Debating myth and reality of the separation of church and state
Religious Freedom: A Standard or an Enigma?
By Teresa Smallwood – Postdoctoral Fellow & Associate Director, Public Theology and Racial Justice Collaborative
When the Danbury Baptist Association wrote President Thomas Jefferson on October 7, 1801 regarding their desire for the separation of church and state, they were advancing a position in favor of private, individualized faith expressed without governmental intervention. In 1801 the stakes could not have been higher because the establishment clause was only a decade old and there was a flood of enactments across the colonies to preserve their status as independent sovereigns. But how that standard would be implemented and enforced was a worrisome contention for many people of faith. Jefferson’s reply on January 1, 1802 reverently acknowledged the separation and vowed that there would be a “wall of separation” between church and state, a phrase he borrowed from Roger Williams, a London minister who greatly influenced the colonies in favor of religious liberty.
In our present context culturally, socially, economically, and legally, I posit that the ‘wall of separation’ is crumbling down. Despite groups like Americans United for the Separation of Church and State, founded “to preserve the constitutional principle of church-state separation as the only way to ensure religious freedom for all Americans,” it is impossible to see a true separation between church and state in the sense of the letters exchanged over two centuries ago. In fact, the notion of religious freedom or religious liberty is hard to discern.
The Dichotomy of Freedom
In the same breath, the First Amendment to the US Constitution admonishes that “Congress shall make no law respecting an establishment of religion” and simultaneously it declares that everyone should have the right to freedom of religion. In effect, this is a conundrum when one considers the United States Supreme Court’s decision in Masterpiece Cupcake Shop, LTD., et. al. v. Colorado Civil Rights Commission. At issue was the shop owner’s right to reject customers in light of his religious beliefs. He claimed his deeply held religious beliefs would not abide his making a wedding cake for a same-sex couple. The Supreme Court sided with the owner. Despite what I could say about the integrity of the decision, there is no way to avoid concluding that the US Supreme Court has been slowly eroding religious freedom to the point where the ‘wall of separation’ is like Humpty Dumpty having a great fall.
For argument’s sake, perhaps the fair thing to do is to advance the notion that marriage is held sacred by non-church-going people as well. Same-sex couples have religious beliefs. In fact, I would venture to say that people in covenant relationships who go to the lengths to repeat vows and celebrate with traditionally tiered wedding cakes do so in support of deeply held religious beliefs, whether they acknowledge a God concept or not. The Supreme Court never mentioned the fact that the analysis goes both ways.
Moreover, if that is the case, siding with one litigant over the other in terms of religious beliefs may look like establishment. It, however, points to a wider problem—one that we as Americans, particularly people of color, must seriously consider: What happens when a case reaches the United States Supreme Court to decide whether the January 6, 2021 insurrection was employed and executed based upon deeply held religious beliefs?
Let’s face it: Some of the mobsters carried Bibles in lockstep with other mobsters carrying nooses. Are we in danger of a backdoor approval of the return to chattel slavery based upon deeply held religious beliefs? The Apostle Paul did say “slaves, obey your masters,” did he not? The stacking of the Supreme Court with ultra-conservative jurists makes the question linger in the air.
The Corrosion of the “Wall of Separation”
Voter suppression, police brutality, mass incarceration, and economic disparities all point to a corrosion of basic democratic values not the least of which is religious freedom. Freedom from tyranny and freedom to exercise one’s right to deeply held religious beliefs should not create a conflict so convoluted that the judiciary has to “respect the establishment” of someone’s religious belief as a means to an end while concomitantly abridging another’s right to the same freedom. Religious freedom should intimate a hands-off approach that the Supreme Court avows at all costs. That was the pledge Jefferson made. A wall of separation is a shield from contact, either literal or perceived. However, for decades the trend has been anything but hands-off.
Burwell v. Hobby Lobby, for example, is one case where the wall of separation is nowhere to be found. In a 5-4 decision, the US Supreme Court Justice Samuel A. Alito Jr. allowed a for-profit company to deny its employees’ health coverage for contraception based on the company owners’ religious beliefs. Religious objections aside, these employees would be entitled to these health benefits. The Religious Freedom Restoration Act was the operative legislation in this court opinion. The 1993 Act as applied to corporations creates a cyborg-ish effect. There is a danger that the inverse nature of religious freedom jurisprudence turns on itself in such a way that the freedom to practice one’s religion trumps the scrutiny of every other discriminatory eventuality. The totalizing impact of this could reverse the gains Americans have made in a democracy that once valued religious freedom as much as it once valued the wall of separation. The enigmatic reality is that walls are overrated.
Religious Freedom Under Assault Across America
By Jeff Johnston – Culture and Policy Analyst, The Daily Citizen
Chase Windebank was a senior at Pine Creek High School in Colorado Springs, Colorado. Beginning in his freshman year, he led a small group of students who wanted to pray for their school and the needs of fellow classmates during non-instructional time. One day, a school official called him in and told him the group could no longer meet because of the “separation of church and state.”
