Monday, January 5, 2015

On the First Amendment Free Exercise and Establishment Clauses and the Debate about the Christian Heritage of the United States

It is now a fixture of political debate to hear the political left arguing for the "separation of church and state" and the religious right arguing in response that constitutionally there really is no such thing. What are citizens (especially Christians) to make of these rival claims? 

Well, to begin with, the conservatives are right in saying that the phrase "separation of church and state" does not appear in the Constitution. What the Constitution has to say about the relationship between religion and government is found in the First Amendment, which merely states that 

Congress shall make no law respecting an establishment of religion , or prohibiting the free exercise thereof.

So where did the phrase "separation of church and state" come from? The phrase, in fact, has its origin in a letter which President Thomas Jefferson sent in response to three representatives of the Baptist Association of Danbury, Connecticut, who had written him on October 7, 1801. These men had written to Jefferson on behalf of the 26-member Baptist Association, which was working to overturn the establishment of the Congregational church in New England.  The text of their letter can be found here.

In his letter responding to them, Jefferson said the following:
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. 
That is, the phrase "separation of church and state" entered the American lexicon as Thomas Jefferson's interpretation as to the effect of the First Amendment's prohibiting the federal government from either establishing a church or interfering with the right of individuals to hold whatever religious beliefs that they might happen to hold.

The full text of Jefferson's response makes clear that he personally objected to the idea of any government's advantaging or disadvantaging of citizens on the basis of their religious convictions and affiliations. It is also clear that Jefferson understood that, as a result of the First Amendment to the Constitution, the federal government lacked any authority to repeal the establishment by the states of New England of "official" churches.

That Jefferson's response to the Danbury Baptists was so widely publicized (it was published in a number of newspapers) gave evidence that the issue of establishment was a live one in the early Republic. Indeed, the issue of establishment of religion at the state level played a substantial role in the election of 1800. In that election, the infant United States chose to elect Thomas Jefferson over his opponent John Adams. Adams was a representative of the Federalist party, which found the majority of its support in New England, where the Congregational church was the established church. Jefferson, on the other hand, was a representative of the Democratic-Republican party, which favored religious freedom and disestablishment. The Methodists and Baptists (who were stronger in the West of the new nation) generally favored Jefferson because of his party's support for disestablishment, while the congregationalists supported the Federalists. 

Despite the fact that Adams was himself a Unitarian, many of the more orthodox clergymen of New England told their parishioners that they were conscience-bound to vote against Jefferson since he was a deist (which was true). Jefferson ultimately prevailed in the election.

In the ensuing years of the Second Great Awakening, appeals were commonly made on the basis of the identity of the United States as a "Christian nation" for lawmakers to support various crusades to establish laws in favor of Sabbath-keeping, and against slavery and alcohol. These appeals to the Christian identity of the United States were made, not on the basis of any official establishment of Christianity as the state religion of the United States, but on the basis of the fact that the overwhelming majority of citizens considered themselves to be Christians, and considered themselves to have the right to advocate for laws in keeping with their beliefs.

This "generally Christian" character of the American Republic continued throughout the 19th century, manifesting itself in such institutions as the chaplaincy of the House and Senate, as well as in the proclamation of national days of prayer and thanksgiving, and in public prayer. It is not at all difficult to find public documents and findings of the House and Senate at the time invoking Christianity in a quasi-official way.

Jefferson's letter to the Danbury Baptists surfaced once again in constitutional arguments about the First Amendment "Free Exercise" clause in 1878. In the case of Reynolds v. United States 98 U.S. 145 (1878) (which can be found here), a Mormon man appealed his conviction on the charge of bigamy on the basis that his religion required it, so that his prosecution was a violation of the Free Exercise clause of the First Amendment. As part of their argument, his lawyers cited the phrase "separation between church and state" from Jefferson's letter in support of his claim. In its decision, the Supreme Court ultimately held that this claim of religious immunity from the laws of the land must be set aside since otherwise it would amount to the freedom of every person to do as he or she wished and to excuse it on the basis of religion. That is, the Supreme Court, citing Jefferson, acknowledged that the government had no authority to interfere in matters of private belief, but held that the Free Exercise clause only governed private beliefs, not actions in violation of national laws.

