Cultural Amnesia and the Separation of Church and State

One of the sadder aspects of Christmastime in America is the display of ignorance on the part of so many Americans regarding the constitutional tradition of our country.  Why at Christmas? Because it is at this time of year that we hear the whining call of “that song” or “that play” or “that display” violates “the separation of church and state.”

Christmas brings out this self-righteous amnesia because it is a time when people who want to pretend they should answer to no one but themselves for their actions have more trouble than usual pretending that there is no God, and that they do not live in a society with deep roots in the Christian religion.  Public displays of faith must be struck down, even as public displays of contempt for religion are posted on billboards, including one in Times Square, on which you currently can see a picture of Santa, captioned “Keep the Merry!” on top of a picture of a suffering Christ, labeled “Dump the Myth!”  How’s that for good public neutrality?

Meanwhile, the Governor of Kansas was pilloried, recently, for daring to promote and appear at a prayer rally.  As for nativity displays, we all know that the Supreme Court (in what I’ve always called “the interior decorating cases”) rigorously polices what kinds of religious symbols can be placed where, and how many Santas it takes to cleanse the impact of a baby Jesus.  So, a number of municipalities have gone the way of Santa Monica, which opened its Christmas display area to everyone on a first come, first served basis.  (Sure.  That worked out well.  “Yes, Virginia, there we have the baby Jesus in a manger.  Over there?  That’s a nasty sign telling us we are morons for believing Jesus is Lord … Oh, look, there’s Rudolph.”)  The atheists took most all the spots, of course, and that was that—no more Christmas displays on public property in Santa Monica.

Orthodox. Faithful. Free.

Sign up to get Crisis articles delivered to your inbox daily

Email subscribe inline (#4)

Even a good number of people who genuinely regret this marginalizing of religion today accept it as dictated by “the Constitution.”  And perhaps I shouldn’t be so hard on people who’ve been fed this myth, so prevalent on the public airwaves and in our schools over the last several decades.  But it’s important for us to remember that it just ain’t so.

It’s been said thousands of times before, but the strength and pervasiveness of the myth require that it be constantly repeated:  “separation of church and state” appears nowhere in the Constitution.  A few decades ago, the Supreme Court lifted that phrase from a letter written by then-President Thomas Jefferson to the Danbury Baptist Association.  The letter, quite obviously, has no status whatsoever as a statement of constitutional law.  Opponents of public professions of faith have latched onto it, however, because Jefferson claimed that separationism was somehow established by the actual words of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  But not only are the courts (and local officials) wrong to cite this letter as constitutional doctrine, they get the letter’s meaning wrong as well.

Jefferson borrowed the phrase “wall of separation” from Roger Williams, the heterodox religious (and civil) leader of what would become Rhode Island.  The phrase refers to the need, felt particularly strongly by Calvinists who had suffered under laws punishing their faith in Great Britain, for their religious communities to be protected from penalties and draconian restrictions imposed by the Anglican Church.  Of course, the Anglican Church was a truly established Church, whose leader was the King.  Remember Henry VIII?  Remember him executing St. Thomas More for refusing to promise his loyalty to Henry as Head of the Church?  THAT’s establishment.

The phrase “separation of church and state” already was anomalous at the time of our Constitution’s drafting because the United States had neither any single, established, national Church, nor a single national state, instead being split up into a variety of geographical, political, and religious units.  But one can see its limited truth in its time:  by preventing federal laws setting up a national church or punishing members of minority religions for worshiping in their accustomed fashion, the First Amendment established a wall protecting religious communities from federal government coercion.

This is all well and good—and applicable only at the federal, national level.  But what does this tell us about school plays, community nativity scenes, and Governors at prayer rallies?  That they are none of the federal government’s business, one way or the other.

Evidence?  Take a look at the Constitution of Massachusetts, written by John Adams and still, theoretically, in effect to this day.  Article II of the First Part of that document states:

It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.

Could it be made clearer than this, in the state constitution that more than any other influenced our national constitution, that our states were formed as religious communities, defending the freedom of conscience understood as the choice of the proper means to worship God?

If you need more clarity, how about this, taken from the very next article of that same Constitution:

As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

For those of you who have troubles with the old-fashioned phrasing, let me translate:  “Massachusetts shall have publicly-funded religious teachers and worship, of the Protestant variety, administered and funded at the local level.”

Massachusetts (and several other states) kept these state-level establishments well into the nineteenth century.  And why, constitutionally-speaking, shouldn’t they have done so?  All the First Amendment to the federal Constitution says is Congress shall make no law respecting establishment of religion.  The states, according to our Constitution, may do as they wish in this regard—including taxing Catholics and Baptists to pay the salaries of Congregationalist ministers to tell everyone that Catholics and Baptists are going to Hell.

I’ve intentionally stated that in a provocative way to show how little respect Americans of an earlier, better generation would have for the claim that atheists and others are “injured” by public prayers and displays with which they happen to disagree.  No society can be “neutral” on issues of religion.  They can be ecumenical, but to attempt neutrality is, as we have seen, to establish non-religion as the new civil religion.

As Philip Hamburger shows in his excellent Separation of Church and State, the real drive to “secularize” public life began with the battle to keep Catholics from receiving funding for their own schools, which competed with “public” schools that openly taught the Protestant religion.  It’s too bad we didn’t follow the path of religious variety and competition through open public funding for which many then were fighting.  The result of rejecting that path has been secularization of our schools and, increasingly, all our public spaces.  It’s too bad, too, that the myth of the Fourteenth Amendment (designed to protect freed slaves from certain forms of overt oppression) has been twisted to justify “incorporating” every half-baked judicial opinion of what we should want into the constitution—but that’s a story for another post.

Even the retailers have decided to take the Christ out of Christmas, no doubt for fear of offending against our new “separation of religion from all public life.”  My wife was in a big box store the other day.  Among other things, she was looking for Three Kings wrapping paper.  She couldn’t find any.  In fact, she couldn’t find any religious wrapping paper at all.  Puzzled, she started looking for religious items in general.  After fifteen minutes, all she could find was an angel ornament and some angel wrapping paper (angels having been reduced to the level of fairies in our culture).  A worker asked if my wife needed help.  She told him she couldn’t find anything religious in the Christmas section.  He was surprised and helped her look, eventually finding a couple of boxes of religious Christmas cards at the bottom of a stack on the bottom shelf.  My wife then spoke with the manager and, God bless her, she let him have it.  Why no Christ in the Christmas section?  The manager was surprised at the question, and had no answer.  My wife left a cart full of items sitting in the Christmas section as she walked out.

It will take decades, if it ever happens, to de-sanctify the myth of “separation of church and state.”  But you and I can fight the separation of Christ from Christmas by letting a few more managers have it, and by leaving a few more carts full of items sitting there in the no-Christ Christmas aisle.  It helps, you can think of it as a penitential Advent act to find those items at a store in which Christ still has a presence in Christmas.

This essay first appeared December 19, 2012 on the Imaginative Conservative website and is reprinted with permission.


  • Bruce Frohnen

    Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

Join the Conversation

Comments are a benefit for financial supporters of Crisis. If you are a monthly or annual supporter, please login to comment. A Crisis account has been created for you using the email address you used to donate.

Editor's picks

Item added to cart.
0 items - $0.00

Orthodox. Faithful. Free.

Signup to receive new Crisis articles daily

Email subscribe stack
Share to...