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How High is the Wall of Separation?

Few issues are as volatile as the debate over the separation of church and state. Over the years there have been many interpretations of the founding father’s views on religious freedom and church-state relations. As anyone who has read the Constitution and the Bill of Rights knows, the phrase “Wall of separation between church and state” does not appear in either document. Rather, it comes from a letter Thomas Jefferson wrote to the Danbury Baptist Association in Danbury, Connecticut in 1802. Unfortunately, Jefferson’s “Wall of Separation” has grown to iron-curtain” proportions because it has become a cliche’ and a platitude among those who would eradicate much of the religious influence and symbolism in the public sphere. This phrase has also been used as a justification to extinguish most, if not all forms of religious expression from the public sector and in debates over the role religion should play in the everyday lives of American citizens. The basis of this development has come from Supreme Court interpretations of the writings of James Madison on religious freedom. However, James Madison, supported institutional, not strict, separation between church and state.

Strict separation supporters advocate the separation of “God from government” or religious expression in the public sphere. In its most extreme form, it would bar from public view, all symbols or signs of faith such as nativity scenes, plaques of the 10 Commandments in public schools, slogans on government seals or statues of religious figures on public property. According to this view, religious rituals and proceedings as well as all forms of proselytizing, should only occur in private settings behind closed doors. This form of separation is so strict that it burdens and disadvantages the exercise of religion, which Madison never intended for the establishment clause to do.

In contrast to this absolutist style of separation, Madison favored an institutional form of separation because it secured freedom for both the church and the state. Institutional separation, is where an alliance or fusion between church and state is outlawed to prevent a theocracy. As one can see from studying society during the middle ages, the papal system leads to many avenues for corruption as Madison explains in his Memorial and Remonstrance:

“Experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries, has the legal establishment of Christianity been on trial? What have been its fruits? More or less, in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution” (Memorial 2). Thus, institutional separation serves two main purposes. It prevents the government from interfering with the conscience of individuals in religious matters and it prevents alliances between church and state authorities that could lead to ecclesiastical tyranny and persecution of minority religious sects. Under the auspices of institutional separation, a clergyman could run for public office as long as he stepped down from his position of religious authority. If this were not required, the religious and political leaders would be one and the same, which would create much potential for political corruption and religious persecution.

Consequently, all the rights mentioned in the First Amendment, that Madison helped to draft, are all interrelated and were first and foremost intended for providing religious freedom. “Freedom of speech guarantees the right to preach; freedom of the press, the right to publish religious tracts, periodicals and books; the freedom of assembly assures the right of the people to come together for worship” (Sweet 88).

For further clarity, it is necessary to break the two contrasting viewpoints down further. Under the heading of strict separation, there would be transvaluing and expansive separation. Transvaluing separation occurs when it is the very objective of the government to secularize the political culture of the nation by denying all aid to religious organizations under all circumstances. It extracts all traces of organized religion and religious belief from the public arena and it totally removes “God” from the government. Thus, the federal government would “reject as illegitimate the use of all religious symbols or the appeal to religious values and motivations in the political arena” (Weber 167).

Expansive separation occurs when the government does not concern itself with religious symbolism or public displays of religious affection, but provides economic, social and welfare services that would normally be provided by religious organizations and private civic leagues. For example, if the state established public schools, hospitals, shelters for the homeless, food and clothing and other relief agencies, without regard to the harmful economic effects this would do to the religious organizations that provide these same services, the government would be practicing expansive separation. Thus, expansive separation transfers the publics’ dependence (and often allegiance) from the church to the state.

Under the institutional heading would be structural and equal separation between church and state. Structural separation is the most fundamental form of separation because it “involves severing formal legal and systematic ties between religion and the polity” (Weber P.166). This is the differentiation between religious and governmental organizations, although they often cooperate to reach the same ends. Often, all that separates structural separation from a theocracy is the fact that religious and political proceedings are administered under the auspices of different organizational authorities. It is called structural separation because religion and civil government are only separated superficially by the structure of their organizations and are typically only separated on the federal level. Individual sovereign states are still free to erect religious establishments as long as there is some degree of toleration for sects that are not part of the establishment. Since, nine of the original thirteen colonies had state establishments up until the ratification of the constitution, the political order of the colonial period would be a sufficient example of structural separation.

