The First Amendment of the US Constitution was ratified in 1791, and states in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” For 155 years it was clear that the Constitution protected religious freedom from the Federal government. The metaphor “a wall of separation between church and state” is not in the Constitution.
However, all that changed in the 1947 case of Everson v. Board of Education where the Supreme Court ruled in a “contradictory opinion” that UPHELD a New Jersey statute allocating taxpayer funds to bus children to Catholic schools because it did NOT breach the “wall of separation between church and state”—and also held that the establishment clause of the First Amendment applied to state and local governments as well as to the federal government. The “wall” metaphor was borrowed from Thomas Jefferson’s 1802 letter to the Danbury Baptist Association to assure them that the First Amendment protected religious liberty.
So how have liberal advocates been able to use the “wall” metaphor to do the exact opposite and suppress religion in public schools for 75 years? Look no farther than Justice Hugo Black’s contradictory majority opinion in the narrow 5-4 decision in which he explained that the founders were particularly concerned with religious liberty and tried to protect it by ensuring that Congress could not tax nor support religion in any way and “erected a wall that must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.” Liberals fail to mention New Jersey was paying for busing to Catholic schools.
Black also extended the First Amendments prohibitions to state and local jurisdictions, which turned the law on its head—as it was originally designed to only separate the federal and state governments and thereby preserve state jurisdictions in matters pertaining to religion. Black’s wall separated religion and civil government at all levels—federal, state, and local—and silenced the church and limited its ability influence public life. The Founders would have never approved of this “silencing” as there was widespread belief then that a republican government and civic virtue were dependent on a moral people, and that morals could only be nurtured by the Christian religion—which George Washington cautioned in 1796 “was an indispensable support for social order and political prosperity”.
The Supreme Court has now “silenced” the metaphor of “wall” with its 2022 ruling in Kennedy v. Bremerton School District stating that the First Amendments clauses work together to protect religious liberty, not suppress it—and requires us to look at the nation’s factual “history and tradition”—perhaps like George Washington’s morality warning.
Steve Gardes is a retired Certified Public Accountant (CPA) and Certified Valuation Analyst (CVA) with over 40 years of public accounting experience.