Jefferson's phrase surfaced once again in 1947 in the case of Everson v. Board of Education 330 U.S. 1 (1947). In this historically important case, the U.S. Supreme Court held, on the basis of the Due Process clause of the Fourteenth Amendment (which requires that every citizen is entitled to the equal protection of the laws of the United States) that the Establishment Clause of the First Amendment does not only to the federal government, but also to the states. That is, the Supreme Court held that states were no longer free to establish churches since that would mean that the citizens of any such state would now no longer have the same rights as the citizens of another state. The Supreme Court had made a similar argument on the basis of the Due Process clause of the Fourteenth Amendment in its earlier decision in Cantwell v. Connecticut 310 U.S. 296 (1940), which established that Free Exercise clause of the First Amendment was binding on the states.

Justice Hugo Black, in his majority opinion (which can be found here) for Everson v. Board of Education, cited Jefferson's phrase "wall of separation between Church and State" in finding that
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither [the state nor Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither [the state nor Federal Government] can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'
The combination of these Supreme Court decisions on religious liberty, then, established the core of United States constitutional and case law as it existed in the middle of the twentieth century, prior to the great societal and cultural changes that took place during the decade of the 1960's. As can be readily seen, even those disputes about free exercise and the establishment which arose up to this point in time were raised in the context of the "least common denominator" of a broadly Protestant society. That is, even after the formal disestablishment of the established churches of the colonial era, the Protestant hegemony was so general at the governmental level that those churches retained substantial influence, so that these rulings of the Supreme Court had limited practical impact. In this Protestant society, it was quite natural for governmental representatives to almost unconsciously act in accord with the religious consensus, and there were few to object when they did so.

It was during the latter part of the 20th century, and particularly during the epochal decade of the 1960's, that this Protestant hegemony in government unraveled. As this unraveling took place, and as the society at large became increasingly post-Protestant, those who felt that religion was being imposed upon them by their government became more vocal with their objections. 

The Supreme Court, governed as it was by the precedents of Reynolds and Everson, continued to work out the logical consequences of these prior decisions in the increasingly pluralist United States. The first major religious liberty decision after Everson was Engel v. Vitale 370 U.S. 421 (1962), in which the Court found that it was unconstitutional for public schools to impose non-denominational prayer.

In Sherbert v. Verner 374 U.S. 398 (1963), the Supreme Court articulated a principle for adjudicating Free Exercise cases which came to be known as the Sherbert Test. The Sherbert Test was a four-fold test as to whether a state could be permitted to infringe on an individual's free exercise rights. This four-fold test involved proving
- that a person's religious beliefs are sincerely held
- that a proposed government action interferes substantially with a person's right to free exercise
- that the government is acting in pursuit of a "compelling interest"
- that the government has pursued its compelling interest in a minimally burdensome way.

Later, in Lemon v. Kurtzman 403 U.S. 602 (1971), the court expanded on the criteria elaborated in Everson to articulate three principles for determining whether proposed national legislation was constitutional with regard to Establishment Clause issues. These three principles are that the proposed legislation served a non-religious purpose, that its purpose was neither to advantage or disadvantage religion, and that its effect was not "excessive government entanglement" with religion.

The Sherman Test did not last long. In the landmark Employment Division of Oregon v. Smith 494 U.S. 872 (1990), the Supreme Court eliminated the Sherman Test, thus eliminating the requirement for strict scrutiny of proposed governmental legislation for impact on Free Exercise rights. A number of legislators seeing that the Supreme Court had, in not requiring governments to use only the least burdensome way of achieving legitimate and generally applicable governmental ends, effectively eliminated the constitutional protection of Free Exercise, passed the Religious Freedom Restoration Act of 1993, which reimposed strict scrutiny as a standard. Subsequently, the Court decided in City of Boerne v. Flores 521 U.S. 507 (1997) that RFRA was unconstitutional because it was an invasion by Congress of the Court's exclusive right to define rights protected by the Fourteenth Amendment. As a result, RFRA became applicable only to the federal government and not to states.

