Where 'a wall of separation' really comes from and what it was built for

Go ahead and try something at your next family dinner. Ask everyone at the table to find the phrase "separation of church and state" in the Constitution. Give them the whole text, all seven articles and twenty-seven amendments, and a free hour. I'll wait. You will not find it, because it is not there. And yet half the country will tell you it is the supreme law of the land, and the other half will tell you it is a liberal invention. Both are wrong, and the truth is more interesting than either.

The phrase comes from a letter. It was a short, polite, politically shrewd letter that a President wrote to a group of Baptists in Connecticut in the first days of 1802. Over the next century and a half, that letter went from a private reply to a judicial quotation to a doctrine, and each step changed what the metaphor was taken to mean. If you want to argue about religion and government with any credibility, you need to know the steps. So let me walk you through them, in order, and then tell you what the metaphor can bear and what it cannot.

Who the Danbury Baptists were

Start with who wrote first. The Danbury Baptist Association was a group of Baptist congregations in Connecticut, and Connecticut in 1801 had an established church. The Congregational churches, which people called the Standing Order, were supported by law and by tax. Baptists, Episcopalians and other dissenters could be exempted from paying for Congregational ministers only if they went through a certificate process that many found demeaning, and the Baptists were a minority that felt every bit of it.

In October 1801, the Danbury Baptists wrote Thomas Jefferson a letter of congratulation on his election as President. In it they made a point that has stuck with me ever since. They said that the religious privileges they enjoyed as a minor part of the state, they enjoyed as favors granted, and not as inalienable rights. Think about what that sentence says. A group of believers is telling the President that a right which is granted by the government can be taken away by the government, and that what they wanted was a right that did not depend on anyone's permission.

That is what the letter was about. It was not a complaint from secular skeptics. It was a request from a religious minority, asking the national government to stand behind the principle of free exercise, because their own state government was not honoring it.

Jefferson's answer

Jefferson replied on January 1, 1802. The reply is short, only a few paragraphs, and the famous sentence reads, in the original spelling and capitalization, that he contemplated with sovereign reverence that act of the whole American people 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.

Notice what the metaphor is attached to. It is not a free-standing principle; it is Jefferson's description of what the First Amendment does. And notice which way it points. The wall in that sentence is between the national legislature and religion. Jefferson was telling a persecuted minority that Congress could not establish a national church and could not interfere with their worship. He also added, a few lines later, that he looked to the progress of sentiments that tend to restore to man all his natural rights. It was a reassurance to people worried about being pushed around by the state. It was not a declaration of war on faith.

There is also a political context worth knowing. Jefferson had been attacked in the election of 1800 as an infidel, and New England clergy had preached against him. The letter to the Danbury Baptists was partly a message to his base and partly a message to his critics. He consulted his Attorney General, Levi Lincoln, who came from Massachusetts, before sending it, which tells you he knew it would be read widely. Whatever else it was, it was a document written to be quoted, and it was.

One more fact about Jefferson. As President, he declined to issue proclamations of fasting or thanksgiving of the kind Washington and Adams had issued, and he explained in a later letter that he thought such proclamations were outside the proper role of the federal government. That is a position about the federal executive. It does not say anything about whether a town council can open a meeting with a prayer, whether a school can let a student pray at lunch, or whether a church may speak in public life. He was cautious about the federal government sponsoring religious observances. That is a long way from "keep religion out of the public square."

Reynolds, 1879: the first Supreme Court quotation

For decades the letter sat in Jefferson's papers and in the memory of Baptists. The Supreme Court first reached for it in Reynolds v. United States, decided in 1879. George Reynolds was a Mormon in the Utah Territory who had been convicted of bigamy under a federal law. He argued that his religion required polygamy and that the First Amendment protected his practice. Chief Justice Morrison Waite, writing for the Court, rejected the claim.

To explain the scope of the First Amendment, Waite turned to Jefferson's letter and quoted it, saying that it might be accepted almost as an authoritative declaration of the scope and effect of the amendment. He then used Jefferson's own words to draw the line the Court wanted: religious belief is outside the government's reach, but actions are not. As Jefferson's letter put it, the legislative powers of the government reach actions only, and not opinions.

Two things are worth noticing. First, the Court quoted the letter for the belief-versus-action distinction, not for a principle that religion must be absent from government. That distinction is the logic of the case, and it limited free exercise rather than the presence of religion in public life. Second, the target of the decision was a religious minority that had few friends in the 1870s. The same quotation that is cited today as a shield against government religion was used then as a sword against a minority religion's practice. The metaphor has never been a one-way street.

Everson, 1947: the wall becomes doctrine

For the next seventy years the phrase appears here and there, but it does not govern. That changes with Everson v. Board of Education in 1947. Two things had happened by then. The Court had decided in Cantwell v. Connecticut in 1940 that the free exercise protection applies to the states through the Fourteenth Amendment, and in Everson it decided that the same was true of the Establishment Clause. The wall was no longer a limit on Congress only. It was a limit on every school board, county and state.

The facts of Everson are almost comically small. A New Jersey township reimbursed parents for the cost of bus fare to school, including to Catholic parochial schools. A taxpayer named Arch Everson sued, claiming that reimbursing the fare for children attending religious schools violated the Establishment Clause. In a 5-4 decision written by Justice Hugo Black, the Court upheld the reimbursement.

Read that again, because it surprises people. The opinion that introduced "a wall of separation" as constitutional doctrine ruled in favor of the program that helped religious school families. Black's opinion said that the First Amendment has erected a wall between church and state, that the wall must be kept high and impregnable, and that the Court could not approve the slightest breach. And in the same opinion he said that the state's power is no more to be used so as to handicap religions than it is to favor them. He then concluded that the bus fare reimbursement was a general public welfare program, like police and fire protection, available to children regardless of what school they attended, and so was not a breach.

