by Albert Menendez and Edd Doerr
We hear a great deal about separation of church and state today,
especially from those who revile the concept, regard it as somehow foreign
or un-American, and want to replace it with some form of official or
unofficial cooperation between religious groups and government. So it is
now time to take a fresh look back at how the concept evolved and became
an essential part of American law and culture.
The concept of separation evolved during the seventeenth and eighteenth
centuries from two movements.
The Enlightenment view, so ably expounded by people like John Milton and
John Locke, emphasized liberty of conscience in religious matters and implied
a minimum of state involvement with religion.
As early as 1644 Milton affirmed in his Areopagitica, "Give me the
liberty to know, to utter, and to argue freely according to conscience, above
all liberties." In 1689 Locke observed in A Letter Concerning Toleration,
"I esteem it above all things necessary to distinguish exactly the business
of civil government from that of religion and to settle the just bounds that
lie between the one and the other." Roger Williams, religious reformer,
gadfly, and founder of the Rhode Island colony, was a contemporary of
Milton and Locke. In his 1644 book, The Bloudy Tenet of Persecution,
Williams wrote, "Enforced uniformity confounds civil and religious liberty
and denies the principles of Christianity and civility. No man shall be
required to worship or maintain a worship against his will."
Then there was what can roughly be labeled the antiestablishment or
disestablishment movement, which began among religious dissenters in the
American colonies. This movement sought a purely voluntary religion and
crystallized its sentiments in opposition to obligatory ties to an
established church. Writes historian William G. McLoughlin, "The history
of separation of church and state in Massachusetts from 1692 to the
Great Awakening is a story of how the Quakers, Baptists, and Anglicans
fought, each in their own way, to establish their right to exemption from
paying compulsory religious taxes for the support of the Congregational
churches."(1)
Hence, a kind of rationalist-pietist alliance achieved the legal
recognition of separation as a vital guaranty of religious liberty.
McLoughlin says, “There were two or perhaps three different theories
of church-state relations at work among those who advocated separation.
The view of Madison, Mason, and Jefferson, as expressed in the great
debates over this issue in Virginia, has been assumed to be the primary
or fundamental one. Most historians and most recent decisions of the
U.S. Supreme Court have drawn on the eloquent and logically consistent
reasoning of these learned, latitudinarian Anglicans and deists in
defining the traditions of separation. . . . The pietists wanted
separation in order to keep religion free from interference by the
state. The deists wanted separation in order to keep the state free
from interference by religion."(2)
This new understanding of church-state relationships won the support
of conservative Baptists, such as Isaac Backus, and liberal humanists,
such as Thomas Paine. In his 1773 Appeal to the Public for Religious
Liberty Backus proclaimed, "Religious matters are to be separated
from the jurisdiction of the state not because they are beneath the
interests of the state, but, quite to the contrary, because they are
too high and holy and thus are beyond the competence of the state."
Just three years later Thomas Paine reached a similar conclusion in
Common Sense when he observed, "As to religion, I hold it to be
the indispensable duty of government to protect all conscientious
professors thereof, and I know of no other business which government
has to do therewith."
Between 1775 and 1791 Americans conceived, fought for, and established
a new nation. This new nation, as Thomas Jefferson explained in the
Declaration of Independence in 1776, was based on the proposition that
all persons are created equal, that they have inherent natural rights
to "Life, Liberty, and the Pursuit of Happiness," that "to secure these
rights, Governments are instituted among Men, deriving their just powers
from the consent of the governed," and that "it is the Right of the
People to alter or abolish" any form of government that does not secure
the rights of the people.
In 1787, having won by force of arms their independence from Great
Britain, representatives of the states met in Philadelphia to create a
workable federal government. They planned a limited government of
delegated powers only; one which implemented, though imperfectly,
the principles of the Declaration. The purposes of the new government,
spelled out in the Preamble to the Constitution, were to "establish
Justice, insure domestic Tranquility, provide for the common defense,
promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity."
The people of the United States had fought six long years for their
political independence, and had also in the several states deliberately
moved away from the European and earlier colonial models of church-state
union and religious intolerance. As a result their representatives in
Philadelphia carefully avoided granting the new government any power
or authority whatever to meddle with or involve itself with religion.
The Constitution they created limited the federal government to purely
secular matters. Further, Article VI of the Constitution, in an
important departure from colonial practice, stipulated that "no
religious test shall ever be required as a qualification to any office
or public trust under the United States." The same article also
prohibited mandatory oaths, by providing that all members of the
executive, legislative, and judicial branches "both of the United
States and of the several states" may be bound by either an "oath or
affirmation" (italics supplied) to support the Constitution.
Thus the Constitution implies the principle of separation of church
and state. This its principal architect, James Madison, and the
Declaration's author, Thomas Jefferson, had championed and had seen
enacted into law in Virginia only a short time before the Philadelphia
convention. Indeed, Madison had spelled out the rationale for the
separation principle in his 1785 Memorial and Remonstrance,
a short treatise aimed at securing passage of Jefferson's Act for the
Establishment of Religious Freedom in the Virginia legislature.