While he was still a young Virginia legislator, it is obvious that Madison favored a loose form of structural separation because he introduced a number of overtly religious bills that created church-state entanglements. Among these were “a bill preserving the property rights of the Anglican church during its gradual disestablishment, a bill imposing harsh penalties for disturbing religious worship or laboring on the Sabbath, a bill requiring all ministers to observe state appointed days of public fasting and Thanksgiving, and a bill incorporating Old Testament Levitical laws concerning prohibited marriages” In fact, James Madison even joined John Witherspoon in preventing the exclusion of clergy from holding public office (Lugo 60).

In contrast to all of these however, equal separation is that type which “guarantees to religiously motivated or affiliated individuals and organizations the same rights and privileges extended equally to other similarly situated individuals and organizations” (Weber, P.168). Equal separation gives religious organizations, regardless of their purpose or motivations, the same rights as other “factions” by providing protection without privilege. In his Memorial and Remonstrance, Madison outlines why equal separation was necessary for the purpose of toleration of nonbelievers. He says, while “we assert for ourselves a freedom to embrace… the religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.” Yet, at the same time, equal separation allows for the retention of a particular religion, in this case Christianity, to remain as the “foundation of… civil, legal and political institutions” (Driesbach 154).

Furthermore, he supported equal separation because he was against the establishment of religion, which he knew hindered the cause of religion and impeded the promulgation and diffusion of Christianity. As his twelfth point in his Remonstrance reveals when he said “Because the policy of the Bill is adverse to the diffusion of the light of Christianity… Instead of Leveling as far as possible, every obstacle to the victorious progress of Truth, the Bill with an ignoble and unchristian timidity would circumscribe it with a wall of defense against the encroachments of error.”

Another reason Madison espoused the doctrine of equal separation above all other forms is because, Madison believed in the individual primacy of opinion. In other words, Madison believed that if one had a natural right to hold opinions about God, he logically must also have a natural right to exercise those opinions as well. This is why he advocated that “all action should be permitted unless it ‘manifestly endangered’ the political community” and equal separation fosters the best environment for this to take place (Malbin 26).

Structural separation offers “toleration” for non-established sects, but “Madison did not believe that ‘toleration’ was sufficient. ‘The right of every man is to liberty-not toleration.’ He wanted full religious freedom” (Stokes 341). Furthermore, for the first time in history, religious liberty was recognized as a “natural right,” rather than just a result or product of “benevolent toleration.” In fact, it was James Madison who altered the original draft of the Virginia Bill of Rights of 1776 to using the term “entitled” in lieu of “toleration” so that it read “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” This clause asserted “for the first time in any body of fundamental law, a natural right which had not previously been recognized as such by political bodies in Christian world” (Brant, 249).

In contrast to the structural separationist attitudes of Madison’s youth, his actions later in life reveal a Madison that strayed far from his original views on church-state relations. For example, he objected to a bill that would allocate public land in the territories for religious purposes, he thought that congress had no right to have chaplains at the expense of the taxpaying public, and he even “opposed the teaching of religion in state universities, even on a nonsectarian basis, because he thought it implied establishment, and the professors would be ‘theological gladiators”‘ (Williamson 222).

If one wanted to plot these divisions, by constructing a continuum where a theocracy (the Papal system) would be the utmost extreme to the right and a complete secularist (or even communist) state, resided at the opposite polar extreme. Starting from the right, structural separation would be placed just left of theocracy (on the graph, though not in reality), and then equal separation to the left of that. Further to the left, under the auspices of strict separation, would be expansive separation and then transvaluing separation would be barely right of a completely secular state. As one moves from the right to the left of the continuum, religion loses more and more of its significance and influence on the affairs of the government and becomes more and more a purely private matter.

If one were to plot the founders on this graph, some like Washington, John Marshall, Patrick Henry, Joseph Jones, Henry Tazwell and Richard Henry Lee, would be placed furthest to the right, under structural separation because they believed the states should compel people to support the churches. They wanted “legislative interference (that would) help the churches improve the moral tone of the people” (Hunt, 79). Thomas Jefferson, on the other hand, would be vacillating between equal and transvaluing separation, depending on who asked him, what pressures were placed upon him and even what time of the day it was! Most of them, however, would lie somewhere between structural and equal separation. Consequently, James Madison and his view of equality based, institutional separation would land dead center because Madison was not “indifferent to religion and the concerns of the religious community… (and he) eschewed the extreme positions of (both) exclusive establishment and strict separation” (Dreisbach 152).

