About That Wall Of Separation

According to the New York Times, Eric Adams, current Mayor of New York City, opened a recent talk with an old chestnut:“When we took prayers out of schools, guns came into schools.” Not only is that presumed cause-and-effect demonstrably false, Adam’s speech–in which he dismissed separation of church and state–betrayed an appalling lack of constitutional knowledge (and provoked enormous criticism).

Back in 2004, I posted “Why Separation is Good for Church and Necessary for State.” It seems appropriate to repeat that explanation, and remind ourselves that religious “culture war” issues were already hot some twenty years ago. (Warning: this was originally a speech, so it’s longer than my usual daily post.)


I’ll start with James Madison, my favorite Founder and the one whose views on religious liberty dominated the Constitutional Convention. Madison based his understanding of natural rights and the role of the state on Locke’s social compact. As one scholar has noted, because the exercise of religion requires that each person follow his own conscience, it is a particular kind of natural right, an inalienable natural right. Since opinions and beliefs can be shaped only by individual consideration of evidence that that particular individual finds persuasive, no one can really impose opinions on any one else. Unlike property, or even speech, religious liberty cannot be sold, or alienated, so it does not become part of the social compact. The state must remain noncognizant of its citizens’ religions–meaning that it simply has no jurisdiction over religion. A just state must be blind to religion. It can’t use religion to classify citizens, and it can neither privilege nor penalize citizens on account of religion.

If you listen to the rhetoric around church-state issues today, you would never know that the “wall of separation” contemplated by Jefferson and Madison was seen as an important protection for both religion and government. But it was—and for some very sound reasons. 

This view of Madison’s is a far cry from the interpretation favored by some of our current Justices—an interpretation sometimes called “nonpreferentialism.”

Roger Williams, who founded Rhode Island, is most often cited for the religious view of the importance of separation; he was the originator of the phrase “a wall of separation”—a full 150 years before Thomas Jefferson used it. Historians sometimes overlook the importance 18th and 19th century Christians placed upon the doctrine of liberty of conscience—what they called “soul freedom.” Such views were most strongly held by Mennonites, Quakers and Baptists, but they were also part of the beliefs of colonial era Episcopalians, Methodists and Presbyterians.

John Leland was a traveling evangelical Baptist with a strong view of the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control.” He also wrote that “the state has no right or leave to concern itself with the beliefs of an individual or that individual’s right to expound those beliefs…The state is to maintain order, not to judge right and wrong.” And here’s my favorite Leland quote: “The very tendency of religious establishments by human law is to make some hypocrites and the rest fools; they are calculated to destroy those very virtues that religion is designed to build up…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”

Were there people who lived at the same time as Madison and Leland who felt otherwise? Of course. But it was the position of Madison and Leland that prevailed; it was their view of the proper relationship (which might more accurately be described as the proper lack of a relationship) between church and state that became part of our constitutional structure.

Today, in addition to rampant historical revisionism, there are two common justifications for allowing government to take cognizance of religion—arguments that are mutually exclusive, although often offered by the same people. They are sometimes called the instrumental argument, and the ceremonial justification.

You are all familiar with the instrumental argument; it is best summarized by a bumper sticker that was popular a few years ago: something along the lines of “When prayer was removed from the classroom, guns and teenage pregnancy came in.” A good example of the instrumental approach was offered by Tom Delay, right after the Columbine school shootings. DeLay said “I got an email this morning that said it all. A student writes, ‘Dear God, why didn’t you stop the shootings at Columbine?’ and God writes back ‘Dear student: I would have, but I wasn’t allowed in.’”

