Separating church and state

America’s Founders saw religion as a powerful guiding force in the new republic . . .

The establishment cause of the U.S. Constitution’s First Amendment states that Congress shall “make no law respecting an establishment of religion or prohibiting the free exercise thereof” (1789).

The first 10 amendments, known as the Bill of Rights (1791), were added at the instigation of the anti-Federalists who feared the loss of states’ rights. The Establishment Clause was meant to be a guarantee that the federal government would not establish a state Church. Some states retained state-sponsored churches — Massachusetts being the last to dis-establish in 1833.

Although the Founders, for the most part, officially held to one denominational creed or another, all were decidedly men of the Enlightenment. None of them wanted the sectarianism that wreaked havoc on “the continent.” Nor did they favor a monarchically structured Church that could limit the rights of individual conscience so dear to the “Spirit of ’76.”

Thomas Jefferson, among the Founders, was most imbued with the spirit of republicanism. In 1779 he wrote the Virginia Statute on Religious Freedom. In it he emphasized God’s creation of man with a conscience and free will. He said it is a violation of both to impose religion on anyone. Because of his influence, the Virginia General Assembly enacted a state law in 1786 dis-establishing the Episcopal Church  from the Commonwealth.

. Their presumption was that the Bible would serve as one source and reason the other to aid in self-governance. Jefferson believed that eventually both would meld into Unitarianism. While George Washington has been described as an early ecumenist, the pamphleteer, Thomas Paine, favored a godless state, which was roundly rejected by the other Founders and the American people. All three strains survive in our culture.

James Madison was the most traditionally religious of the Founders. He was also Jefferson’s alter-ego. As the author of the Bill of Rights, he intended to prohibit the federal government from creating a national Church, thereby allow religion to flourish freely in America. This was consistent with the spirit of the age since the Bill was instituted during the Second Great Awakening (1790-1840) which promoted grass-roots religiosity. During this era, the Free Churches (i.e., Baptists and Methodists) grew exponentially, challenging the hegemony of the hierarchically organized Episcopal Church and the aristocratically dominated Congregational and Presbyterian churches.

Aware of Jefferson’s advocacy for religious liberty, the Baptist Association of Danbury, Conn., wrote to him in 1801 congratulating him on his election to the presidency. As a minority, the Baptists were looking for Jefferson’s support in a state dominated by a religio-political axis of Congregationalists and Jefferson’s arch-foes, the Federalists. This moved him to write a personal and politically motivated letter to them in 1802 in which he used the metaphor “wall of separation” between Church and state so as not to impede the free conscience of any believer.

This now-famous phrase lay dormant until 1947 when Supreme Court Justice Hugo Black applied it in Everson v. Board of Education, stating for the majority that this wall of separation “must be kept high and impregnable.” The Court tied Black’s misappropriation of Jefferson’s words to the Fourteenth Amendment’s “due process clause,” which demands that legal proceedings be carried out in accord with established rules and principles. A divided court ruled in Everson that subsidies to Catholic parents for busing their children to parochial school did not violate the Constitution since the money was not given directly to the Church sponsored schools. This ruling set the standard for subsequent church-state challenges. Secularists have consistently employed it to eliminate religion, the nation’s moral compass.

Since Black’s judicial sleight of hand, courts have sought to avoid governmental entanglement with religion. For example, the Supreme Court’s rulings have tended not to favor partisan state-sponsored prayer or religious symbols in public places. The Court, however, has allowed generic prayer at government events such as presidential inaugurations or celebrations of National Days of Prayer. Pursuant to this last point, a U.S. district judge recently declared the Prayer Day unconstitutional, but precedent makes it unlikely that the ruling will be sustained on appeal.

In another recent case, the Court permitted a cross to stand in the Mojave Preserve since it “evokes far more than religion.” Writing for the majority, Justice Anthony Kennedy noted that “the Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” The Court has also consistently ruled in favor of joint displays of religious symbols (a cross, Star of David or crescent moon) on public property, since this would not favor one religion over another.

America is a nation founded on religious principles. In the Declaration of Independence (1776), Jefferson anchored man’s “inalienable rights to life, liberty and the pursuit of happiness” in the Creator. Citizens realize that to remove religion from the public square betrays them to an atheistic state, thus jeopardizing their natural rights. Americans, therefore, are uneasy with this faux “wall of separation” between church and state, forcing court battles for years to come.

Father Michael P. Orsi is the chaplain and research fellow in law and religion at Ave Maria School of Law in Naples, Fla.