30 Jan The Wall of Separation: A “Failed Metaphor”
It is a dangerous sign of our times. A vicious form of secularism masquerades as religious neutrality and drives faith from American public life. The evidence fills newspaper headlines. A court deems the Boy Scouts a religious organization and denies them use of a state park in California. The cross adorning a decades-old World War I memorial is banned. Clergymen from both the theological left and right are forbidden to speak truth to government for fear of losing their tax exempt status. Even Christmas trees in airports are challenged as harbingers of a dreaded Christian domination. And the principle of law that allows these atrocities?: a two-hundred year old figure of speech, sadly misapplied by our nation’s highest court.
It was Winston Churchill who once said, “If we open a quarrel between past and present, we shall find that we have lost the future.” The words are an apt description of the U. S. Supreme Court’s ruling—sixty years ago this year—in the pivotal Everson v. Board of Education case. By pitting its secular vision against the religious hopes of the founding generation, as it did in this case, the court may well have lost the blessings of the founders’ wisdom for America’s religious future.
It all began innocuously enough. In 1940’s New Jersey, the Township of Ewing began reimbursing parents for the money they spent in transporting their children to Catholic schools. Arch Everson, a citizen of Ewing, claimed the practice amounted to New Jersey forcing him to pay taxes in support of the Roman Catholic Church. Everson filed suit and lost, then lost again on appeal, and finally determined to take his case to the U.S. Supreme Court.
The unanimous decision of that court was one of the most astonishing in the nation’s history. After providing a lengthy survey of the founding generation’s religious opinions, the court concluded, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Specifically, neither the federal government nor a state would be permitted to aid religion in any form nor levy a tax in any amount—“large or small”—to support religion. Yet, as though ignoring its own reasoning, the court then ruled that the Township of Ewing could continue the practice of reimbursing the transportation costs of parochial school parents.
The decision was lamentable not only for its inconsistency but for its violence to history. For example, the court made Jefferson’s “wall of separation” metaphor the very meaning of the establishment clause of the First Amendment. Yet Jefferson’s phrase was not even penned until more than a decade after the First Amendment was drafted and it never appeared in the debates that produced the First Amendment. Clearly, the words were not part of the thinking of the framers. Nevertheless, the court’s ruling made Jefferson’s metaphor from his famous Danbury Letter the law of the land.
Even Jefferson would not have approved. It was Jefferson, after all, who attended a makeshift church throughout his administration—one that met on the floor of the House of Representatives. It was Jefferson who approved federal funding for a Catholic priest to serve the Kaskaskia Indians. And it was Jefferson who facilitated Christian worship at his fledgling University of Virginia. Clearly, his vision of church and state was far removed from that of the Supreme Court in 1947. Moreover, Jefferson would never have applied the restrictions of the Establishment Clause, however interpreted, to the states, for as he said in his Second Inaugural, he had never as president prescribed “religious exercises” but rather had “left them, as the constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies.”
Yet, with the clear counsel of Jefferson’s example cast aside, the ravages of Everson have led to a host of prohibitions upon religion in American public life in a series of now famous cases regarding school prayer, the Ten Commandments, religious symbols on public land, and even military chaplains.
Thankfully, wiser voices have called for a more helpful tool than Jefferson’s figure of speech. Chief Justice Burger complained, for example, that “the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”
Utah Supreme Court Justice Dallin Oakes, noting that the Court in Everson allowed buses to take children to religious schools but that other courts denied the legality of school prayer, wryly protested, “Certainly there is something anomalous about a wall that will admit a school bus without the ‘slightest breach,’ but is impermeable to a prayer . . . The metaphor is not an aid to thought and it can be a positive barrier to communication.”
And Justice William Rehnquist, complaining that the Supreme Court’s use of Jefferson’s metaphor has resulted in rulings that “have been neither principled nor unified,” has concluded that the phrase “wall of separation between church and state” is a “failed metaphor” which is “based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
With a majority of Americans wrongly believing that the phrase “wall of separation between church and state” appears in the U.S. Constitution, it is unlikely that the Jefferson’s famous phrase will soon be “abandoned,” as Justice Rehnquist hoped. Still, the present American moment—when a religiously inspired global war, a religiously inspired president, an increasingly religious population, and religiously enflamed politics all shape the national experience—seems a perfect moment for the reconsideration of our religious heritage and of the laws that have banished the wisdom of that heritage from our public life.