Toppling the wall: beyond separation of church and state

Christian Century, July 3, 2002 by Andrew R. Murphy

Separation of Church and State. By Philip Hamburger. Harvard University Press, 492 pp., $49.95.

MOST AMERICANS assume that the separation of church and state is a fundamental principle deeply rooted in American constitutionalism; that the First Amendment was intended to ensure that government does not involve itself with religion (and vice versa); and that contemporary debates over such vexing issues as school prayer, voucher programs, government funding of faith-based organizations, and the rights of religious minorities represent ongoing attempts to realize the separation intended by the Founders and like-minded early Americans.

None of these views is true, argues Philip Hamburger in his provocative new account of American religious liberty. Though the language of separation traces back to Thomas Jefferson--whose 1802 letter to the Danbury Baptist Association described the First Amendment as "building a wall of separation between church and state"--and still further to Roger Williams and early Baptists, the notion that such separation prohibited contact between church and state appears in only a few of the most radical voices in the nation's past. Virtually no one called for separation in the way that the Supreme Court understands it today: that legislation must evince secular purposes and effects, and foster no "excessive government entanglement with religion" (see Chief Justice Warren Burger's 1971 opinion in Lemon v. Kurtzman). In fact, a mutually supportive connection between religion, politics and society was acknowledged and endorsed almost without reservation during the nation's early years.

Not only is the metaphor of separation historically erroneous, Hamburger argues, but Americans from Jefferson to the Ku Klux Klan have used separationist language for discriminatory, exclusionary or narrowly partisan ends. For that reason, Hamburger suggests, "the idea of separation should, at best, be viewed with suspicion." When Americans--whether presidents, Supreme Court justices or ordinary citizens--refer to the "wall of separation" desired by the Founders, they not only perpetuate a historical inaccuracy; they unwittingly revive some of the most distasteful episodes in American history. The rhetoric of separation has been directly and repeatedly implicated in anti-Catholic, indeed antireligious, political movements. By limiting the actions of government and religious institutions, as well as the degree of contact between them, this rhetoric actually undermines religious freedom.

How can this be? How could the separation of church and state represent something undesirable and downright dangerous? There are a number of villains in this story, and Hamburger goes out of his way to portray them not only as mistaken about constitutional meanings but also as disingenuous or morally suspect. Prominent among these is Jefferson, whom Hamburger describes as "bolder with a pen than a sword" (no doubt a reference to Jefferson's disastrous military career as governor of Virginia during the Revolution, in which he fled Monticello on horseback just ahead of British troops), and as "so bold on paper, yet so timid in life." Jefferson "[took] delight in his own creativity" yet remained "as cautious in person as he was bold in imagination."

Jefferson's Republican allies used the language of separation to denounce New England clergy for speaking against him from the pulpit, thereby introducing separationist claims "for the transient purposes of an election contest." One of Jefferson's supporters, Nehemiah Dodge, deployed anti-Semitic rhetoric and "the violent sexual imagery of anti-Catholicism."

Other advocates of separation included anti-Catholics (e.g., the Know-Nothings) as well as businessmen like P. T. Barnum and the nameless gentleman who, outraged at his inability to find a cigar on the Sabbath, donated 50 dollars to help repeal Sunday closing laws. As Hamburger puts it, "by the end of the [19th] century, this flood of desires--even merely the need for a smoke--carried increasing numbers of Americans toward the separation of religion, especially a separation of church and state."

The 19th century also witnessed the growth of the Liberal movement, which campaigned for a separationist constitutional amendment but was undone in part by the unpopularity of its equivocal position on obscenity. "For many atheists among the Liberals, sexual freedom seemed of almost religious importance," Hamburger writes. He goes on to present a litany of unsavory 20th-century separationists: anti-Catholic groups, including the Masons; the Ku Klux Klan (and various outgrowths thereof); the True Americans; and the Prohibition Party. The historical account culminates in a consideration of the Klan career of Supreme Court Justice Hugo Black.

THIS BOOK IS controversial because its central thesis, that "the First Amendment has been interpreted to limit religion in ways never imagined by the late 18th-century dissenters who demanded constitutional guarantees of religious liberty" and that "the constitutional authority for separation is without historical foundation," challenges the widely held view that separation is a necessary corollary to disestablishment. It is unsettling because the depth and breadth of Hamburger's scholarship (he is John Wilson Professor of Law at the University of Chicago) make it impossible for critics to dismiss his arguments as an ideologue's pining for "Christian America," or as a case of shrill partisanship.