Back to the Roots - The Founders and the Separation of Church and State
by John Rossomando - June 19, 2010
Reprinted with permission.
The cry, "That violates the separation of church and state!" has been the centerpiece of the secularist drive to marginalize Christianity in the public sphere since the 1940s. The real – and often neglected – question is what precisely that separation means and how it should be interpreted and applied.
The secularists' interpretation of the establishment clause – the line of the First Amendment that reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" – ultimately rests upon anti-Christian prejudice and involves cherry picking from certain founders' writings. In recent years, we have seen groups such as the ACLU, the Freedom from Religion Foundation, Americans United for the Separation of Church and State; Web sites such as Infidels.org; and leftist publications such as the Nation come out of the woodwork with attempts to refute the notion that America was ever a Christian nation. Instead, they recast the founders as anti-clericalists in the mold of the French revolutionaries.
Nothing could be further from the truth.
Like all historical documents, the Bill of Rights must be read within the context of what its framers meant when they penned the establishment clause. To get inside the minds of the authors, we must first recall the period in which they wrote.
Following Queen Elizabeth I's reestablishment of the Anglican Church in 1560, Parliament and the queen were made the ultimate source of religious dogma in England. Where the Roman Catholic clergy and bishops had previously decided matters of religion, secular leaders of the House of Commons and House of Lords mandated by law which articles of faith were to be believed by the queen's subjects and which were to be considered illegal.
As a result, Catholics and non-conforming Protestants suffered tremendous persecutions in England because of their refusal to submit to the Anglican church. This state of affairs continued throughout the colonial period and into the Americas, where each colony – except Pennsylvania and New York – had its own state church.
This was a problem the Founding Fathers knew they had to change, and so they made it impossible for the new government to decide matters of religious dogma by prohibiting the creation of a state religion.
Thomas Jefferson was keenly aware of this when he wrote his famous letter to the Danbury Baptists stating that the establishment clause erected a "wall of separation" between church and state – a point made clear by the next sentence in the original draft: "Congress thus [is] inhibited from passing acts respecting religion."
The argument for the political separation of church and state in the First Amendment must then be understood within the historical context of the struggles between Catholics and Protestants, especially as regards the English origins of what ultimately became the United States of America.
Jefferson on Christianity in Government
Even Jefferson, arguably the founder most opposed to traditional Christian dogmas such as the Incarnation and Trinity, did not in practice oppose Christianity's ceremonial role in government or its influence upon national morality, as evidenced by some of his actions during his presidency.
During his term, for example, the halls of Congress were routinely used for religious services presided over by clergy from the Washington, D.C., region.
Anson Phelps Stokes, a mid-20th century Yale historian, relates in his book Church and State in the United States:
[T]he preaching services were established early in the Jefferson administration (1801-1809), and the seats were always kept for the president and his secretary, the former attending regularly… The services were so popular that the floor of the House proved inadequate, and the platform behind the speaker's chair and every other spot was filled…
Contrary to secular myth, Jefferson's writings show that Christianity played a strong role in his moral thinking. Like the Christian clergy, he was a moral absolutist who would have been shocked by the Democratic Party's present support for moral nihilism. "It is strangely absurd to suppose that a million of human beings, collected together, are not under the same moral laws which bind each of them separately," Jefferson wrote in an 1816 letter to George Logan.
In fact, contrary to the claims of atheists who call Jefferson to their cause, the founder explicitly described himself as a Christian in an 1803 letter to Dr. Benjamin Rush, where he wrote, "To the corruptions of Christianity I am indeed opposed; but not to the genuine precepts of Jesus himself. I am a Christian, in the only sense he wished any one to be; sincerely attached to his doctrines, in preference to all others; ascribing to himself every human excellence; & believing he never claimed any other."
The founder, unlike radicals such as Thomas Paine or Ethan Allen, saw religion as useful in preserving society's moral compass. Jefferson placed preachers and moralists on the same footing with legislators as guarantors of social morality. He wrote the following in an 1814 letter to Thomas Law:
When [the moral sense] is wanting, we endeavor to supply the defect by education, by appeals to reason and calculation, by presenting to the being so unhappily conformed, other motives to do good and to eschew evil, such as the love, or the hatred, or the rejection of those among whom he lives, and whose society is necessary to his happiness and even existence…. These are the correctives which are supplied by education, and which exercise the functions of the moralist, the preacher, and legislator; and they lead into a course of correct action all those whose depravity is not too profound to be eradicated.
Jefferson would have likely been appalled by modern liberals' efforts to assert that the First Amendment's establishment clause was intended to apply to matters of societal morality, rather than core matters of religious dogma, such as the divinity of Christ, the Holy Trinity, or the creation of a Church of the United States of America.
To this end, Jefferson wrote in an 1809 letter to a James Fishback:
Reading, reflection and time have convinced me that the interests of society require the observation of those moral precepts only in which all religions agree (for all forbid us to murder, steal, plunder, or bear false witness), and that we should not intermeddle with the particular dogmas in which all religions differ, and which are totally unconnected with morality.
