“Separation of Church and State” A Baptist Understanding.

July 11, 2013

by Ronnie Rogers

“Wall of separation” is the exact phrase used by Thomas Jefferson in his letter to the Danbury Baptists, whereas “separation of church and state” is the popular phraseology. My use of these phrases in this article should not be construed in any way as an endorsement of either agreeing with them or using them. I actually argue for Christians to disabuse ourselves from using them as a gloss of the First Amendment. For when it is so used, it is at best a tawdry and misleading replacement of the amendment’s beautiful words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” I use it only because the article necessitates that I do.

In the 1947 Everson v. Board of Education case (1947 – 330 U.S.1), the Supreme Court applied the establishment[1] clause to the states. It also imbued this guarantee with a firm Separationist reading. Justice Hugo Black’s words for the Everson majority proved a prophetic distillation of the establishment cases for the next four decades. He 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….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.”[2] (italics added)

The Separation model is based upon application of the First Amendment to all of public life, via the due process part of the Fourteenth Amendment.  As explained in The Heritage Guide to the Constitution, the Fourteenth Amendment was drafted in response to President Andrew Johnson’s veto of the Civil Rights Act of 1866. When Congress voted to overturn that veto, they wrote an amendment to the Constitution that would be protected from legislative action. “Congress had drafted the act to overturn the effects of the infamous ‘Black Codes’ enacted by the reconstituted Southern state governments in 1865 and 1866 under President Johnson’s Reconstruction policies. Those codes limited in important ways the basic civil rights of the freed slaves to contract, to own property, and to sue. To stop these evils, the Civil Rights Act of 1866 provided: ‘That all citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other.'”[3]

Thus, Justice Hugo Black elevated Jefferson’s ‘wall of separation’ “to [an] authoritative gloss on the First Amendment religion provisions by rephrasing it and conflating the first and fourteenth amendment.”[4] This ruling provided legal recourse for excessively and unconstitutionally delimiting the theretofore freedom and influence of religion in all American culture. The problem with the metaphor is threefold. First, it is inadequate to completely and accurately capture the language of the First Amendment. Second, Black de-historicized[5] the phrase and thereby distorted its original meaning. Third, while he relied upon Jefferson’s metaphor, he expanded the applicability of it and the First Amendment beyond what Jefferson intended and thereby reconceptualized the First Amendment.

I think that while most people are aware of Jefferson’s use of the phrase “wall of separation” in a letter to the Danbury Baptists, they are unaware of the historical background. Baptists had worked closely with Jefferson in Virginia for full religious liberty and as a group were very supportive of his presidency because of their mutual commitment to religious liberty. Jefferson was not only well aware of the Baptists’ insistence upon complete religious liberty of conscience, he embraced it. His letter was actually a response to a letter from the Baptists congratulating him on his presidential election. The following places the phrase “wall of separation” in its proper cultural milieu.

One cannot understand the phrase ‘wall of separation’ unless one understands, along with Roger Williams, the Baptists and their insistence on “the voluntary principle in religion” which means “that for faith to be valid, it must be free.”[6] They suffered and fought for the freedom to worship and live out their faith according to the dictates of one’s own conscience. They suffered abroad and in New England because they refused to baptize babies. They “insisted upon their right to worship in their own way and in their own churches” and were “haled before the Salem Court.”[7] “Henry Dunster, first president of Harvard College, was compelled to resign his office in 1654, after twelve years of service, because he had accepted Baptist views and refused to remain silent on the subject of baptism….Dr. John Clarke, the founder of the Baptist church at Newport, was fined; and Obadiah Holmes…was imprisoned and whipped in Boston for having preached against infant baptism.”[8]

The Massachusetts Bay Colony in 1691 had religious toleration and not freedom, consequently Baptists were not exempted from support of state churches with their taxes. They thought this unconscionable and fought it for years, experiencing both victories and setbacks.[9] Beginning in 1768 in Virginia until the outbreak of the Revolution, initiated by irate clergymen of the established church, some “thirty-four ministers were imprisoned, some on several occasions.”[10] “There is one case at least where a sheriff whipped a minister, John Waller, so severely that he carried the scars to his grave; but there is no proof that he was carrying out an order of the court.”[11]

The following experiences provide the context of the thoughts in the letter to President Jefferson.

