During oral arguments Tuesday in the Boston Christian flag case, Justice Neil Gorsuch raised more than a few eyebrows when he referred to the “so-called separation of church and state” while questioning an attorney.
To those of us who defend church-state separation for a living, it was a disappointing statement. Using a qualifier like “so-called” casts doubt on the validity of the words that follow.
Many influential historical figures would disagree with Gorsuch that church-state separation is “so-called.” Consider, for example, Thomas Jefferson, with whom the phrase “separation of church and state” is strongly associated.
Jefferson invoked it in an 1802 letter to a Baptist group in Danbury, Conn. The Baptists knew Jefferson was a champion of religious freedom and wrote to him to express their discontent with the situation in Connecticut, where a quasi-established church run by Congregationalists ruled. In his reply, Jefferson spoke of the First Amendment creating “a wall of separation between church and state.”
But there was an important antecedent. In 1644, Roger Williams, a colonial-era religious liberty pioneer and founder of Rhode Island, warned against opening up a “gap in the hedge or wall of separation between the garden of the church and the wilderness of the world.”
People just seemed to need a phrase to describe the relationship between religion and government that was emerging, and over time the “separation” idea has spoken powerfully to many. In 1819, James Madison reflected in a letter that the “total separation of the church from the state” had protected both religion and government in Virginia. In an 1875 speech, President Ulysses S. Grant asserted, “Keep the church and state forever separate.” President John F. Kennedy in 1960 famously remarked, “I believe in an America where the separation of church and state is absolute.” (See here for more presidential remarks on church-state separation.)
For a “so-called” principle, separation of church and state sure gets a lot of traction! The late church-state scholar Leo Pfeffer explained why this is so in his magnum opus Church, State and Freedom. Noting that the literal words “separation of church and state” don’t appear in the Constitution, Pfeffer wrote, “But it was inevitable that some convenient term should come into existence to verbalize a principle so clearly and widely held by the American people.”
Pfeffer went on to point out that the phrase “religious liberty” also appears nowhere in the Constitution – but no one doubts that it is a constitutional principle. Observed Pfeffer, “The universal acceptance which all these terms, including ‘separation of church and state,’ have received in America would seem to confirm rather than disparage their reality as basic American democratic principles.”
Separation of church and state was pioneered by great American thinkers. It is an important part of our Constitution and is the platform upon which religious freedom rests.
Thankfully, most Americans support the principle of church-state separation – and they also know there’s nothing “so-called” about it.