As the national government has become increasingly post-protestant, there has arisen an increasing large body of legislation and judicial decision which is contrary to the moral and religious principles of historical Christianity, and the situation has turned from being one of a protestant majority imposing a religion on a non-protestant minority into a secular government imposing objectionable law on what is still a substantial protestant majority.

Since the 1960's there have also been increasing incursions (judicially justified on the basis of the Establishment Clause) into the right of Christians to full use of public facilities and participation in public forums. Recent examples include decisions of colleges to deny Christian groups the right to recognition if they do not allow non-Christians to be elected as leaders.

It seems increasingly evident that what started out as an effort to protect the rights of religious (and non-religious) minorities has grown into a substantial burden on the rights of Christians to free exercise and full participation in government and public fora. It seems that many have come to understand "separation of church and state" to imply a "religion-free" public square. That is to say, many (especially militant secularists) began to argue that any expression whatsoever of religious belief in a public forum ought to be excluded on principle.

This ongoing secularist effort to exclude religion from the public square has resulted in a backlash in conservative and religious circles. One form which this backlash has taken is the formation of a number of advocacy groups with the intent of propagating a "counter-narrative" to that propagated by the aggressive secularists. The counter-narrative which these Christian groups seek to propagate is the narrative that the United States was from the beginning a Christian nation, that this Christian nation was aggressively hijacked by aggressive secularists, and that Christians must now wake up and "take back" what has been taken from them.

This backlash against overweening secularism is a badly needed correction. However, this necessary response to the efforts of those who would seek to to exclude religion from having a voice in the public square has been undermined in its effectiveness by the overly simplistic characterization that the United States was originally a "Christian nation."

It is incontrovertibly true that the United States was and is a Christian nation if by that is meant that Christianity is the professed religion of the overwhelming majority of Americans. Indeed, large majorities of Americans still claim affiliation with Christianity, even if that affiliation has little effect on their day-to-day lives. To use "Christian nation" in this sense borders on the meaningless. But it is not this sense of the term "Christian nation" that is in dispute.

On the other hand, if what is meant by the term "Christian nation" is that there is a national church, with a distinct creed and confession, of which all citizens must be members, then the United States was never a Christian nation. It is true that some of the early colonies (notably the Plymouth colony) partially satisfied this definition (although those colonies weren't "nations"), in that only members of the church were allowed to vote or could hold political office, but these colonial arrangements were only a distant memory by the time of the founding of the United States.

If what is meant by "Christian nation," though, is a nation in which it is considered entirely legitimate for Christians of various confessions to advocate for laws which suit their beliefs, for Christian lawmakers and magistrates to represent Christian views, and for governments to recognize the legitimate rights of religion without privileging one citizen's belief (or lack of belief) over another's, then in that sense, the United States indisputably was, for most of its history, and may in a limited sense still be, a Christian nation.

Which of these concepts of "Christian nation" is it that these conservative Christian groups are setting forth as that which must be "taken back" from the aggressive secularists? Too often this question is not answered with sufficient clarity by these groups, and the result is confused debate in which protagonists talk past each other, or, even worse, invest effort in defending "truths" from history which are, in fact, demonstrably untrue. In either case, the result is undesirable in that opponents are unconvinced and crucial credibility is lost with observers of the debate.

It is essential that Christians seek to defend their historical and constitutional rights to advocate for laws they believe in, and to not be required to keep their Christian confession a private matter. But in seeking to defend Christians' right to advocate for laws which comport with their beliefs, it important to remember that it would be contrary to Christianity to seek to establish a regime in which those who believe differently (or do not believe at all) would be coerced to support a religion to which they did not subscribe, or would be disadvantaged financially or legislatively, or would be excluded from either office or political representation.