In church-state discussions, it is important to make the distinction between the establishment of religion and religious freedom. The establishing of a religion means “the setting up or recognition of a state church (1,y the government), or at least the conferring upon one church, special favors and advantages which are denied to others” (Weber F, 32). Religious freedom, on the other hand, encompasses so much that it would be best if James Madison himself were allowed to define it himself. In his Remonstrance, he first defines religious freedom and then logically differentiates it from the establishment of religion. He states: “…religion or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and inalienable right to the free exercise of religion according to the dictates of conscience, … no particular religious sect or society ought to be favored or established in preference to others.”

It is important to note, that James Madison was not for disestablishment because he was against religious institutions or individuals, or the influence they have on public policy. Instead, “disestablishment was intended to guarantee the freedom of the church, and the framers had come to believe that this meant the freedom of the churches” as well (Williamson 224). Therefore, from Madison’s point of view, one must support disestablishment in order to truly support religious freedom.

Madison went on in his Remonstrance to outline the reasons why establishment should be prevented. Not only did establishment create an atmosphere that caused “Pride and indolence in the clergy; ignorance and servility in the laity” but “…the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease, any particular sect of Christians, in (exclusion) of all other Sects” (Memorial 3). In other words, if an authority is given the power to tax in the name of Christianity, it would also have the power to just as easily create the establishment of a single Christian sect, when in reality, Christianity does not even need to be established in order to achieve its ends. In fact, “To demand support for (Christianity) would be a confession of weakness, and encourage in those who opposed it a belief that it could not stand on its own merits … Christianity shone with greatest luster… before it was incorporated as a civil policy” (Hunt 85).

It is important to understand that Madison was dissenting from the majority opinion of his day that said that religion should be established in some form or another. Instead he rejected the long held dogma that “religion could not be preserved without the support of Government nor Government be supported without an established religion” because he understood the dangers of establishment and he knew that neither religion nor the state needed an alliance with the other to prosper, much less survive. (Mead, 349). In contrast, “true and genuine religion flourished when it relied on the voluntary support of believers and eschewed all corrupting endorsements of civil authority” and James Madison knew that religion was too important to subject it to governmental control in any way, shape, or form. (Dreisbach 152).

Nevertheless, James Madison never intended for his writings, including the first Amendment, to prohibit the federal government from recognizing religion . In fact, there were no references to the aid of, or the cooperation with, religion in general in any of the constitutional conventions and there was no ban whatsoever on equal attitudes to all religions. This means that, “nondiscriminatory aid to religion by government is consistent with the First Amendment” (Alley, 235) Joseph Story, former Chief Justice of the Supreme Court, said that “the real objective of the Amendment was to exclude all rivalry among Christian sects.” Thus, the federal government was not concerned so much with the separation between religion and civil government, as it was with equality between religious sects (Weber F. 32). In a letter Madison wrote to the Rev.Jasper Adams in 1833, he said “The tendency (for) a corrupting coalition or alliance between them (religion and government), will be best guarded against by an entire abstinence of the Government from interference (into the affairs of religious institutions)… beyond the necessity of preserving the public order, & protecting each sect against trespass on its legal rights by others” (Bold mine). Notice that Madison did not say “an entire abstinence of religion” into the affairs of government. Instead his emphasis was on the “abstinence of the government” and the rights and protection of the “sect” (church) from the interference of the government. It is obvious that his fear is not with the religious effects of or the interference with the government, but with government regulation of religious institutions.

Consequently, the “corrupting coalition or alliance between them” is referring to an establishment of religion, which is what must be “guarded against.” Not the political involvement of religion in general, or incidental assistance to religion in general, or aid to religion in general, or even the recognition of the government of religion in general. Therefore, the purpose of the establishment clause was to prevent the encroachment of the government into religious affairs. It was not meant to prevent the church from influencing the government as is commonly believed. Furthermore, James Madison understood that because religion and religious symbolism were so deeply ingrained into American culture that it would be impossible to separate religion from the republic no matter how much the government tried to separate the church from the state (Alley 243).

The separation that the founders, including James Madison, intended between church and state, is similar to that of the “separation of powers” among the three branches of government. Their proceedings are separate and diffused and one cannot be, for example, the president and chief justice, or the speaker of the house and the secretary of state simultaneously. However, a former secretary of state or a former speaker of the house is free to run for president. Their former occupations do not prevent them from getting involved in various levels of public policy in other branches of government and each branch must compromise and interact and will thus unavoidably, influence the others.

