Overview of the Modern Separation of Church and State Doctrine
The modern Separation of Church and State doctrine, created by the United States Supreme Court in 1947, prohibits any federal, state or local government preference or support for religion. This federal judicial doctrine generally eliminates religion from the public square.
This modern Separation of Church and State doctrine has no basis in the Constitution. The First Amendment is a superfluous restraint on federal power. As discussed below, nowhere was Congress delegated the power to establish a national church, but the First Amendment’s Establishment Clause was drafted to make this explicit. In addition, nowhere was Congress delegated the power to interfere with the free exercise of religion, but the First Amendment’s Free Exercise Clause was drafted to make this explicit. As such, Congress has no power over religious affairs. Moreover, because the First Amendment is a superfluous restraint on federal power, federal courts do not have power to review or interfere with the religious affairs of the states.
To create the modern Separation of Church and State doctrine, two things occurred. First, the Supreme Court created the Incorporation Doctrine in the early twentieth century. The Incorporation Doctrine takes the Bill of Rights, which was meant to protect the states from the federal government, and turns it into a weapon the federal courts can wield against the states. Second, the Supreme Court had to interpret an “establishment of religion” as prohibiting any government preference or support for religion.
Where does Separation of Church and State come from?
Thomas Jefferson and the Danbury Baptists
As used in the United States, the term “Separation of Church and State” originated from a letter Thomas Jefferson wrote in response to a letter he had received from Baptists in Danbury, Connecticut. Jefferson’s January 1, 1802 response (while he was sitting President) used the phrase, “wall of separation between Church and State.”
The Danbury Baptists wrote Jefferson to complain about the “degrading” way in which they were treated in Connecticut; under Connecticut’s established Congregational church. The Danbury Baptists said, “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.” The Baptists then acknowledged the President did not possess the ability to interfere with Connecticut’s established religion. The Baptists said they were, “sensible that the president of the United States is not the national legislator, and also sensible that the national government cannot destroy the laws of each state; but our hopes are strong that the sentiments of our beloved president… will shine and prevail through all these states and all the world, till hierarchy and tyranny be destroyed from the earth.”
Jefferson’s response expressed sympathy for the Danbury Baptists, and acknowledged a, “wall of separation between Church and State” at the federal level. Jefferson concluded by stating he looked forward to seeing, “with sincere satisfaction the progress of those sentiments” expressed by the Danbury Baptists. Jefferson’s response implied he had hope Connecticut would one day adopt laws similar to the one Jefferson drafted in Virginia – the Virginia Statute for Religious Freedom.
Nowhere in Jefferson’s response to the Danbury Baptists, nor in his personal writings, does Jefferson express sentiments to abolish religion or the public acknowledgement of God from the public square. It’s worth noting, the Virginia Statute for Religious Freedom begins by stating, “Almighty God hath created the mind free.”
Proponents of the Separation of Church and State Doctrine
The American Civil Liberties Union (“ACLU”) is the most prominent supporter of the current Separation of Church and State Doctrine. For an overview of the ACLU’s position, click here. According to the ACLU, “The question whether a religious monument should be erected on public property or whether religious activities should be subsidized [by any government] is not one to be made by the politically influential or by local majorities.”
Essentially, the ACLU is against local self-governance. The ACLU is driven purely by its policy objectives and not by any sort of intellectual integrity or historical objectivity. The ACLU is an advocate of the current state of “Constitutional Law,” whereby federal courts have perverted the Constitution and usurped power. With this usurped power, the federal courts have inverted the First Amendment and used the modern doctrine of Separation of Church and State as a political weapon to eradicate religion from the public square.
Separation of Church and State – Policy versus Procedure
Whether states and localities should or should not permit religious expression or displays on public property is a separate policy question. The Constitution is a procedural document which answers the question of “who decides?” For purposes of the Constitution, the Bill of Rights, the First Amendment, and the so-called Separation of Church and State doctrine, the religious affairs of the states and the people are none of the federal government’s business. Religious affairs were reserved to the states, and the federal government was explicitly barred from interfering in state and local religious matters by the First Amendment.
Congressional Debates around the First Amendment and Religious Affairs
With the exception of James Madison, those who debated the wording of the First Amendment’s Establishment and Free Exercise Clauses merely sought to ease the concerns of the Anti-Federalists in the state ratifying conventions. The Bill of Rights as a whole was intended to provide these assurances. The First Amendment, in particular, was intended to ease these concerns by providing express assurances the federal government would not create a national religion or interfere with the religious affairs of the states or the people.
During these debates in the House of Representatives, Congressman Elias Boudinot from New Jersey proposed a modified version of an earlier draft amendment submitted by James Madison. Boudinot’s proposal said, “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” Congressman Peter Silvester of New York expressed concern over this language, stating it could be misconstrued, “to abolish religion altogether.” James Madison responded that his intention was to provide, “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” Congressman Benjamin Huntington from Connecticut affirmed the concerns of Peter Silvester, stating that words of the proposed amendment, “might be taken in such latitude as to be extremely hurtful to the cause of religion.” Huntington then expressed concern that the amendment might impact his state’s religious policy. James Madison assured him the amendment would not have that effect.
