Early next year, the Supreme Court will hear American Legion vs. American Humanist Assn., involving whether a 40-foot tall cross in Bladensburg, Maryland, is an unconstitutional violation of the separation of church and state. But what is striking about the litigation is that neither those words nor the concept applied today is contained in “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Redefining the Establishment Clause

The Supreme Court just redefined the Establishment Clause in Everson v. Board of Education (1947), supposedly based on Thomas Jefferson’s letter to the Danbury Baptists, even though Jefferson rejected the current interpretation imposed on his words.

Justice Hugo Black’s majority opinion invented the separation of church and state precedent, 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 citizens and turned it into a denial of virtually any public role for religious believers.

A Mistake

Treating Jefferson’s phrase as authoritative Constitutional re-interpretation was mistaken. He was not in America when the Constitution was written and debated. His letter was written a decade later when some states still had established religions. It was personal and private; not official. No other phrase from private correspondence has been allowed to transform explicit Constitutional language into a vague and slippery legal concept.

Jefferson also quoted the Establishment Clause immediately before “thus building a wall of separation between Church & State.” Since the clause restricted only Congress and not any religious group, Jefferson’s wall was necessarily a “one way” wall (echoing Roger Williams that “When they have opened a gap in the … wall of separation between the Garden of the Church and the wilderness of the world, God has ever made his Church a wilderness”). It kept Congress from intruding into religious matters but did nothing to prohibit believers’ public influence.

Religious Privileges

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, which is blatantly inconsistent with current church and state interpretation, which allows the fact that government has been allowed to expand far beyond its delegated Constitutional limits to progressively crowd out any public influence of faith in the name of defending the Constitution. And he wrote to specifically allay their fears (based on previous ill-treatment from Connecticut’s established Congregationalist church) that a nationally established church might be imposed on them. He was explaining how the Establishment Clause protected them from that possibility, not how it imposed restrictions on the Baptist’s expression of their faith.

A Strained Interpretation

Everson’s strained interpretation is even inconsistent with Jefferson’s views, on which it is supposedly based. For instance, Jefferson’s second Inaugural Address stated, “[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.”

Everson also sharply departed from prior Court interpretations. Reynolds v. United States (1878) summarized Jefferson’s meaning, asserting “the rightful purposes of civil government are … to interfere [only] when principles break out into overt acts against peace and good order,” which is very different from mandating a complete disconnect between church and state.

No Such Wall

As Justice William Rehnquist concluded, “the wall is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.” But Everson plus a government bloated-beyond-Constitutional-recognition has shriveled faith’s permitted influence in America. Instead of protecting rights of religious expression against federal encroachment, the result has been, in scholar Philip Hamburger’s words, “transforming the constitutional guarantees against discrimination on grounds of religious differences into provisions that necessitate it.”

So even though a wall of separation of church and state is routinely invoked to justify crowding out religious influences rather than protecting citizens’ rights to religious expression against federal encroachment, there is no such wall in the Constitution.

Originally published December 16, 2018 at Fee.org. Republished with permission.