Thus, Jefferson was opposed to legislating theological matters, not the promotion or defense of religiously motivated moral principles.
The Christian Origins of the Establishment Clause
In European countries where churches were subject to state control, churchmen became little more than religiously oriented bureaucrats whose Christianity was as deep as the clothes they wore on Sunday mornings.
The established churches in the American colonies were no exception, and dissatisfaction over their "spiritual dryness" led to the movement known as the Great Awakening in the mid-18th century.
Many scholars and politicians caught in the contemporary fight over church and state separation tend to emphasize the deism and anti-Christian currents of the Enlightenment. At the same time, they ignore the impact of this first Great Awakening during the 1740s and 1750s upon American religious and cultural life, which Princeton University scholar Frank Lambert attributes, in part, to the post-revolutionary attitudes in some circles about the institutional connection between the churches and the states.
Additionally, this post-Great Awakening movement was keenly aware of how the institutional dependence of churches upon the state was often detrimental to the quality of the faith expressed in those churches. Thus, they reasoned that the only way to have an authentically pure form of Christianity was to divorce ecclesiastical institutions from their dependence upon the state.
This period led many colonists – especially those in Virginia's remote western frontier – to defy civil and ecclesiastical authority to preach the message of the "New Birth" without regard to existing institutions and laws. As a result, followers of this movement rejected preachers in the established churches whom they considered unconverted, causing a backlash among those established churches against the new evangelicals.
Coincidentally, both Jefferson and James Madison, hailing from Virginia's mountain country, came of age amid the Great Awakening struggles between the Protestant non-conformists and the Anglican Church in Virginia. Not surprisingly, this served as the backdrop for their arguments against the formal establishment of the Anglican Church in Virginia and ultimately their case against religious establishments after the ratification of the Constitution.
This is demonstrated by Jefferson's 1779 Notes on the State of Virginia, where the founder points out that nearly two-thirds of Virginians belonged to sects arising out of the Great Awakening rather than the established Anglican Church. These Virginians faced serious legal impediments to practicing their faith, and considering that Jefferson came from Charlottesville, in the Virginia mountains, his neighbors' religious difficulties could not but have affected his thinking on established religion and religious freedom.
Lambert argues that the evangelicals agreed with the establishment churches about the importance of religion in society; nevertheless, "they argued that true Christianity was voluntary, not coercive, and, therefore, society was best served through free and independent churches preaching the gospel."
Madison's 1785 Memorial and Remonstrance, often cited by atheists who try to portray the founder as anti-Christian or as a believer that Christians were bigoted or ignorant because of its explicit usage of those epithets, is actually rooted in this Great Awakening tradition. Madison's target, however, was not Christianity, but rather the corrupting influence of the state upon the church.
To this end, Madison wrote regarding the English-style institutional domination of the church:
[T]he establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws… Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits.
7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation… the Bill [the proposed legal establishment of the Anglican Church in Virginia] is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions.
Despite the claims that Memorial and Remonstrance proves Madison's irreligiosity, it clearly shows that Madison was indeed a Christian who saw the institutional establishment of a state church as an obstacle to authentic Christianity. (It is unlikely an atheist would refer to non-Christian religions as "false.")
Debating the Establishment Clause
While Americans came to oppose what they saw as a "tyrannical" Christianity of the governmentally controlled variety, they supported Christianity's place in the free market of ideas. These undercurrents found a clear voice in the debates over the First Amendment in 1789.
The deliberations show that the first Congress's intent differed sharply from that of the French revolutionaries who sought to destroy Christianity as a force in society. As 19th-century Union Theological Seminary historian Philip Schaff observed, "The American separation of church and state rests upon respect for the church; the infidel [European anticlerical] separation, on indifference and hatred of the church, and of religion itself…. The constitution did not create a nation, nor its religion and institutions. It found them already existing, and was framed for the purpose of protecting them under a republican form of government, in a rule of the people, by the people, and for the people."
Legal scholars, such as LSU law professor John Baker, argue that the founders and most educated Americans living during the 18th century understood that a religious establishment was an institutional church under the control of the state, and to which all citizens would be expected to belong. An August 15, 1789, entry in Madison's papers indicates he intended for the establishment clause to prevent Congress from mandating that very thing – it was not a wholesale ban on Christianity's influence on the nation's public morality or laws.
The entry says: "Mr. Madison said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law [as had been the practice in many of the colonies], nor compel men to worship God in any manner contrary to their conscience… "
Many on the Left make much out of the fact that Madison's proposed language – that Congress should make no law regarding the establishment of a "national religion" – was rejected by the House, in favor of the more general "religion." But their point ignores the historical context for removing the word "national" from the establishment clause. The rejection was rooted in the arguments between the Federalist and anti-Federalist forces, not because they wanted to prevent the government from allowing religious expression in a more general manner. During the debate, Rep. Elbridge Gerry of Massachusetts took issue with Madison's language regarding whether the government was a national or federal government (in which the states retained their individual sovereignty). The question compelled Madison to withdraw his language from the debate.
