“Congress …” – we know what that is.
“… shall make no law…” Well now, I’ll bet you thought you knew what that means. You thought it meant Congress shall make no law. But what you didn’t know was that in 1940, in the Supreme Court case of Cantwell v. Connecticut, the justices decided – citing a mysterious legal principle called “incorporation” – that the First Amendment applied not just to Congress, but to state governments too. So now the federal government could force the states to follow its dictates in regards to prohibiting the “establishment” or prohibiting the “free exercise” of religion. This is obviously something the original 13 states would have rejected outright, given that half of them had stated “establishments” of religion.
“…respecting an establishment of religion …” For 150 years an “establishment of religion” in the context of the First Amendment meant that a national church, a particular denomination, wouldn’t be supported and imposed on the states by the federal government. But with the decline of Christianity in the U.S. and, indeed, increasing hostility toward it, the meaning of “establishment of religion” has been radically changed – just like the words in the Stephen Stills song. Today, “establishment of religion” means the mere public mention of God, Christ, the Bible, the Ten Commandments, prayer and so on. “God Bless America” banner erected on a California public school to honor those killed in the 9-11 terror attacks was attacked by the ACLU as an unconstitutional establishment of religion.
But to make this seduction even more powerful, the First Amendment religion clauses have been morphed into the phrase, “a wall of separation between Church and State” – eight words
taken out of context from an incidental letter of courtesy Thomas Jefferson wrote in 1802.
You rarely hear the actual wording of the First Amendment anymore. But “separation of church and state” is one of those phrases that roll off the tongues of judges and journalists so easily and so often, most of us assume it’s in the Constitution.
In fact, one of the justices on the New York Supreme Court, back in a 1958 First Amendment case called Baer v. Kolmorgen, made this very point when he commented: “Much has been written in recent years concerning Thomas Jefferson’s reference in 1802 to ‘a wall of separation between church and State.’ … Jefferson’s figure of speech has received so much attention that one would almost think at times that it is to be found somewhere in our Constitution.”
But there’s a method to this constant repetition, as marketers well know: Say it enough times, and people come to believe it. The celebrated 18th-century American philosopher William James put it more pungently: “There is nothing so absurd but if you repeat it often enough, people will believe it.”
Indeed, there are very few phrases more familiar to Americans than “the separation of church and state.” Marketers pay millions to brand their product or make their political candidate a household name. But just as with commercial or political marketing, widespread familiarity with a slogan doesn’t necessarily mean the message is true.
If Jefferson’s “wall of separation” has come to mean that any reference to God must be eliminated from government, schools and anything the government funds, then what did the phrase originally mean, as Jefferson used it?
Ironically, Jefferson intended for his letter to the Danbury Baptists to reassure them that the new federal government would not endanger the free expression of their religion. This is widely known. But what is not well known is that Jefferson did not actually coin the phrase “separation of church and state.”
Rather, he borrowed the metaphor from the sermon, “The Garden and the Wilderness,” which was very familiar to Baptists of the time. As Jim Henderson, senior counsel for the American Center for Law and Justice explains it:
That sermon, rendered by Roger Williams (the founder of the Rhode Island Plantation colony) and a Baptist, depicted the church as a garden, the world as a wilderness, and the wall as a device of the Creator’s invention that protected the garden from being overrun by the wilderness. Williams explained that, from time to time, for the purpose of disciplining sin in the church, “it hath pleased” the Almighty to break down the wall.
Thomas Jefferson, ever the politician, knew when he communicated with the Baptists that “The Garden and The Wilderness” was well known and widely read nearly two generations later. He appealed to them in the terms of their own great man’s idiom.
There you have it. The “wall of separation” was meant to protect “the garden” of the church from being overrun by “the wilderness” of government. No wonder Chief Justice Rehnquist has said, “The metaphor of a ‘wall of separation, is bad history and worse law. It has made a positive chaos out of court rulings. It should be frankly and explicitly abandoned.”