“Separation of church and state” is not in the Constitution

Stephen King’s ignorant tweet is an example of the level of discourse we’re getting on the Hobby Lobby thing.

2014_07 20 Separation of church and state is not in the Constitution

Those who use the term “separation of church and state” to justify governmental infringement on the religious rights of Americans are very far removed from the intention of the Founders when they adopted the First Amendment to the U.S. Constitution on December 15, 1791.

The term “separation of church and state” does not appear in the Constitution. It is an offshoot of the phrase, “wall of separation between church and state”, as written in Thomas Jefferson’s letter to the Danbury Baptist Association in 1802, eleven years after the First Amendment was adopted.

The Danbury Baptist Association was afraid of becoming subservient to other Christian denominations. Jefferson’s response was meant to calm their fears by referencing the First Amendment:

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate 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.”

The whole POINT of the wall was to keep government out of religion, not to keep religion out of government.

First Amendment from Cornell Con Law site




Filed under Constitution, Religious Liberty

14 responses to ““Separation of church and state” is not in the Constitution

  1. the key phrase : the government shall make no law establishing religion.
    In other words, the State cannot make a law that in any way infringes upon the religious rights of others. An alternative meaning is that the State cannot declare one religion to the the religion of the State (example: prior to WW2 the Japanese had a state religion where the emperor was considered to be a god). Perhaps another way of looking at this phrase is that the State cannot establish Sharia as the Law or that Islam is to be the religion of the State.

    Both tweets are in fact wrong because the “separation of Church and State ” is firmly entrenched via the First Amendment. It gives Freedom OF Religion, and NOT Freedom FROM religion which is the way that the clause has been interpreted by those who have been banning the Bible from schools, or banning people from praying before a football match or even making the sign of the cross.

    One of the most obvious examples of what happens when the State determines the religion of state comes from the early Christian era when Christians were martyred because they refuse to make sacrifices to the Roman gods.

    Atheists such as Stephen King want to ban all religions but that was never the intention of the First Amendment.


  2. dougindeap

    Separation of church and state is a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the first place, the Supreme Court has thoughtfully, authoritatively, and repeatedly decided as much; it is long since established law. In the second place, the Court is right. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the words “separation of church and state” do not appear in the text of the Constitution assumes much importance, it seems, to some who once mistakenly supposed they were there and, upon learning of their error, fancy they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphorical phrase commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., separation of powers, checks and balances, federalism) used to describe other undoubted Constitutional principles.

    To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Rather, the Court discussed the historical context in which the Constitution and First Amendment were drafted, noting the expressed understanding of Madison perhaps even more than Jefferson, and only after concluding its analysis and stating its conclusion did the Court refer–once–to Jefferson’s letter, largely to borrow his famous metaphor as a clever label or summary of its conclusion. The notion, often heard, that the Court rested its decision solely or largely on that letter is a red herring.

    Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). Indeed, he understood the original Constitution–without the First Amendment–to separate religion and government. He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    It is important to distinguish between “individual” and “government” speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. (Students also are free to exercise and express their religious views–in a time, manner, and place that does not interfere with school programs and activities.) If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

    Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

    Wake Forest University has published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://divinity.wfu.edu/uploads/2011/09/divinity-law-statement.pdf


    • (3) saying nothing to connect that government to god(s) or religion

      In the Constitution, to whom does “our Lord” refer?


      • dougindeap

        Am I to take your question as a suggestion that the Constitution’s date, which, in keeping with the convention of the time, is keyed to the Christian calendar, is meaningful–without actually offering any reason this trivial observation should be regarded as substantive or significant? It is, in any event, moot since the dating language is not part of the text of the Constitution voted upon and adopted by the Convention or ratified by the states. It was apparently just appended by the scrivener who prepared copies of the document. http://www.philipvickersfithian.com/2011/05/us-constitution-and-year-of-our-lord.html So, to answer your question, I suppose one would have to consult him.

        So, to get back to my point, the Constitution says nothing to connect our government to god(s) or religion and, indeed, says nothing substantive of them at all except in a provision precluding religious tests for public office and the First Amendment constraining the government from taking steps to establish religion or to prohibit the free exercise of religion.


