The [truth about] Separation of Church and State

In 1947, in the case Everson v. Board of Education, the Supreme Court 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.” The “separation of church and state” phrase which they invoked, and which has today become so familiar, was taken from an exchange of letters between President Thomas Jefferson and the Baptist Association of Danbury, Connecticut, shortly after Jefferson became President.

The election of Jefferson-America’s first Anti-Federalist President-elated many Baptists since that denomination, by-and-large, was also strongly Anti-Federalist. This political disposition of the Baptists was understandable, for from the early settlement of Rhode Island in the 1630s to the time of the federal Constitution in the 1780s, the Baptists had often found themselves suffering from the centralization of power.

Consequently, now having a President who not only had championed the rights of Baptists in Virginia but who also had advocated clear limits on the centralization of government powers, the Danbury Baptists wrote Jefferson a letter of praise on October 7, 1801, telling him:

Among the many millions in America and Europe who rejoice in your election to office, we embrace the first opportunity . . . to express our great satisfaction in your appointment to the Chief Magistracy in the United States. . . . [W]e have reason to believe that America’s God has raised you up to fill the Chair of State out of that goodwill which He bears to the millions which you preside over. May God strengthen you for the arduous task which providence and the voice of the people have called you. . . . And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Mediator.1

However, in that same letter of congratulations, the Baptists also expressed to Jefferson their grave concern over the entire concept of the First Amendment, including of its guarantee for “the free exercise of religion”:

Our sentiments are uniformly on the side of religious liberty: that religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, [and] that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific. . . . [T]herefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. 2

In short, the inclusion of protection for the “free exercise of religion” in the constitution suggested to the Danbury Baptists that the right of religious expression was government-given (thus alienable) rather than God-given (hence inalienable), and that therefore the government might someday attempt to regulate religious expression. This was a possibility to which they strenuously objected-unless, as they had explained, someone’s religious practice caused him to “work ill to his neighbor.”

Jefferson understood their concern; it was also his own. In fact, he made numerous declarations about the constitutional inability of the federal government to regulate, restrict, or interfere with religious expression. For example:

[N]o power over the freedom of religion . . . [is] delegated to the United States by the Constitution.Kentucky Resolution, 1798 3

In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the general [federal] government. Second Inaugural Address, 1805 4

[O]ur excellent Constitution . . . has not placed our religious rights under the power of any public functionary. Letter to the Methodist Episcopal Church, 1808 5

I consider the government of the United States as interdicted [prohibited] by the Constitution from intermeddling with religious institutions . . . or exercises. Letter to Samuel Millar, 1808 6

Jefferson believed that the government was to be powerless to interfere with religious expressions for a very simple reason: he had long witnessed the unhealthy tendency of government to encroach upon the free exercise of religion. As he explained to Noah Webster:

It had become an universal and almost uncontroverted position in the several States that the purposes of society do not require a surrender of all our rights to our ordinary governors . . . and which experience has nevertheless proved they [the government] will be constantly encroaching on if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious [effective] against wrong and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove. Of the first kind, for instance, is freedom of religion. 7

Thomas Jefferson had no intention of allowing the government to limit, restrict, regulate, or interfere with public religious practices. He believed, along with the other Founders, that the First Amendment had been enacted only to prevent the federal establishment of a national denomination-a fact he made clear in a letter to fellow-signer of the Declaration of Independence Benjamin Rush:

[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, every one perhaps hoped for his own, but especially the Episcopalians and Congregationalists. The returning good sense of our country threatens abortion to their hopes and they believe that any portion of power confided to me will be exerted in opposition to their schemes. And they believe rightly. 8

Jefferson had committed himself as President to pursuing the purpose of the First Amendment: preventing the “establishment of a particular form of Christianity” by the Episcopalians, Congregationalists, or any other denomination.

Since this was Jefferson’s view concerning religious expression, in his short and polite reply to the Danbury Baptists on January 1, 1802, he assured them that they need not fear; that the free exercise of religion would never be interfered with by the federal government. As he explained:

Gentlemen,-The affectionate sentiments of esteem and approbation which you are so good as to express towards me on behalf of the Danbury Baptist Association give me the highest satisfaction. . . . Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and 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 and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association assurances of my high respect and esteem. 9

Jefferson’s reference to “natural rights” invoked an important legal phrase which was part of the rhetoric of that day and which reaffirmed his belief that religious liberties were inalienable rights. While the phrase “natural rights” communicated much to people then, to most citizens today those words mean little.

