On the First Amendment: The Establishment Clause
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” First Amendment, United States Constitution
(For Constitutional context, read our treatise on Essential Liberty, the essay “To secure these rights…” on The Bill of Rights, and “A Living Constitution” for a Dying Republic. For additional resources, see The Patriot's Topical Essays page and our Historic Documents page.)
“The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects.” –Justice Joseph Story
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
These sixteen simple words in the Constitution of the United States have a unique place. Together they constitute a principle our nation's Founders deemed so important that these two phrases, known as the Establishment and Free Exercise Clauses, respectively, became the first lines of the First Amendment of the Bill of Rights – the principle (though not exhaustive) enumeration of inalienable rights deemed so essential to liberty that they should be named explicitly in the Constitution, to be protected by it.
Yet, for something so essential, the rights named in these two phrases have been subject to scrutiny out of all proportion to their sixteen meager words. What did the Founders intend for the relationship between church and state, belief and government, to be? Is there, as Thomas Jefferson suggested in his letter to the Danbury Baptists, a “wall of separation” between the two? In short the answer is yes. But to extend the wall metaphor, a simple “yes” does not answer how high or impenetrable that wall is, what are its contours, or if it contains gates whereby religion and the state may interact. To bring any clarity to these issues, the history and context of the American founding must be accounted for.
The New World's original colonists, especially the Puritans, came to the New World to flee the religious persecution of the Old, which intensified under James I and Charles I of England, following the more tolerant rule of Elizabeth I. With some exceptions, the American colonies would become havens for Europe's persecuted religions. Not limited to Puritans, those fleeing persecution later would come to include Roman Catholics, Quakers, Anabaptists and Jews. It is, however, the Puritan situation that forms the historical context for the First Amendment.
The special quality of the Puritan's persecution is that it was not simply religious persecution at the hands of the state. It was religious persecution at the hands of the state indirectly, by means of the Church of England, the official church of the state. Later, persecution was carried out by the state directly, prompted by the hierarchy of the Anglican Church.
Significantly, Puritanism did not originate as a separatist movement from the Church of England, but as an effort to purify the church from residual elements of Roman Catholicism and to confirm it in the doctrines laid out in the Westminster Standards. Only when the state church and the state directly began to persecute the Puritans did they become a dissident movement, by default. As the Puritans came to understand, the official nature of the Church of England allowed it to pursue its theological claims against the Puritans in the civil sphere of the state. This state association and Anglicanism's theological shortcomings, they perceived, were far from separate problems.
Eventually, Puritanism's critique of England's church-state relations would be enshrined in changes to the Westminster Confession itself – the confessional document that Puritans and Anglicans together wrote in 1646. The most significant changes to the “American version” of Westminster appeared in revisions to Chapter XXII, “Of the Civil Magistrate.”
The original, English version proclaimed that the civil magistrate “hath authority, and it is his duty to take order, that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administered, and observed. For the better effecting whereof he hath power to call synods, to be present at them, and to provide that whatsoever is transacted in them be according to the mind of God.” This statement allowed the English state to persecute Puritans and others at the insistence of the Anglican Church.
The Synod of the Presbyterian Church in the United States, meeting in Philadelphia in 1787, adopted the following changes to Chapter XXII, reflecting their desire to limit the intrusions of the state into matters of faith. Not only did the American Revision to Westminster seek to protect the Presbyterian church from government inference, but those of all faiths – “religion or infidelity”:
“Civil magistrates may not … in the least, interfere in matters of faith. Yet as nursing fathers, it is the duty of civil magistrates to protect the Church of our common Lord, without giving the preference to any denomination of Christians above the rest, in such a manner that all ecclesiastical persons whatever shall enjoy the full, free, and unquestioned liberty of discharging every part of their sacred functions, without violence or danger. And, as Jesus Christ hath appointed a regular government and discipline in his Church, no law of any commonwealth should interfere with, let, or hinder, the due exercise thereof, among the voluntary members of any denomination of Christians, according to their own profession and belief. It is the duty of civil magistrates to protect the person and good name of all their people, in such an effectual manner as that no person be suffered, either upon pretence of religion or infidelity, to offer any indignity, violence, abuse, or injury to any other person whatsoever: and to take order, that all religious and ecclesiastical assemblies be held without molestation or disturbance.”
Notably, the Presbyterian Synod was meeting in Philadelphia at the same time as the Constitutional Convention was completing its work on the new Constitution, which would embody the same principle of separation of church and state in its First Amendment. The following year, 1788, both the new Constitution and the revised Westminster Standards would be ratified.
The separation upon which both documents insist does not, however, imply non-recognition of Christianity: The First Congress, which passed the First Amendment to the Constitution, instituted the practice of opening their sessions with prayer, and voted to hire a congressional chaplain for the purpose. This same Congress appropriated funds for Christian missions to the Indian territories.
Given these practices, it is apparent that the originators of the First Amendment understood the Establishment Clause in the narrowest possible sense: The federal government could not establish or subsidize a national religion. If funding Christian missions in Indian lands was consistent with the First Congress's intent in the First Amendment – after all, this was funding for religion, not an established religion – then perhaps the First Amendment's supporters were not narrow enough in their intent. After all, nowhere does the Constitution authorize the federal government to support religious or charitable works at all!