The main difference is that “in the case of the three branches of government, the word ‘separation’ never acquired the radical meaning which is being thrust upon it in the area of church and state relations. No one argues that the separation of powers created three governments which it is our duty ‘to push and to keep forever apart.”‘ Rather, there are three branches of one government and likewise, there are many influences on public policy, with religion being among many (Williamson 240).

While Thomas Jefferson used the phrase “Wall of separation” in his writings about religious freedom, Madison used the more accurate phrase of a “line of separation.” For example, in the letter he wrote to the Rev. Adams, he admits that “It may not be easy in every possible case, to trace the line of separation between the rights of religion and the civil authority” (Wilson 81). The “wall of separation” metaphor is over simplistic because the US does not have any single church or ecclesiastical authority or any single, monolithic and sovereign state but instead, there are multitudes of churches and a “layered” and fragmented government (Mead 349).

Consequently, it was because of these multitudes, of various religious groups that would keep each other “in check,” insuring that no particular faith would gain a legally preferred status. In fact, James Madison believed that the Federal government did not even have the power to infringe on religious liberty, since he believed it was safely held in the hands of the states (Sweet 87).

In fact, in Madison’s original draft of the Bill of Rights on June 8, 1789 he stated, “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established; nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed” (Smith 623). The only reason the word “national” was rejected by congress was because in Madison’s day, national was a loaded term which the other framers believed implied that the US Government was a national one, rather than a republic. Thus, because of the “federal” connotations it carried with it, it was omitted.

Some scholars, like Isaac Kramnick and Laurence Moore, cite the fact that the lack of references to religion and the absence of references to God in the constitution are evidence that the founders, especially Jefferson and Madison, were advocates of a strict separation between church and state. The reason for this, however, is because the framers wished to “restrict the federal government from exercising any control over any religion. . . (and) the religious beliefs of the people were so diverse that the federal government would have found it wholly impractical to attempt any kind of uniformity in matters religious” (Weber F., 31). Furthermore, most of the framers believed, along with Madison that “religion-the duty to obey the Creator in accordance with one’s conscience–lies outside the cognizance of the legislature and of society at large” (Lugo 54).

Madison supported equal separation, rather than strict separation because his intention was to “direct religious motivations and objectives into normal political channels where they could be treated equally” and because it was not his objective to “limit the influence of religion, much less to suppress it as a political force” which strict separation is known for doing (Weber P., 171). Nothing illustrates this better than the clash that occurred between Jefferson and Madison over restricting “ministers of the Gospel” from holding public office. In 1783, when Jefferson proposed as part of the Virginia Constitution, that ministers of the gospel be barred from election to the House of Delegates or the Senate, Madison successfully refutes the validity of Jefferson’s proposal. He argues:
“Does not the exclusion of Ministers of the Gospel as such violate a fundamental principle of liberty by punishing a religious profession with the privation of a civil right? Does it not violate another article of the plan itself which exempts religion from the cognizance of civil power?.. .And does it not, in fine, violate impartiality by shutting the door against the Ministers of one religion and leaving it open for those of every other” (Weber P., 171).

This example, clearly explodes the thesis that Madison espoused the doctrine of strict separation. Not just because he considers religious freedom a “civil right,” but more importantly because under the auspices of strict separation, clergymen would be barred from running for public office, much less holding a political position, even if a clergyman did step down from his or her previous occupation. But James Madison understood that “by shutting the door against the Ministers of one religion (in this case, Christianity),” from political participation, it would leave the door “open for those of every other” religion to dominate the political process. In other words, if representatives of one sect are barred from political participation, what is there to prevent representatives of another sect, whether it be of an official religion or not, to rule the democratic process.

It is for this reason, more than any other that strict, and especially transvaluing separation, violates the standards of equal separation because it creates a partiality against organized religion. It encourages the prohibition of religious demonstration and expression in the public sector, which often carries over into the discouragement of religious thought and belief in the private sector. Furthermore, because religious vacuums do not exist and all ideas and the teaching of which, will have their own set of philosophical premises and presuppositions, and because religious ideas would not be available to keep non-religious or secular dogma accountable, strict separation creates opportunities for the indoctrination of the tenets of every other non-religious philosophical doctrine, namely secularism, in public institutions.