This naive belief that exposure to a denatured and generic religion in the classroom will make students behave is exactly the same justification given for current efforts to post the Ten Commandments—if people see “Thou shalt not kill” on the wall of a public building, well, they won’t kill. (For complex theological reasons I do not understand, this evidently doesn’t work if the building is privately owned.) Unfortunately, available evidence does not support this belief in the magical powers of religious iconography. The United States is by far the most religious of all the western industrialized nations—and we are also the most violent. There are few—if any—atheists in our prisons. Folks in the Bible Belt pray more—and kill more. And as Stephen Chapman noted in a column following DeLay’s comments, school shootings have not occurred in hotbeds of secularism like Berkeley or Cambridge or New York City, but in towns where Norman Rockwell and James Dobson would feel right at home: Paducah, KY, Jonesboro, ARK, and Littleton, CO.

The reason these proponents of government-sponsored prayer want government to make us pray is because they are convinced that in the absence of state coercion, we won’t. That’s why they object to non-mandatory, private baccalaureate services in lieu of prayer at high school graduations. Such baccalaureate services, which used to be the norm, permit meaningful prayer for those who wish to participate. So what’s the objection? Tellingly, it is that such services are voluntary—that those who “need” to prayer won’t come. The folks making this argument know what prayer is good for you and me, and are willing to use the power of the state to make us participate in a ceremony that includes that prayer.

The instrumental argument for supporting public religion and prayer is basically “religion is good for people, so the state should impose it.” The ceremonial defense of public religion is that it has no effect at all–that it’s meaningless. This is the argument that prayers at graduations and similar venues are merely “traditional” and “ceremonial.” People of faith—quite justifiably—find such characterizations deeply offensive. As a minister friend of mine used to say, he doen’t pray “to whom it may concern.” No religion I know of sanctions the notion that prayer is merely ceremonial, void of particularistic significance and useful only as an archaic (albeit charming) tradition.

The Founders of this nation believed that government neutrality in matters of religious belief—Madison’s noncognizance—was essential if government was to be seen as legitimate. They also believed that state neutrality was necessary if genuine religious sentiment was to flourish. You only need look at nations without a First Amendment to see how right they were; countries like England have seen state-sponsored religions degenerate into pleasant rituals without vitality; on the other end of the spectrum, nations like Saudi Arabia and Iran have employed the force of the state in the service of religious conformity. Both alternatives are instructive.

Let me just conclude these remarks by commenting on a couple of current manifestations of America’s religious culture wars: the President’s Faith-Based Initiative, and efforts to pass state and federal constitutional amendments banning same-sex marriage.

As many of you know, I recently completed a 3 year study of “faith-based” contracting— I think the questions raised by the President’s Initiative point to the wisdom of Madison’s insistence upon government noncognizance of religion, and to the accuracy of Leland’s observations.

Charitable Choice and the President’s Faith-Based Initiative are efforts to increase the numbers of “faith-based” social service providers contracting with the state. In order to accomplish that, government agencies must first define religion, or “faith.” (We all saw how well that worked with conscientious objectors.) I should note here, by the way, that the term “faith-based” is itself illustrative of the problem. I’m sure the phrase was intended to be more inclusive (and perhaps less alarming ) than the word “religion,” but it betrays an unconscious, and rather telling, bias. “Faith based” is a very Protestant religious concept. Catholicism and Judaism, among others, are “works based” religions.

Of course, government has contracted with religious organizations ever since it has provided social services, so the first question that arises is: How do the faith organizations the President proposes to recruit differ from Catholic Charities, Lutheran Social Services, the Salvation Army, and government’s many other long-time religious partners?

A much more troubling question comes next: Since the effort to recruit new faith partners has not been accompanied by additional funding for social services, it is hard not to see Charitable Choice as an effort to shift funds from one set of religious providers to another –presumably, from government’s traditional religious partners (who generally operate in accordance with applicable professional and constitutional norms) to more evangelical providers focused upon “personal transformation” of clients. If new FBOs do bid for contracts in any significant numbers, the competition for limited dollars will create precisely the sort of conflict among religious groups that the First Amendment was intended to avoid.

The First Amendment does not prevent government from doing business with faith organizations, but that doesn’t mean that any program run by a religious provider will pass constitutional muster.  There is a constitutionally significant distinction between programs that are offered by a religious provider or in a religious setting, and programs in which religious observance or dogma are integral to service delivery. Failure to understand that distinction invites the very mischief that so worried Madison and Leland.

