Did the Founders Intend for There To Be a Separation of Church and State in the United States?

A friend from college and I have been discussing whether the separation of church and state is what the founders intended and whether it is a good or bad thing for society.  After a few years of studying the issue, here are my conclusions.  I’ll keep it as brief as I can.

I despise intellectual dishonesty almost more than almost anything else. The simplest definition of intellectual dishonesty is when someone knowingly excludes information or data that would hurt his or her own point of view even though they are aware of its existence.  For example, some cell phone companies have stated there is no “conclusive” proof that older model phones cause brain cancer. That one word is key because there are studies that show heavy phone use correlation with increased tumor development. By using the qualifier “conclusive” (meaning beyond question), the companies can basically lie, while being legally protected because it is true according to the letter of the law.  There are millions of Americans buried in cemeteries because the tobacco companies used this same line of reasoning back in the 1950s and 1960s and they weren’t trained by the school system to pick up on this.  That is because the school system was created to churn out good factory workers and not leaders or thinkers.  I think it is a moral failure of the civilization.

Lately, in my reading, I’ve come across some religious authors who are stating that the United States was “always a Christian nation” and it was the intention of the founding fathers that we be ruled with a ethical system descending from the “desert religions” including Judaism, Christianity, and Islam.  The evidence from the the founding fathers’ own writing disputes this, however, as well as their actions when they took the reigns of power after establishing the constitution.  As someone born and raised in the Bible belt, in a deeply religious family, I have some opinions on this.

It All Begins with Cicero

In a republic this rule ought to be observed: that the majority should not have the predominant power. – Marcus Tullius Cicero

CiceroCicero, one of the greatest men of all time, had an enormous influence on the founding fathers when they structured the newly formed United States of America as a constitutional republic and not a democracy.  Jefferson, Madison, Franklin, Washington, Adams, Lee, and the rest abhorred the notion that neighbors should be able to vote on the rights of their fellow man.  They realized that mob rule was no different (and perhaps even more frightening) than having a single dictatorial monarch.

This, combined with the heavy presence of the ideas of Locke, Voltaire, and Hobbes in the founders’ collective philosophical belief system (notably the notion that the primary purpose of government was the preserve man’s natural right to “life, liberty, and property” and that religion should be separated from governmental functions) were the bedrock of the new nation.

These were radical concepts that were a response to centuries of fighting over everything from personal rights to the role of religion in the state government (recall that these men were British citizens and that their national history was one of countless bloodshed beginning with Henry VIII throwing down the religious gauntlet and turning Europe into a battleground for generations that followed).

The Founding Fathers Signed a Legal Treaty Stating that The New United States Was Not “In any Sense” a Christian Nation

In fact, we went so far as to enshrine these concepts into some of our earliest legal documents.  Under President John Adams, and his cabinet, which included then-Secretaries Thomas Jefferson and Alexander Hamilton, the Treaty of Tripoli was signed after being ratified by the United States Senate (most of whom were founding fathers, as well). This treaty specifically states:

Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen,—and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

Treaty of Tripoli

The Treaty of Tripoli in its entirety for your reference. You can click it to enlarge the document.

In other words, the same founding fathers who fought the revolution, created the congress, and designed the constitution stated in no uncertain terms in one of the first legal documents issued under this new constitution that the nation was “not, in any sense, founded on the Christian religion”. Unless all of them simultaneously developed a case of temporary Alzheimer’s, I think it is a safe assumption that they knew exactly what their intentions were when they created the country only a few years before treaty ratification!  This isn’t up to some historian’s interpretation, it is their own words, in black and white, unequivocally clear.

Of course, we all know that many, if not most, of these men were religious in their own private lives. They were just wise enough to understand that if denominations split over questions of communion and divorce, a government had no hope of permanence if it incorporated belief systems into the laws.  Since the government had one job – to secure life, liberty, and property (or, as they modified it, the pursuit of happiness) – constant social upheaval due to religious infighting would be antithetical to the purpose.

In fact, in 1782, Jefferson stated “… it does me no injury for my neighbor to say there are twenty gods or no God.  It neither picks my pocket nor breaks my leg.”  Furthermore, Jefferson was disgusted by the idea of the church proper (the institution itself) involved in government, “History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance of which their civil as well as religious leaders will always avail themselves for their own purposes.” (ref: Jefferson to Alexander von Humboldt, Dec. 6, 1813).

This is one of the reasons they were so wise and the system still works today.  Denominations split all the time.  In more than two centuries, the United States has had only a single civil war.