Therefore, the exclusion of all organized religion and religiously motivated participation in the political process and the public sector, eventually leads to the establishment of secularism! If one were to view this in terms of the continuum constructed previously, the establishment of organized religion would increase as one moved to far to the right towards theocracy, and the establishment of secularism or non-religion would occur as one shifted to far to the left. Mthough, not quite as official or nearly as org~nized as most other religions, Secular Humanism is clearly a religion of its own, a fact that even the Supreme court recognized in 1961 in Torcaso vs. Watkins. In fact, in Abington School District vs. Schempp, Justice Clark stated, “The state may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe”‘ (Gothard 2). Thus, the implementation of strict separation in government policy, creates an establishment of the religion of Secular Humanism, which James Madison would most definitely oppose, and few scholars would argue that the founders would support the establishment of any religion, whether it be Islam, Judaism, Christianity or even Secular Humanism.

Religious freedom was James Madison’s life passion and his ultimate goal was to achieve religious equality between religious sects. This is why Madison favored the equal separation of church and state, which was a very particular kind of separation because it was complementary to his concern for religious liberty and equality. It is exactly this type of separation, equality based institutional separation, for which James Madison espoused for most of his life and for which he referred to in a letter he wrote to Edward Livingston in 1822 as, the “perfect separation between ecclesiastical and civil matters.” In this letter he went on to explain that “religion and Government will both exist in greater purity, the less they are (structurally) mixed together” Lugo 55). Thus, it was a rigid institutional, not strict separation that was needed to preserve the integrity of both religion and government, and since James Madison believed in the radical notion that religious freedom was a “natural right of mankind,” he would not support the extinguishing or suppression of religious fervor or expression in the public sector.

Bibliography

I. Primary Sources

Cousins, Norman, ed. IN GOD WE TRUST. New York: Harper & Brothers, 1958.

Madison, James. Religious Freedom: A Memorial and Remonstrance. Washington D.C.: Library of Congress Rare Book Colleefion, June,20,1785.

Hutchinson, William, and William Rachal, eds. The Papers of James Madison. 17 vols. University of Chicago Press, 1973.

II. Secondary Works

Alley, Robert, ed. James Madison on Religious Liberty Buffalo: Prometheus Books, 1985.

Alley, Robert, “On behalf of Religious Liberty: James Madison’s Memorial and Remonstrance” This Constitution. 1986 (12) 26-33.

Brant, Irving. James Madison: The Virginia Revolutionist. New York: Bobs-Merrill Co., 1936.

Dreisbach, Daniel L. Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate. The University Press of Kentucky, 1996.

Gaustad, Edwin S. Faith of Our Fathers: Religion and the New Nation. San Francisco: Harper & Row, 1987.

Gothard, Bill. Applying Basic Principles. v.10 Oak Brook, IL: Institute in Basic Youth Conflicts, 1983.

Hunt, Gaillard. The Life of James Madison. New York: Doubleday, Page & Co. 1902.

Kramnick, Isaac and R. Laurence Moore. The Godless Constitution: The Case Against Religious Correctness. New York: W.W. Norton & Company, 1996.

Lugo, Luis E. Religion. Public Life and the American Polity. Knoxville: University of Tennessee Press, 1994.

Malbin, Michael J. Religion and Politics: The Intentions of the Authors of the First Amendment,Washington, DC: American Enterprise Institute for Public Policy Research, 1978.

Mead, Sidney E. “Neither Church nor State: Reflections on James Madison’s ‘Line of Separation”‘ Journal of Church and State 1968 10 (3): 349-363.

Smith, James Morton. ed. The Republic of Letters: The correspondence between Thomas Jefferson and James Madison 1776-1826.3 vols. New York: W.W. Norton & Company, 1995.

Stokes, Anson Pheips. Church and State in the United States. New York: Harper & Brothers, 1950.

Sweet, W.W. Religion in the Development of American Culture: 1765-1840. New York: Charles Scribner’s Sons, 1952.

Weber, Francis J. “American Church-State Relations: A Catholic View” Journal of Church and State. 1965 7(1): 30-34.

Weber, Paul J. “James Madison and Religious Equality: The Perfect Separation” Review of Politics 1982 44 (2): 163-186.

Williamson, Rene’ De Visme. Independence and Involvement: A Christian Reorientation in Political Science. Louisiana State University, 1964.

Wilson, John F. and Donald L. Drakeman. eds. Church and State in American Historv. Boston: Beacon Press, 1987.

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