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Church vs. State

imgresHere’s a quiz question:  When was the phrase “separation of church and state” first introduced into American jurisprudence?

a)  1789; b)  1800;

c)  1840; d)  1947

Most of us would answer 1789, with the ratification of the United States Constitution and the First Amendment, guaranteeing religious freedom.

Guess again.

According to Columbia law professor Philip Hamburger (cited by Eytan Kobre in Mishpacha Magazine), the first use of the phrase was during the presidential election of 1800, when defenders of Thomas Jefferson responded to attacks that their candidate was anti-religious by invoking the “need to separate religion from politics.”  Jefferson himself used the phrase in a letter in support of Connecticut Baptists who feared political oppression.  Jefferson’s overture was ignored by religionists who could not imagine the absence of religion from public life, even in their own defense.

Around 1840, when Catholics in New York City began claiming access to funding for religious schooling, Protestants responded by asserting church and state separation, eventually seeking a new constitutional amendment to that effect in the 1870s.  When that effort failed, reinterpretation of the First Amendment became their next strategy.

But it was only in 1947  in Everson vs. Board of Education that, despite a 5-4 split in the Supreme court ruling, the justices agreed unanimously that a “wall of separation between church and state” was implicit in the First Amendment.  The majority opinion was authored by Justice Hugo Black, a former leader of the Ku Klux Klan in Alabama.

Thus, the origins of a tradition that everyone thinks believes goes back to the framers — most of whom would be horrified by the popular outlook that has come to define the First Amendment, in the words of Joseph Lieberman, as protecting not freedom of religion but freedom from religion.  The “wall of separation” has been critiqued by Justice Clarence Thomas as “born in bigotry,” by Justice Potter Stewart as “nowhere to be found in the Constitution,” and by former Chief Justice William Rehnquist as “a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.  It should be frankly and explicitly abandoned.”

Writes American University law professor Daniel Dreisbach:  “Indeed, this wall has done what walls frequently do — it has obstructed the view.  It has obfuscated our understanding of constitutional principles…”

1 Comment

  1. Sydney Chase says:

    Good post.




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