Moreover, it is also important that Christians' claims to political freedom be defended on the basis of actual historical truth, not misrepresentations and falsehoods. It is too often the case that historical documents are "cherry-picked" for evidence in support of a pre-determined historical conclusions, and that any evidence contrary to the pre-determined conclusion is just ignored.

For those who would like to learn more, there are a number of helpful books and resources available which present a balanced view of the history of church/state relations and religious liberty issues in the United States. Some good examples are the following:

Butler, Jon, Grant Wacker, and Randall Balmer. Religion in American Life: A Short History. 2nd ed. New York: Oxford University Press, 2011.

Fea, John. Was America Founded as a Christian Nation?: A Historical Introduction. Louisville: Westminster John Knox Press, 2011.

Harris, Matthew L. and Thomas S. Kidd. The Founding Fathers and the Debate Over Religion in Revolutionary America. New York: Oxford University Press, 2012.

Noll, Mark A. America's God: From Jonathan Edwards to Abraham Lincoln. New York: Oxford University Press, 2012.

Smith, Steven D. The Rise and Decline of American Religious Freedom. Cambridge: Harvard University Press, 2014.

For a more legally and judicially focused background on religious liberty in the United States, see:

Alley, Robert S. The Constitution & Religion: Leading Supreme Court Cases on Church and State. Amherst: Prometheus Books, 1999

Laycock, Douglas. Religious Liberty, Volume 1: Overviews and History. Grand Rapids: Wm. B. Eerdmans, 2010.

Laycock, Douglas. Religious Liberty, Volume 2: The Free Exercise Clause. Grand Rapids: Wm. B. Eerdmans, 2011.


  1. I appreciate your brief summary of the history of separation of church and state. I think the brevity, though, contributed to some misconceptions or oversimplifications.

    It should not be supposed that separation of church and state is only a First Amendment textual issue. The principle lies deeper—in the bedrock of our Constitution—much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    To the extent that some nonetheless would like confirmation—in those very words—of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading or misuse of Jefferson’s letter to the Danbury Baptists—as if that were the only or even primary basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer—once—to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is a red herring.

    It is important to distinguish between the "public square" and "government" and between "individual" and "government" speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square—far from it. Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views--publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

    Finally, the talk of liberals and conservatives is off target. Separation of church and state is not a modern leftie-rightie concept.

    1. Thank you, Doug, for your reply. I agree with most of it.

      (1) It is historically accurate to say that it was the intent of the founders to create a national government that embodied the principle of freedom of conscience/religion and that did not privilege any religious belief system over any other. I think I would differ a little with you though in how far you are willing to press the silence of the framers as evidence that they intended to enshrine a version of separation of church and state anything near as total as that assumed by today's advocates.

      (2) I agree that the decision in Everson was not based on the Danbury Baptist letter - the Everson decision merely cited the letter in an adjunct and summary sort of way.

      (3) Yes, there is a valid distinction between "public square" and "government." That is, a representative of the government must not only represent Christian constituents.

      (4) I agree somewhat with your statement that separation of church and state is not a left-right distinction. While both left and right (with the exception of some in the religious right) would affirm the phrase, what many on the left would mean by it is somewhat different than what many on the right would mean by it. That is, I think it is fair to say that many on the left seek a religion-free public square (e.g., denial of Christian groups the right to use public school facilities, etc.) where those on the right seek merely to ensure that government does not espouse a religion or favor one religion at the expense of another.

  2. I understand the reluctance to read too much into the founders' silence. There is some logic behind the inference, I think, arising largely from the structure of the Constitution and its establishment of a government of limited, enumerated powers; the absence of enumeration of a power means something in that context.

    I just came across a book, "Secular Government, Religious People" by Lupa and Tuttle, which appears to discuss this subject in depth. I have yet to read it.