Another Look At the Separation Issue…That Wall
Albert J. Menendez September/October 1999
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The concept of separation evolved during the seventeenth and eighteenth centuries from two movements.
The Enlightenment view, so ably expounded by people like John Milton and John Locke, emphasized liberty of conscience in religious matters and implied a minimum of state involvement with religion.
As early as 1644 Milton affirmed in his Areopagitica, "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties." In 1689 Locke observed in his A Letter Concerning Toleration, "I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other." Roger Williams, religious reformer, gadfly, and founder of the Rhode Island colony, was a contemporary of Milton and Locke. In his 1644 book, The Bloudy Tenet of Persecution, Williams wrote, "Enforced uniformity confounds civil and religious liberty and denies the principles of Christianity and civility. No man shall be required to worship or maintain a worship against his will."
Then there was what can roughly be labeled the antiestablishment or disestablishment movement; which began among religious dissenters in the American colonies. This movement sought a purely voluntary religion and crystallized its sentiments in opposition to obligatory ties to an established church. Writes historian William G. McLoughlin, "The history of separation of church and state in Massachusetts from 1692 to the Great Awakening is a story of how the Quakers, Baptists, and Anglicans fought, each in their own way, to establish their right to exemption from paying compulsory religious taxes for the support of the Congregational churches."{1}
Hence, a kind of rationalist-pietist alliance achieved the legal recognition of separation as a vital guaranty of religious liberty. McLoughlin says, "There were two or perhaps three different theories of church-state relations at work among those who advocated separation. The view of Madison, Mason, and Jefferson, as expressed in the great debates over this issue in Virginia, has been assumed to be the primary or fundamental one. Most historians and most recent decisions of the U.S. Supreme Court have drawn on the eloquent and logically consistent reasoning of these learned, latitudinarian Anglicans and deists in defining the tradition of separation. . . . The pietists wanted separation in order to keep religion free from interference by the state. The deists wanted separation in order to keep the state free from interference by religion."{2}
This new understanding of church-state relationships won the support of conservative Baptists, such as Isaac Backus, and liberal humanists, such as Thomas Paine. In his 1773 Appeal to the Public for Religious Liberty Backus proclaimed, "Religious matters are to be separated from the jurisdiction of the state not because they are beneath the interests of the state, but, quite to the contrary, because they are too high and holy and thus are beyond the competence of the state." Just three years later Thomas Paine reached a similar conclusion in Common Sense when he observed, "As to religion, I hold it to be the indispensable duty of government to protect all conscientious professors thereof, and I know of no other business which government has to do therewith."
Between 1775 and 1791 Americans conceived, fought for, and established a new nation. This new nation, as Thomas Jefferson explained in the Declaration of Independence in 1776, was based on the proposition that all persons are created equal, that they have inherent natural rights to "Life, Liberty, and the Pursuit of Happiness," that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed," and that "it is the Right of the People to alter or abolish" any form of government that does not secure the rights of the people.
In 1787, having won by force of arms their independence from Great Britain, representatives of the states met in Philadelphia to create a workable federal government. They planned a limited government of delegated powers only; one which implemented, though imperfectly, the principles of the Declaration. The purposes of the new government, spelled out in the Preamble to the Constitution, were to "establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."
The people of the United States had fought six long years for their political independence, and had also in the several states deliberately moved away from the European and earlier colonial models of church-state union and religious intolerance. As a result their representatives in Philadelphia carefully avoided granting the new government any power or authority whatever to meddle with or involve itself with religion. The Constitution they created limited the federal government to purely secular matters. Further, Article VI of the Constitution, in an important departure from colonial practice, stipulated that "no religious test shall ever be required as a qualification to any office or public trust under the United States." The same article also prohibited mandatory oaths, by providing that all members of the executive, legislative, and judicial branches "both of the United States and of the several states" may be bound by either an "oath or affirmation" (italics supplied) to support the Constitution.
Thus the Constitution implies the principle of separation of church and state. This its principal architect, James Madison, and the Declaration's author, Thomas Jefferson, had championed and had seen enacted into law in Virginia only a short time before the Philadelphia convention. Indeed, Madison had spelled out the rationale for the separation principle in his 1785 Memorial and Remonstrance, a short treatise aimed at securing passage of Jefferson's Act for the Establishment of Religious Freedom in the Virginia legislature.
Although the new Constitution represented the greatest single advance in the long evolution of democracy and freedom, it was viewed by many, including Jefferson, as containing a serious defect, the absence of an explicit bill of rights. Ratification of the new charter of government hinged on the promises of politicians to add a bill of rights to the Constitution as soon as possible; promises carried out by the First Congress, which in 1789 proposed amendments which were ratified by the states by the end of 1791.