Should There Be Prayer in School?

Take, for example, prayer in public school.  Imagine that overnight, prayer is permitted in the public school system starting tomorrow morning.  You are a non-denominational protestant Christian.  You send your child to class and suddenly they have a Muslim teacher.  Are you really going to be okay with them facing mecca and praying to Allah?  What if you are a Catholic and your child’s teacher is Latter Day Saints?  Instead of talking about the reading, writing, and arithmetic, the PTA meetings are going to devolve into a religious debate, which is what destroyed our ancestors in Europe.  Congress lacks the  Constitutional power to pass laws respecting any religion, so in this case, they aren’t going to be able to proscribe which type of prayer is acceptable – if the prayer door is open, anything can come through it.  It is a Pandora box because you cannot simply demand that only Christianity be allowed.

This is why private churches exist.  It is the parent’s job to raise their children in their faith, to teach them about the beliefs they hold fundamental and dear.  Trying to pawn it off on a teacher is just another example of laziness; people too busy to actually take a role in preparing their kids for the real world.  Parents that want the school environment to reflect their religion should put their kids into private religious schools.  That way, they know everyone agrees with their philosophical worldview.

What Are the Implications for Majority Rule in Our Society?

For those of you who are well-read and knowledgeable in civil rights cases in the United States all I need to say is Griswold v. Connecticut. That is enough to make my point.

For those of you who don’t know about it, Griswold v. Connecticut was a landmark 1965 Supreme Court case where “activist judges” did their job and cast down a law that the voters of Connecticut had passed.  The Catholics of the state believed that birth control was against God’s will so they convinced the majority of voters to ban contraceptives even between married couples in the privacy of their own home.  The case ascended to the Supreme Court, wherein the court struck down the law.  The justices ruled that the majority of voters couldn’t violate the marital privacy of their neighbors even though they had deeply held religious beliefs.

Supreme Court JusticesI think the judges were absolutely correct despite the fact that what they did was “judicial activism” to the same degree that their ruling in Loving v. Virginia might be considered as such.  In Loving, the court ruled 9-0 that voters had no authority to keep interracial couples from marrying each other, even if they opposed it on religious ground.  Likewise, in Lawrence v. Texas, the majority ruled that the state cannot “legislate morality” and tell people what is acceptable in their own bedroom (with the exception of Sandra Day O’Connor, who stated that the legislature could do so but only if it didn’t violate the equal protection clause and applied to everyone across the board; i.e., the state can ban sodomy (any non-reproductive sex act including oral sex) but only if it included heterosexual couples in the ban, otherwise the 14th amendment would be violated).  These three cases have, at various time, been lightning rods for conservatives who say that the judicial branch is overstepping its bounds yet the cases are always on the side of individual rights to live their life free from interference from the majority.

The judges did their job.  The founding fathers knew exactly what they were doing when they put these men and women beyond the reach of the voters and made them free to follow their own conscience.  The judicial system is not the bastard stepchild of the other two.  It is a fully equal, participating branch of the republic.  It was put there to keep the ignorant, bigoted masses in check against their baser impulses.  That may not be popular to say but it is absolutely the truth.  The founding fathers were rich, well educated, and smarter than the peasants.  To say they didn’t design a system to keep said peasants in check would be disingenuous.

Only the Insecure and Unfaithful Are Threatened by the Beliefs of Others

In my own case, were we to go to a majority rule system, I would be even better off because I’m a rich, white, male Caucasian with a six-figure private school education, surrounded by a network of comparably situated people … but I don’t want to live in a country like that! I love diversity.  I like hearing different points of view.  Like Jefferson, contrasting opinions don’t harm me anymore than someone who insists that the sky is purple.*

As a statement of fact, most of the people threatened by the checkout lady at the grocery store, who worships Lord Krishna, are those who are typically below the median income line, have lower education levels, haven’t traveled or seen very much of the world, and are facing the prospect of retirement without a financial safety net (there are proven psychological ties between threatened economic security and adherence to extreme religious dogma or lashing out at minority groups as a coping mechanism).

Me?  I figure if she knows how to run the register and is friendly, I don’t care what she does on her own time.  I don’t care if she has a traditional Hindu wedding or whether she believes that space aliens planted us here as part of a test project.  Why?  I’m too busy trying to build something and help improve the civilization.  In the long-run, we are all dead.  I think we have a responsibility to make the world a better place for those who come after us.

