Is there really a wall of separation between church and state?

  In a recent Denver Post YourHub article, Jack Van Ens warned in his article, “Heed Jefferson’s church-state warning” that school vouchers will collapse what Van Ens calls “the high, impregnable wall” of separation between church and state that he claims Thomas Jefferson and James Madison erected.  However, this supposition requires closer scrutiny to provide a balanced perspective.

    Contrary to popular belief, there is no ‘separation of church and state’ called for in the U.S. Constitution or any other founding documents. Our founding fathers and greatest leaders have in fact warned, time and again, against such a separation. Our nation was founded, in order to secure for the ages, the liberty and freedom granted to us by God.

    James Hitchcock, PhD, Professor of History at St. Louis University, wrote in  his 2005 article "The Myth of the 'Wall of Separation:  "Modern separationists invoke the names of James Madison and Thomas Jefferson to 'prove' what the Founding Fathers intended. But Jefferson had nothing to do with the drafting of the Bill of Rights.  Madison did, but the Religion Clauses were the work of someone else. The hallowed phrase 'wall of separation' does not appear in the Constitution, as some people seem to think, but in a private letter that Jefferson wrote some years later...   For almost a century afterwards the 'wall' metaphor was largely ignored.  Those who believe the myth of strict separationism find it impossible to explain why we have military chaplains, prayers in courts and legislatures, the claim 'In God We Trust' on coins, an official Thanksgiving day, oaths that end 'so help me, God,' and many other things that bring religion into the public sphere... Thus, not surprisingly, until 1948 the Supreme Court never found a violation of separation of church and state, and on numerous occasions it upheld arrangements whereby religion received official public support.” 

    David Barton, Founder and President of WallBuilders, wrote in January 2001, “The 'separation' phrase so frequently invoked today was rarely mentioned by any of the Founders; and even Jefferson's explanation of his phrase is diametrically opposed to the manner in which courts apply it today...  There is probably no other instance in America's history where words spoken by a single individual in a private letter-words clearly divorced from their context-have become the sole authorization for a national policy.”

    Chief Justice Rehnquist in  Wallace v. Jaffree (1985) maintained that the true intent of the Establishment Clause of the First Amendment was merely to prohibit a “national religion” and to discourage the preference of any particular religion over another.  According to Rehnquist, the intent  of the Establishment Clause  was not to create  “government neutrality between religion and irreligion, nor prohibit the federal government from providing non-discriminating aid to religion.” This neutrality philosophy allows state and federal tax funds to go to religious schools as long as one or a few religious sects are not given preferential treatment.

    Rehnquist also said, "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.   His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment...  The 'wall of separation between church and State' 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."

    Antonin Scalia, Associate Justice of the US Supreme Court, wrote in 2005,  “I shall discuss first, why the Court’s oft repeated assertion that the government cannot favor religious practice is false... Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality."

    The Supreme Court recognized in Cantwell v. Connecticut (1940) that the fundamental concept of “liberty” embodied in the Fourteenth Amendment incorporates First Amendment guarantees and safeguards them against state interference.  Since then, supreme courts have adopted the “child benefit” doctrine in many instances to defend the appropriation of public funds for private and parochial school use.

    The Supreme Court, in Everson v. Board of Education (1947), held that the use of public funds for transportation of parochial school children does not violate the First Amendment.  The Court adopted the “child benefit” doctrine and reasoned that the funds were expended for the benefit of the individual child and not for religious purpose.  Forty-one years later, the U.S. Supreme Court, in Board of Education of Central School District No. 1 v. Allen (1968), applied the reasoning of the Cochran and Everson cases in ruling that the loan of textbooks to parochial school students does not violate the Establishment Clause of the First Amendment.

    So, historians, judges, and case law confirm that there is no constitutional issue with school vouchers.  With vouchers, the parents make the choice between religious or non-religious schooling; thus, the government isn't imposing religion.   With a voucher, each and every parent would have freedom of choice of religious and non-religious school. Thus, the government would in no way be violating the First Amendment establishment clause.

    Choosing how your children are educated should be as routine in America as the ability to choose your neighborhood, your church, and your place of employment. Children deserve the best education possible, and the way to make that happen is to empower parents to choose how their children will be educated.  Why not let parents choose what schools' values are most compatible with their own?  Isn’t that in keeping with our liberty and our rights described in our Constitution?

Mark Helgeson

LtCol, USMC (Ret)

Westminster, CO