During last year's commencement exercises at the University of Virginia, every graduate received a fancy compendium of excerpts from Thomas Jefferson's most notable writings, including the Declaration of Independence and the famous Virginia Statute for Religious Freedom. These sources suggest that Jefferson regarded the founding of the American nation, and the essential character of the polity “We the People” created, as religiously motivated acts, not simply applied Lockean social contract theory. To this extent, at least, the public square was not “naked”-or so it might seem.
As University of Chicago law professor Philip Hamburger ably demonstrates in Separation of Church and State, the matter is actually far less benign than the picture the University of Virginia graduates were given. An avalanche of private correspondence contradicts the religiosity Jefferson sometimes projected, and reveals a Jefferson who was deeply hostile to organized religion. Using imagery Protestants typically reserved for the pope, Jefferson described the Protestant clergy as “the real Antichrist.” To Jefferson, Protestant denominations were no better than the Roman Catholic Church: all stood as enemies of mental freedom, and all were therefore anathema to lovers of liberty and-the true Supreme Being for Jefferson-“Reason.”
It was this anticlerical Jefferson who, as President, responded to an 1801 petition from a group of dissenting Baptists seeking relief from non-Baptist religious establishments in Connecticut. The Danbury Baptist Association argued for neutrality in religious matters: the government should not favor any church over another, enforce any religious duties, or discriminate among citizens on account of their religious beliefs. Jefferson's letter in response argued for a very different concept-a “wall of separation between Church & State”-that, according to him, was enshrined in the First Amendment. Almost a century and a half later, in Everson v. Board of Education (1947), the Supreme Court officially adopted Jefferson's “wall of separation” as the bedrock principle underlying the First Amendment.
As Hamburger skillfully shows, Jefferson's wall of separation was shockingly radical in the early 1800s. Neither the First Amendment nor state constitutions were written or understood in terms of a separation of church and state. The novelty was advertent on Jefferson's part because he intended to change prevailing notions of religious liberty and to impose new limits on the power of the clergy. It was only decades later, after an anti-Christian secular movement to amend the Constitution to require separation had failed, that proponents of separation pulled Jefferson's “interpretation” from the dust bin of history.
Hamburger carefully dissects founding-era debates concerning various religious matters, such as clerical eligibility for government office. Contemporary advocates of separation try to derive historical support for their project from those debates, but Hamburger convincingly shows that such efforts are completely ahistorical. Not only did the dissenters not argue for or desire separation, but separation simply was not part of the national debate until well into the 1800s.
In the eighteenth century, separation served only as a “straw man” argument by defenders of American religious establishments. Portraying religious dissenters as favoring separation was an effective, if disingenuous, rhetorical tactic because it was so widely accepted by Americans that church and state occupied cooperative relationships. A democracy could not function without a virtuous people, and churches inculcated the virtues necessary for self-government. Far from challenging this linkage between church and state or arguing for a naked public square, then, dissenters sought only the repeal of establishments and other forms of religious discrimination.
The less than ebullient reaction of the Danbury Baptists to Jefferson's missive illustrates the point. Having solicited President Jefferson's support, they promptly buried his letter, neither publicizing it nor even recording its receipt in the Association's minutes. Instead of endorsing separation, the Danbury Baptists continued to make the traditional disestablishment arguments, convinced, as many early Americans were, that separating church from state was not only misguided, but inconsistent with Christian social action.
If the wall of separation was so out of step with American beliefs, why has it become so widely accepted over the years? This question turns out to be the central conundrum of Hamburger's book. By the time separation achieved critical mass during the second half of the nineteenth century, the establishments of old had long since died out. Why, then, was the country so quick to embrace, often with religious fervor, the notion that separation of church and state is a necessary precondition of religious liberty?
Hamburger's answer is as compelling as it is chilling: anti-Catholic bigotry is what drove the triumph of separation. Of course, Protestant animus against Catholics was nothing new in America. What was new was that American Catholics were growing in number and influence. In the first half of the nineteenth century, waves of Catholic immigrants came to America from Ireland and Germany and settled in big-city metropolises, such as New York, to the great alarm of native-born Protestants.
In the hordes of immigrants, “nativist” Protestants saw mindless hordes controlled by the “Roman dictator” who sat atop the Catholic Church. These nativist Protestants feared that the pope was poised to capture control of the government and forcibly convert non-Catholics. These fears assumed a fever pitch in 1832 when Pope Gregory XVI de?nounced separation of church and state, prompting Tocqueville to remark that across America “the Catholic religion has erroneously been looked upon as the natural enemy of democracy.”
Once that clear and present danger to freedom was identified, it was obvious that drastic steps had to be taken. Vigilantism was one common response. There were waves of mob violence against Catholics, and churches and convents (mocked as “nunneries”) were burned. Another response was to deny Catholics political power. Nativists argued that Catholics lacked the mental freedom required for political equality, with the “Know Nothings,” for example, swearing their members to vote against “all . . . Roman Catholics.” In fact, a constitutional amendment was proposed to empower Congress to abolish the Catholic Church as a “foreign hierarchical power . . . founded on principles or dogmas antagonistic to republican institutions.”
It was during this period of anti-Catholic animus that popular conceptions of American religious liberty were redefined in terms of separation. The courts soon followed suit. In Reynolds v. United States (1878), a case rejecting a claim that it was unconstitutional to prosecute Mormons for polygamy, the Supreme Court accepted Jefferson's “wall of separation” letter as the “authoritative” interpretation of the First Amendment. State courts at this time, decades before Everson, began enforcing separation as a state constitutional principle.
