The overturning of Roe v. Wade and the striking down of a longstanding New York City gun law have received most of the attention at the close of this year’s U.S. Supreme Court, but many court watchers are equally focused on recent decisions about the separation of church and state in America.
On June 27, 2022, in the case Kennedy v. Bremerton School District (pictured above), the court ruled that a public high school football coach in the state of Washington was within his rights to hold prayers at midfield after games. Since the pivotal 1962 decision in Engel v. Vitale, the court has routinely struck down school-sponsored prayers, no matter how ingeniously school districts try to make them voluntary, ecumenical or silent. That 1962 case was just one of a series of cases that involved religious expression in the public square. In Abington School District v. Schempp (1963), the court ruled that mandatory Bible reading in America’s public schools was unconstitutional.
On June 21, 2022, the court struck down a Maine law that prohibited tax dollars from funding tuition at religious schools. Maine provided public support to private schools in rural areas so long as those schools were “nonsectarian.” In Carson v. Makin, the court sided with Christian families who insist that providing public support to some private schools but not others (i.e., Christian schools) violated their right to free exercise of their religious faith. This decision dismantled a long tradition of the court denying public funding to religious schools.
The court’s three liberal appointees dissented in these important 2022 cases. “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Justice Sonia Sotomayor wrote. Court historians have noted that since John Roberts was confirmed as chief justice in 2005, the court has ruled in favor of religious organizations 83 percent of the time.
Given this legal revision and dramatic change, it might be useful to look back at the development of the doctrine of separation of church and state in American life.
The Constitution is an Enlightenment Treatise
The creation of the United States, with its Declaration of Independence, Constitution and Bill of Rights may be the single greatest achievement of the Enlightenment. In his book, “Empire of Reason,” the historian Henry Steele Commager argued that Europe imagined enlightened republics, but it was the United States that made that vision happen. In fact, the United States was born at the high-water mark of the Enlightenment, a period of self-conscious skepticism about the divinity of Jesus and about how much of the Bible, if any, to take literally. If the U.S. had been born 50 years earlier or 50 years later, it is likely that the fundamental American documents would have been more overtly religious.
The 1787 Constitution of the United States never mentions God, the Creator, providence, Jesus, any church denomination or salvation. It is an entirely secular document, followed by the Bill of Rights, which further secularizes American civilization.
Many, though not by any means all, of the Founding Fathers were Deists. They believed in a God-created world, but they regarded “the Creator,” as Jefferson liked to call that being, as an omnipotent celestial mechanic (or clockmaker) who created everything — the solar system, the stars, the planets and of course, the Earth and all its creatures. The Deist God regarded all his creation with general benevolence, but he did not interfere in the affairs of humankind. There was, in short, no one to pray to, because this celestial physicist did not interfere in the lives of his creatures.
Among the founders, Jefferson was the most thoroughly committed Deist, though he protected his religious privacy scrupulously and made no effort in 83 years to declare his beliefs publicly. The closest he came was in his sole book, “Notes on the State of Virginia” (1785), where he declared, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
For this rare public pronouncement, Jefferson paid a heavy political penalty. His enemies — some of them genuinely offended Christians, and others political opportunists who recognized a good talking point when they saw one — accused him of being an atheist, a freethinker, a scoffer. Some declared that if he were elected president, Jefferson would abolish Christianity and confiscate the nation’s Bibles. Jefferson never replied to such absurdities, no matter how politically damaging.
The Infamous Letter to the Danbury Baptists
On Jan. 1, 1802, President Jefferson wrote one of the most famous of his approximately 26,000 letters. The Baptists of Danbury, Conn., had written him to congratulate him on his commitment to religious liberty — and to seek assurance that there would be no retreat from these ideals. In his reply, Jefferson wrote, “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 & State.”
A powerful statement of principle, by America’s greatest advocate of religious liberty. But we now know that Jefferson contemplated an even stronger pronouncement. Not many years ago, the manuscripts division of the Library of Congress scrutinized this letter with a high-resolution scanner, one that permits the viewer to peek behind the surface of the page to explore things crossed out or written over. My friend, Dr. James Hutson of the Library of Congress, showed me a super-scan of the Danbury Baptist letter. What the manuscript experts had discovered was that Jefferson apparently initially wrote, “wall of ‘eternal’ separation,” but in the end, for reasons not explained, toned it down to just “wall of separation.”
It was those last eight words that have made all the difference. Although Jefferson coined the phrase in a private presidential letter (he did not release it to the public), his words have taken on a judicial significance that might surprise even him.
It is important to understand that Jefferson was more of a freethinker than most of his contemporaries, more anti-clerical, more skeptical of the authority of the Bible. In a letter to his friend Benjamin Waterhouse on June 26, 1822, Jefferson wrote, “the genuine doctrine of one only God is reviving, and I trust that there is not a young man now living in the U.S. who will not die an Unitarian.” Genius though he was, Jefferson could not have been more wrong on this subject. Jefferson died four years later, just as the Second Great (religious) Awakening was sweeping the American heartland.
