in order to survive. In 1763, he noted, "The establishment of civil and religious liberty was the motive which induced me to the field of battle." He also respected the Quaker's refusal to be involved in our fight for independence. Expressing his belief in the freedom of everyone's conscience, he maintained, "God alone is the judge of the hearts of men, and to Him only are they answerable."

In his first inaugural address, President Washington said that, "God was active in human affairs," and, "He would not smile on a nation that disregards the eternal rules of order and right." He therefore asked Congress to formulate policies based on, "The pure and immutable principles of private morality," and to "acknowledge our infinite obligations to the Supreme Ruler of the Universe."

Believing that the health of the new republic would benefit from the strong morality of its citizens, President Washington saw a mutually beneficial relationship in which the government protected and encouraged the free exercise of religion, with the churches cultivating the values that supported the country. From his 1796 Farewell Address, he affirmed, "Of all of the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports."

Despite the efforts of the secularists to remove religion from our everyday life, Presidents Clinton and G. W. Bush actually strengthened the connection. In 1993, the Religious Freedom Restoration Act, forbidding the federal government from putting "substantial burdens" on religion, was passed. The 1996 Charitable Choice Act made it unlawful for federal agencies controlling anti-poverty grants to exclude faith-based organizations from consideration because of their religious practices. It also gave them the same rights as a Jewish synagogue, a Christian church, an Islamic mosque, or any other house of worship to be allowed to use an applicant's religious beliefs as an acceptable reason for employment.

Currently President Obama is being pressured by Democratic Party leaders, the ACLU, and other left-leaning activists to have these acts either repealed or amended. In late February, 2009, the New York Times prodded the President to overturn President Bush's executive order extending the statutory employment protections from the 1996 bill, to apply to all federal anti-poverty spending. However, given the current economic problems facing the nation, it is unlikely any action will be taken in the foreseeable future.

What now is the status of the alleged wall of separation of church and state? There are, as noted, many breaks in it. There are those who would close all of those openings in order to completely secularize our society. And, probably over 50 percent of our citizens do not care, one way or the other. I pray that our government will never demand that our religions must obey a court's ruling as to what they may preach. I thank God for our Constitution, for the Bill of Rights, and for having the foresight to include the Establishment Clause in the First Amendment. And we must be ever vigilant to defend our freedoms. *

"Religion and good morals are the only solid foundation of pubic liberty and happiness." --Samuel Adams