The 222nd Anniversary of the “Wall of Separation Between Church and State”
On January 1, 1802, Thomas Jefferson introduced the phrase “wall of separation between church and state” into the American lexicon. The brief backstory involves a hotly contested presidential election, in which many religious Americans accused Jefferson of being an atheist. The criticism continued after Jefferson was sworn in as president, as he refused to issue executive proclamations for days of national fasting and thanksgiving. (George Washington proclaimed a day of national thanksgiving after the ratification of the Jay Treaty, and many encouraged Jefferson to do the same thing after the signing of the Treaty of Amiens in 1801.)
But there were some religious voters who supported Jefferson. In particular, the Danbury Baptists of Connecticut celebrated Jefferson's advocacy for religious liberty. In a letter written on October 7, 1801, they congratulated Jefferson on his electoral success. After receiving the letter, Jefferson told his Attorney General, Levi Lincoln, that his response to the Danbury Baptists “furnishes an occasion too, which I have long wished to find, of saying why I do not proclaim fastings & thanksgivings, as my predecessors did.”
Jefferson responded to the Danbury Baptists 222 years ago by offering a full throated endorsement of religious liberty. He wrote that “religion is a matter which lies solely between Man & his God.” He wrote that Congress should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church & State.” It is ironic that Americans now use the phrase to advance secularism when Jefferson used the phrase to reassure pious Christians that he would be a friend to religious minorities.
No one paid attention to the “wall of separation” phrase until 1878, when Chief Justice Morrison Waite quoted it in Reynolds v. United States. Later, in 1947, both Justice Black’s majority opinion in Everson v. Board of Education and Justice Wiley Rutledge’s dissenting opinion in the same case defined the First Amendment religious clause in terms of a “wall of separation between church and state.”
When thinking about religion in the public square, we are better served to focus on the actual words of the First Amendment. First, there is the establishment clause: “Congress shall make no law respecting an establishment of religion.” This part prohibits the federal government from regulating religion, from favoring one religion over another, and from compelling persons to engage in religious practices. Second, there is the free exercise clause: “Congress shall make no law prohibiting the free exercise thereof.” This part protects the right of all persons to practice their religious faith freely. In considering the concept of “establishment,” it is helpful to understand what Thomas Jefferson and the Founding Fathers were thinking of in the 18th century. For that, we turn to the work of Michael McConnell and Nathan Chapman.
McConnell, a former federal judge, and Chapman, a law professor at University of Georgia, co-authored Agree to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. They write that the “true evil of religious establishment contemplated by the Founders” was the use of government power to “foster or compel uniformity of religious thought and practice.” Instead of demanding “separation,” write McConnell and Chapman, the Founders simply wanted all religions placed on “equal footing.”
When it came to the idea of “establishment,” the Founding Fathers were thinking about the Acts of Uniformity, which made the Church of England the national religion and which repressed other religious groups. They were thinking of the Acts of Supremacy, which established the English monarchy as the head of the Church of England. They were thinking of the Penal Laws, which fined and imprisoned Catholics and which barred Catholics from voting, holding public office, and owning land. They were thinking about how most of the thirteen colonies enforced compulsory church attendance and permitted who could and could not preach.
It is ironic that people now use the phrase “separation between church and state” to punish those who have a strong faith, when the second clause of the First Amendment makes clear that people of faith have the liberty to participate in the full range of civic life. Consider what recently happened in Massachusetts. A Catholic couple was deemed unfit for a foster-care license because of their religious beliefs.
Mr. Burke deployed to Iraq as a Marine; Mrs. Burke worked with young children who had special needs. The Burkes were willing to accept children of any race, culture, or ethnicity and were also willing to accept children who had developmental issues. The state assessed the Burkes as being “devout Roman Catholics.” Being religious used to be a good thing. Now, their Catholic faith is a problem, because it means they have traditional beliefs about sex and gender.
Thomas Jefferson may have written the phrase “separation between church and state,” but he was prouder of being the author of the Declaration of American Independence, the father of the University of Virginia, and the author of the Virginia Statute for Religious Freedom. These were the three things he wanted written on his tombstone. When we think about Jefferson’s line regarding “the separation of church and state,” it’s helpful to learn about the Statute for Religious Freedom.
In the colony of Virginia, ministers were required to preach Christianity according to the “doctrine, rites and religion” practiced by the Church of England. According to McConnell and Chapman, missing church was most common offense in 5 of 11 counties in Virginia between 1720 and 1750. There were laws that required everyone to attend church on the Sabbath and there were laws that only Anglican clergymen to perform a marriage ceremony. Patrick Henry even introduced a bill in 1784 that sought an annual tax to support the Christian religion.
Jefferson rejected all of this. In writing the Statute For Religious Freedom, Jefferson argued that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever . . . 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 . . . .” In the same statute, Jefferson talked about an “Almighty God that hath created the mind free.”
Jefferson clearly believed in a higher power. He wasn’t a secularist. Yet here were are, in 2023, where devout Roman Catholics aren’t allowed to adopt children because of their religious beliefs. As American University professor David Dreisbach writes, “Jefferson's metaphor, sadly, has been used to silence the religious voice in the marketplace of ideas and, in a form of religious apartheid, to segregate faith communities behind a restrictive barrier.” When citing Jefferson’s phrase in 2024 we should be defending, not defenestrating, religious Americans.