As journalists pore over every line written and uttered by Supreme Court nominee Brett Kavanaugh, the Los Angeles Times has highlighted a 2017 speech in which Kavanaugh said that the “wall of separation between church and state” is a metaphor based upon “bad history.”
Separation of church and state has a negative connotation for many evangelicals and other religious conservatives, who believe that the Supreme Court has used it to exclude religion from American public life. But whether the metaphor is bad history depends on whether we mean the Supreme Court’s 20th-century employment of it, or Thomas Jefferson’s original invocation of the wall in 1802. Presumably Kavanaugh was referring mostly to the court’s more recent use of the term.
The First Amendment was originally ratified in 1791. It guaranteed Americans the “free exercise of religion,” and it prohibited Congress from making any “law respecting an establishment of religion.” In 1791, Americans widely understood an “establishment” to be a tax-supported denomination, such as the Church of England. The First Amendment prohibited the United States from officially endorsing or supporting any Christian denomination, though it permitted the states to do so. Several states, especially in New England, maintained established churches well into the 1800s.
The ongoing state support for the Congregationalist Church in Connecticut precipitated the exchange in which Jefferson used the “wall of separation” metaphor. A group of evangelical Baptists in Connecticut had written to Jefferson, lamenting the continued existence of their state’s established religion. The Baptists loved Jefferson, in spite of his reputed Deism, because they saw him as a great champion of religious liberty. Jefferson saw his response to the Danbury Baptists as an opportunity for “sowing useful truths and principles.” In other words, he wanted to make his response public and to explain his vision for religious liberty in America. Jefferson commended the Baptists’ commitment to religious liberty. He hoped that all the states would adopt the principles enshrined in the First Amendment, which built a “wall of separation between church and state.”
But Jefferson apparently did not envision this separation as absolute and antagonistic, for the same weekend he sent the wall of separation letter, he attended a religious service with members of Congress at which John Leland, a longtime Baptist ally, gave an admiring sermon.
Jefferson was not directly involved with framing the First Amendment, so his letter cannot be a final word on the amendment and its religion clauses. Nevertheless, Jefferson and James Madison, who was involved in crafting the amendment, had similar views on church-state matters, and Jefferson’s perspective on constitutional interpretation certainly carries some weight. In 1879, the Supreme Court declared that the wall metaphor was “almost an authoritative declaration of the scope and effect of the amendment.”
Modern use of the metaphor was inaugurated in 1947’s Everson v. Board of Education, when the court asserted that “neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” Moreover, they argued that “that wall must be kept high and impregnable. We could not approve the slightest breach.”
This is where the history of the metaphor started to go sour. Where Jefferson and the Baptists primarily saw the First Amendment as banning a national established church, by 1947 the Supreme Court saw it as requiring “high and impregnable” separation between the national and state governments and all forms of religion. This type of interpretation has occasionally led to laws and court decisions that single out churches and church-run schools for disadvantages, such as a Missouri law that allowed all schools and nonprofits except ones run by churches to apply for grants to update their playgrounds. That law, thankfully, was struck down by the Supreme Court in 2017.
In Kavanaugh’s speech, he was commending the late William Rehnquist and his criticism of the court’s employment of the wall metaphor since 1947. In 1985, Rehnquist wrote that Everson’s wall had proven “all but useless as a guide to sound constitutional adjudication.” This version of the wall had put (in Rehnquist’s view) the government in a hostile stance toward religious organizations, and toward any religious speech or imagery in public life. Rehnquist believed that “nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means.”
Evangelicals need to remember that their forebears, along with founders such as Jefferson and Madison, virtually invented the idea of church-state separation. We should never long for the days in which the government promoted particular denominations, and required people to financially support a church, whether they attended it or not. This was a formula for corruption and spiritual malaise.
But we also don’t want what the Everson court intuited from the “wall” metaphor—an absolute separation between religion and government, and de facto or de jure government hostility toward religious organizations. William Rehnquist led the charge against this ahistorical interpretation of the wall metaphor. To the extent that Kavanaugh is criticizing the 1947 version of the “wall of separation,” he’s right. It is bad history. But Thomas Jefferson and the Danbury Baptists’ understanding of the First Amendment was spot-on, and it is an understanding that evangelicals in America today should cherish.
For more on the wall of separation, see Daniel Dreisbach’s Thomas Jefferson and the Wall of Separation Between Church and State and more generally, my book God of Liberty: A Religious History of the American Revolution.
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