The established Congregational ministry…continued to dominate the institutions of politics and public policy in Connecticut at the start of the nineteenth century. The Baptists…reported…their ‘religious privileges’ were not recognized as ‘inalienable rights.’ They bitterly resented policies that required them to petition the established powers for modest religious privileges extended to them….The Congregationalists and ‘the Federalists…were so closely allied that the party of the government and the party of the [ecclesiastical] establishment were familiarly and collectively known as ‘the Standing Order’. Congregationalists enjoyed many privileges, and dissenters suffered many disabilities, both social and legal, under this regime. …All citizens, Congregationalists and dissenters alike, had to pay taxes for the support of the established church, civil authorities imposed penalties for failure to attend church on Sunday or to observe public fasts and thanksgivings, and positions of influence in public life were reserved for Congregationalists. Dissenters were often denied access to meetinghouses, their clergy were not authorized to perform marriages, and dissenting itinerant preachers faced numerous restrictions and harassment by public officials. In the 1770s…the legislature had begun to dismantle elements of the standing order. This development signaled…a growing spirit of toleration. Dissenters were permitted to worship in congregations of their own choosing, tax exemption was extended to the estates of clergymen from all denominations, and the Toleration Act of 1784 exempted dissenters from the tax for the Congregational Church upon certification that they were active members of another religious body. These modest concessions did not fully satisfy the Baptists…who were agitating for disestablishment and religious liberty. By the turn of the century, the standing order was beginning to unravel, although the Congregational Church was not formally disestablished until 1818. When they wrote to Jefferson in 1801, the Danbury Baptists understood that, as a matter of federalism, the national government had little authority to ‘destroy’ the odious ‘Laws of each State.’ Nevertheless, they hoped the new president’s liberal sentiments on religious liberty would ‘shine & prevail through all these States…till Hierarchy and tyranny be destroyed’….The issue…to the Baptists was whether ‘religious privileges’ (and the rights of conscience) are rightly regarded as ‘inalienable rights’ or merely ‘favors granted’ and subject to withdrawal by the civil state.[12]

The Bill of Rights placed “religion” jurisdictionally off limits to the national government; “congress shall make no law.” The misuse of Jefferson’s “wall of separation” corrupted our most sacred constitutional protection. We dare not give any less to protecting religious liberty for our posterity than our Baptist ancestors did for us.


[1] About which Scalia says, “The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). Kevin A. Ring, ed, Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice, (Washington, D.C.: Regnery Publishing, Inc., 2004),  183.

[2] John Witte Jr., Professor of Law, Emory University, Religious Liberty-Overview, First Amendment Center, http://www.firstamendmentcenter.org/rel_liberty/index.aspx, accessed 1/28/04, 9 of 12.

[3] David F. Forte and Matthew Spalding, eds., The Heritage Guide to the Constitution, The Heritage Foundation, (Washington, D.C.: Regnery Publishing, Inc., 2005), 386-387.

[4] Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State, (New York: New York University Press, 2002), 4.

[5] Justice Black would have been well served, as we all would have been, if he had followed Justice Holmes’ aphorism that “a page of history is worth a volume of logic” Ring, Scalia Dissents, 173. I would add that while ideas need to be logical and rational, mere logic cannot be the sole jurisprudential arbitrator because some things cannot be proven by mere logic. Scalia argued that “religious practices that existed at the time the First Amendment was drafted cannot reasonably be considered unconstitutional when carried out today.” See his dissent in Lee v. Weisman (1992), Ring, Scalia Dissents, 170. He argued that a valid interpretation of the Establishment Clause must be in light of, “[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage” and “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989). Ring, Scalia Dissents, 172-173.