By definition, “natural rights” included “that which the Books of the Law and the Gospel do contain.” 10 That is, “natural rights” incorporated what God Himself had guaranteed to man in the Scriptures. Thus, when Jefferson assured the Baptists that by following their “natural rights” they would violate no social duty, he was affirming to them that the free exercise of religion was their inalienable God-given right and therefore was protected from federal regulation or interference.

So clearly did Jefferson understand the Source of America’s inalienable rights that he even doubted whether America could survive if we ever lost that knowledge. He queried:

And can the liberties of a nation be thought secure if we have lost the only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath? 11

Jefferson believed that God, not government, was the Author and Source of our rights and that the government, therefore, was to be prevented from interference with those rights. Very simply, the “fence” of the Webster letter and the “wall” of the Danbury letter were not to limit religious activities in public; rather they were to limit the power of the government to prohibit or interfere with those expressions.

Earlier courts long understood Jefferson’s intent. In fact, when Jefferson’s letter was invoked by the Supreme Court (only once prior to the 1947 Everson case-the Reynolds v. United States case in 1878), unlike today’s Courts which publish only his eight-word separation phrase, that earlier Court published Jefferson’s entire letter and then concluded:

Coming as this does from an acknowledged leader of the advocates of the measure, it [Jefferson’s letter] may be accepted almost as an authoritative declaration of the scope and effect of the Amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. (emphasis added) 12

That Court then succinctly summarized Jefferson’s intent for “separation of church and state”:

[T]he rightful purposes of civil government are for its officers to interfere when principles break out into overt acts against peace and good order. In th[is] . . . is found the true distinction between what properly belongs to the church and what to the State. 13

With this even the Baptists had agreed; for while wanting to see the government prohibited from interfering with or limiting religious activities, they also had declared it a legitimate function of government “to punish the man who works ill to his neighbor.”

That Court, therefore, and others (for example, Commonwealth v. Nesbit and Lindenmuller v. The People ), identified actions into which-if perpetrated in the name of religion-the government did have legitimate reason to intrude. Those activities included human sacrifice, polygamy, bigamy, concubinage, incest, infanticide, parricide, advocation and promotion of immorality, etc.

Such acts, even if perpetrated in the name of religion, would be stopped by the government since, as the Court had explained, they were “subversive of good order” and were “overt acts against peace.” However, the government was never to interfere with traditional religious practices outlined in “the Books of the Law and the Gospel”-whether public prayer, the use of the Scriptures, public acknowledgements of God, etc.

Therefore, if Jefferson’s letter is to be used today, let its context be clearly given-as in previous years. Furthermore, earlier Courts had always viewed Jefferson’s Danbury letter for just what it was: a personal, private letter to a specific group. There is probably no other instance in America’s history where words spoken by a single individual in a private letter-words clearly divorced from their context-have become the sole authorization for a national policy. Finally, Jefferson’s Danbury letter should never be invoked as a stand-alone document. A proper analysis of Jefferson’s views must include his numerous other statements on the First Amendment.

For example, in addition to his other statements previously noted, Jefferson also declared that the “power to prescribe any religious exercise. . . . must rest with the States” (emphasis added). Nevertheless, the federal courts ignore this succinct declaration and choose rather to misuse his separation phrase to strike down scores of State laws which encourage or facilitate public religious expressions. Such rulings against State laws are a direct violation of the words and intent of the very one from whom the courts claim to derive their policy.

One further note should be made about the now infamous “separation” dogma. The Congressional Records from June 7 to September 25, 1789, record the months of discussions and debates of the ninety Founding Fathers who framed the First Amendment. Significantly, not only was Thomas Jefferson not one of those ninety who framed the First Amendment, but also, during those debates not one of those ninety Framers ever mentioned the phrase “separation of church and state.” It seems logical that if this had been the intent for the First Amendment-as is so frequently asserted-then at least one of those ninety who framed the Amendment would have mentioned that phrase; none did.

In summary, the “separation” phrase so frequently invoked today was rarely mentioned by any of the Founders; and even Jefferson’s explanation of his phrase is diametrically opposed to the manner in which courts apply it today. “Separation of church and state” currently means almost exactly the opposite of what it originally meant.

1. Letter of October 7, 1801, from Danbury (CT) Baptist Association to Thomas Jefferson, from the Thomas Jefferson Papers Manuscript Division, Library of Congress, Washington, D. C.

3. The Jeffersonian Cyclopedia, John P. Foley, editor (New York: Funk & Wagnalls, 1900), p. 977; see also Documents of American History, Henry S. Cummager, editor (NY: Appleton-Century-Crofts, Inc., 1948), p. 179.

