The National Catholic Review

Martin Luther King Jr. fought zealously to achieve for all the equality promised by the Declaration of Independence. His passion for justice was inspired by the Scriptures and the spirituals of his religion. The equality he fought for was an equality created first by God. Yet in the United States of today, a member of the clergy or a spokesman for a religious denomination who forcefully expresses an opinion on a matter of public import is invariably met with the accusation that he or she has breached the “wall of separation between church and state.”

The metaphor “wall of separation” has long been used by some political figures and commentators as a call to exclude the teachings of religion and religiously rooted morality from participation in political debate concerning public policy. Those who espouse such moral teachings in an attempt to shape the public agenda are scorned and ridiculed for infecting the public forum with their sectarian and, by implication, un-American discourse.

But as Justice Reed of the U.S. Supreme Court stated in McCollum v. Board of Education (1948), “a rule of law should not be drawn from a figure of speech.” The idea of “separation of church and state” was never meant to protect the state. Rather, it was designed to protect the religious rights of the people from the incursion of the government.

Origins of the Term

The metaphor “wall of separation” was coined by Roger Williams in the 17th century, before the colonies became independent and before the ratification of the United States Constitution. Williams was the pioneer of religious freedom and defender of the liberty of conscience. He believed no civil government could compel adherence to a religious doctrine without endangering free will. He imagined a “wall of separation between the garden of the church and the wilderness of the world.”

Thomas Jefferson returned to this imagery as president. In 1802, in a private letter to the Danbury (Conn.) Baptist Association, he wrote, “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or worship, that the legislative powers of government reach actions only, and not opinions, 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 and state.” As with Williams, the metaphor “wall of separation” was used by Jefferson as a shorthand formula to endorse religious liberty against the power and control of the state. The term served solely as an aid to religious belief.

The Bill of Rights and the First Amendment

The principles of religious liberty that Jefferson extols as “the most inalienable and sacred of all human rights” find their ultimate source in the Bill of Rights of the U.S. Constitution. These first 10 amendments were enacted to secure certain fundamental individual rights, including the rights to religion. Jefferson writes to James Madison, “A bill of rights is what the people are entitled to against every government on earth.” So, too, in the West Virginia State Board of Education v. Barnette (1943), Justice Jackson states that “The very purpose of a Bill of Rights was...to place [certain subjects] beyond the reach of majorities and officials and to establish them as legal principles....” The Bill of Rights thus was designed not to shield the state and its policies and practices from the exercise of those individual rights by its citizens, but rather to protect the exercise of those individual rights from infringement by the state. The Bill of Rights was erected as a bulwark, a “wall,” as it were, against the state.

The individual’s rights to religion are the very first rights defined and secured by the First Amendment. The amendment begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The free speech and free press clauses come only after this.

The no-establishment clause says that government shall not establish a religion, nor enforce its observance by law, nor compel any citizen to worship in a manner contrary to his conscience. This clause was designed to prohibit the establishment of a state-sponsored church or a national religion and prevents the state from giving any religious denomination a preferred legal status. The free exercise of religion clause that follows bans the state from restraining a citizen’s unfettered choice to believe the tenets of his faith and to worship in accordance with his conscience. Each of these clauses reinforces the other; the freedom of religious expression finds its logical corollary in the prohibition of a state-sponsored religion.

The New York Constitutional Ratifying Convention set forth this doctrine of individual religious liberty in succinct and lucid language: “That the people have an equal, natural, and unalienable right freely and peacefully to exercise their religion according to the dictates of conscience; and no religious sect or society ought to be favored or established, by law, in preference to others.” The First Amendment, then, is a barrier against the state, not against the people; it sets limits on governmental power and guarantees individual liberties, including religious liberty. It requires the state to be neutral in religious matters, to “keep its hands off” religious choices and leave decisions of conscience to the people.

Religion and Public Policy Debate

Since the government is barred from curbing a citizen’s exercise of his religious beliefs, ministers of religion of every creed and sect can freely engage in public debate in an endeavor to influence governmental policy in accordance with their religious-based moral values. The “wall of separation” permits maximum freedom to religious ideas and expression and deprives the state of any power to curtail that freedom. What is more, a citizen’s advocacy of a political view infused by his faith is protected and encouraged by both the free exercise and free speech clauses of the First Amendment. The religious clauses of the First Amendment dictate a simple but profound injunction: Religion shall have the power to persuade; government shall lack the power to compel.

It is most crucial for the lasting vitality of individual liberties that the metaphorical “wall of separation” be understood in accordance with its historical and true meaning, and that religion be properly regarded as possessing rights with the same scope as the rights to speech and the rights of the press. No one has ever advanced the argument that the state and its policies and practices should be immune from the criticism and censure of free speech and free press, even when the exercise of such rights conveys mistakes of fact or errors in judgment or is actuated by bias or personal animosity. Neither should a figure of speech whose root meaning has become obscured over time be used to curtail religion, the first and most precious right of a free people. The very same “wall” that secures free speech and free press also defends the free exercise of religion against the state. It is the sole and organic source of each of these sacred individual liberties. The rostrum in the forum is open to all three.

A vibrant public policy can long endure only if grounded on such fundamental moral values as equality, fairness, freedom, love of neighbor and compassion for the poor, the sick and the aged. And morality is inseparable from the teachings of religion on the nature and condition of the human person and people’s relationship to their Creator. The moral values of the great religious traditions, which have sustained and enriched world cultures through the ages, should not be exiled from the public square because of a metaphor whose true meaning has been distorted by some who possess an abiding hostility to religion’s influence on the public agenda. The public square needs to hear the voices of a religiously based morality, so that public affairs may be nourished by their ideals of justice and equity. These ideals have inspired the struggle for emancipation of the slave, integration of the races and equality of the sexes.

The Hon. Edward F. Harrington is United States Senior District Judge for the District of Massachusetts.

Comments

William Donohue | 2/16/2007 - 10:08am
Edward F. Harrington, in “The Metaphorical Wall” (1/17), effectively debunks the prevailing mythology about government and religion. The framers of the Constitution quite clearly sought to insulate religion from the reach of government; they did not seek to inoculate society from religious expression. But as Terry Golway points out in the same issue, “Matters of Which We Dare Not Speak,” the invocation of “separation of church and state” may be the preferred legal strategy, but it is “fear and outright loathing of public expressions of religion and faith” that is really at work. In short, there is more than flawed jurisprudential reasoning that is driving this issue.

Chris Cunningham | 11/14/2010 - 7:19am
Good Article