The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
President Jefferson, writing to the Danbury Baptist Association in Connecticut on January 1, 1802, in a letter to which he had given a great deal of thought and which he cleared through his attorney general, stated, "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."
From that day until this most Americans and their courts of law have agreed with Jefferson's view, and the separation principle has enabled the United States to achieve the world's highest levels of individual religious freedom, religious pluralism, and interfaith peace and harmony. The history of our country and of the world has amply demonstrated the inestimable value of this principle and the genius of those who developed it.
Church-state separation, incidentally, complements and supplements those other great American contributions to freedom and democracy; the principles of federalism, separation of powers, and checks and balances. All of these arrangements are intended to block excessive concentrations of power.
Separation continues to inform the judicial process when religious questions reach the civil jurisdiction. As early as 1872 the U.S. Supreme Court affirmed this: "The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority."{3}
State courts have been no less vigorous in affirming this separation. In 1918 the Iowa Supreme Court observed, "If there is any one thing which is well settled in the policies and purposes of the American people as a whole, it is the fixed and unalterable determination that there shall be an absolute and unequivocal separation of church and state."{4} And in 1938 the New York Supreme Court declared, "In all civil affairs there has been a complete separation of church and state jealously guarded and unflinchingly maintained."{5}
It should come as no surprise that 35 state constitutions explicitly affirm separation of church and state, and the others do so implicitly. Even the Commonwealth of Puerto Rico constitution, approved by the U.S. Congress in 1952, states firmly, "There shall be complete separation of church and state."{6}
Several American theologians and historians have acclaimed the implementation of church-state separation as a major advance for human freedom. James Luther Adams, a Unitarian theologian at Harvard Divinity School, wrote, "The demand for the separation of church and state and the emergence of the voluntary church represent the end of an old era and the beginning of a new one. The earlier era had been dominated by the ideal of Christendom,' a unified structure of society in a church-state. In the new era the voluntary church, the free church, no longer supported by taxation, was to be self-sustaining; and it was to manage its own affairs. . . . In this respect the freedom of choice was increased. The divorce of church and state and the advent of freedom of religious association illustrate this type of increase in freedom of choice."{7}
Leo Pfeffer, the dean of church-state lawyers, observed a quarter century ago, "Before the launching of the American experiment, the concept of religious liberty and the separation of church and state was--for all practical purposes--unknown. The experiment was a uniquely American contribution to civilization and one that the other countries of the world in increasing numbers have emulated and are continuing to emulate. The principle of separation and freedom was conceived as a unitary principle. Notwithstanding occasional instances of apparent conflict, separation guarantees freedom, and freedom requires separation. The experiences in other countries indicate clearly that religious freedom is most secure where church and state are separated, and least secure where church and state are united."{8}
A century ago evangelical historian Phillip Schaff reflected on the meaning of separation in his 1888 book, Church and State in the United States. He wrote, "The relationship of church and state in the United States secures full liberty of religious thought, speech, and action. Religion and liberty are inseparable. Religion is voluntary and cannot be forced. The United States furnishes the first example in history of a government deliberately depriving itself of all legislative control of religion."
As they have enforced separation of church and state, the courts have come under increasing attack in recent years from certain sectarian special interests. But Americans who know something about their history and who cherish religious freedom should applaud these decisions. Our courts are reaffirming the best of our traditions when they preserve a central principle of American jurisprudence.
Albert J. Menendez and Edd Doer are, respectively, research director and executive director of Americans for Religious Liberty. Between them they are the authors of more than 40 books, mostly on religious liberty issues.
FOOTNOTES
{1} William G. McLoughlin, Soul Liberty: The Baptists' Struggle in New England, 1630-1833. (Hanover, NH: University Press of New England, 1991), p. 251.
{2} Ibid., p. 245.
{3} Watson v. Jones (1872) 13 Wallace 730.
{4} Knowlton v. Baumhover (1918) 182 Iowa 691, 166 N.W. 202, 5 A.L.R. 841.
{5} Judd, et al v. Board of Education (1938) 15 N.E. (2d) 576 at 581, 582.
{6} Edd Doerr and Albert J. Menendez, Religious Liberty and State Constitutions (Buffalo, NY: Prometheus Books, 1993), p. 104.
{7} James Luther Adams, On Being Human Religiously. (Boston, MA: Beacon Press, 1976), p. 65.
{8} Leo Pfeffer, Church, State and Freedom. (Boston, MA: Beacon Press, 1967), p. 727.