Despite the rhetoric emanating from the White House, the question is not whether government should partner with religious organizations to provide social services.  It always has, and undoubtedly always will.  The question is “when are such partnerships appropriate and how should they be structured and monitored?”  Similarly, the question is not whether religious or secular organizations are better; it is “what organizational characteristics are most likely to predict successful program delivery?”
If there is one truism our study confirmed, it is that simpleminded confidence in the power of undefined “faith” is misplaced. No armies of compassion are rushing in to relieve government of its responsibilities for social welfare, and faith has not provided a short-cut to self-sufficiency.  As the head of one faith-based agency puts it, “Most poor people have all the religion in the world.  What they don’t have is job skills.” To which observation both Madison and Leland might have added: and government’s responsibility is limited to providing them with the job skills.

If the effort to portray “faith” as an important element in service delivery is misplaced, the war being waged against gays and lesbians is a frontal attack on two of the most fundamental principles of our constitutional system, equal protection of the laws and separation of church and state.

With all of the rhetoric about government needing to “protect” marriage, we sometimes forget that government cannot and does not sanctify marital relationships. Churches, Mosques and synagogues join people in religious unions; the state merely confirms those relationships for purposes of securing the legal incidents of that partnership status. If you are married in a civil ceremony, you have a civil marriage—meaning that the state recognizes your legal partnership for purposes of enforcing the obligations you have assumed.  Prohibiting state recognition of same-sex partnerships—many of which have, in fact, been blessed by a church or synagogue—denies gay couples access to 1008 legal rights that heterosexual citizens enjoy. Those include the right to be appointed as a guardian of an ailing or injured partner, the right to take family leave, the right to legally parent a non-biological child, and the right to half of the partnership’s accumulated property if the relationship dissolves. Same sex couples pay more taxes than married couples, because they aren’t entitled to spousal gift and estate tax exemptions and deductions. They can’t seek damages for a partner’s wrongful death. There are hundreds more—legal and civil rights enjoyed by any heterosexual married for two days or two months, but denied to gays who have been partners for 30 or 50 years.

The justifications for imposing these legal disabilities are virtually all religious, and rooted in the doctrines of some, but certainly not all, conservative denominations. Despite efforts to pretend there are secular policy concerns at stake, all one need do is look at the justifications offered to see their true nature:      

We are told that gays should not be allowed to marry because homosexuality is immoral. But all religions teach that rape and murder are immoral—and Indiana allows rapists and murderers to marry.
We are told that marriage and sex are for procreation. So where are the bills prohibiting marriages between old people and sterile people?
We are told that gay parenting is harmful to children, but there is absolutely no credible research confirming that harm.
We are told that recognition of gay unions will undermine the institution of marriage. But we are not told why that is so, and we were told the same thing about interracial marriage, and about allowing women to own property and vote.

At the recent rally in Indianapolis, the crowd was told that marriage is for biological parents and their natural-born children. Those of us with stepchildren we love every bit as much as we love our biological children, those who have adopted children they adore, found that characterization both inaccurate and offensive. 

We all understand that these measures are not efforts to protect families—they are efforts to privilege some families at the expense of others. They aren’t even about religion and morality—they are about whose religion, whose morality. That is why the issue is so important to so many of us who are not gay. It is because we know that when government gets the right to decide whose beliefs are acceptable, no one’s beliefs are safe.  

What happens when government imposes the religious views of some Americans on the rest of us?

First of all, government itself loses legitimacy, because it is acting contrary to the rule of law and norms of neutrality and equality. The rule of law requires that we constrain and limit the discretion of government officials. Every time we give those officials added discretion—to choose this religious service provider over that one, to send this welfare recipient to that religious program rather than this secular one—we increase the opportunity for abuse of discretion. We move further from the rule of law, and closer to the arbitrary exercise of power by man.  Furthermore, political conflict intensifies, making it more difficult for government to do the jobs it is supposed to do. If you doubt the accuracy of that observation, a quick look at Congress and the Indiana General Assembly should confirm the point.

