The Wall of Separation Between Church and State; J. Patton

Between Church and State by Judd W. Patton M ost Americans have been conditioned to believe and to assume that the First Amendment to the U.S. Constitution re quires a "wall of separation between Church and State. " This concept is seldom challenged today ... but it is not actually a part of the Constitution or any of the Amendments; it did not exist until well into the twentieth century. The establishment and free-exercise clauses of the First Amendment state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The meaning was crystal clear to Americans and Ameri can jurisprudence for generations. Very simply, the federal government was prohib ited from establishing a single national de nomination above all others (a state reli gion-endowed with public funding, special privileges, and penalties on other faiths that reject its doctrines-as Great Britain had) and secondly, the federal government could not interfere with the individual's right to freedom of worship.

The purpose of the First Amendment was not to protect Americans from religion, it was to protect religion from government intrusion. This "understanding" is in full Dr. Patton is Associate Professor ofEconomics at Bellevue University, a liberal arts college located at Bellevue, Nebraska. He is also editor of The Bottom Line, a scholarly quarterly pub lished by the Entrepreneurial Leadership Center of the University. and obvious accord with the raison d' etre of the Bill of Rights to limit the federal gov ernment's power and thereby secure the freedom of individuals and the rights of the states. The Bill of Rights was a declaration of what the federal government could not do. The intent of the First Amendment could never have been to separate church and state. Virtually all state constitutions of that day required their elected officials to affirm belief in the Christian faith. 1 Not one of the states would have ratified the First Amend ment in violation of their constitutions had its purpose been to separate religious prin ciples from public life.

Quotations from the framers of the Con stitution and other leaders of early America illustrate this great principle. George Wash ington as our first President said, "Of all the dispositions and habits which lead to polit ical prosperity, Religion and Morality are indispensable supports." And our second President, John Adams, told us, "It is Re ligion and Morality alone which can estab lish the principles under which Freedom can securely stand. " Benjamin Franklin echoed Adams' sentiment: "Only a virtuous people are capable of Freedom. As nations become corruptand vicious,they havemore needof masters." On the same theme, Dr. Benjamin Rush, a Signer of the Declaration and a leading thinker of the period, said that, "The only foundation for a Republic is to be laid in Religion. Without this, there can be no 717 718 THE FREEMAN • NOVEMBER 1995 virtue, and without virtue there can be no liberty." And James Wilson, who signed the Declaration and the Constitution for Penn sylvania, pointed out that "Far from being rivals or enemies, religion and law are twin sisters, friends and mutual assistants. In deed, these two sciences run into each other. The divine law, as discovered by reason and the moral sense, forms an es sential part of both. "

No "Wall" Planned Yes, it would have been impossible for these God-fearing men to have deliberately built a "Wall of Separation" between church and state. Here is how the phrase and eventually the concept of this "wall of separation" originated. In 1801, the Danbury Baptist Association wrote a letter to President Thomas Jeffer son. They were alarmed about a rumor. Was a national denomination soon to be estab lished? Jefferson responded by letter on January 1, 1802, assuring them that there was no basis to the rumor. He said, ' 'I contemplate with solemn reverence that act of the whole American people which de clared that their legislature should 'make no law respecting an establishment of reli gion, or prohibiting the free exercise there of,' thus building a wall of separation be tween Church and State." The Danbury Baptists were apparently satisfied. They understood the "wall" to be one-directional, protecting them and other churches from possible discrimination and harm by means of a "governmental-favored denomination" status. Nevertheless, Jeffer son's eight-word phrase, "a wall of separa tion between Church and State," has be come the defining metaphor for today's misinterpretation of the First Amendment.

Obviously, Je1ferson's letter and this phrase are not part of the First Amendment and it appears far-fetched legal "reasoning" to give it the force of law or to infer intent by the delegates to the Constitutional Con vention of 1787. Jefferson's letter remained in relative ob scurity until 1878,when the Supreme Court, in the case of Reynolds vs. United States, cited the whole letter. According to the Court, the "wall of separation between Church and State" meant, "Congress was deprived of all legislative power over mere [religious] opinions, but was left free to reach [only those religious] actions which were in violation of social duties or subver sive of good order." Thus, the Court ruled against the Mormon practice of polygamy and bigamy because the Justices considered it to be subversive of good order. In other words, the Court used the concept of "sep aration of Church and State" to keep a general religious principle, monogamy, in tegral to our society.

Nearly 70 years later, in the 1947Supreme Court case of Everson vs. Board of Educa tion, a major conceptual change occurred. Citing only Jefferson's eight words ("a wall of separation between Church and State' ') and not their context or previous Supreme Court interpretations, it declared a new meaning: a separation of basic religious principles from public life. Indeed, Jeffer son's eight words became the catch phrase for this new concept. Then, in 1962 the Supreme Court, in the case of Engel vs. Vitale, redefined the word "church" to mean "a religious activity in public." The revolt against the roots of Americanism had begun in earnest. Separa tion of Church and State now meant the government (or state) and its institutions must be "protected" from religion. Since 1962 there have been over 6,000 court cases challenging religious expres sions in public institutions and public life.

For example, numerous court cases ruled that verbal prayers in public schools, even if voluntary and denominationally neutral, were unConstitutional. In 1980,it was ruled that it was unConstitutional to hang the Ten Commandments on the walls of public school classrooms (ironically, the Ten Com mandments are engraved on the chamber walls of the Supreme Court). And in Vir ginia, a federal court ruled a homosexual newspaper may be distributed on a high school campus, but religious newspapers may not. Needless to say, a cultural war of mammoth proportions was unleashed by the Everson and Engel rulings. The Tide Is Turning Interestingly, and significantly, the 1990s have seen more and more court decisions based on the original intent of our Founding Fathers. The Supreme Court ruled in 1990, for instance, that it is permissible to have THE RIGHT TO PRAY 719 prayer and Bible clubs at public high schools. The justices also decided in another case that premarital sexual abstinence pro grams, while religious in nature, can be taught in public schools. The tide appears to be turning back to our traditional, Godly American heritage. D 1. David Barton, The Myth of Separation (Wallbuilder Press, 1991), pp. 25-35.