What nearly all of us think we know about the separation of church and state is wrong. That’s the upshot of this important new book, and it has profound implications for several current debates, not least the controversy over K-12 education reforms that may involve government funds’ going to religious schools. Philip Hamburger, a University of Chicago law professor whose writings are cited by the Supreme Court, shows that educational controversies have been at the heart of church-state disputes throughout American history.
Though “separation of church and state” is now a cliché, its meaning and history are murky. Only a few years ago, for example, the U.S. Supreme Court declared government aid to religious schools could be used to supply secular textbooks but not accessories like maps—leading one wag to wonder if the court had heard of atlases? Just this spring five justices decided that Cleveland lawmakers could give poor parents vouchers to use at any K-12 school they liked, even a religious one, without violating any constitutional requirement to separate church and state, but the other four justices sternly disagreed.
Even though that decision stated that the U.S. Constitution permits voucher programs, most state constitutions have so-called “Blaine amendments” that forbid them, and a Florida court recently struck down a voucher program there for violating the state’s Blaine amendment. (It’s unclear whether the U.S. Supreme Court will overturn these state laws, named for James G. Blaine, a prominent nineteenth-century politician who championed them.)
This confusion surrounding church and state makes Hamburger’s exhaustive but fascinating study invaluable. Most of us have heard the conventional myth that from the Founders onward, “separation” was a clearly defined goal sought by the good guys and resisted by unsavory religious zealots. Not quite. First, the boundaries of separation have always been far from clear. Second, some thoroughly unappealing folks, including the Ku Klux Klan, have advanced separation. Third, the First Amendment was not aimed at a simplistic separation of church and state, but at religious liberty.
In the Founders’ day, many men of good will wanted to end “establishments” of particular churches, which restricted the civil rights of non-members of the established church. These advocates of religious liberty sought to limit the power of government by forbidding it to erect such establishments; they didn’t intend to eradicate all traces of religion from the public square. This distinction becomes clear in Hamburger’s account of Jefferson’s letter to the Danbury (Connecticut) Baptist Association, in which the famous phrase “a wall of separation between Church & State” appears.
The Baptists, suffering under Connecticut’s established Congregational Church, had sought Jefferson’s support, but were so put off by the extreme rhetoric of his reply that they made no use of the letter. Jefferson’s “wall,” writes Hamburger, was incompatible with their goal of religious liberty. They wanted to end church establishments but not, as “separation” implied, to prevent religious groups from participating equally in society alongside non-religious groups.
“Separation,” Hamburger continues, “did not become popular until the mid-nineteenth century,” when nativist “opponents of Catholicism” allied with “theological liberals, especially anti-Christian ‘secularists,’ who worried that separation had not been fully assured by any American constitution.” They fought for a U.S. constitutional amendment that would separate church and state and explicitly prohibit tax dollars’ ever reaching church schools. When their amendment was narrowly defeated, “they switched tack and argued that American constitutions had historically guaranteed separation.” Though they failed to alter the nation’s supreme law, they were strong enough to add Blaine amendments to most state constitutions.
Later, in the first half of the twentieth century, a revived Ku Klux Klan and similar groups “continued to distinguish themselves as the leading proponents of this ideal” of separation. Menace, for example, a nativist newspaper with over a million readers, published “the most lurid anti-Catholic anxieties” and on its masthead declared, “We advocate the absolute separation of church and state, the taxation of all church property, and the compulsory education of all children up to the age of 14 years in the public schools.” Such groups demanded that businesses be boycotted if they were owned by Catholics (or employed Catholics), that Catholics not be permitted to teach in public schools, and that all children be forced to attend public schools (usually with compulsory Protestant Bible reading or instruction in the evils of Catholicism).
One Klan officer who swore in new members with the standard oath about “white supremacy” and “separation of church and state” was Alabama’s Hugo Black, who was elected as a U.S. Senator with Klan backing and later named by FDR to the Supreme Court. In 1947 he penned the trailblazing Everson decision in which the court “finally interpreted the First and Fourteenth Amendments to require separation of church and state,” Hamburger writes.
In his evenhanded book, Hamburger reminds readers that although religion is a potential basis of conflict, it is also a potential source of the morality, self-restraint, and concern for others that freedom requires. Nothing, incidentally, illustrates this fact better than the way Catholic schools in today’s grim inner cities serve mostly non-Catholic parents by educating their children and helping students form upright characters—both tasks in which so many public schools fail.
The French political scientist Alexis de Tocqueville argued that, on the one hand, Americans’ vigorous religious faith is a blessing, but on the other hand, religion has flourished here because we avoid the church-state entanglements of old Europe. Hamburger, too, recognizes the perils of excessive entanglement. He asks only that we also recognize the danger, repeatedly shown by our forgotten history, that “separation” can be abused as a weapon against particular religious groups. Such abuse occurs today when enemies of school choice call it “theocratic” to permit parents to use government subsidies to send their children to any school they choose.
Scott Walter is vice president for publications and research at The Philanthropy Roundtable.