James Madison then proposed an amendment that would have delegated power to the federal government to enforce language similar to that of the eventual First Amendment against the states. The amendment read, “no State shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases.” Madison strongly pushed for this imposition upon the states, but the proposal was rejected by the committee. Congressman Thomas Tucker of South Carolina said Madison’s proposed amendment, “goes only to the alteration of the constitutions of particular States. It will be much better, I apprehend, to leave the State Governments to themselves, and not to interfere with them more than we already do.”
Role of Religion when the Constitution and Bill of Rights were Ratified
It is well beyond the scope of this single page to explain all the ways in which religion played a prominent and integral role both in federal and state governmental affairs around the time the Constitution and Bill of Rights were ratified. For a thorough explanation of this topic, we recommend The Theme Is Freedom: Religion, Politics, and the American Tradition, by M. Stanton Evans. Below is a quick list of facts to consider in light of the modern Separation of Church and State doctrine.
Random Examples – Role and Influence of Religion in Federal and State Affairs
- Nine states had established colonial churches in 1775. The number of established colonial (and eventually state) churches decreased over time as religious diversity created political pressure to disestablish formal state churches.
- Vermont was admitted to the Union in 1791. Vermont’s relatively liberal constitution had a provision requiring public officials to take the following oath: “I do believe in one God, the Creator and Governor of the Universe, the rewarder of the good and punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testaments to be given by divine inspiration and own and profess the Protestant Religion.” Similar provisions could be found in other state constitutions.
- James Madison, whose views on religion are grossly mischaracterized by historians and legal scholars, did introduce the bill in Virginia’s legislature to disestablish the Church of England. This bill was submitted on October 31, 1785. However, on the same day, Madison introduced another bill punishing individual Virginia citizens who broke the Sabbath by performing activities other than household duties on Sundays. Thus, Madison introduced a bill authorizing Virginia to coerce its citizens into religious compliance on the same day he sought to disestablished the state’s church.
- Massachusetts’ was the last state to disestablish its state church in 1833.
- North Carolina’s requirement that only Protestants could hold public office lasted until 1835, but the requirement that only Christians could hold public office lasted until 1868.
- Maryland’s requirement that only Christians could hold public office lasted until 1826.
- The First Amendment passed in the United States House of Representatives on September 24, 1789. The next day, the House of Representatives passed a resolution calling for a national day of prayer and thanksgiving. The resolution said, “We acknowledge with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peacefully to establish a constitutional government for their safety and happiness.” This same House of Representatives called on President George Washington to issue a proclamation to designate this national day of prayer and thanksgiving. President Washington responded, “It is the duty of all nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for His benefits and humbly to implore His protection and favor… That great and glorious Being who is the beneficent author of all the good that was, that is, or that ever will be, that we may then unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people…” These sentiments were expressed by the House of Representatives and the President of the United States the day after the First Amendment passed the House of Representatives. This evidence makes it clear the House of Representatives did not draft the First Amendment to secularize the federal government.
- In his Farewell Speech in 1796, President George Washington said, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”
- the last line of the Constitution, says, ”done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth…” (emphasis added).
- In his second inaugural address, President Thomas Jefferson affirmed the proper scope of federal power with respect to religion when he said, “In matters of religion, I have considered that its free exercise is placed by the constitution independent of the powers of the [federal] government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it; but have left them, as the constitution found them, under the direction and discipline of state or church authorities acknowledged by the several religious societies.”
Incorporation Doctrine – how Federal Courts used the First Amendment as a weapon against religion in the public square
Modern jurists and those who support the eradication of religion from public life cite the Fourteenth Amendment and the Incorporation Doctrine as grounds for inverting the First Amendment to create the modern Separation of Church and State doctrine. The Incorporation Doctrine is based on the Orwellian notion that constitutional amendments added to protect the states from the federal government can be used by the federal courts as weapons against the states. Click here to learn about the Incorporation Doctrine.
Ten years after ratification of the Fourteenth Amendment, Speaker of the House, James G. Blaine, proposed an amendment to the United States Constitution that would have applied part of the First Amendment against the states. The proposed amendment passed the House of Representatives, but failed to pass the Senate by four votes. The relevant part of the amendment said, “No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof…” If the Fourteenth Amendment had applied this exact same language from the First Amendment against the state governments via the Incorporation Doctrine, why would this so-called “Blaine Amendment” have been proposed in the first place? It should not come as a surprise the Supreme Court has never addressed this question.
The Blaine Amendment is just part of an overwhelming mountain of historical evidence that makes clear there is no federal constitutional basis for the modern Separation of Church and State doctrine.
Separation of Church and State Supreme Court Decisions
Cantwell v. Connecticut, 1940 – First Religious Usurpation by the Supreme Court
Newton Cantwell and his two sons went door to door in a heavily Roman Catholic neighborhood in New Haven, Connecticut proselytizing his religion and criticizing Catholicism. The Cantwell’s actions incensed some neighbors and almost sparked a physical confrontation. The Cantwell’s were arrested, charged and convicted with a common law breach of the peace, and for violating a Connecticut statute requiring solicitors to obtain a certificate from the state before soliciting funds from the public. The Connecticut Supreme Court upheld the legality of the solicitation statute as a legitimate anti-fraud measure to protect the public.