Perhaps it also comes down to this: Only someone who wasn’t secure in his or her own beliefs would be threatened by the beliefs of others. If someone were to walk up to me on the street and state that I was a short, African American woman, I wouldn’t even bother responding because I know they are a nutcase.  The fact that they are incorrect is so self-evident that it doesn’t even deserve a response.  To be threatened by the existence of Buddhists or other belief systems is to have little or no conviction about the truth of your own beliefs.

The Bottom Line on Separation of Church and State

The separation of church and state exists just as much to protect the church from the state as it does the state from the church.  It is the best possible solution in an imperfect world.  As a legislature, judge, governor, or president, I would uphold it and make sure any attempts to breach it failed.  That way, both church and state could remain insulated from the influence or corruption of the other.

* Bonus points to those of you out there who were screaming at your computer monitor because you realize that the sky isn’t blue.  It can appear purple or other colors to various animals depending upon their ocular perception.  Humans perceive it as blue.  The dung beetle in Egypt actually sees electromagnetic maps drawn out among the stars … that is why you can pick one up, dump it in the middle of the desert, and it will always find its way back home.  It follows the celestial highways.

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  • Kelby Umbehr

    Likewise, in Lawrence v. Texas, the majority ruled that the state cannot “legislate morality”…

    Our government legislates morality all the time. Take the 13th, 14th, 15th, 18th, 19th & 21st amendments. Unfortunately, it tends to legislate “popular” morality and this may or may not coincide with morality based upon absolute Truth.

    Take the issue of gay unions today. Regardless of your opinion, it’s clearly seen that all levels of government are trying to stamp this issue into their constitutions (for one way or another). This is clearly an attempt to legislate morality.

    Take the issue of the HHS mandate. This is an attempt of the government to make all people provide and pay for contraception regardless of their own morals. This is another clear example of attempting to legislate morality.

    Take Roe vs Wade. Abortion used to be opposed by an overwhelming majority. And now days, it’s only opposed by a slight majority. That single judicial act changed the coming generation’s morals.

    No, the unabridged truth is that government legislates morality all the time, albeit only when it supports their own personal understanding (on all sides). Unfortunately, we are in a downward cycle of human history. Someday, the pendulum will swing back, but it may take a long time.

    Enjoying your posts,

    Kelby

    • I say this very respectfully: You are not understanding the legal framework upon which the decisions were made or the way in which I am using the term morality. I’m subtly referencing Justice Scalia, in his dissent in the Lawrence case, explaining how the courts have now created a body of case law that makes it impossible for legislation based upon morality alone to stand. Instead, due to Kennedy’s legacy on the court, decisions and laws must be tied to a rational basis, with a compelling government interest. That may seem like a small distinction, but it is an enormous one.

      In cases like the HHS mandate, again, you are not understanding the proper constitutional questions involved. The question is how to resolve a conflict between the constitutional rights of the individual employee and the employer. The fact that it involves abortion is somewhat inconsequential. It’s a tricky enough question that Hobby Lobby, the huge craft retailer, currently has a constitutional challenge to the law working its way through the courts that seeks to clarify how to resolve impasses where you have two parties that feel differently. (E.g., If Hobby Lobby gave you a paycheck, and you chose to spend it on an abortion, it couldn’t do anything. If Hobby Lobby gives you health benefits, and you chose to spend them on an abortion, can it stop you by refusing to cover the procedure? Is it effectively a form of payment that you get to decide how it is allocated or something else?) The issue is far more complex than you are making it out to be and will have much broader ramifications beyond the issue of abortion.

      • Kelby Umbehr

        “…but those that have no logical reason will be struck down…”

        Who decides what counts as logical reason? How is it defined? I guess I’d have to understand your definition of morality better.

        “The fact that it involves abortion is somewhat inconsequential and besides the point.”

        True and False. It’s true that Hobby Lobby is not challenging abortion or contraception specifically. They’re challenging the fact that providing those services violates the free exercise of their non-catholic religion:

        —Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof—

        See I’m surprised that more people/businesses aren’t upset by this. If the government can tell a company how to do one thing based upon “employee rights”, then where does it end? 20 hr work week? All insurance plans defined by the government? Minimum level of 401k match? It’s amazing everything that the labor movement has gotten over the last 120+ years (national unions, 5 day work week, workplace equality, safety regulations, holidays, etc) and it will never be good enough for some people. Some are never satisfied. I’d wager their satisfaction in life has something to do with their religion or lack thereof.

        As for the false part, we already have laws keeping certain groups’ money away from abortion funding such as the Hyde Amendment. Isn’t it interesting that it was kept out of Obamacare? At least the Hyde amendment provided some sort of a compromise that most could agree upon. I guess we will all just have to kneel down before our government.

