The following is based in overwhelmingly large part from an excellent post by Stephen Mansfield, Author, Speaker, and Consultant, on the misunderstanding and application of the oft quoted metaphor – “the wall of separation between church and state” – in excluding non-secular religious expression from the public square.
Although this metaphor was only found in 2 documented cases in the Supreme Court’s history before 1947 and rarely in daily conversations, it has become household expression that is grossly misunderstood and applied.
I would like for us to consider the usage of this metaphor in a historically altering case for the U.S. in 1947 and how it was misapplied then and today. Afterwards we’ll briefly delve into its historical context to better grasp what was meant by the person who originally penned it, Thomas Jefferson.
Everson v. Board of Education
In 1947, the Supreme Court heard the case between Everson v. Board of Education. This case originated with the complaint of New Jersey citizen, Arch Everson, who filed suit against the Board of Education for providing payment for transportation for students attending Catholic Schools. His brought suit against the Board because his tax dollars were in a sense supporting the Catholic Church.
After suffering losses at the NJ Court and Appeals, Mr. Everson then took his case up with the Supreme Court.
Here is what Stephen had to say about the decision the Supreme Court reached and the impact that it had upon the law of the land.
The unanimous decision of that court was one of the most astonishing in the nation’s history. After providing a lengthy survey of the founding generation’s religious opinions, the court concluded, “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.” Specifically, neither the federal government nor a state would be permitted to aid religion in any form nor levy a tax in any amount—“large or small”—to support religion.
What I find astonishing, is that after making this decision, “the court then ruled that the Township of Ewing could continue the practice of reimbursing the transportation costs of parochial school parents.”
Did the Supreme Court make the right decision?
How the Supreme Court Got it Wrong in 1947
The decision reached by the court in erecting an impregnable wall in matters of religion and state is deplorable for several reasons. Listen to these words from Stephen:
The decision was lamentable not only for its inconsistency but for its violence to history. For example, the court made Jefferson’s “wall of separation” metaphor the very meaning of the establishment clause of the First Amendment.
Stephen is not the only one that has considered this. There are countless others that have done the same. For additional information, I would recommend David Barton’s Original Intent: The Courts, the Constitution, and Religion.
What would Thomas Jefferson Think?
In determining how to apply a historical document, such as Thomas Jefferon’s Letter to the Danbury Baptists, it is important to understand what was written, who was it written, and why was it written.
First off, the Danbury Baptists wrote then President Jefferson out of concern of losing their “inalienable right” of religious freedom. In other words, they were concerned that the government would establish a particular denomination of Christianity, say Presbyterianism, which means they would be inhibited from being Baptist. It is in response to these concerns that Jefferson responded.
Besides, as Stephen Mansfield points out,
…Jefferson’s phrase was not even penned until more than a decade after the First Amendment was drafted and it never appeared in the debates that produced the First Amendment. Clearly, the words were not part of the thinking of the framers. Nevertheless, the court’s ruling made Jefferson’s metaphor from his famous Danbury Letter the law of the land.
What is more, if we were to consider Jefferson’s position on the relationship of church and state, it was one that is much more positive than what is proposed today.
Consider these examples
What Would Thomas Jefferson Do?
For those that utilize Jefferson’s words to the Danbury Baptist as a means of justifying the exclusion of Christianity from the public square, I figured we would see similar actions in Jefferson’s own life. However, this is not the case at all.
Check this out:
It was Jefferson, after all, who attended a makeshift church throughout his administration—one that met on the floor of the House of Representatives. It was Jefferson who approved federal funding for a Catholic priest to serve the Kaskaskia Indians. And it was Jefferson who facilitated Christian worship at his fledgling University of Virginia. Clearly, his vision of church and state was far removed from that of the Supreme Court in 1947. Moreover, Jefferson would never have applied the restrictions of the Establishment Clause, however interpreted, to the states, for as he said in his Second Inaugural, he had never as president prescribed “religious exercises” but rather had “left them, as the constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies.”
Yes, this is small sampling, but I believe it gives us enough fodder to reconsider the dogmatic positions of those that force a position that Jefferson did not believe nor practice.
Opinions from Around the Court
More people than Stephen Mansfield are acknowledging the grave error the court made in 1947. Listen to the words of other Judges, as quoted in Stephen’s post.
Thankfully, wiser voices have called for a more helpful tool than Jefferson’s figure of speech. Chief Justice Burger complained, for example, that “the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship”
Utah Supreme Court Justice Dallin Oakes, noting that the Court in Everson allowed buses to take children to religious schools but that other courts denied the legality of school prayer, wryly protested, “Certainly there is something anomalous about a wall that will admit a school bus without the ‘slightest breach,’ but is impermeable to a prayer . . . The metaphor is not an aid to thought and it can be a positive barrier to communication.”
And Justice William Rehnquist, complaining that the Supreme Court’s use of Jefferson’s metaphor has resulted in rulings that “have been neither principled nor unified,” has concluded that the phrase “wall of separation between church and state” is a “failed metaphor” which is “based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
This is just a small sampling of a growing pool of naysayers.
[Question: Does this change your opinion on this metaphor? Why or why not?]
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