Misguided metaphors erect an illogical--and illegal--"wall of separation" between church and state.

AuthorDreisbach, Daniel L.
PositionReligion

NO METAPHOR in American letters has had a greater influence on law and policy than Thomas Jefferson's "wall of separation between church and state." For many Americans, it has supplanted the actual text of the First Amendment to the Constitution, and it has become the locus classicus of the notion that the First Amendment separated religion and the civil state, thereby mandating a strictly secular polity.

More important, the judiciary has embraced this figurative language as a virtual rule of constitutional law and as the organizing theme of church-state jurisprudence. Writing for the Supreme Court in 1948, Justice Hugo L. Black asserted that the justices had "agreed that the First Amendment's language, properly interpreted, had erected a wall of separation between Church and State."

The rhetoric of church-state separation has been a part of Western political discourse for many centuries, but it only lately has come to a place of prominence in U.S. constitutional law and discourse. What is the source of the "wall of separation" metaphor so frequently referenced today? How has this symbol of strict separation between religion and public life become so influential in American legal and political thought? Most important, what are the policy and legal consequences of the ascendancy of separationist rhetoric and of the transformation of "separation of church and state" from a much-debated political idea to a doctrine of constitutional law embraced by the nation's highest court?

On New Year's Day, 1802, Pres. Jefferson penned a missive to the Baptist Association of Danbury, Conn. The Baptists had written the new president a "fan" letter in October 1801, congratulating him on his election to the "chief Magistracy in the United States." They celebrated his zealous advocacy for religious liberty and chastised those who had criticized him "as an enemy of religion, Law & good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ." At the time, the Congregationalist Church still was established legally in Connecticut and the Federalist party controlled New England politics. Thus, the Danbury Baptists were outsiders, a beleaguered religious and political minority in a state where a Congregationalist-Federalist party establishment dominated public life. They were drawn to Jefferson's political cause because of his celebrated advocacy for religious liberty.

In a carefully crafted reply, the president allied himself with the New England Baptists in their struggle to enjoy the right of conscience as an inalienable right--not merely as a favor granted, and subject to withdrawal, by the civil state: "Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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."

This missive was written in the wake of the bitter presidential contest of 1800. Candidate Jefferson's religion, or the alleged lack thereof, was a critical issue in the campaign. His Federalist foes vilified him as an "infidel" and "atheist." The campaign rhetoric was so vitriolic that, when news of Jefferson's election swept across the country, housewives in New England were seen burying family Bibles in their gardens or hiding them in wells because they expected the Holy Scriptures to be confiscated and burned by the new Administration in Washington. (These fears resonated with Americans who had received alarming reports of the French Revolution, which Jefferson was said to support, and the widespread desecration of religious sanctuaries and symbols in France.) Jefferson wrote to these pious Baptists to reassure them of his continuing commitment to their right of conscience and to strike back at the Federalist-Congregationalist establishment in Connecticut for shamelessly vilifying him in the recent campaign.

Several features of Jefferson's letter challenge conventional, strictly secular constructions of his famous metaphor. First, the metaphor rests on a cluster of explicitly religious propositions (i.e., "that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship"). Second, Jefferson's wall was constructed in the service of the free exercise of religion. Use of the metaphor to restrict religious exercise (e.g., to disallow a citizen's religious expression in the public square) conflicts with the very principle Jefferson hoped his metaphor would advance. Third, Jefferson concluded his presidential missive with a prayer, reciprocating his Baptist correspondents' "kind prayers for the...

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