The Supreme Court’s Dubious ‘Wall of Separation’ between Church and State
By Gary Galles                  06/21/2019

The Supreme Court has just issued its American Legion vs. American Humanist Assn. ruling that a nearly century-old cross built to honor WWI dead in Bladensburg, Maryland, does not violate the Establishment Clause. Hot Air’s Allahpundit wrote that the primary takeaway was:

The Court doesn’t want to be bothered anymore with questions about longstanding religious monuments on public land. If the state puts up a *new* religious symbol in 2019 on public property, that’s one thing. But the symbols that have been there for a while? They’re all “strongly presumed” to be constitutional now.

The ruling offered several reasons for why “The passage of time thus gives rise to a strong presumption of constitutionality,” including evolving and multiplying meanings and time’s effect on historical significance, which can provide “added secular meaning.” However, Gorsuch worried over the vagueness of what would be old enough to provide presumptive constitutionality.

If the court decides to craft an answer to Gorsuch’s “how old is old enough” concern, a good principle was provided by Alito, Roberts, Kavanaugh, and Breyer:

Where monuments, symbols, and practices with a longstanding history follow in the tradition of the First Congress in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans they are … constitutional.

What the earliest Congresses accepted as constitutional under the Establishment Clause (or other clauses) has a very strong claim to be accepted as a consistent principle of interpretation. After all, that seems necessary if we are to take seriously the idea of the Constitution as the highest law of the land (See Federalist 78), rather than inventive reinterpretations that come later.

For instance, some states maintained established religions into the nineteenth century, because only the federal government was constrained by the Constitution. As Thomas Jefferson’s second Inaugural Address put it, “[religion’s] free exercise is placed by the Constitution independent of the powers of the general government, I … have left them, as the Constitution found them, under the direction and discipline of State or Church authorities.”

If the Supreme Court would like a more recent standard for a presumptive “ok if before X” rule, however, 1947 would be a very good choice. The reason is that the logic of the Establishment Clause was morphed into far different “church and state” reasoning that year in Everson v. Board of Education, supposedly based on Thomas Jefferson’s letter to the Danbury Baptists, even though Jefferson rejected the Everson interpretation. And retroactively applying that very different interpretation to what was in fact accepted beforehand effectively makes the reinterpretation, rather than the Constitution, the highest law of the land.

Justice Hugo Black simply invented the separation of church and state interpretation, adding “That wall must be kept high and impregnable. We could not approve the slightest breach.” Justice Wiley Rutledge went further, writing that “a complete and permanent separation of the spheres of religious activity and civil authority” was required. This took a restriction preventing the federal imposition of a religion on nonbelievers and transformed it into a virtual denial of virtually any role for religion in public life.

Black’s use of Jefferson’s phrase as authoritative Constitutional re-interpretation was in error. Jefferson was not in America when the Constitution was written and debated. His letter was written a decade later. It was personal and private; not official. It is the only phrase from private correspondence that has been allowed to transform explicit Constitutional language into something very different in meaning.

Jefferson also quoted the Establishment Clause immediately before “thus building a wall of separation between Church & State” in his letter. Since the clause restricted only Congress, and not any religious group, it kept Congress from intruding into religious matters but did nothing to prohibit believers’ public influence.

The Baptist inquiry’s premise was that “the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor,” in order to defend “religious privileges we enjoy … as inalienable rights.” Jefferson endorsed their view, blatantly inconsistent with current church and state interpretation, which allows the fact that government has been allowed to expand vastly beyond its delegated Constitutional limits to progressively crowd out the public influence of faith, supposedly in the name of defending the Constitution. And he was explaining how the Establishment Clause protected them from having a national church established against their wishes, not how it restricted the Baptist’s expression of their faith.

To see how large a change in precedent was involved, consider Reynolds v. United States (1878). It summarized Jefferson’s meaning as “the rightful purposes of civil government are … to interfere [only] when principles break out into overt acts against peace and good order,” very different from mandating an almost complete disconnect between faith and the public square.

If the court was to pick 1947 as a date before which a monument, now challengeable in order to enforce the “separation of church and state,” would carry a “strong presumption of constitutionality,” it would take seriously former Chief Justice William Rehnquist’s view that “the wall is a metaphor based on bad history … which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.” It would not be as strong a protection as using what was considered constitutional during the founding era as a standard. But it could help undo some of the ways federal government growth far beyond its constitutional limits has permitted it to shrink the influence of religious faith, even though its protection was so important that our founders gave it pride of place in the First Amendment. And it is worth undoing what scholar Philip Hamburger’s called “transforming the constitutional guarantees against discrimination on grounds of religious differences into provisions that necessitate it.”

Gary M. Galles is a professor of economics at Pepperdine University. He is the author of The Apostle of Peace: The Radical Mind of Leonard Read.

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