The First Amendment of the U.S. Constitution begins with "Congress shall make no law respecting an establishment of religion," a phrase commonly referred to as the Establishment Clause. In the 1947 U.S. Supreme Court decision Everson vs. Board of Education1, the Court explained the Establishment Clause as a "wall of separation between church and state."
But where did the phrase — "wall of separation between church and state" — really come from? What did it originally mean? Is it the proper way to interpret the Establishment Clause? Or, is it, as former Chief Justice William Rehnquist asserted, a "metaphor based on bad history," which should be rejected as an interpretive aid for the Establishment Clause?
'Separation of Church and State' Absent From the Constitution
The U.S. Constitution was drafted in 1787. The Bill of Rights followed in 1789, following the Constitution's ratificationduring the first Congress . Thomas Jefferson, the author of the "wall" metaphor, was in France during this period acting as our ambassador, and he didn't participate in the drafting or debate of either document. Neither document contains the phrase "wall of separation between church and state."
Jefferson's Letter to the Danbury Baptists
The phrase was first used in January 1802, in a private letter to the Danbury Baptist Association in Connecticut by newly elected President Jefferson. The Danbury Baptists had written a congratulatory letter to Jefferson following his election victory and used the letter as an opportunity to solicit Jefferson's views on state interference with the exercise of religion and freedom of conscience. The Baptists were chafing under Connecticut's restrictions on their religious exercise (Congregationalism was then the "established" church in Connecticut; meaning, it was protected and promoted by the state with tax funds), and hoped for a presidential response that might be useful in shaping public opinion on their behalf.2
Whether he was taking the opportunity to address election campaign charges that he was an "infidel" and "atheist,"3 or to articulate his views on religion and government, and in particular his opposition to government proclamations of fast days and thanksgiving days4, Jefferson offered only indirect support for the Baptists' sensitivities. His letter focused not on the Baptists' specific situation, but rather on the language of the First Amendment and his views of the federal government's role regarding the free exercise of religion:
"Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his 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."5 (emphasis added)
This latter phrase became the centerpiece of the U.S. Supreme Court's 1947 Everson v. Board of Education of Ewing Tp. opinion, a case about public funding of religious school busing.
1Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947).
2Philip Hamburger, Separation of Church and State, (Cambridge, Massachusetts: Harvard University Press, 2002), p. 157.
3Daniel L. Dreisbach, "Origins and Dangers of the 'Wall of Separation' Between Church and State," Imprimus, 35 (2006): p.2.
4Hamburger, p. 159.