Tear Down This Wall?

All this talk about walls gets a bit confusing. Ronald Reagan famously said he would see that the Berlin Wall came down, and so it did, albeit not until his two terms as President had ended. Then along came Donald Trump who insisted that he would build the wall at Mexican expense. He had somewhat less success than Reagan. For decades, we’ve heard rhetoric from conservative religious circles about tearing down a different wall: the wall of separation between church and state. Former Chief Justice William Rehnquist, before he was chief, opined that “The ‘wall of separation between church and State’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.” (and now it has!)

The chorus of attacks against this wall have also been taken up by politicians, like Lauren Boebert, a Republican congresswoman from Colorado. To applause in a Colorado mega church, Boebert recently said: “And I’m tired of this ‘separation of church and state’ junk, that’s not in the Constitution. It was in a stinking letter and it means nothing like what they say it does. The church is supposed to direct the government,” she continued. “The government is not supposed to direct the church. That is not how our founding fathers intended it.”

What is this wall anyway, and why is it under such vicious attack? What is it that conservatives object to?

Distinctions between the spheres of church and state have a long pedigree in western civilization, with theologians like Augustine and Aquinas postulating two kingdoms or two swords. But it wasn’t until the dissenting Protestant tradition landed in New England in the guise of a separatist minister, Roger Williams, that the modern concept developed. Williams referred to a “hedge” or “wall” of separation between the “garden of the church” and the wilderness of the world. This was no ‘one way” wall, as revisionist historians like to say, but a ”high and impregnable” divide between the institutions of church and state.

By the colonial period, Baptists were foremost in developing concepts of liberty of conscience. The key issue for Baptists was taxation to support religion. In New England, the typical arrangement was for towns to have a single “congregational” church whose minister was supported by taxes. Even in those towns where Baptists were sufficiently numerous to establish their own meeting house, they objected to having their taxes go to support their own church. Support for religion must be entirely voluntary.

Baptist concepts of voluntarism in religion had an influence on both Thomas Jefferson and James Madison. In 1785, following the end of the war with England, Patrick Henry introduced a bill for funding teachers of religion. Madison organized the opposition, getting the bill put over to the next session, and meanwhile, circulating a petition against it that has become perhaps the most influential document in the history of church state relations in the United States, having been quoted regularly in Supreme Court cases until a turning point in 2000.

Madison, and the thousands who signed his “Memorial and Remonstrance Against Religious Assessments” rejected tax funding of religion as a violation of liberty of conscience. Madison made too many valuable points to repeat here. Fundamentally, Madison argued that government has no legitimate authority over religion, that the legislature lacks the right to tax citizens to support religion. Madison also contended that tax support of religion “…is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world.”

Madison’s arguments won the day. Patrick Henry’s bill was defeated, in its place, Thomas Jefferson’s Virginia Statute of Religious Freedom was enacted. This measure denied to the government the right to compel both church attendance and financial support of religion.

By the time we get to the debate over the Bill of Rights, the founding generation had a very clear understanding of what they meant by “an establishment of religion.” The First Amendment’s protection of  “free exercise” covered freedom from coerced belief or church attendance. However, it was the Establishment Clause that protected the right to be free of any coerced financial support of religion because the government lacked any legitimate authority over religion.

Indeed, James Madison initially rejected the need for a Bill of Rights because he did not believe the Constitution he had helped draft gave the Federal government any power to trample on individual rights. Baptist minister John Leland convinced Madison that his constituents insisted on a Bill of Rights.  

The Supreme Court did not take up in earnest the task of applying the Establishment Clause until the 1940s, and over three decades, repeatedly ruled in cases involving either tax funding of religion or religion in public schools. Although the Court whittled away at the margins of the wall of separation – made famous by Jefferson’s 1803 letter to – Baptists, of course, who else would be so concerned about having their rights protected against religious establishments? – it was not until 1971 that the Court established a three-part test of what constitutes a forbidden establishment.

In the case of Lemon v. Kurtzman, the Court held that when government acts, it must be 1) for a primarily secular purpose; 2) have a primarily secular effect; and 3) not unduly entangle church and state.

Ever since, the chorus from the right has been to attack the Lemon test. Such attacks tell us a great deal about the goals of the right. Rejecting Lemon means that the government is permitted to pursue overtly religious purposes, and to engage in activities that have primarily religious impacts. Moreover, there is no concern about too cozy an entangling relationship between church and state. Lauren Boebert may not be a deep thinker, but her quip accurately conveys the ethos of the right: “The church is supposed to direct the government, the government is not supposed to direct the church. That is not how our founding fathers intended it.”

Which brings us to a series of Supreme Court decisions, and what has now become of the wall – now a pile of rubble -- between church and state. Whereas for decades, the question was whether the state could fund various aspects of religious schools that did not involve religious instruction, such as school bus transportation, or textbooks, in recent years, the Court has reversed course. Now, to exclude religious schools and churches from funding schemes otherwise available is a form of discrimination. The Court went from prohibiting direct aid to religion, completely bypassed the middle ground permitting state aid to religion and has adopted the most extreme position that religion must be funded where similar secular programs are funded.

In Trinity Lutheran v. Comer, the Court held in 2015 that Missouri violated the church’s free exercise rights by excluding the church from a grant program that pays for playground safety surfaces. In other words, giving money directly to the church to buy rubber playground mats did not raise Establishment Clause concerns. For the very first time, the Court approved direct funding of churches. Prior decisions had permitted tuition “vouchers” under the guise of parental choice – parents choose religious schools, which then receive direct funding from the state. But these were schools, not churches.

In 2020, the Court struck down a Montana Constitutional provision denying government funding of religious schools, holding that it violated the free exercise rights of parents and children to choose religious education. Understand that in the colonial period, not only did the Federal government amend the constitution to prohibit tax funding of religion, i.e., the Establishment Clause, but the states also eliminated all forms of religious establishment.

Finally, in 2022, in Carson v. Makin, the Court struck down a Maine program that funded secular, but not religious private schools. Maine provided tuition aid for high school students who lived too far away from a public high school, but only for non-sectarian education. The Supreme Court said this was discrimination, and that Maine is required to include private religious schools.

I am writing on the day our nation celebrates its independence from tyranny. It is a day to celebrate our freedoms. But today, I mourn the loss of religious freedom. Our founding fathers and mothers understood that religion must be a voluntary matter. Ben Franklin would not be mistaken for a theologian, but he understood: “When a Religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support, so that its Professors are oblig'd to call for the help of the Civil Power, it is a sign, I apprehend, of its being a bad one.”

Today, American religion is calling for help of the civil power. This is not a positive development. It is a symptom of a deep rot at the heart of the American church. Roger Williams warned that tearing down the hedge protecting the garden of the church from the wilderness of the state would bring corruption to both. I fear he spoke prophetically. And we haven’t even gotten to the issue of public prayer. Stay tuned.