Second, religious liberty is compromised, and with it, religion itself. Beliefs not freely chosen are by definition not authentic. The imposition of religious observances, or the passage of laws privileging religious beliefs, tends to increase the public’s skepticism about all religion.

Finally, society itself loses. Religious disputes are among the most bitter and divisive of conflicts. The current, highly contested political debate about “values” has been terribly corrosive of our national identity, and harmful to our sense of national purpose. We need to minimize the culture wars, not add fuel to the fire. The way to minimize conflict is to listen to the logic of James Madison and John Leland. The way to add fuel to the fire is to let the State make the religious beliefs of some Americans the law of the land.


  1. I wonder how the ” originalists” of SCOTUS will try to justify ignoring your argument.

  2. Well of course society is in a deep state of decay!

    Life is extremely expendable today. There are hundreds of religions, and they tend to differ in worship, principal, doctrine, Creed, presumption, Canon, and code of belief concerning strength or importance of conscience, along with other specific dogmas and tenets.

    We have to remember that the founders of this country believed in slavery. They also believed, wealthy white male landowners really had the only rights. Either civil or human! But were they right? Did they have the right to enslave, was it authorized by a higher power? Did Judaism or Christianity promote slavery?

    There has to be a wall between church and state because there is just too many differences of opinion and even conscience to have one size fits all. And to have a government sponsor a religion or church. It disenfranchises everyone else who doesn’t have the same belief.

    Men have hijacked religion to divide people by beliefs, race, colors and creeds. Religion has become political, Judaism was a true theocracy, but after Judaism, none could compare with the Mosaic law, Even the Jews found it difficult. They kept revolting against it.

    As an example of how the slave trade was accepted by religious types, James Walvin stated in his annals; “There were hundreds of such men, Europeans and Americans, who praise the Lord for his blessing, giving thanks for profitable and safe business in Africa is they turned their slave ships into the trade winds and headed for the new world.”

    Alexander McCaine extolled in his speech to the general conference of the
    Methodist Protestant Church in 1842; “slavery is ordained by God himself.”

    So, did God really approve of the slave trade? Did God approve of the murder of slaves on the slave ships, or the rape of women and girls? The selling of humans by humans? The answer is emphatically, NO!

    Ecclesiastes 8:9 it states, “Man has dominated man to his injury.”

    Well, that scripture definitely doesn’t seem to condone men dominating men does it?

    In Exodus it shows how the Israelites were taken out from under the yoke of the Egyptians! Exodus 1:14 Exodus 2:23, 24 and Exodus 6: 6 – 8.

    During war, back during those days under the Mosaic law, there were slaves. Some were voluntary, more of indentured so to speak. But they would be released from under their yoke of obligation during The Sabbath of Sabbath years or, every 7th Sabbath. Also financial obligations were written off, along with property and land that was given back to the original owners.

    In early Israel, any individuals from conquered peoples through war, could be used as slaves, but they must be treated as hired workers. Not to be abused, because the Jews were abused in Egypt.

    If, they had slaves that were abused and not treated according to law, they could be put to death. Quite a difference between then, and the Christian slave trade.
    Exodus 20:2, Leviticus 25:10, Deuteronomy 15:12!

    With the start of Christianity, originally, during the time of the Apostles and Disciples of Christ, you can read 1st Corinthians 7:21, 22 and also Philemon 10-17, concerning the thought process on slavery.

    Men have co-opted religion to allow them a faulty but clean conscience. In other words, willful delusion!

    With this sort of conduct, how can there be any moral standing for anything? The value of human life is non-existent today. And this can be directly traced back to the hijacking of religion to promote heinous and reviling inhuman conduct.

    There will always be ridiculers concerning religion, and there will always be the naysayers.

    Because, simplicity is easier on the weak mind and calloused conscience.

