Separation of church and state has long been viewed as a cornerstone of American democracy. At the same time, the concept has remained highly controversial in the popular culture and law. Much of the debate over the application and meaning of the phrase focuses on its historical antecedents. This article briefly examines the historical origins of the concept and its subsequent evolutions in the nineteenth century.
Religion and Government are certainly very different Things, instituted for different Ends; the design of one being to promote our temporal Happiness; the design of the other to procure the Favour of God, and thereby the Salvation of our Souls. While these are kept distinct and apart, the Peace and welfare of Society is preserved, and the Ends of both are answered. By mixing them together, feuds, animosities and persecutions have been raised, which have deluged the World in Blood, and disgraced human Nature.
John Dickinson, one of the Founding Fathers, wrote the above statement in 1768 on the advent of the American Revolution. As a Pennsylvanian, Dickinson was not criticizing his colony’s religious establishment (there was none); rather he was commenting on one of the rising issues of the day: the proper relationship between religion and government in a society that increasingly identified with the principles of natural rights and rationalism originating in the Enlightenment. The immediate context was a controversy over a proposal to appoint the first American bishop of the Church of England, the presumptive established church for the British American colonies. At the time, religious establishments—that is, government support for “public ministers” and houses of worship through forced taxation or “assessments”—existed in nine of the thirteen colonies, but the Anglican Church was only dominant in four southern colonies. Colonialists living in the remaining colonies—those residing in colonies without establishments as well as those in colonies with “multiple” establishments that favored dissenting sects such as Congregationalists, Presbyterians, and Dutch Reformed—feared that a domestic Anglican bishop would not only increase the power of the Anglican Church at the expense of other Protestant bodies, but also would threaten the civil and religious liberties that the colonialists had grown to expect over 150 years of benign neglect.
Even before the political crisis arose in 1765, these Americans overwhelmingly identified with the opposition Whigs in England, who criticized the corruption and authoritarianism of the established church. As patriots raised claims of political liberty in those formative years, matters of religious liberty and conscience were also on their minds.
Scholars of American religion have long debated whether and to what extent religion served as an “energizing propulsion” for the American Revolution and informed the political principles that underlie the nation’s founding documents. Unquestioningly, however, matters of religious liberty were of great concern to the founding generation, though they were secondary to the more pressing issues of military success and national unity. As the new states organized their governments and experimented with various models of representative democracy, they also addressed questions about the appropriate relationship between religion and government. The change that transpired over a short period was truly remarkable. In fifteen years, after the onset of the American Revolution, the number of religious establishments was effectively reversed with ten of fourteen states (now including Vermont) either disbanding their establishments or declining to enact legislation to support their previous systems. Most states also liberalized rules that had imposed political disabilities (e.g., public office holding) on dissenting groups. At the national level, the authors of the Constitution inserted a ban on any religious test for public office holding, while the First Congress drafted a constitutional amendment prohibiting a religious establishment and protecting the free exercise of religion. By the time the last state (Massachusetts) disestablished in 1833, a phrase had arisen to represent the distinctly American pattern of church-state relations: separation of church and state.
Separation of church and state has been part of the nation’s legal and cultural nomenclature since the early 1800s. Judges, politicians, educators, and even religious leaders have embraced church-state separation as central to church-state relations and a cornerstone of American democracy. The Supreme Court first employed the term “separation of church and state” in 1879 as shorthand for the meaning of the First Amendment’s religion clauses, stating “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment.” To this day, most Americans support the principle of church-state separation as one of the hallmarks of American government. Although the phrase is not found in the Constitution, no organizing theory has had a greater impact on the way Americans conceptualize the intersection of religion, culture, and politics than the principle of church-state separation.
Despite its inclusion in the pantheon of democratic virtues, separation of church and state did not become constitutional canon until the mid-twentieth century with incorporation of the Bill of Right to the states through the Fourteenth Amendment. In the modern Court’s first Establishment Clause holding, (1947), Justice Hugo Black wrote:
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 can pass laws which aid one religion, aid all religions, or prefer one religion over another […] 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 […] 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.”
