Does the Constitution Require Separation of Church and State?

         From Daniel Dreisbach, Thomas Jefferson and the Wall of Separation at p. 69     

In the recent elections, several conservative candidates were mocked by the mainstream liberal press because they claimed that “separation of church and state” was not in the Constitution.

Well, is it? Here is the true story of how separation of church and state found its way into the Constitution.

As Prof. Jim Lindgren, a prominent legal scholar who teaches at Northwestern law school, recently said:  “The phrase ‘Separation of Church and State’… is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.”

Although the phrase was first used by Jefferson in private, political correspondence to a group supporting his candidacy for President in 1800, Jefferson meant the term to illustrate the “wall” between the federal government and the state; he meant it as a wall that kept the federal government from interfering–one way or the other–with state laws respecting religious establishments.

In other words, for Jefferson the wall protected federalism, it was a compromise that allowed states like Virginia to disestablish religion and states like Maryland to establish religion. The autonomy of state governments in matters of religion was protected against the federal government, against any federal law respecting an establishment of religion. A federal law establishing a national religion was forbidden, as was a federal law outlawing state establishments of religion. Either would be an example of Congress making a law respecting an establishment of religion.

The idea of a wall of separation between religion and the states became part of the law of the Establishment Clause only in 1947, when Justice Black wrote a majority opinion in Everson v. Board of Education, a case concerning free bus transportation for all schoolchildren traveling to and from school, including students attending private religious schools.

Guess what Justice Black did before joining the Supreme Court!

He was a member of the Ku Klux Klan, a racist and anti-Catholic organization that had strong opinions about a wall of separation between church and state. Prof. Jim Lindgren says this about Justice Black and his work with the KKK:

Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed.... Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the ‘eternal separation of Church and State.’ In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

And Prof. Philip Hamburger, a prominent legal historian on the Establishment Clause, says this about Justice Black, Everson, and the wall of separation:

Black had long before sworn, under the light of flaming crosses, to preserve "the sacred constitutional rights" of "free public schools" and "separation of church and state." Subsequently, he had administered this oath to thousands of others in similar ceremonies....Now  [in Everson] Black had an opportunity to make separation the unanimous standard of the Court....

So, the next time someone rolls their eyes when you tell them separation of church and state is not in the Constitution, tell them, as Paul Harvey might have said, “the rest of the story.”