        • The answer to your first question is a technical one based on the legal framework in the United States. It required a detailed explanation, so I took some time this afternoon to sit down and draw a condensed version of the process and people involved under the Constitution and laws of the nation. You can read it here. I hope you find it useful.

          2. Most people aren’t upset by it because many people realize, in some cases, it’s a good thing. What if a Christian worked for an atheist who refused to allow them to wear a cross around their neck or read a Bible on lunch break? If that happened, would you be upset by the fact we have a mechanism to resolve these constitutional conflicts?

          The nature of a free society means that fundamental rights (see original linked post) are going to clash with one another at various times. The employee is not always right. The employer is not always right. The American system is remarkable because it has managed to avoid a lot of the bloodshed and violence that many other systems devolve into when they can’t resolve these questions. We have an intelligently designed framework that has served us enormously well.

          As for your concerns about economic matters: The Constitutional rules are already established in the area of employee rights – the people, through their legislatures, do have the right to determine the cost of doing business. The State of Missouri could require all manufacturers in the entire state to provide a 401(k) if it wanted. There’s no legitimate constitutional challenge to it based on the existing framework. This is, I suppose, why Benjamin Franklin warned us we have a republic, “If [we] can keep it.” Roughly 178 years ago, Alexis de Tocqueville wrote about the United States in one of the most famous books of all time, Democracy in America, warning that the moment the population began to vote itself wealth taken from others, it would be our undoing. There’s no doubt, however, that it can be done. That’s the downside in living in a representative form of government.

          I worry about a gradual slide into such a system, but there is no question we have a right to shackle ourselves if we so desire. If my state tells me I have to provide a minimum wage of $20 per hour, there is no constitutional challenge. I either go out of business, move to a different state, or find a different product line. This has not changed in more than a century, so I’m not sure why you would be surprised by this. We do not, and have not for generations, lived in a country where any legal objection to such a law would be taken seriously. (As a businessman, my job is to react to the changes in an intelligent way, perhaps by working to repeal it or modifying my structure.)

          It’s the framework that allows us, as a civilization, to ban children from working in coal mines, require time-and-a-half for overtime, insist on clean working conditions, etc. These were won by reformers during the 1850’s through 1920’s, with Upton Sinclair’s book, The Jungle playing an enormous role in the cultural shift.

        • Kelby Umbehr

          “If my state tells me I have to provide a minimum wage of $20 per hour,
          there is no constitutional challenge. I either go out of business, move
          to a different state, or find a different product line. This has not
          changed in more than a century, so I’m not sure why you would be
          surprised by this.”

          You’re right, I shouldn’t be surprised by it and I suppose I’m not. The chains just take on a different meaning when comparing coal mine safety to forced paying of abortion and contraception.

          It’s amazing the bias of the media. If, instead, an Obamacare stipulation was to include pork in a person’s weekly diet for proper healthy eating, wouldn’t we be hearing about a threat to religious freedom against Islam and Judaism?

          At least I take solace in the fact that the Church has survived for 2000 years in spite of every attack, both from the inside and outside, and will continue to do so.

  • Jonathon Brownback

    ” that the state cannot “legislate morality” ”

    Just wanted to point out that that is, technically, incorrect. It’s *always* legislating morality, ie what is wrong (illegal) and what is right (illegal). It’s more a question of which particular morality should be legislated.

    • The reason the original words are in quotation marks and marked apart as not my own is because they are an allusion to Justice Scalia’s dissent in the Lawrence v. Texas case when he was was stating that the court had effectively made legislating morality based on belief alone unconstitutional, in conflict with historical precedent (I don’t agree with him in the broad picture – going back to Griswold in the 1960’s, the court had been on a trajectory of striking down invasions of individual liberty and privacy, though in this particular area – animus toward those of a different sexual orientation – he was correct):

      Mil-ner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that “[l]egislatures are permitted to legislate with regard to morality . . . rather than confined to preventing demonstrable harms”); [Source PDF] 539 U.S. ___ (2003)

      Lawrence changed the rules of the constitutional game in that morality, if based on nothing more than belief without a rational, secular, fact-based interest, is insufficient to justify the curtailing of individual freedom.

      I agree with you that true morality, as defined by most rationalists is still the basis of law. Definitely. You’ll get no argument from me on that. Perhaps I should have included a link to the allusion in the original when it was written years ago so it made sense in retrospect when it wasn’t on the cover of every major newspaper.