Nevertheless, given the context in which the First Amendment came to be – colonists who had experienced persecution at the hands of state by means of the state church – the Establishment Clause can be interpreted rightly to mean that the church is to be protected from the state and the state is to be protected from the church. On the latter, more specifically we can say that a state church becomes a threat to both the republican function of the state as well as threat to other, unofficial churches and religions. Certainly this was Thomas Jefferson's intent when he argued for “a wall of separation between church and state.”
Some have used Thomas Jefferson's response to the Danbury Baptist Association of Connecticut – that there exists “a wall of separation between church and state” – to be a Jeffersonian idiosyncrasy. The wall metaphor, after all, is unique. Only Jefferson used it, and he used it only once. Rarely, however, do critics pause to consider the Danbury Baptists letter to Jefferson that provoked the new president's famous response. Such an examination reveals that the Danbury Baptists themselves are advocating the very concept of religious liberty that Jefferson embraced:
“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 – That the legitimate Power of civil government extends no further than to punish the man who works ill to his neighbor.”
Claiming their commitment to religious liberty in a pluralist society, the Danbury Baptists go on to complain about their lack of it. In Connecticut, which still retained an established religion, their religious liberties were granted as special dispensations from the state and not held as inalienable rights:
“Religion is considered as the first object of Legislation; and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen.”
Accordingly, Jefferson responded on 1 January 1802:
“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & 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 & 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.”
For Jefferson, the metaphorical wall between church and state exists foremost for the protection of the church from the state, as with the predicament of the Danbury Baptists. Jefferson's words echoed the ideas of John Leland, a Baptist minister and a close friend, who was one of the most significant influences upon Jefferson's thinking on church-state relations. For Leland, religious liberty was a necessary part of Lockean social-contract theory, where individuals covenant with one another in the formation of the state. Leland asks:
“Does a man, upon entering into social compact, surrender his conscience to that society, to be controlled by the laws thereof; or can he, in justice, assist in making laws to bind his children's consciences before they are born? Every man must give an account of himself to God, and therefore every man ought to be at liberty to serve God in a way that he can best reconcile to his conscience. If government can answer for individuals at the day of judgment,” says Leland, “let men be controlled by it in religious matters; otherwise, let men be free.”
Leland's conclusion to his argument for religious liberty would be paraphrased by Jefferson in the election of 1800, when as the Republican candidate for president he wrote that for him, it mattered not if a neighbor believed in “one God, three Gods, no God, or twenty Gods.” As Leland put it originally, “Let every man speak freely without fear, maintain the principles that he believes, worship according to his own faith, either one God, three Gods, no God, or twenty Gods: and let government protect him in so doing.” In the words of American religious history scholar Frank Lambert, for Leland and Jefferson, “Only religious error needs government protection.”
(A complete account of Jefferson's letter to the Danbury Baptist, including Jefferson's recently restored first draft of the letter, can be read here.)
Nor is the argument behind the Establishment and Free Exercise Clauses made by Leland, Jefferson and others out of keeping with biblical Christianity. One of the early 20th century fundamentalists (when “fundamentalism” meant “fundamentals of Christianity”), J. Gresham Machen, argued for church-state separation and a religiously tolerant, pluralist society on the grounds of the purity of the church. Machen voiced stringent opposition to mandatory prayer in schools and character education (which first came into vogue in the 1920s and 30s) on the grounds that such practices trivialize real and serious differences in theology, be it Protestant, Roman Catholic or Jewish. Christianity, Machen urged, is about redemption, not some nebulous notion of “moral instruction.” Ultimately, these practices in the schoolroom do not exalt religion in the public sphere, but make a mockery of it. Even fundamentalism's great critic, H.L. Mencken, came to realize, “Religion, if it is to retain any genuine significance, can never be reduced to a series of sweet attitudes, possible to anyone not actually in jail for felony.”
Unlike Machen (or even Mencken), today too few evangelicals have paused to ask the question, “Do we really want the members of the National Education Association leading our children in daily prayer? To whom (or to what), exactly, will they be praying?” This is only one instance where the Separation Clause can be employed to protect the church from the state. As Machen recognized, the problem is not why we cannot have prayer in public schools, but why we have public schools at all. When the state oversteps its constitutionally prescribed bounds, such as in establishing a Department of Education and a public school system, church-state separation is only one of the problems that ripple outward into society.
Ultimately the constitutionality and rightness of a strict separation between church and state benefits the church in the free exercise of religion. In other words, the Establishment Clause is included for the protection of the Free Exercise Clause. In the introduction to his book, That Godless Court? Supreme Court Decisions on Church-State Relations (2nd edition), Texas Christian University Professor Ronald B. Flowers states the idea as such:
“I am both a professor of religion, now retired, and a committed church person. I am also a rather strict separationist in my view of church-state relationships. I am convinced that the Constitution demands substantial separation between religion and civil authority and, at the same time, mandates that religious freedom should be unfettered, limited only by the necessity of maintaining peace and order in society. Such a relationship is of benefit both to the state and to religion. Strict separation is not hostile to religion, as many have claimed, but will provide the best conditions for religion to flourish. Indeed, by keeping government out of religion, separation is best seen as a way to maximize the free exercise of religion.”
The separation between church and state that the Founders envisioned is substantial, but never hostile. After all, even the atheist Jefferson would not allow his disbelief to turn to hostility to religion, which he knew to be inextricably bound to liberty. “And can the liberties of a nation be thought secure when we have removed their 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?” he asked. “Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever.”