4. Annals of the Congress of the United States (Washington: Gales and Seaton, 1852, Eighth Congress, Second Session, p. 78, March 4, 1805; see also James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897 (Published by Authority of Congress, 1899), Vol. I, p. 379, March 4, 1805.

5. Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: The Thomas Jefferson Memorial Association, 1904), Vol. I, p. 379, March 4, 1805.

6. Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), Vol. IV, pp. 103-104, to the Rev. Samuel Millar on January 23, 1808.

7. Jefferson, Writings, Vol. VIII, p. 112-113, to Noah Webster on December 4, 1790.

8. Jefferson, Writings, Vol. III, p. 441, to Benjamin Rush on September 23, 1800.

9. Jefferson, Writings, Vol. XVI, pp. 281-282, to the Danbury Baptist Association on January 1, 1802.

10. Richard Hooker, The Works of Richard Hooker (Oxford: University Press, 1845), Vol. I, p. 207.

11. Thomas Jefferson, Notes on the State of Virginia (Philadelphia: Matthew Carey, 1794), Query XVIII, p. 237.

How about Madison:

The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the TOTAL SEPARATION of the church from the State (Letter to Robert Walsh, Mar. 2, 1819).

Strongly guarded as is the SEPARATION between religion and & Gov't in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history (Detached Memoranda, circa 1820).

Every new and successful example, therefore, of a perfect SEPARATION between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together (Letter to Edward Livingston, July 10, 1822).

I must admit moreover that it may not be easy, in every possible case, to trace the line of SEPARATION between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others. (Letter Rev. Jasper Adams, Spring 1832).

Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself (Letter to Baptist Churches in North Carolina, June 3, 1811).
Madison's summary of the First Amendment:

Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform (Annals of Congress, Sat Aug 15th, 1789 pages 730 - 731).

But the existing character, distinguished as it is by its religious features, and the lapse of time now more than 50 years since the legal support of religion was withdrawn sufficiently proved that it does not need the support of government and it will scarcely be contended that government has suffered by the exemption of religion from its cognizance, or its pecuniary aid. (Letter to Rev. Jasper Adams, Spring 1832).

The settled opinion here is, that religion is essentially distinct from civil Government, and exempt from its cognizance; that a connection between them is injurious to both; that there are causes in the human breast which ensure the perpetuity of religion without the aid of the law; that rival sects, with equal rights, exercise mutual censorships in favor of good morals; that if new sects arise with absurd opinions or over-heated imaginations, the proper remedies lie in time, forbearance, and example; that a legal establishment of religion without a toleration could not be thought of, and with a toleration, is no security for and animosity; and, finally, that these opinions are supported by experience, which has shewn that every relaxation of the alliance between law and religion, from the partial example of Holland to the consummation in Pennsylvania, Delaware, New Jersey, &c., has been found as safe in practice as it is sound in theory. Prior to the Revolution, the Episcopal Church was established by law in this State. On the Declaration of Independence it was left, with all other sects, to a self-support. And no doubt exists that there is much more of religion among us now than there ever was before the change, and particularly in the sect which enjoyed the legal patronage. This proves rather more than that the law is not necessary to the support of religion (Letter to Edward Everett, Montpellier, March 18, 1823).
On Congressional chaplains and proclaimations of days of prayer:

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In the strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?
The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain! To say that his religious principles are obnoxious or that his sect is small, is to lift the veil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers or that the major sects have a right to govern the minor.

If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expense. How small a contribution from each member of Cong wd suffice for the purpose! How just wd it be in its principle! How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience! Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Gov. (Detached Memoranda, circa 1820).

I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on the private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation that the deviation from it took place in Congress, when they appointed chaplains, to be paid from the National Treasury. It would have been a much better proof to their constituents of their pious feeling if the members had contributed for the purpose a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done may be to apply to the Constitution the maxim of the law, de minimis non curat [i.e., the law does not care about such trifles].
There has been another deviation from the strict principle in the Executive proclamations of fasts and festivals, so far, at least, as they have spoken the language of INJUNCTION, or have lost sight of the equality of ALL religious sects in the eye of the Constitution. Whilst I was honored with the executive trust, I found it necessary on more than one occasion to follow the example of predecessors. But I was always careful to make the Proclamations absolutely indiscriminate, and merely recommendatory; or rather mere DESIGNATIONS of a day on which all who thought proper might UNITE in consecrating it to religious purposes, according to their own faith and forms. In this sense, I presume, you reserve to the Government a right to APPOINT particular days for religious worship. I know not what may be the way of thinking on this subject in Louisiana. I should suppose the Catholic portion of the people, at least, as a small and even unpopular sect in the U. States would rally as they did in Virginia when religious liberty was a Legislative topic to its broadest principle (Letter to Edward Livingston, July 10, 1822).

