The Washington PostDemocracy Dies in Darkness

The Supreme Court is unraveling the separation of church and state

Not only will it harm religious minorities — but it could weaken religion itself

Rep. Lauren Boebert (R-Colo.) at a “Save America” rally in Mendon, Ill., on June 25. (Kate Munsch/Reuters)
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Rep. Lauren Boebert (R-Colo.), who regularly draws headlines with her inflammatory remarks, made national news again in late June. Speaking at a Christian center, she declared that she was “tired of this separating church and state junk.” In case anyone misunderstood, she asserted that “the church is supposed to direct the government. The government is not supposed to direct the church. That is not how our Founding Fathers intended it.”

Boebert was wrong on both counts. The Founders imagined a government in which neither church nor state controlled the other.

But her comments came at the same moment when the Supreme Court handed down several decisions that will shift the church-state relationship in favor of churches. The history of that relationship, however, indicates that while this separation was never as absolute as some claim, its demise could be bad for government, religious minorities — and even religion itself.

Americans in the revolutionary period had come of age during an era of imperfect religious toleration. The English Toleration Act (1689), which enforced liberty of conscience for Protestants and established the Anglican Church, applied throughout the colonies. But freedom to practice varied. Toleration 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 seen the Maryland colony as a religious haven found themselves pushed underground, denied access to churches and left to pray secretly in their homes.

Protestants, in most places, had relative freedom of conscience. But they often had to pay taxes to support other churches — churches that enjoyed the privileges of establishment, including access to publicly held land and town 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 usually prohibited from voting or holding public office. Meanwhile, practitioners of African and Indigenous faiths were even more vulnerable; they were sometimes left alone to sustain their traditions but were often subject to intrusion by missionaries, enslavers and — especially in the case of Native Americans — to violent attacks by Whites who sought to dismantle not just their sovereignty but also their spiritual systems.

With independence came a chance to reinvent government, including the politics of religious freedom.

Americans grappled with the risks of completely severing the ties between church and state. Most of the new states still had forms of establishment. These arrangements benefited selected churches by conferring financial perks and legal privileges, but they also were supposed to benefit the state by promoting piety and social order. Some believed that if the state abandoned churches, then people would abandon churches, leaving society with no moral foundation.

Not everyone agreed. Among the fiercest defenders of religious liberty were some of the most fervent Christians, especially the Baptists. They believed religious establishment was a false prop: scaffolding that any church worth its creed should not require. Baptist minister Isaac Backus proclaimed, “When Church and State are separate, the effects are happy.” On the other hand, Backus argued, “where they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued.”

The men who headed to Philadelphia for the Constitutional Convention ended up siding largely with the Baptists. Most were members of their states’ mainline, moderate faiths, inclined toward Enlightenment rationalism. They sought solutions to political problems, not religious ones. Accordingly, the convention adopted a secular approach. There were neither prayers nor regular invocation of religion. The subject of religion rarely came up; one of the few prominent cases came when the convention decided to ban religious tests 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 establishment churches, which most people took to mean an exclusive state preference for one religion in the form of financial or political support. And the federal government largely stuck to the letter of that law. By the time Thomas Jefferson — the architect of disestablishment in Virginia — wrote to the Danbury Baptists in 1802 to assure them of the “wall of separation between Church and State” (the very letter Boebert dismissed), the principle was already entrenched in national politics.

Or was it?

Disestablishment in the states was a halting and contentious process. Laws to keep non-Protestants, non-Christians or atheists out of 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 of some religions — have persisted at all levels of government for most of U.S. history. In the 19th century, public schools legitimized anti-Catholicism by promoting use of the King James Bible, partly to expose Catholic schoolchildren to the standard Protestant text. The federal government (with help from state authorities in Illinois, Missouri and elsewhere) waged violence against Mormons as they fled west. Anti-Mormon aggression peaked with the Utah War (1857-58), when President James Buchanan sent the Army to attack the Mormon-controlled territory.

Congress and the courts 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 Indigenous children.

Despite these infringements, beginning in the mid-20th century, the Supreme Court tended the wall between church and state envisioned by Jefferson. The justices limited the power of public officials to lead prayers in public schools, notably in Engel v. Vitale (1962) and Abington School District v. Schempp (1963). They also placed limits on state support for religious schools. And in decisions beginning with Griswold v. Connecticut (1965), they started striking down laws governing sexual behavior that, while not rooted in establishment religion, did embrace conservative Christian moral values.

Yet even as the court strengthened protection from this sort of moral imposition in the late-20th and early-21st centuries, the justices also began breaking down the wall of separation between church and state by, for example, allowing public funds to flow to religious schools through vouchers.

And over the past few weeks, the Supreme Court took a sledgehammer to what remained of the wall.

The recent decisions in Carson v. Makin and Kennedy v. Bremerton School District required states to allow religious schools to receive tax-funded grants if secular private schools are entitled to them and enabled public school employees to lead students in prayer on school grounds.

Further, the decision in Dobbs v. Jackson Womens Health Organization overturned Roe v. Wade, eliminating the constitutional right to abortion. The decision allows states to impose a conservative Christian standard about when life begins on non-Christians, even though other religions and Christian denominations contest the assumption that life begins at conception. As if the trend were not already clear, we have been warned that the Supreme Court may once again leave our private relationships vulnerable to legal restrictions driven by a religiously inspired narrow moral standard.

These decisions matter precisely for that reason: They risk public officials or public institutions imposing conservative Christian religion on non-Christians or Christians who have different beliefs — exactly what proponents of the separation of church and state worried about at the founding. In the 18th century, some of the most religious Christians like Backus sounded warnings against fusing government and religion, to the detriment of both. Today, the most religious Christians — aligned with politicians like Boebert and equally conservative jurists — are pushing this commingling.

Unless counterforces take care to rebuild the wall, the Establishment Clause may soon be all but a dead letter. But as the warnings from the 18th century indicate, this constitutional shift threatens not just the legitimacy and fairness of government and the rights of religious minorities or the nonreligious. It also threatens to distort and damage religion itself.

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