The Supreme Court Adopts Jefferson’s Phrase
After the Civil War, as the U.S. ceased to be a collection of mostly independent states and became an industrial and urban powerhouse, the Supreme Court began to clarify and sort out key American freedoms and principles. The first court reference to the “wall of separation” was in Reynolds v. United States (1879), a case that denied that the Mormon practice of polygamy was protected by the First Amendment. It wasn’t until Everson v. Board of Education (1947), that the court fully aligned itself with Jefferson’s metaphor and used it as the best possible concise paraphrase of the First Amendment’s establishment clause.
Writing for the court’s majority, Justice Hugo L. Black declared, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach … .” Jefferson would admire that paraphrase of his letter to the Baptists of Danbury.
From this time forward, with slight variations, Jefferson’s phrase “wall of separation between church and state” achieved such high legal status in Supreme Court decisions that it could nearly be mistaken for a phrase the founders embedded in the Constitution itself, rather than words later jurists appropriated from a letter by the third president. In 1971, in the case Lemon v. Kurtzman, the court attempted to stabilize the doctrine of separation once and for all. In Lemon, the court established a three-pronged test for determining whether the establishment clause was being violated. First, did the government action in question have a secular or religious purpose? The action was only legitimate if its purpose was purely secular. Second, the court asked if the government action advanced or inhibited religion; it must have neither purpose. Third, was the government entangling itself in an excessive way with the religious life of the nation? This third test was regarded as the most important.
The just-finished court term essentially overturned Lemon v. Kurtzman. Writing for the majority, Associate Justice Neil Gorsuch said, “this Court long ago abandoned Lemon.” As far back as 1993, the often-sarcastic Justice Antonin Scalia dismissed the Lemon test as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad” despite “being repeatedly killed and buried.”
Justice Rehnquist Turns the Tide
The first modern challenge to the court’s reliance on Jefferson’s phrase came in the case Wallace v. Jaffree (1985). The court ruled that an Alabama statute that permitted public schools to observe a minute of silence at the beginning of the school day “for meditation or voluntary prayer,” violated the establishment clause. In his passionate dissenting opinion, William H. Rehnquist (then an associate justice) wrote, “There is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson [v. Board of Education].” The First Amendment, Rehnquist argued, “has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.” The modern court’s increasingly porous understanding of the doctrine of separation of church and state dates from that important descent 37 years ago.
The Devil is in the Constitution’s Details and Omissions
Just what the founders had in mind in the First Amendment is not altogether clear. Two things are certain, however. First, they wanted every American to be able to practice the religion of their choice without civil reward and without civil penalty. As Jefferson put it in his famous Virginia Statute for Religious Freedom of 1786, “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”
Second, the Founding Fathers emphatically did not want to establish a national church (like the Anglican Church of England) or a state-sponsored religion in the United States. The First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two principles are sometimes in conflict — or seem to be. Christian conservatives have felt for decades that their “free exercise” has been squelched by courts who have over-read the prohibition of “an establishment of religion” to include virtually any public expression of faith. In other words, they believe that the founders were prohibiting a national church, not a flourishing religious life in America, which sometimes takes place in public spaces.
Would the Founders have objected to an ecumenical Christian prayer at the beginning of the school day in a publicly funded school? Not clear, but probably not. Or more precisely, Jefferson yes, but others no. Would they have objected to a football or basketball coach pulling his team together for a prayer before or after the game? Not clear, but what about the football players who are Muslim, Jehovah’s Witnesses, Hindus or atheists? Strict separationists argue that the football players who are not “regular Christians” will feel enormous pressure to comply with the after-game prayer, and isn’t that a de facto “establishment” of official religion? Would the founders have objected to a Muslim prayer group meeting in a school classroom after the school day ended? Not clear. How about a Lakota or Shoshone drum club?
What is clear is that some evangelicals and some conservatives look upon the infamous school prayer decision of 1962, Engel v. Vitale, with the same vitriol with which they viewed Roe v. Wade. They have been aspiring to overturn Engel v. Vitale for even longer than Roe (60 years). Millions of people who believe America’s decline can be dated to the moment, as President Reagan put it, that “we expelled God from the classroom,” now look to the conservative majority on the court, bolstered by President Trump’s three appointees, to authorize school prayer and a host of other breaches of Mr. Jefferson’s wall of “eternal” separation between church and state.
Stay tuned.
You can also hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, “The Thomas Jefferson Hour,” and the Governing podcast, “Listening to America.” Clay’s most recent book, “The Language of Cottonwoods: Essays on the Future of North Dakota,” is available through Amazon, Barnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing cjenkinson@governing.com or tweeting @ClayJenkinson.
