Criticism

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.”9 (Links to an external site.)Links to an external site. 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.10 (Links to an external site.)Links to an external site. 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 [1947]. 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.11 (Links to an external site.)Links to an external site.