A year later, the school “dropped its ban on student religious discussion and expression during free time,” after Alliance Defending Freedom (ADF), a legal aid group advocating for First Amendment rights, filed a lawsuit against the district.
Think stories like this are unusual? Across the nation, from the schoolhouse to the military to the medical field, religious freedom is under fire. Houses of worship and ministries have felt the heat from those who work to eliminate religious expression from the public arena, often under the misguided banner of “separation of church and state.”
Religious Legal Aid Groups are Taking on More and More Cases
The largest legal organization in the U.S. solely devoted to defending religious liberty is First Liberty Institute. In its annual report, Undeniable: An Inside Look at the Cases, Controversies and Unrelenting Attacks on Religious Liberty in America, the organization lists more than 1,400 cases, mostly from the past 20 years, demonstrating the deep antipathy from many toward religion and people of faith.
Some of the cases are well known:
- The 74-year-old grandmother, Barronelle Stutzman, who would not use her creative talents at floral arranging to celebrate a same-sex wedding because of her deeply held religious beliefs that marriage unites a husband and wife. (Arlene’s Flowers v. Washington)
- The Denver baker, Jack Phillips, who would not use his abilities to create a cake for a “transgender reveal” party who believes that God created the two halves of humanity – men and women. (Masterpiece Cakeshop v. Colorado Civil Rights Commission)
- The high school football coach, Joe Kennedy, who lost his job for silently kneeling and praying on the fifty-yard-line after the game was over. (Kennedy v. Bremerton School District)
Others have received less publicity. A synagogue in Woodcliff Lake, New Jersey filed suit after the city took land from the congregation and blocked its efforts to relocate for ten years. The Equal Employment Opportunity Commission (EEOC) sued UPS for their policy banning drivers from having beards on behalf of Rastafarians, Muslims, and Sikhs whom’s facial hair is part of their culture. A New York nurse was told she must participate in a late-term abortion, which was against her religious beliefs, and was threatened with termination and loss of her nursing license if she refused to do so.
The Growing Wall Between Church and State
There’s a reason that religious liberty is called our “first freedom,” and there’s a reason people and religious legal aid groups continue to fight to preserve and protect it. Not only do the two clauses protecting religion from government incursion make up the first freedom listed in the bill of rights but freedom of religion is vital because it protects our deepest thoughts and beliefs as well as our expression of them in our daily lives.
There’s a huge misunderstanding that somehow the First Amendment places a “wall of separation” between church and state – an unfortunate phrase used by Thomas Jefferson in a letter to the Danbury Baptist Association, in Connecticut. To deliberately mix metaphors, the “wall of separation” has been used as a sledgehammer, especially in recent years, against churches and people of faith. While some complain that the so-called “wall of separation” is crumbling, the truth is it has grown thicker and higher over the decades, threatening to crush our first freedom.
The phrase is not found in the Constitution, nor is it in the Bill of Rights. If the Founders had wanted to, they could easily have included a “wall of separation.” But as University of Chicago’s Professor of Law Philip Hamburger argues in Separation of Church and State they strove to create something new: real religious liberty, without state overreach and control. They said that Congress could not establish a national church, nor could it prohibit the free exercise of religion.
And that “free exercise of religion” isn’t just about “private worship” or “individualized faith,” it includes the freedom of individuals and different faiths to exercise belief and conviction in the public arena through their speech and actions.
What did the Founders Mean by “Separation of Church and State”?
While the phrase “separation of church and state” has become part of our common language, Hamburger explains how this erroneous idea grew and developed, replacing the First Amendment protection of religious liberty. As such, it’s seen by many to be a “freedom from religion” in the public square.
Hamburger writes, “Yet the idea of separation of church and state was very different from the religious liberty desired by the religious dissenters whose demands shaped the First Amendment …” He adds that the simplistic metaphor of separation is opposed to the “union of church and state,” but that “union and separation are over-generalizations between which lie much middle ground.”
As opponents of religious freedom have tried to use the so-called “wall” to penalize bakers, florists, coaches, nurses and others, courts have, thankfully, begun pushing back against the complete removal of religion from public life. For example, the Supreme Court, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, ruled in favor of Jack Phillips, saying the state showed animosity and discriminated against his convictions.
Placing Faith in the Court
More recently, the Supreme Court has struck down onerous state government COVID decrees that shut down worship, treating churches less favorably than businesses, in cases such as Roman Catholic Diocese of Brooklyn v. Cuomo and Tandon v. Newsom. And in June 2021 the Court ruled 9-0, in Fulton v. Philadelphia, that the city had violated the First Amendment free exercise rights of Catholic Social Services, allowing them to continue placing children in loving homes with a mother and father.
People of faith have the right to share and live out our beliefs in the public arena. Even as assaults on religious liberty have accelerated, let’s hope that courts continue to protect our cherished first freedom.
This article is part of Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.