On Jan. 1, 1802, when President Thomas Jefferson answered a letter about religious freedom from the Danbury Baptist Association, did he suggest that this same group would no longer have “freedom of speech” because of a “wall of separation between Church &State”?
His metaphorical wall could be taken two ways: either it protects the church from the state, but not the state from the church; or it protects the church from the state, and the state from the church. The church is protected either way, but is limited by the second interpretation.
Many generations later in 1947, a landmark Supreme Court case on religious freedom labeled Jefferson’s wall as “high and impregnable.” Everson v. Board of Education said government cannot “participate in the affairs of any religious organizations or groups and vice versa.”
However, not all later justices would concur with Everson’s reasoning.
Quoting from a Library of Congress website: “In 1962, Justice Potter Stewart complained that jurisprudence was not ‘aided by the uncritical invocation of metaphors like the ‘wall of separation’ a phrase nowhere to be found in the Constitution.” In 1985, Chief Justice William H. Rehnquist lamented about “Jefferson’s misleading metaphor.”
From the same website, those who opposed Rehnquist’s view and “used Jefferson’s ‘wall’ metaphor as a sword to sever religion from public life” promptly defended it as “one of the mightiest monuments of constitutional government in this nation.”
Accurate analysis of historical context makes such a meaning unlikely. If Jefferson’s wall meant then what some say it means now, “a sword to sever religion from public life,” why didn’t the Danbury Baptist Association react to their loss of freedom? Because it meant no such thing.
What was the broader church-state context then? Church groups influenced politics before, during and after the Revolutionary War. Nationwide religious movements bracketed that war, the First Great Awakening before and the Second Great Awakening after. The Red Coats labeled clergy who favored independence as the Black Battalion for the color of their robes. Some colonies had state churches even after the war. Religion heavily impacted society on all levels.
During presidential campaigns, Jefferson endured attacks on his religious views. He narrowly lost in 1796 and barely won the next election after a tie vote in the electoral college.
After receiving Danbury’s letter, Jefferson consulted political advisors and considered various wording before finishing his prompt reply. After quoting First Amendment provisions on religious freedom, he referred to, “a wall of separation between Church &State.”
Jefferson assured the Danbury Baptists that they need not fear religious persecution from his administration. Why? Because the establishment and exercise clauses act like a wall to protect each church from state interference which then meant the federal government.
The President expected his response to be publicized as a political statement. It was published in newspapers and then largely forgotten, until judicially exhumed.
Politically active religious groups were vocal then and wouldn’t have remained silent if they thought Jefferson meant to “sever religion from public life.” So, it couldn’t have meant that.
If his political opponents remotely suspected such a meaning or that he intended to deprive religious leaders of their First Amendment “freedom of speech” because of a wall protecting the state from the church, he would have been viciously attacked. Instead, he was re-elected.
Words should not be reinterpreted to mean something now that they didn’t mean when written.
Long after Everson, forensic document examiners revealed revisions to his original letter. One draft said, “your religious rights shall never be infringed by any act of mine.”
President Jefferson intended to protect their religious freedom, nothing more.
Combine a historically accurate portrayal of church-state relations with forensically documented intent, and his letter should be understood as a constituent reply, not a constitutional clue left to suggest that religious groups be deprived of their First Amendment “freedom of speech.”
While few Supreme Court decisions reverse precedent, legal arguments consider all relevant factors including new evidence about past decisions. In a future case on religious freedom, the Court may reason differently and concur with one law professor who writes “religion and religious institutions are an interest in the political system” now, just as they were in 1802.
• Mike Clemens is a longtime Juneau resident and student of U.S. church-state relations.
