Is the Separation of Church and State Constitutional?

The issue of church-state separation was thrust into the forefront of public conversation once again last week courtesy of the debate between U. S. Senate candidates in Delaware. And while I don’t want to get into the relative merits of the candidates themselves, their discussion on this topic is worth discussing a bit further.

The transcript of one relevant part of the debate reads as follows:

O’Donnell: Let me just clarify: You’re telling me that the separation of church and state is found in the First Amendment?

Coons: Government shall make no establishment of religion. [Note: this is a reasonably accurate paraphrase of what is commonly called the Establishment Clause in the First Amendment. Its exact wording is as follows: “Congress shall make no law respecting an establishment of religion…”]

O’Donnell: That’s in the First Amendment?

Also, earlier in the debate, O’Donnell asked, “Where in the Constitution is the separation of church and state?” The crowd responded with what is plainly incredulous laughter. Along the same lines, my visit to YouTube to see clips of the debate revealed one video titled in part: “Christine O’Donnell Shows Stunning Ignorance of First Amendment…”

Ah, but not so fast.

I’m far from the only one to point out that, in both cases, O’Donnell’s question (at least initially) is whether the phrase/concept “separation of church and state” is found in the Constitution. In fact, those words are plainly not contained in the First Amendment, nor anywhere else in the Constitution (they’re actually thought to originate with Thomas Jefferson’s letter to the Baptist Association in Danbury Connecticut). Moreover, the Establishment Clause is immediately followed by the Free Exercise clause: “…or prohibiting the free exercise thereof.”

So here’s what I think is happening. Putting together his statement with comments he made elsewhere in the debate, Coons appears to be arguing that the idea or principle of separation of church and state, at least in its modern secularist conception, is to be derived from the Establishment Clause and is now “settled law.”

But whether the Establishment Clause should be equated with such a conception of the separation of church and state is precisely the issue at question. This appears to be the point that O’Donnell was trying to make, although her follow up comment made it appear that she was actually questioning whether the Establishment Clause is in the First Amendment. If that’s the case, she’s clearly wrong. But considering her words in context, and the fact that she’s headed two groups lobbying for Christian values to be incorporated in policy formation, I doubt very much that’s accurate.

Again, this isn’t meant to be a defense or endorsement of O’Donnell’s Senate candidacy or previous political activity. I bring all this up because I think it illustrates the fact that so many people simply assume the legitimacy of a secularist understanding of the separation of church and state that is, at a minimum, arguable.

All this is both supported and made more interesting by Hunter Baker in chapter 8 of The End of Secularism (a book I’ve mentioned here a couple of times before). There, Baker notes that modern interpretations of the First Amendment’s discussion of religion may fundamentally miss the mark. One camp argues that that it provides for a rigid separation between religion and politics/government while the other, citing the Declaration of Independence and the religious climate of the day, believes the Founders sought to create a Christian republic.

The chapter should be read in its entirety to get the full argument, but here’s a portion that gets at his fundamental point:

The American colonies-turned-states viewed religious freedom differently. …Boiling the issue down to its essentials, one might distill two primary positions. The first, which Smith calls the traditional position, held that government support of religion was necessary to the preservation of the social order. The second, labeled the vountarist position, disputed the presumption of the traditional position. At least part of the voluntarist group was certain that religious institutions would be far better off without government support. Both traditionalists and voluntarists agreed that a religious foundation was critical to the social order. …

What is important about these positions is that they show a definite difference of opinion about the question of religion and public order. The idea that these differences would have been ironed out with relatively little debate and dealt with in substance by the very thin religious clauses is risible. What happened instead was that the framers of the Constitution avoided choosing one of the substantive positions on the matter and clearly left the responsibility for religion and the social order with the states, each of which had developed its own solutions. The elegance of the solution is obvious. …So, if the question is what theory of religious liberty animates the U.S. Constitution’s religious clauses, “the answer is none.” (82-83)

In other words, the Founders punted, leaving the states to work more fully the relationship between government and religion in their own jurisdictions. So, if Baker and those he draws upon are correct—and they make a compelling case—the Constitution cannot be said to support something like the establishment of a “Christian nation.” But when considered in context, neither does it appear to support the modern secularist position that religion and religious ideas are to be separated from public life, no matter how ridiculous that might sound to a debate crowd.

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