- - Monday, December 12, 2016

Just up the mountain from where I sit at the UVA’s Miller Center lies the final resting place of the university’s founder, Thomas Jefferson.

The obelisk that he designed to mark his gravesite at Monticello lists the three accomplishments of which he was proudest: authoring the Declaration of Independence, establishing the University of Virginia, and drafting the Virginia Statute for Religious Freedom.

His collaboration with neighbor and friend, James Madison, to implement the religious freedom law in 1786 provided part of the foundation for the First Amendment’s guarantees that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

Although it was Madison, the Father of the Constitution, who also penned the first 10 Amendments that we know as the Bill of Rights, Jefferson’s 1802 interpretation of the First Amendment’s religion clauses has had a lasting impact on church-state issues.

When the Danbury (Connecticut) Baptist Association requested that President Jefferson declare a day of fasting to reconcile the nation after the particularly acrimonious and divisive 1800 presidential campaign, Jefferson demurred, explaining to the Baptists: “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for this faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

Jefferson’s simple metaphor became a mainstay of modern church-state jurisprudence in the 1940s, via President Franklin Roosevelt’s first Supreme Court nominee, Justice Hugo Black. FDR cemented the Jefferson image in the American mind by successfully advocating for a monument to him, which FDR proudly dedicated in 1943 on the Tidal Basin in Washington.

Four years later, Black, who shared many of Jefferson’s religious and philosophical attitudes, invoked the wall imagery in the 1947 case of Everson v. Board of Education of Ewing (N.J.) Township. Although he upheld New Jersey’s reimbursement of bus fare to parents of parochial school students, Black’s majority opinion defined his view of church-state separation by applying the Jeffersonian language of his 1802 letter to the Danbury Baptists. “In the words of Jefferson,” Black wrote, “the clause against establishment of religion by law was intended to erect a ‘wall of separation between church and state.’” Indeed, Jefferson’s verbiage, as applied by Justice Black, is probably more familiar to the general public than the First Amendment’s actual language.

Jefferson was a master architect of a variety of literal walls. His “Academical Village,” as he labeled UVA, is bounded by tall walls, short walls, walls with gates, and serpentine walls. The latter, only one brick thick to save on sparse building materials, are wavy, not straight, in order to ensure strength. Justice Robert Jackson noted that they symbolize a wall of separation between church and state that might be undulating, rather than uniform.

As with all constitutional interpretation, there is no unanimity on the meaning of Madison’s First Amendment religion clauses or Jefferson’s metaphor. Some justices have followed Black’s strict separationism. Others have embraced the opposite view that the wall theory comes dangerously close to violating the Free Exercise clause, and therefore government must accommodate religion, as long as it does not exact support for a state denomination. Landing squarely in the middle are justices who argue for neutrality: the government can neither promote nor inhibit religion and must not become excessively entangled with it.

Near the end of his life, as he wrote his autobiography, Jefferson recalled that the debate over his religious freedom statute proved that “its protection of opinion was meant to be universal.” An amendment to the bill was proposed to refer to Jesus Christ as the “holy author of our religion.” A majority of Virginia legislators rejected it, proving to Jefferson that “they meant to comprehend within the mantle of its protection the Jew and the Gentile, the Christian and Mahometan, the Hindoo and infidel of every denomination.”

Recently, 500 students at Jefferson’s university stood and cheered Khizr Khan after he spoke of America’s greatness in welcoming him, a Pakistani Muslim, to its shores. On this 225th anniversary of the Bill of Rights, the Jeffersonian heritage of religious freedom, embodied in the First Amendment, endures — an especially important legacy in an increasingly diverse 21st century America.

Barbara A. Perry, Ph.D., is director of presidential studies and the White Burkett Miller Center professor of ethics and institutions at the University of Virginia’s Miller Center. She is a former Supreme Court Fellow. Follow her on Twitter at @BarbaraPerryUVA.

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