For approximately fifty years, separation of church and state was the touchstone for church-state jurisprudence, endorsed by liberal and conservative justices alike. Particularly in the earlier years, justices opined that the separation must be “absolute,” “uncompromising,” “high and impregnable,” and “complete and permanent,” although the rhetoric was usually more absolute than the ultimate holdings. (In fact, in Everson, the Court upheld the state reimbursement of transportation expenses for children to attend parochial schools.) While some judges and lawyers may have disagreed with the Court’s rhetoric, few contested the underlying principle.
The pedigree of separation of church and state says little about its content, however. Like judges, many Americans have disagreed about what the principle means in practice. For some, it means that religious bodies have no official status or formal role in the government, such that each institution acts independently of the other. The government may not maintain a state religion, directly finance religious activities, or coerce actions either on behalf of or against religion. Beyond these core prohibitions, however, the government has significant leeway to interact with religion: it may acknowledge religious traditions and customs, use religious symbols and discourse in ecumenical ways, and financially assist activities of religious bodies that advance the commonweal. The Constitution does not prohibit communal expressions of faith, such as prayers in legislative halls or on public school football fields. This view also permits the government to facilitate private religious activity as a means of enhancing the religious liberty right contained in the Free Exercise Clause. Here, separationism becomes the rationale for protecting the independence of religious institutions, such as by preventing civil courts from adjudicating internal church disputes and affording religious bodies broad discretion over employment matters. Under this perspective, the superior value inherent in “separation” is the goal of minimizing government interference with religious actions and choices. One could term this a minimalist view of church-state separation.
The more familiar understanding of separation of church and state, however, has been the so-called “strict separationist” position, represented in the above language from the Everson decision. This perspective is weighted toward the nonestablishment side of the religion clauses, and it advocates a broader understanding of separation to ensure that all government functions remain secular. The government may not encourage religious fealty, support religious institutions financially or otherwise, or use religious means to accomplish public policy. In practical terms, this has meant prohibiting public school–sponsored religious expression, disallowing government financial aid to religious schools and charities, prohibiting the government’s use of religious symbols and discourse, and reducing if not eliminating regulatory exemptions for religiously based conduct. From the late 1940s to the late 1980s, the Supreme Court adhered to the stricter separationist position, striking prayer and Bible reading in the public schools, barring most funding of parochial schools, and striking the government’s display of the Ten Commandments and other religious symbols.
A controversial tablet displaying the Ten Commandments, located on the grounds of the Texas State Capitol in Austin, TX. Courtesy of the Office of the Texas Attorney General.
Criticism of the modern Court’s separationist approach has existed since the 1940s, but gained momentum as a result of the resurgence of conservatism during the 1980s and the appointment of constitutional conservatives to the Supreme Court. Today, it is not uncommon for religious, legal, and cultural conservatives to criticize the concept of church-state separation. Critics charge that a separationist perspective imposes a regime of secularism, one that is not neutral toward religious matters but that privatizes and marginalizes religion. Yale law professor Stephen L. Carter argued that the separationism promoted “a culture of disbelief,” while Catholic theologian Richard John Neuhaus claimed that it created a religiously “naked public square.” Such critics have argued that a minimalist view of church-state separation is more consistent with our history, the intent of the framers of the First Amendment, and constitutional doctrine.
More recently, a group of scholars has challenged the historical bona fides of separationism, arguing that the concept was not only foreign to members of the founding generation, but also that it emerged in the nineteenth century as a means to maintain Protestant dominance at the expense of Catholics and other religious minorities. In this telling, church-state separation is a profane and illiberal concept. Even Supreme Court justices now criticize the doctrine, not just their predecessors’ interpretation of it. Now the church-state decisions do not include laudatory references to separation, and they often express open hostility to the concept. Former Chief Justice William Rehnquist wrote: “There is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in . No amount of repetition of historical errors in judicial opinions can make the errors true.” And more recently, Justice Antonin Scalia criticized lawyers for making allusions to the “so-called ‘wall of separation between church and state.’” Separation of church and state, it seems, remains controversial.