Although the new Constitution represented the greatest single
advance in the long evolution of democracy and freedom, it was viewed
by many, including Jefferson, as containing a serious defect, the
absence of an explicit bill of rights. Ratification of the new charter
of government hinged on the promises of politicians to add a bill
of rights to the Constitution as soon as possible; promises carried
out by the First Congress, which in 1789 proposed amendments which
were ratified by the states by the end of 1791.
The First Amendment provides that "Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof."
President Jefferson, writing to the Danbury Baptist Association
in Connecticut on January 1, 1802, in a letter in which he had given
a great deal of thought and which he cleared through his attorney
general, stated, "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."
From that day until this most Americans and their courts of law
have agreed with Jefferson's view, and the separation principle
has enabled the United States to achieve the world's highest levels
of individual religious freedom, religious pluralism, and interfaith
peace and harmony. The history of our country and of the world has
amply demonstrated the inestimable value of this principle and the
genius of those who developed it.
Church-state separation, incidentally, complements and supplements
those other great American contributions to freedom and democracy;
the principles of federalism, separation of powers, and checks and
balances. All of these arrangements are intended to block excessive
concentrations of power.
Separation continues to inform the judicial process when religious
questions reach the civil jurisdiction. As early as 1872 the U.S.
Supreme Court affirmed this: "The structure of our government has,
for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it
has secured religious liberty from the invasion of the civil
authority."(3)
State courts have been no less vigorous in affirming this separation.
In 1918 the Iowa Supreme Court observed, "If there is any one thing
which is well settled in the policies and purposes of the American
people as a whole, it is the fixed and unalterable determination
that there shall be an absolute and unequivocable separation of
church and state."(4)
And in 1938 the New York Supreme Court declared, "In all civil
affairs there has been a complete separation of church and state
jealously guarded and unflinchingly maintained."
(5)
It should come as no surprise that 35 state constitutions
explicitly affirm separation of church and state, and the others
do so implicitly. Even the Commonwealth of Puerto Rico’s constitution,
approved by the U.S. Congress in 1952, states firmly, "There shall
be complete separation of church and state."
(6)
Several American theologians and historians have acclaimed the
implementation of church-state separation as a major advance for human
freedom. James Luther Adams, a Unitarian theologian at Harvard Divinity
School, wrote, "The demand for the separation of church and state and
the emergence of the voluntary church represent the end of an old era
and the beginning of a new one. The earlier era had been dominated by
the ideal of 'Christendom,' a unified structure of society in a
church-state. In the new era the voluntary church, the free church,
no longer supported by taxation, was to be self-sustaining; and it
was to manage its own affairs. . . . In this respect the freedom of
choice was increased. The divorce of church and state and the advent of
freedom of religious association illustrate this type of increase in
freedom of choice."(7)
Leo Pfeffer, the dean of church-state lawyers, observed a quarter
century ago, "Before the launching of the American experiment, the
concept of religious liberty and the separation of church and state
was - for all practical purposes - unknown. The experiment was a
uniquely American contribution to civilization and one that the
other countries of the world in increasing numbers have emulated
and are continuing to emulate. The principle of separation and
freedom was conceived as a unitary principle. Notwithstanding
occasional instances of apparent conflict, separation guarantees
freedom, and freedom requires separation. The experiences in other
countries indicate clearly that religious freedom is most secure
where church and state are separated, and least secure where
church and state are united."(8)
A century ago evangelical historian Phillip Schaff reflected
on the meaning of separation in his 1888 book, Church and
State in the United States. He wrote, "The relationship of
church and state in the United States secures full liberty of
religious thought, speech, and action. Religion and liberty
are inseparable. Religion is voluntary and cannot be forced.
The United States furnishes the first example in history of
a government deliberately depriving itself of all legislative
control of religion."
As they have enforced separation of church and state, the
courts have come under increasing attack in recent years from
certain sectarian special interests. But Americans who know
something about their history and who cherish religious
freedom should applaud these decisions. Our courts are
reaffirming the best of our traditions when they preserve
a central principle of American jurisprudence.
This article originally appeared in the September/October
1999 issue of Liberty magazine. Al Menendez is associate
director and Edd Doerr is president of Americans for Religious
Liberty.
End notes
- William G. McLoughlin, Soul Liberty: The Baptists’ Struggle in New England, 1630-1833 (Hanover, N.H.: University Press of New England, 1991), p. 251. go back to the article
- Ibid., p. 245. go back to the article
- Watson v. Jones, 13 Wallace 730 (1872). go back to the article
- Knowlton v. Baumhover, 182 Iowa 691,166 N.W. 202, 5 A.L.R. 841 (1918). go back to the article
- Judd, et al. v. Board of Education 15 N.E. (2d) 576 at 581, 582 (1938). go back to the article
- Edd Doerr and Albert J. Menendez, Religious Liberty and State Constitutions (Buffalo, N.Y.: Prometheus Books, 1993), p. 104. go back to the article
- James Luther Adams, On Being Human Religiously (Boston, MA: Beacon Press, 1976), p. 65. go back to the article
- Leo Pfeffer, Church, State and Freedom (Boston, MA: Beacon Press, 1967), p. 727. go back to the article