    An individual whom I have studied, Moses Mielziner, a well studied Jewish scholar, stated; “a slave could never cease to be a man, he was looked upon as a person possessing certain natural human rights, with which the master even could not with impunity interfere.” This is directly from the Mosaic law!

    In politics today, there is no truth telling, and it’s combined with a large portion of religious organizations who have hitched their horse to that wagon.

    There is a penalty for that, and I believe it’s probably one that they don’t believe in themselves but enjoy extorting their parishioners using it.

    Money is their God, and power is their God! They have no compassion, no empathy, there is no Love God, there is no Love your Neighbor, there is no Love and Respect your Enemies, there is only, “what’s in it for Me, I’ve got to get Mine!”

    Moral turpitude promulgates through human civilization like a plague. And with nothing to intercede, you have exactly what’s going on today. And it will continue until the entirety of humanity is gone. Humanity’s civilization has been on course for self-destruction for millennia, and I think the Piper is asking for payment.

  3. JOHN PETER SORG; IMHO…your sign-on name on this blog is “One Toke Over The Line”!

  4. Sharon, You don’t need to worry, because we all know that there is no such thing as originalism as long as there are older laws, rules, and regulations to cite. In Dobb’s, Alito went as far back as the 15th century to find sources for his clearly disingenuous rationale. They have the power and that’s all they need. I’m truly waiting to see a decision that simply says, “We’re doing this because we can!”

  5. Morality first; Laws second. You cannot impose morals on people. They must awaken (wokeness) to it.

    If one lacks morals, one will be involved in the justice system sooner or later.

    Government and businesses are no different, as we have all witnessed – it’s getting worse from one side but better from the other. The freer the young black people get and start taking hold of the reins, the scarier things will become for the church people.

  6. Todd, don’t confuse “you can’t legislate morality” (which is demonstrably not true – virtually every law is based on morality) with whether it is a good idea to legislate certain moral issues…it often isn’t. Do we really want, for example, laws criminalizing adultery? I think not. But do we want laws criminalizing sexual assault. Absolutely. But they both involve morality, i.e. what society deems is right and wrong.

  7. It seems to me this well-written and thoughtful piece by Sheila consists of two parts.

    1) Argument that history supports the current interpretation of the Establishment Clause to be, in short-hand, a requirement of separation of church and state.


    2) That separation of church and state is good public policy.

    I agree with the sentiments Sheila expresses as to the policy argument, i.e. No. 2. But that something represents good public policy doesn’t mean that policy is mandated by the constitution. The Constitution doesn’t forbid bad public policies.

    As far as argument No. 1, the claim that the Founders intended a strict wall of separation in crafting the Establishment Clause is extremely weak. First, they used the word “ESTABLISH” not more expansive language. They were leaving a country – England – which had an ESTABLISHED national church, the Anglican Church. It’s pretty obvious that is what they were trying to avoid the establishment of a national church in the United States. That’s why they used that word.

    Second, the fact is many states had official state religions when the First Amendment Establishment Clause was adopted. The Establishment Clause in the First Amendment didn’t even touch what states were doing. It wasn’t until the Everson case in 1947 that the Supreme Court began interpreting the Establishment Clause more broadly….and applying that provision to the states. In Everson, both the justices in the majority and in dissent claimed they were relying on history to guide their interpretation. But the majority opinion was extremely weak on the evidence it cited. The historical evidence is pretty much irrefutable that, while the current interpretation of the Establishment Clause might have been favored by some Founders, that was not the opinion held by most of them.

  8. James Madison, where art thou? We need the authority of such a storied figure in this day of Boeberts and MTGs and the asylum now overrun by its inmates – or would even he be assigned to the woke grouping by the inmates blinded by ambition and grasp for power and oblivious to the blessings of democracy?

    Want to know how an amalgamation of church and state work out? Check out the Holy Roman Empire, which Voltaire correctly noted was “neither holy, Roman nor an empire.”

