Some people have an ironic reverence for American “separation of church and state,” believing that secularism is all that separates us from the radical theocracies in Iraq, Iran, and Salt Lake City. When they say, “You can’t have school prayer because of the separation of church and state,” they’re appealing to the Establishment Clause of the First Amendment, which says, “Congress shall make no law respecting an establishment of religion.”
What does it mean to respect an establishment of religion? People either believe that the Establishment Clause is a federalist provision, granting religious freedom to states, or a mandate for separation at all levels of government.
Recent cases suggest that the tide may be shifting, yet the combined state and federal separation remains a precedent. Indeed, the story of how “separation of church and state” became the law of the land is a cautionary tale in statutory interpretation and the misuse of outside sources.
The Danger of Using Legislative History in Statutory Interpretation
Courts sometimes use legislative history or other documents to determine what legislators intended while crafting a bill. The trouble is, these laws are created by hundreds of elected and unelected workers, all with different agendas and reasons for supporting a bill. Given the sheer volume of legislative history, it is important not to give any one person’s opinion greater weight just because you like what they say. Warning of this, Justice Scalia compared using legislative history for interpretation to looking into a large party crowd and picking out your friends.
American courts did not regularly look outside “the four corners” of a bill until the late 1800s, initially maintaining the inherited English rule of solely examining a statute’s plain text – the only words that were voted on and made law.
This is important to understand because, as we will see, even the U.S. Supreme Court can misuse extraneous writings and frustrate a statute’s plain meaning.
Reynolds, Everson, and the Danbury Baptists
The U.S. Supreme Court laid the foundation for today’s “separation of church and state” in Reynolds v. US, an 1879 case where Mormons argued that a federal anti-bigamy law violated their free exercise rights. To discern the founders’ intent behind our First Amendment, the court consulted Jefferson’s Letter to the Danbury Baptists containing his famous reference to a “wall of separation between church and state.”
So influential was Jefferson’s dictum in Reynolds that, in 1947, the court cited Jefferson as the sole authority for the following Everson v. Board of Education assertion:
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. … Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
To further prove that the founders’ intent was total separation at all levels, the Court argues that religious persecution by local establishments motivated the First Amendment’s creation as an agent of secular government, citing a letter from James Madison in a footnote. However, upon reading the footnote, one sees that Madison is not advocating for disestablishment, but “liberty of conscience to all,” which was treated as an entirely separate issue by the founders and deserves its own article.
Everson set the Court down the path to ban school-led prayer, end Bible reading in school, and declare a courthouse nativity scene and 10 Commandments display unconstitutional.
Jefferson’s Letter to the Danbury Baptists
For courts to consult Jefferson’s letter for guidance on the meaning of the Establishment Clause is questionable. Written roughly 10 years after the Bill of Rights was ratified, the Danbury letter gives Jefferson’s after-the-fact opinion on a piece of legislation with which he had nothing to do, as he was out of the country, serving as a diplomat to France until late 1789 and then serving as Washington’s Secretary of State when the Amendments were ratified in 1791.
Yes, Jefferson sent messages to legislators supporting certain religious liberty provisions, but those should be irrelevant in the world of statutory interpretation. That voicemail you left for Barry Moore shouldn’t be part of the judicial record.
It’s concerning that the Supreme Court gave such deference to the post hoc opinion of a man who, although great, did not draft or vote on the Amendments. It’s also concerning that they seemingly misinterpreted Jefferson’s following words entirely:
I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.
Despite its popular interpretation, nothing in this letter clashes with a federalist reading of the Establishment Clause. It’s easy to see that the legislature of the “whole American people” is Congress, which is what the First Amendment says (“Congress shall”). If Jefferson said legislatures, then maybe you could argue that he believed the Establishment Clause applied to the many state legislatures, but he did not.
What Jefferson didn’t say about religious freedom under the Constitution is just as important as what he did. The Danbury Baptists wrote to express their hope that secular government would “shine & prevail through all these States.” Jefferson simply replies that he “shall see with sincere satisfaction” the advancement of those ideas. He didn’t say “I wish that the First Amendment had a state Establishment Clause,” “We should have a state Establishment Clause,” or “The Establishment Clause applies to the states, but we misinterpreted it.” It seems that Jefferson and even the Danbury Baptists considered their gripes with Virginia a state issue alone – which is what the Establishment Clause says.
It is a great irony, as Justice Stewart wrote in Abington School District v. Schempp (1963) “that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy.”
Nick Treglia is a third year law student at Samford University’s Cumberland School of Law.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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