- - Sunday, November 29, 2015

Our history tells us that faith and public life are complementary parts of American life. But invocation of the “wall of separation” between church and state has become shorthand for a particular narrative about the history and status of religion in American life. This narrative is wrong.

The idea that the Constitution creates a “wall of separation” between church and state traces back to Thomas Jefferson, and generations have been led to believe that his view reflected the dominant attitude of the Founders toward religion in public life. But Jefferson’s position, as embodied in the Virginia Statute for Religious Freedom, which he wrote, was in fact a novel approach that represented a decidedly minority viewpoint in the early republic.

The dominant model at the time was embodied by the 1780 Massachusetts Constitution drafted by John Adams, which protected religious liberty while at the same time instituting a “mild and equitable establishment of religion” that enshrined “Christian piety and virtue.” In Adams’ view, as articulated by one scholar, “the notion that a state could remain neutral and purged of any public religion was a philosophical fiction.”

Jefferson himself acknowledged that the Virginia statute broke with the practices of other states. At the time of the adoption of the First Amendment in 1791, about half of the 14 states then admitted to the Union had an officially established church or allowed municipal governments to establish such a church. Moreover, every single state sponsored or supported one or more churches.

Simply put, the idea of a rigid separation between church and state is without any basis in our history or laws.

The First Amendment says, quite simply, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” On its face, this language affects only one actor, Congress, not states and local governments, and not individual citizens.

At the time of its adoption, the First Amendment’s establishment clause neither created an individual right to be free from religion nor limited the power of the states to establish religion; it simply limited Congress’ ability to choose a preferred religious sect. This restriction on favoring one particular sect over another at the federal level made eminent sense for a new nation composed of states with a wide variety of religious traditions and approaches to established religion.

For a century and a half, this understanding of the establishment clause endured with little challenge. Unfortunately, religion was not spared from a liberal, activist Supreme Court that spun wildly out of control in the mid-20th century. In Everson v. Board of Education, the court jettisoned the traditional understanding of the establishment clause, asserting that “the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

The court cited Jefferson to “erect a wall of separation between church and state.” A structural limit on federal power was transformed into an individual right to be free from religion.

The conventional wisdom peddled by advocates for stringent exclusion of religion from the public sphere is that aggressive enforcement of their vision of the establishment clause enhances religious freedom. Unfortunately, nothing could be further from the truth. The erroneous wall-of-separation doctrine narrows the role of religion in public discourse, fueling the view that religion is a private matter rather than a fundamental precept of American civil society and leading many to fall prey to the disturbing claim that religious freedom doesn’t extend much further than the church door.

Such an approach undermines religious liberty and limits the ways in which faith enriches our society. It counsels government to avoid any perceived entanglement with religion — not only denying religious organizations the same opportunities afforded to secular counterparts, but limiting also accommodation of religious practice at the core of the right to free exercise. It tells the religious believer that in order to participate fully in public life, he should cabin and hide his religious devotion.

While the addition of principled jurists to the court has turned momentum against previous excesses, the thrust of the court’s misguided establishment clause jurisprudence remains dominant. As we seek to protect religious liberty for future generations, we must restore a proper relationship between faith and public life.

Senator Orrin G. Hatch, Utah Republican, is the former chairman of the Senate Committee on the Judiciary and the current chairman of the Senate Committee on Finance.

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