The competing readings inside Everson

So what does Everson mean? The answer is that the case contains at least two readings, and they have been fighting ever since.

• The strict-separation reading. Four justices dissented, and Justice Wiley Rutledge's dissent, joined by three others, argued that the Establishment Clause forbids any use of public money for religious education. They took Black's rhetoric about the wall at face value and said the result should have followed from it. If the wall is high and impregnable, why is a township reimbursing parents of parochial school students? Black's critics on that side said the opinion was inconsistent: strong wall, weak result.
• The neutrality reading. The majority's actual holding was that the government may provide general benefits to citizens without regard to whether the citizens are religious. Under this reading the wall does not prevent religious people and institutions from participating in public programs. It prevents the government from favoring one religion over another, or religion over non-religion, and also from handicapping religion. This reading eventually produced decisions allowing religious schools to take part in general aid programs, which I trace in Five cases that ended America's religious penalty in school aid and From Everson to Carson, the Court Cases That Opened the Door to Choice.

I want you to see how neat the irony is. The same sentence that strict separationists have quoted for seventy-five years was written in an opinion that sided with the religious school families. Whenever someone brandishes "the wall" in a fight over a nativity scene or a prayer at a school board meeting, ask them to read the actual holding of the case they are quoting.

The critics of the metaphor

The metaphor has had critics from the right and from the left. In 1985, in his dissent in Wallace v. Jaffree, Justice William Rehnquist called the wall of separation a metaphor based on bad history, one that had proved useless as a guide to judging, and he said it should be frankly and explicitly abandoned. His argument was that Jefferson was in France when the First Amendment was drafted and that the letter was a poor guide to what Madison and the First Congress intended. That is a fair historical point, and it deserves a hearing. The letter is a reply to a congratulatory note, written more than a decade after the amendment was passed, by a man who was not in the room.

Legal historian Philip Hamburger, in a 2002 book, went further and argued that the idea of separation took on a good deal of its American force from nineteenth-century movements that were hostile to Catholics. I mention it because it is a serious scholarly argument, and because it fits with the story of the Blaine amendments covered in The Blaine Amendments and the Old Bigotry Still Sitting in State Constitutions. You do not have to accept all of it to see that the metaphor has been put to uses Jefferson would not have recognized.

The strongest objection, answered

Now for the best version of the opposing argument. Supporters of strict separation say: whatever the history, the metaphor captures a real constitutional value. A government that mixes religion and politics ends up corrupting both, and the lesson of Europe's wars of religion is that neutrality protects everyone, including believers. A minority faith is safest in a country where government keeps religion at arm's length. The Danbury Baptists wanted exactly that. Isn't the metaphor worth keeping for that reason?

I think that is a respectable argument, and I'll answer it in numbered points.

1. The value is real, and the text already protects it. The Establishment Clause and the Free Exercise Clause do the work. We do not need a metaphor to tell us that Congress may not create a national church. The text says so.
2. A metaphor is not a rule. Walls have no gates, and the real Constitution is full of gates: chaplains, tax exemptions for churches, religious schools in public programs, thanksgiving days, and the fact that religious people vote their values. A metaphor that cannot explain all that makes bad law.
3. The Danbury Baptists wanted protection for the believer, not exile for belief. They asked for rights, not for religion to be removed from the public square. Using their letter to justify keeping a student from praying at lunch or a church from using a public facility on equal terms turns the letter upside down.
4. The Court has itself moved on. In the last several decades the justices have been more likely to ask what the history and tradition of the country show, and less likely to reach for the wall. That shift is explained in the three-part test that haunted churches for fifty years is finally gone.

What the metaphor can and cannot bear

Here is my verdict, and I'll mark which parts are fact and which are judgment.

What the record shows (fact). Jefferson wrote the phrase on January 1, 1802, in a reply to a Baptist minority in Connecticut. The Supreme Court first cited it in 1879 to separate belief from action, and made it doctrine in 1947 in a case that upheld aid to families whose children went to religious schools. The words "separation of church and state" appear nowhere in the Constitution.

What I would argue (judgment). The metaphor can bear this much: the government may not establish a church, may not compel worship or support, and may not punish belief. It cannot bear the weight of a demand that religion vanish from public life, that believers leave their convictions at the door, or that churches be treated worse than everyone else. For those conclusions it has to be stretched past anything Jefferson wrote and anything the Danbury Baptists asked for.

The best way to use the phrase honestly is the way the Danbury Baptists would have: as a promise to the believer that the state will not be his master. If you hear someone use it as a reason to keep a pastor off a public sidewalk or a student's Bible out of a school library, you are hearing a stretched metaphor. If you hear someone use it as a reason to tax the faithful for a state church, you are hearing the real thing at work, and the real thing is worth defending. You can see the same principle in the background of Baptists, Madison and the Virginia fight that put religious liberty first and in the Court's later treatment of religion in School Prayer, Bibles and the Ten Commandments, Eleven Questions Answered.

The bottom line

• "Separation of church and state" is Jefferson's phrase from a January 1, 1802 letter to Baptists. It is not in the Constitution, and the letter was a reassurance to a religious minority.
• The Supreme Court used it first in Reynolds (1879) to protect belief while allowing regulation of conduct, and in Everson (1947) it upheld aid that reached religious school families.
• The metaphor does not demand a public square empty of faith, and neither the Danbury Baptists nor Jefferson ever asked for one.
• When someone quotes the wall at you, ask which case, which holding and which result. The answers usually undercut the speech.
• Know the actual text of the First Amendment, and read the Danbury letter yourself. It is on the Library of Congress website, and it is shorter than this post.