Although there is no inherent sectarian bias in the concept of separation, Hamburger demonstrates that separation was used for anti-Catholic purposes in the nineteenth century. Believing that they, unlike Catholics, acted as “individuals,” not a “church,” Protestants did not understand separation to prevent them from taking their religious beliefs into the public square. Consequently, it was deemed proper, for example, to teach nonsectarian Prot?estantism, anti-Catholic propaganda, and the King James Bible in public schools. The wall of separation was breached only when Catholics sought, in effect, school vouchers for paro?chial schools to escape Protestant indoctrination in public schools. These Catholic claims prompted state constitutional amendments nationwide dictating that public funds for education could not be controlled by “any religious sect,” language carefully chosen to halt the Catholic drive while preserving public school instruction in nonsectarian Protestantism.
In this sense, “We the People” who had the God-given right of religious liberty under the Constitution be?came “We the Protestants.” Religious freedom was guaranteed to Protestants by a doctrine-separation of church and state-that was intended to deny that same freedom to Catholics. As Bishop John Hughes of New York noted in 1835: “Under the pretense of solicitude for the preservation of civil and religious liberty, the Catholics are to be robbed of both.”
There is an interesting irony in the developments Hamburger traces. Protestants responded to the rising Catholic tide by embracing separation but, in doing so, inadvertently undermined the moral authority of their own churches. If it was wrong for the pope to “tell” Catholics what to believe, were not Protestant clergymen who exercised spiritual authority the “Protestant Popedom” Jefferson had condemned? This anticlerical thinking gave rise to a theologically liberal brand of Protestantism, whose adherents were receptive to demands from atheists, liberals, and secular Jews for total separation.
The rest, as they say, is history, albeit history that proponents of separation, for obvious reasons, are quite content to leave untold. Nativist groups, including the Know Nothings and the Ku Klux Klan, enthusiastically adopted the anti-Catholic conception of separation. A Klan-inspired movement, supported by anti-Christian secularists, prompted passage in the 1920s of compulsory public school education laws intended to take Catholics out of parochial schools and “Americanize” them. As the success of this movement suggests, nativist sentiments had become pervasive among Americans from all walks of life, spreading into groups that were not officially nativist. One example of these groups is the Freemasons, which Catholics were forbidden to join on pain of excommunication under the 1917 Code of Canon Law, based in part on the view that Masons “plot[ted] against the Church.”
In 1947, all nine Supreme Court Justices-at least seven of whom were Masons-agreed in Everson v. Board of Education that the Constitution re?quired separation. The majority opinion was written by Justice Hugo Black, former Klansman and Senator from Alabama. He had distinguished himself in politics as someone who, in the words of an admiring Klan leader, could “make the best anti-Catholic speech you ever heard.” Ironically, the Court, by a 5-4 vote, upheld a law granting Catholic parents reimbursement for school bus fare on terms equal to other parents. Black certainly understood that voting to uphold the law might dampen criticism of his Klan background. Somewhat controversially, Hamburger suggests that Black may have voted strategically to accomplish that result. In either case, the point, I take it, is not that Klan or Masonic affiliations led the Court to embrace separation, but rather that the nativist assumptions and anti-Catholic biases held by Klansmen and many Masons were shared by many well-intentioned people at the time, both on and off the Court.
Although Jefferson's musings about separation had thus become the law of the land, it was not the kind of separation the nativists had wanted. To their chagrin, Protestants also found themselves trapped behind Jefferson's wall because the Court enforced it against all religions, not just Catholicism. The Court also ruled that separation forbids the government from favoring “religion” over “nonreligion” (Epperson v. Arkansas ), meaning that even nondenominational support for religion was constitutionally suspect. In a series of grant-in-aid cases, the Court held that students in religious schools had to be denied benefits offered to students in nonreligious private schools. So, for example, on-site remedial educational services could be provided to disadvantaged children enrolled in private schools, but not their counterparts in religious schools (Aguilar v. Felton ). This untoward result-interpreting a Constitution intended to guarantee religious liberty as requiring affirmative discrimination against people of faith-would seem to be the necessary result of a doctrine of separation that invalidates government action that lacks a “secular purpose” or has the effect of “advanc[ing] . . . religion” (Lemon v. Kurtzman ).
Fortunately, the Supreme Court has, of late, come to recognize the anomaly of its separation jurisprudence. Although the Court has not rejected the wall of separation, it has lowered the wall fairly dramatically, moving steadily away from the pernicious view that separation requires discrimination against religion. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), for example, the Court ruled that Jefferson's university could not deny student aid funding to a Christian student magazine. Additionally, the Court, overruling Aguilar and similar cases, has held that where services are provided to private school students, students in religious schools can also receive those benefits (see Mitchell v. Helms ; Agostini v. Fenton ). Just last term, the Court upheld the use of school vouchers even if parents elect to use them to send their children to religious schools (Zelman v. Simmons-Harris ).
Arguably the most powerful voice in the recent assault on separation has been Justice Clarence Thomas. His plurality opinion in Mitchell declared that, in the educational context, strict separation was “born of bigotry” and thus “should be buried now.” Incidentally, Thomas was educated by nuns in parochial schools and graduated from Holy Cross. Maybe the nativists were onto something about those Catholic schools after all.
Stephen F. Smith is Associate Professor at the University of Virginia School of Law.