        • the dating language is not part of the text of the Constitution voted upon and adopted by the Convention or ratified by the states. It was apparently just appended by the scrivener who prepared copies of the document.

          That is patently and demonstrably FALSE.

          The signatories signed their names below this very text.

          Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.

          To whom does “our Lord” refer?

          While you skirt the answer to the question, here is the clear answer:

          Our Lord and Savior Jesus Christ.

          To what reference date does “in the Year of our Lord one thousand seven hundred and Eighty seven” refer?

          The birth of Jesus Christ.

          (Similar to how “and of the Independence of the United States of America the Twelfth” refers to 1787 is the twelfth year in reference to 1776 being the first year of the Independence of the United States of America.)

          Our Constitution’s signatory section references both the birth of of our nation and the birth of our Lord.

          See also: References to God in all 50 State Constitutions


          • dougindeap

            You misunderstood what I said and thus the point. The dating text was not proposed, discussed, or adopted by the Convention. (You will search in vain through the Convention’s records for any mention of it.) After the delegates voted on the Constitution, that language was added, apparently, by the scrivener who made copies of the Constitution for the delegates to sign. The point is that in determining the meaning of the Constitution, one looks to the intent of those who drafted and voted to adopt it. The delegates simply did not draft or vote on the dating language. So, yes, it appears on the copies they signed, and, no, it is not something they drafted or voted to approve.

            In any event, I did not skirt your question, but rather inquired what substantive effect you would attribute to the dating language. If the framers wanted god(s) in the Constitution in some substantive, meaningful way, do you suppose they would avoid any such reference in the text and relegate god(s) to the date line?


            • The point is that in determining the meaning of the Constitution, one looks to the intent of those who drafted and voted to adopt it.

              And signed their name to it, directly below said text. If they took issue with what it said, they could have changed it before they signed it. By signing it, they expressed their approval of what it said. The most important record produced by the Constitutional Convention is the Constitution itself.

              The point is that in determining the meaning of the Constitution, one looks to the intent of those who drafted and voted to adopt it.

              I agree with you on that, and in looking to the intent of our Founders, I challenge you to look to the intent of those who drafted and voted to adopt the following (some of whom also signed the Declaration of Independence less than four months later):

              In Congress, March 16, 1776


            • dougindeap,
              I’m still waiting for your response to my July 22, 2014 at 11:21 am comment.

              Would you really have people believe that John Hancock and the Continental Congress were going against the Founders’ intent when they voted in favor of passing this:
              In Congress, March 16, 1776?!


              • dougindeap

                I appreciate your continued interest and look forward to further discussion, but life has other plans for me at least for yet another week or so. I’ll return.


    • If one wishes to understand the mindset of our Founders, one can’t fully understand and appreciate this:

      In Congress, July 4, 1776

      … without understanding and appreciating this:

      In Congress, March 16, 1776


  3. Re “Stephen King’s ignorant tweet”

    I find this applies increasingly frequently:

    “There is nothing so stupid as the educated man if you get him off the thing he was educated in.” -Will Rogers

    Other recent examples, billionaires Warren Buffett, Sheldon Adelson and Bill Gates calling for immigration “amnesty” and Dawking and Hawkins [heh] on the reality of God.

    Or, any Hollyweird celebrity speaking without a script.


  4. chrissythehyphenated

    I got this from one of my email readers:

    To further support the statement “The whole POINT of the wall was to keep government out of religion, not to keep religion out of government”, I submit the -following:

    – Fact: Thomas Jefferson designed the world famous Capitol Dome which millions visit from around the world each year.

    – Fact: Thomas Jefferson designed the Virginia Governor’s Mansion in Richmond, Virginia which I enjoyed visiting many times when I lived there. This famous mansion has a design that any architect would appreciate. From the outside, it appears to have a standard gabled roof. From inside, if you look up, you will see a domed ceiling.

    – Fact: Thomas Jefferson designed Monticello (his personal home) which also contains an inner domed ceiling.

    Every government building that Jefferson designed or helped design, contains a domed ceiling just like the great cathedrals in Europe. He did this so that God would feel welcome and invited into any place where our nations laws might be created, in His name. Please don’t take my word for it, do some research and you will see.