Jeferson's wall: two hundred years ago, on January 1, 1802, President Thomas Jefferson penned a letter destined to be ranked with the Declaration of Independence, James Madison's 1785 Memorial and Remonstrance Against Religious Assessments, the U.S. Constitution, the Bill of Rights, and George Washington's 1790 letter to the Touro Synagogue in Newport, Rhode Island - Critical Essay

Humanist, Jan-Feb, 2002 by Edd Doerr

Addressed to the Danbury, Connecticut, Baptist Association, Jefferson's letter stated, in part:

   Believing with you that religion is a matter which lies solely between man
   and his God, that he owes account to none other for his faith or his
   worship, that the legislative powers of government reach actions only, and
   not opinions, I contemplate with sovereign reverence that act of the whole
   American people [the First Amendment] which declared that their legislature
   should "make no law respecting an establishment of religion, or prohibiting
   the free exercise thereof," thus building a wall of separation between
   Church and State.

The importance of this letter can only be grasped in its historical context, in its influence on the U.S. Supreme Court's rulings from then through the bicentennial we now commemorate, and on what the present Supreme Court will make of it between now and Independence Day, 2002.

Jefferson's "wall of separation" metaphor was employed by the Supreme Court in 1879 in its first religious liberty case, Reynolds v. United States. Citing the Jefferson quote above, the Court held that "coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."

The next time the High Court utilized "the wall" was in the landmark 1947 case, Everson v. Board of Education. The Court stated, in Justice Hugo Black's ringing words:

   The "establishment of religion" clause of the First Amendment means at
   least this: Neither a state nor the Federal Government can set up a church.
   Neither can pass laws which aid one religion, aid all religions, or prefer
   one religion over another. Neither can force nor influence a person to go
   to or remain away from church against his will or force him to profess a
   belief or disbelief in any religion. No person can be punished for
   entertaining or professing religious beliefs or disbeliefs, for church
   attendance or nonattendance. No tax in any amount, large or small, can be
   levied to support any religious activities or institutions, whatever they
   may be called, or whatever form they may adopt to teach or practice
   religion. Neither a state nor the Federal Government can, openly or
   secretly, participate in the affairs of any religious organizations or
   groups and vice versa. In the words of Jefferson, the clause against
   establishment of religion by law was intended to erect "a wall of
   separation between church and state." ... That wall must be kept high and
   impregnable.

The Everson passage was approved by every member of the 1947 Court, was cited favorably in three subsequent rulings, and its spirit has informed many more. However, thanks to several conservative appointments, the Supreme Court has been drifting slowly away from the position of the Everson justices and such subsequent "separationists" as the late, highly regarded Justices William J. Brennan, Thurgood Marshall, and Harry Blackmun and toward the "accommodationist" stance of Justices William Rehnquist, Antonin Scalia, and Clarence Thomas. The latter have made it quite clear that they don't agree with Jefferson, the Everson Court, and the earlier Court majorities. Before the end of the present Court's current term this coming July, we will find out whether the serving justices will uphold Jefferson's wall or consign it to the rubbish heap. The crucial test will be a case involving a thus far successful challenge to an Ohio law that provides subsidies through vouchers to sectarian schools in Cleveland--a case scheduled for hearing within weeks.

It cannot be denied that if Jefferson's wall is allowed to crumble, religious freedom in the United States will be in serious trouble. The door will be open for sectarian religion to invade public education; for women to be chained to medieval sectarian medical codes; and for government to compel taxpayers to support sectarian schools and other institutions that commonly practice forms of discrimination and indoctrination the vast majority of Americans would find intolerable.

To understand our present predicament we must return to Jefferson's 1802 letter to the Danbury Baptists, which latter-day "accommodationists"--heirs of Virginia Governor Patrick Henry, who was defeated by Jefferson and James Madison in 1785-1786--will do anything to discredit. Typical of accommodationist attacks is the one made twenty years ago at a Senate hearing on then- President Ronald Reagan's school prayer amendment by televangelist Pat Robertson--the same Pat Robertson who joined with Jerry Falwell shortly after the terrorist attacks on September 11, 2001, in suggesting that God allowed the tragedy to take place to punish Americans for their "liberal sins." Robertson has misrepresented the Jefferson letter and said that the "wall" metaphor "only appeared in the constitution of the Communist Soviet Union." (Details may be found in Robert S. Alley's 1996 book, Public Education and the Public Good.)