  9. Paul, Although you are correct that states had “established” churches (until the early 1800s!), your argument about the term “establishment” is not correct. Historians tell us that the Establishment Clause went through more than 20 drafts, with the Founders rejecting formulations like “there shall be no National Church.” The Establishment Clause prohibited the national government from making any law “respecting an establishment of religion.” The courts (at least thus far) have uniformly held that this language not only forbids the government from establishing an official religion or state Church, but also prohibits government actions that endorse or sponsor religion, favor one religion over another, or that prefer religion to non-religion, or non-religion over religion.

  10. Sheila is absolutely positively spot on!

    And getting to the space cowhand, the obvious “midnight Toker” in my humble opinion, I think you should know the difference between Christ’s law, and the Mosaic law! Obviously your Catholic upbringing didn’t teach you that.

    More than half of that comment referred to the Hebrew scriptures. It had nothing to do with Christ! But it is about continuity.

    There is a certain flow in scripture, from the Abrahamic covenant, to the Mosaic law, to Christ’s law!

    If individuals prefer to stay uninformed, how can anyone mount an argument pointing out the lack of knowledge on the Evangelical side of things.

    When you approach individuals who are working under a lack of understanding, and you prove to them that they are wrong through the things they claim they understand, it makes a difference! Usually, that’s where the debate stops and questions start!

    But hey, I understand, slinging crap is fun! They sling it and you sling it back. But then that doesn’t accomplish much. In supposition, if one doesn’t have the capability or the knowledge to do that, then slinging crap is the next best thing, isn’t it?

    I like people talking about wokeness, but, woke to what? The Evangelicals claim to speak from a position of knowledge and authority, but really possess no knowledge and even less authority.

    Those who are woke claim to hold on to the moral high ground, because of the hypocrisy on the right. But, those who seem to be woke have no moral high ground either. Knowledge is power, know thine enemy? An age-old proverb that was extremely and emphatically correct.

    And yet, here we are, enduring the wokeness of prejudice, ridicule, and crap throwing!

    Knowledge is power, lack of knowledge is weakness. And here, you have individuals who like to promote weakness!

    I had a chance to stop and talk to those praying across the street from a family planning center here.

    So I asked him what the point was? And they said they had to stop abortion. I asked them why they felt they had to do it? They said because God told them. And I asked them to show me in scripture, and they showed me some stuff, but it did not equate to what they were saying. So basically, the conversation ended with a lot of questions asked of me, and a lot of questions answered.

    The whole crux of the issue is a person’s god-given right to their own conscience. And in the end, if one believes in such a thing, everyone will be judged on what their conscience allowed them to do. Now, that’s how you talk to an evangelical! And, if you know the scriptures to back that up, there really is no argument involved.

    The same with the argument they use for masturbation referring to the case of Onan, but that wasn’t about masturbation, that was about coitus interruptus, which was against the law concerning brother-in-law marriage.. He refused to give his sister-in-law, Who was widowed, a son. Onan wanted to inherit the families wealth so to speak, be the leader! And, he was put to death because of that. But Evangelicals claim it was about masturbation. So if you don’t know what they believe, and you don’t really care, then how can you ever debate anyone instead of throwing crap? I guess throwing crap has a certain allure! But it accomplishes nothing.

    And, like was mentioned a billion times already, the leaders of this country were wealthy white males. They were the ones with the only rights! And that means what was written in the Constitution, all revolved around wealthy white landowners most who owned slaves.

    So if you want to go by those saintly individuals, go right ahead! But then, you fall right into the trap that has been set, it’s a fools errand searching for fool’s Gold.

  11. For what it’s worth, Tom Delay showed himself to be a jackass, while in congress.
    one of the things about the U.S.A. that sets it apart from the rest is this “wall,” and
    putting holes init will just, has, and will further erode it as a “beacon of freedom.”
    Having had to sit through weekly prayer, in what was then called “Assembly” in
    grammar school did not somehow magically awaken me to the wonders of religion.

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