Legal scholars, including Baker, argue that using the term "national government" was unconscionable for both Federalist and anti-Federalist forces. Thus, removing the word "national" from the establishment clause was necessary to secure ratification by the states, many of which were wary of having their authority undercut by the federal government.
Following the argument between Madison and Gerry, Rep. Samuel Livermore of New Hampshire proposed language that would have said, "Congress shall make no laws touching religion or the rights of conscience," which raised uproar from members, such as Rep. Benjamin Huntingdon of Connecticut and Rep. Peter Sylvester of New York. They worried the language could be used to harm religious practice because federal courts might construe the establishment clause in a manner different from Madison's intent. Almost 220 years later, those objections have proven prophetic.
Others, such as Rep. Roger Sherman of Connecticut, believed the clause was unnecessary because the original Constitution only gave Congress stated powers, which Sherman believed made it impossible for Congress to establish a national religion (since doing so was not among its stated powers).
Anti-Federalists such as Rep. Thomas Tucker of South Carolina moved to strike the establishment clause completely because it could preempt the religious clauses in the state constitutions, but the anti-Federalists were unsuccessful in persuading the House of Representatives to drop it from the amendment.
The Senate went through several more narrowly targeted versions before reaching the contemporary language.
One version read, "Congress shall make no law establishing one religious sect or society in preference to others, nor shall freedom of conscience be infringed," while another read, "Congress shall make no law establishing one particular religious denomination in preference to others." Ultimately, the Senate rejected the more narrowly targeted language.
The establishment clause did not nullify the religious establishments in states such as Connecticut and Massachusetts, nor did it abolish elements of the common law that were connected with Christian belief. Although religious groups were institutionally separate from the state, religion continued to have an impact upon all three branches of government.
In fact, the Supreme Court of Pennsylvania acknowledged this in the 1822 case of Updegraph v. the Commonwealth: "The constitution of the United States has made no alteration, nor in the great body of the laws which was an incorporation of the common law doctrine of Christianity, as suited to the condition of the colony, and without which no free government can long exist…. If Christianity was abolished, all false oaths, all tests by oath in the common form by the book, would cease to be indictable as perjury."
Despite the passage of the establishment clause in 1789, Congress did not stop itself from issuing a proclamation of thanksgiving to God just two months later. Clearly, they saw no contradiction.
Secularists often point to the fact that the Senate ratified a treaty in 1797 with Tripoli, in which the eleventh article states, "The government of the United States of America is not in any sense founded on the Christian religion."
This statement, however, should be understood within the context of the founders' repudiation of the divine right of kings, which claimed the monarch's power came from God alone and thus the king was also the head of the church. It was also intended to assert that the United States government – unlike the Christian kings of Europe – was a civil government that didn't seek to use force to compel the Muslim rulers of North Africa to convert to Christianity, hence the clause, "No pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries."
Finally, the founders, according to Lambert, didn't equate the government with the nation, which they clearly associated with the people. The founders established a civil government, based upon civil laws, some of which were influenced by Christian principles and morality.
The Establishment Clause and Public Morality
This knowledge was commonplace throughout the 19th century, and courts frequently gave Christian morality a privileged place when deciding family law cases. Christian principles were invoked time and again by the Supreme Court as the reason polygamy should remain illegal in the United States. In its 1890 case of The Mormon Church v. The United States, the Court wrote in its majority opinion, "The organization of our community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization, which Christianity has produced in the Western world. The question, therefore, is whether the promotion of such a nefarious system and practice, so repugnant to our laws and to our [Christian] civilization is to be allowed to continue by the sanction of our government."
Similar points were made in the 1890 Davis v. Beeson case where the court said outlawing bigamy and polygamy was constitutional because they were "crimes by the laws of all civilized and Christian nations." Consequently, polygamy was not outlawed because of secular concerns over how polygamy would adversely affect children but only because they were offensive to Christianity.
In practice, the founders' intent to keep government away from mandating popular adherence on matters of theology did not extend to the expression of Christian sentiments by public officials, nor through statutes aimed at preserving public morality. The 1890s polygamy cases should be considered precedent for our current debates over "gay rights," abortion, euthanasia, etc., because the court acknowledged that Christian morality was part of our common law. (And, of course, those cases have never been overturned.)
Our founders never mandated a complete exclusion of Christianity from the public square because they wanted to foster a marketplace of ideas wherein Christianity would remain vibrant. In contrast, secularists try to undermine that same marketplace and reduce traditional Christians to the status of second-class citizens. But they should tread lightly here. The 1965 Supreme Court decision United States v. Seeger shows that belief in a deity is not essential for a system of beliefs to be considered a religion within our legal system. From that standpoint, the degree of devotion homosexual-rights advocates or feminists give their own ideologies could actually be considered a form of religion.
The irony is rich.