The United States Supreme Court decreed the First and Fourteenth Amendment empowered the Supreme Court to stand in review of all state laws and policies impacting religious affairs. With this new usurpation of power, the Supreme Court struck down Connecticut’s solicitation statute.
Everson v. Board of Education, 1947 – Creation of Separation of Church and State Doctrine
Everson v. Board of Education marks one of the most tyrannical abuses of judicial power in American history and serves as the foundation for the modern Separation of Church and State doctrine. For an overview of the Everson case, click here.
Supreme Court Justice Hugo Black’s opinion for a split court said the Fourteenth Amendment “incorporated” and applied the First Amendment against state and local governments. Justice Black’s opinion savaged both Constitutional and American history in reaching its conclusion, but it also hijacked and distorted Thomas Jefferson’s words from his letter to the Baptists in Danbury, Connecticut regarding, “a wall of separation between Church and State.” Read the rest of this page and our page on the Incorporation Doctrine to understand why Everson was a tragic and tyrannical usurpation of federal judicial power.
Supreme Court Justice Hugo Black – Anti-Catholic member of the Ku Klux Klan
To illustrate the purely political nature of Justice Black’s opinion, consider his background.
Hugo Black was virulently anti-Catholic. In 1921, Black successfully defended a man charged with murdering a Catholic Priest named James E. Coyle. Black then joined the anti-Catholic Ku Klux Klan (KKK) as a way to gain support for election to the United States Senate from Alabama. As a Senator, Black supported Franklin Delano Roosevelt and the unconstitutional New Deal. Black also supported President Roosevelt’s court packing scheme that attacked the perceived “independence” of the Supreme Court. President Roosevelt rewarded Black for his support with a nomination to the Supreme Court in 1937 following the retirement of Justice Willis Van Devanter.
The Irish Potato Famine of the mid-1800s led to a large influx of Irish Catholic immigrants to the United States. The KKK, nativists, Protestants and others were vehemently anti-Catholic and sought to eliminate state support for Catholic schools. Many efforts had been made through the years (including the aforementioned Blaine Amendment) to pass a Constitutional amendment prohibiting state support for Parochial schools. All of these efforts failed. However, Hugo Black found his chance to bypass Article 5 and the Amendment process once he was on the Supreme Court. Justice Black, an anti-Catholic member of the KKK, proceeded to disregard the plain meaning of the Constitution, and concoct a historically dubious opinion that set the foundation for the eradication of religion from the public square throughout the United States.
Did political motivations and personal prejudice guide Justice Black’s decision making, or was he providing his honest, objective interpretation of the Constitution and American history? You be the judge.
Ramifications of Everson v. Board of Education
Supreme Court removes religion from public school curriculum. McCollum v. Board of Education, 1948.
Supreme Court strikes down Maryland’s requirement that public officials swear a belief in God. Torcaso v. Watkins, 1961.
Supreme Court creates the “Lemon” test, establishing secularism as a defacto national religion, and, in exercising the powers of the legislature, creates a three prong test for determining whether legislation violates the Establishment Clause. Lemon v. Kurtzman, 1971.
Supreme Court strikes down Alabama law authorizing public school teachers to set aside a minute before class at the start of each day for a moment of silent meditation or voluntary prayer. Wallace v. Jaffree, 1985.
Supreme Court decides a Christian Nativity scene on the stairs of the Allegheny County Courthouse violates the Establishment Clause. However, the court decides an eighteen foot tall Hannakuh Menorah in front of the City-County Building did not violate the Establishment Clause. Allegheny County v. American Civil Liberties Union, 1989.
A three-judge panel on the Ninth Circuit Court of Appeals ruled that reciting the Pledge of Allegiance at a public school violated the doctrine of Separation of Church and State because the Pledge included the phrase, “under God.” On appeal, the Supreme Court dismissed the case based on a procedural technicality unrelated to the substance of the Ninth Circuit’s decision. Elk Grove Unified School District v. Newdow, 2002.
Under the Supreme Court’s modern Separation of Church and State doctrine, many city and county names, such as those throughout California, are likely “unconstitutional.” San Francisco is named after Saint Francis of Assisi. In Spanish, Los Angeles is called, “the city of the queen of angels,” (which really means the city of the Virgin Mary). Santa Barbara is named after Saint Barbara. San Luis Obipso is named after Saint Louis of Anjou. Many other city and county names in California were also given by Spanish missionaries.
Moreover, the Gregorian Calendar used by most of the world begins with year zero marking the Nativity (the birth of Jesus Christ). Under the modern Separation of Church and State Doctrine, perhaps our calendars are unconstitutional? It would not be surprising to one day see a push in the United States for a secular calendar, much like the calendar the French implemented for twelve years following the French Revolution. It could be both interesting and depressing to one day see the absurdity of the Supreme Court’s Separation of Church of State doctrine taken to its logical conclusion.
United States Constitution – First Amendment – Separation of Church and State
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;