Did Madison want the Bill of Rights to apply to the states?

No state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases [Proposed amendment to make certain parts of the Bill of Rights to apply to the states].
The Congressional Record of August 17, 1789 made the following comment on Madison's proposal:

MR. MADISON Conceived this to be the most valuable amendment on the whole list; if there was any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments; he thought that if they provided against the one, it was an necessary to provide against the other, and was satisfied that it would be equally grateful to the people (from Alley, James Madison on Religious Liberty, pp. 75-76).
Madision's definition of "establishment":

One can get some idea of Madison's defintion of establishment by looking at his veto messages for certain legislation presented to him by Congress during his presidency. Generally, Madision's definition was expansive; he vetoed legislation incorporating an Episcopal church in the District of Columbia, and reserving a parcel of land for a Baptist church. Read in context, these veto messages demolish the claim that Madison would have turned a blind eye to minor religious establishments.

Veto Message, Feb 21, 1811 By James Madison, to the House of Representatives of the United States: Having examined and considered the bill entitled "An Act incorporating the Protestant Episcopal Church in the town of Alexander, in the District of Columbia," I now return the bill to the House of Representatives, in which it originated, with the following objections:
Because the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and violates in particular the article of the Constitution of the United States which declares 'Congress shall make no law respecting a religious establishment.' [Note: Madison quotes the Establishment Clause incorrectly; Constitutional scholar Leonard Levy comments on this misquoting as follows: "His [Madison's] use of "religious establishment" enstead of "establishment of religion" shows that he thought of the clause in the Frist Amendment as prohibiting Congress from making any law touching or "respecting" religious institutions or religions; The Establishment Clause, p. 119].

The bill enacts into and establishes by law sundry rules and proceedings relative purely to the organization and policy of the church incorporated, and comprehending even the election and removal of the minister of the same, so that no change could be made therein by the particular society or by the general church of which it is a member, and whose authority it recognizes. This particular church, therefore, would so far be a religious establishment by law, a legal force and sanction being given to certain articles in its constitution and administration. Nor can it be considered that the articles thus established are to be taken as the descriptive criteria only of the corporate identity of the society, inasmuch as this identity must depend on other characteristics, as the regulations established are in general unessential and alterable according to the principles and canons by which churches of the denomination govern themselves, and as the injunctions and prohibitions contained in the regulations would be enforced by the penal consequences applicable to the violation of them according to the local law.

Because the bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty [Note: both of the last paragraphs suggest that Madision did not think it was the role of government to aid even the charitable and educational aspects of religion, even non-preferentially].

Veto message, Feb 28, 1811, by James Madison. To the House of Representatives of the United States: Having examined and considered the bill entitled "An Act for the relief of Richard Trevin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory," I now return the same to the House of Representatives, in which it originated, with the following objection:
Because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares the 'Congress shall make no law respecting a religious establishment (note: Madison again misquotes the establishment clause).

Madison and religion at public universities:

I am not surprised at the dilemma produced at your University by making theological professorships an integral part of the system. The anticipation of such a one led to the omission in ours; the visitors being merely authorized to open a public hall for religious occasions, under impartial regulations; with the opportunity to the different sects to establish theological schools so near that the students of the University may respectively attend the religious exercises in them. The village of Charlottesville, also, where different religious worships will be held, is also so near, that resort may conveniently be had to them.
A University with sectarian professorships becomes, of course, a sectarian monopoly: with professorships of rival sects, it would be an arena of Theological Gladiators. Without any such professorships, it may incur, for a time at least, the imputation of irreligious tendencies, if not designs. The last difficulty was thought more manageable than either of the others.

On this view of the subject, there seems to be no alternative but between a public University without a theological professorship, and sectarian seminaries without a University.

...With such a public opinion, it may be expected that a University, with the feature peculiar to ours, will succeed here if any where. Some of the clergy did not fail to arraign the peculiarity; but it is not improbable that they had an eye to the chance of introducing their own creed into the professor's chair. A late resolution for establishing an Episcopal school within the College of William and Mary, though in a very guarded manner, drew immediate animadversions from the press, which, if they have not put an end to the project, are a proof of what would follow such an experiment in the University of the State, endowed and supported, as this will be altogether by the public authority and at the common expense (Letter to Edward Everett, Montpellier, March 18, 1823).

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