[6] Roger Williams, The Bloudy [Bloody] Tenent of Persecution for Cause of Conscience, Richard Groves, ed., (Macon, GA: Mercer University Press, 2001), xiii-xiv.

[7] Robert G. Torbet, A History of the Baptists, third ed., (Valley Forge: Judson Press, 1963), 203.

[8] Ibid., 203-204.

[9] Ibid., 234-235.

[10] Wesley M. Gewehr, The Great Awakening in Virginia, 1740-1790, (Durham, N.C.: Duke University Press, 1930), 122, as quoted by Torbet, History, 240.

[11] Lewis P. Little, Imprisoned Preachers and Religious Liberty in Virginia; A Narrative Drawn Largely from the Official Records of Virginia Counties, Unpublished Manuscripts, Letters, and Other Original Sources, (Lynchburg, Va., J.P. Bell, Co., 1938), 180-181 as quoted by Torbet, History, 240.

[12] Selected text from Dreisbach, Thomas Jefferson, 32-34.

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Norm Miller

Pastor Rogers:

SBCToday readers appreciate your research and report on this topic. Too many in our culture have deemed the misnomer of “separation of church and state” as the separation of Church *from* State. Looking at the ethics, or lack thereof, of some of our legislators, it would seem that the State is separated from the Church all too often.

I recall hearing Richard Land expound on this matter, and he said the “wall” has a door in it, and the knob is on only one side — the Church’s. The “Church” consists of citizens, and we have every right, yea, obligation, to influence the State for godly purposes and values.

Thx again, Ronnie,
Norm

Rogersrw

Thanks Norm!

Doug Indeap

1. I too tire at the considerable fretting over the phrase, “separation of church and state,” commonly used to label the constitutional concept. By whatever label, it is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is simply wrong.

Doug Indeap

2. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). Indeed, he understood the original Constitution–without the First Amendment–to separate religion and government. He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

While the First Amendment limited only the federal government, the Constitution was later amended to protect from infringement by states and their political subdivisions the privileges and immunities of citizenship, due process, and equal protection of the laws. The courts naturally have looked to the Bill of Rights for the important rights thus protected by the 14th Amendment and have ruled that it effectively extends the First Amendment’s guarantees vis a vis the federal government to the states. To suggest, thus, that the courts have acted contrary to the founders’ intent is off target. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments could extend the Bill of Rights’ constraints to state and local governments. No conflict at all.

Dreisbach, whom you cite, argues that the Court should not have “incorporated” the establishment clause constraints into the rights embraced by the 14th Amendment because, according to him, that clause did not express any individual right to be free of government established religion, but rather only allocated jurisdictional authority over that subject between the federal and state governments. I think the historical evidence shows that the founders understood and intended the First Amendment to serve both functions, and that Dreisbach’s effort to confine it to just one is unwarranted. In any event, it is plain that, by the time the 14th Amendment was adopted, the First Amendment and the general concept of separation of church and state were widely understood to embody individual rights, so it is that conception that would drive the Court’s interpretation of the scope of the 14th Amendment.

Rogersrw

Doug Indeep

Thanks for your comments, and I appreciate your thoughtful response and interest in this subject; however, as best as I can understand your response to my article, I must strongly disagree with your assessment of the history, the nature of what the founders established or desired, the use of the word “separation” as sufficient to guard religious liberty and reflect the intent of the constitution or First Amendment, and the legitimacy of the court’s conflation of the 1st and 14th amendment etc. I do not have the time to delve further into why, but I have written a book, which I believe strongly supports my position.

Ronnie

dr. james willingham

Well, what could we expect from the folks who have been planning for a long time to get control. Just consider how many judges on SCOTUS are from one denomination, while not a one is there from the original denominations that established such freedoms by law.

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