Supreme Court unravels separation of church and state
Boebert was wrong on both counts. The Founders envisioned a government in which neither church nor state controlled the other.
But his comments came at the same time as the Supreme Court issued several rulings that will change the church-state relationship in favor of the churches. The history of this relationship, however, indicates that even if this separation was never as absolute as some claim, its disappearance could be harmful for the government, religious minorities – and even religion itself.
Revolutionary-era Americans had come of age at a time of imperfect religious tolerance. The English Toleration Act (1689), which imposes freedom of conscience on Protestants and establishes the Anglican Church, applies in all the colonies. But the freedom to practice varied. Tolerance ranged from complete religious freedom in Rhode Island to freedom to practice for all – with political exclusions for some – in Pennsylvania, to heavy restrictions in Maryland. There, Catholics who had originally viewed the Maryland Colony as a religious haven found themselves driven underground, denied access to churches, and left to pray secretly at home.
Protestants in most places enjoyed relative freedom of conscience. But they often had to pay taxes to support other churches—churches that enjoyed establishment privileges, including access to public lands and city coffers. Catholics, Jews, and Muslims prayed at the whim of colonial governments, sometimes enjoying relative freedom, sometimes paying religious taxes to support other faiths, and generally prohibited from voting or holding public office. Meanwhile, practitioners of African and indigenous religions were even more vulnerable; they were sometimes left alone to maintain their traditions, but were often subject to intrusion by missionaries, slavers, and – especially in the case of Native Americans – violent attacks by white people who sought to dismantle not only their sovereignty but also their spiritual systems.
With independence came a chance to reinvent government, including the politics of religious liberty.
Americans were grappling with the risks of completely severing the ties between church and state. Most of the new states still had forms of settlement. These arrangements benefited some churches by conferring financial benefits and legal privileges, but they were also meant to benefit the state by promoting piety and social order. Some believed that if the state abandoned the churches, then people would abandon the churches, leaving society without a moral foundation.
Not everyone agreed. Among the fiercest defenders of religious freedom were some of the most devout Christians, especially the Baptists. They believed that the religious establishment was a false prop: a scaffolding that any church worth its salt should not need. Baptist minister Isaac Backus proclaimed, “When church and state are separated, the effects are happy. On the other hand, Backus argues, “where they have been confounded, no tongue or pen can fully describe the resulting misdeeds.”
The men who traveled to Philadelphia for the Constitutional Convention ended up largely siding with the Baptists. Most were members of the main line of their states, moderate religions, inclined towards Enlightenment rationalism. They were looking for solutions to political problems, not religious problems. Accordingly, the convention adopted a secular approach. There were no regular prayers or invocation of religion. The subject of religion seldom came up; one of the few significant cases came when the convention decided to ban religious testing for federal office.
The Constitution created a federal government that was entirely secular in form and function. When the Bill of Rights was added, the First Amendment banned an 18th-century understanding of established churches, which most people took to mean exclusive state preference for a religion in the form of financial or Politics. And the federal government has largely stuck to the letter of that law. When Thomas Jefferson – the architect of disestablishment in Virginia – wrote to Danbury Baptists in 1802 assuring them of the “wall of separation between church and state” (the very letter Boebert rejected), the principle was already entrenched in national politics.
The dismantling in the states has been a hesitant and contentious process. Laws to prevent non-Protestants, non-Christians, or atheists from holding office continued for decades. Religious taxation also continued until 1833, when Massachusetts became the last state to ban the practice.
This was possible because the First Amendment applied only to the federal government until the 14th Amendment was ratified in 1868, with its provisions for equal protection and due process.
Even so, some forms of state preference for religion – or state repudiation some religions – have persisted at all levels of government for most of US history. In the 19th century, public schools legitimized anti-Catholicism by promoting the use of the King James Bible, in part to expose Catholic school children to the standard Protestant text. The federal government (with the help of state authorities in Illinois, Missouri, and elsewhere) carried out violence against the Mormons as they fled west. Anti-Mormon aggression culminated in the Utah War (1857-1858), when President James Buchanan sent the army to attack Mormon-controlled territory.
Congress and the courts have marginalized Jews, labeling them radicals and communists, inherently anti-American. The federal government sponsored war on Native American religions by seizing sacred lands and objects, banning religious rituals, and imposing Christian education on Native children.
Despite these infractions, beginning in the mid-twentieth century, the Supreme Court stretched the wall between church and state envisioned by Jefferson. Judges have limited the power of officials to lead prayers in public schools, including in Engel v. Vital (1962) and Abington School District v. Plan (1963). They also imposed limits on state support for religious schools. And in decisions beginning with Griswold v. connecticut (1965), they began to repeal laws governing sexual behavior which, while not rooted in establishment religion, embraced conservative Christian moral values.
Yet even as the court strengthened protection against this kind of moral imposition in the late 20th and early 21st centuries, judges also began tearing down the wall of separation between church and state, example by authorizing public funds to flows to religious schools through vouchers.
And over the past few weeks, the Supreme Court has delivered a massive blow to what was left of the wall.
The recent decisions of Carson v. Makin and kennedy v. Bremerton School District requires states to allow religious schools to receive tax-funded grants if secular private schools qualify and allows public school employees to lead students in prayer on school grounds.
Furthermore, the decision in Dobbs v. Jackson Women‘s Organization of health reversed deer v. Wade, removing the constitutional right to abortion. The decision allows states to impose a conservative Christian standard on when life begins on non-Christians, even if other religions and Christian denominations dispute the assumption that life begins at conception. As if the trend wasn’t already clear, we have been warned that the Supreme Court could once again leave our private relationships vulnerable to legal restrictions motivated by a narrow religiously-inspired moral standard.
These decisions are important precisely for this reason: they risk imposing a conservative Christian religion on non-Christians or on Christians who hold different beliefs – exactly what proponents of the separation of church and state feared at the foundation. In the 18th century, some of the more religious Christians like Backus warned against merging government and religion, to the detriment of both. Today, the most religious Christians – aligned with politicians like Boebert and equally conservative jurists – push for this mixture.
Unless counterforces take care to rebuild the wall, the Establishment Clause may soon be a dead letter. But as the warnings of the 18th century indicate, this constitutional change does not only threaten the legitimacy and fairness of government and the rights of religious minorities or non-religious people. It also threatens to distort and damage religion itself.