Is “separation of church and state” a good metaphor for the religious freedom clause of the first amendment?

Following my post The Jefferson and Danbury Baptist Correspondence, I received the following comment from someone with the "blogname" of Doug Indeap. 

The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they've discovered the smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

The First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx

Here is my reply:

Thank you for your response. It would help if it did not begin with a condescending attitude about those who believe that the Supreme’s decision with regard to religious expression is wrong. You state that “That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there…” If I wanted to be as snarky as your beginning, I would say that the people who appeared to believe that included the students at Widener University who reacted with derision when Christine O’Donnell said that the phrase was not in the constitution. So yes, those who may once have labored under the impression that it was there were a room full of law students; but that does not include not me or anyone else that I know.

With that out of the way, let’s get to your points. Despite the fact that you describe Jefferson’s phrase as a metaphor for the entire religious freedom clause of the first amendment, you appear to want to shift the focus of the Supreme’s decision from Jefferson’s letter to the Danbury Baptists. I don’t blame you because as I pointed out, it’s a very weak reed indeed. The fact is that Jefferson was not a Christian; in fact he was described as a Deist, someone who believes in a God that created the universe and then abandoned it. So for him to offer to wall religion off from government was no sacrifice on his part.

Madison is a different matter. Keeping in mind that he lived in a time when most nations had established churches that were supported by the government. He was determined that this would not happen in the US. For that reason he was very scrupulous about efforts to provide government financial support to ecclesiastical groups. In the reading you referenced he was concerned not just about having the government pay for chaplains – saying that

If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expence. How small a contribution from each member of Congs wd suffice for the purpose? How just wd it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt

Note what he does not say: that there should not be some form if religious observance if members want it, simply that it should not be paid for from the treasury. Need I note that his admonition was not heeded to this day?

And to show how much of a creature of his time he was, let me quote from some more of his writing from the same source:

Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity…

I repeat, neither the courts nor the congress have followed his advice. At a time when the Supreme Court is composed solely of Catholics and Jews, Madison’s concerns are quaint.

The current House chaplain is Catholic; there are Muslim Congressional Jummah Prayer Services and a Weekly Torah Study. We have gotten far beyond Madison’s concerns and, I repeat, we are still paying for chaplains without becoming a theocracy or having an established church. While I respect Madison’s concerns in view of what he was accustomed to regarding established religions, his concerns were not acted upon by congress and the courts and, despite this, our country did not descend into religious warfare or become a theocracy. Yet somehow, two hundred years later, with established churches in Europe dying for lack of membership, American courts decided that mangers in the public square were a dangerous step on the way to an official “Church of America” paid for by your tax dollars and mine.

You begin your final admonition on a hopeful note

Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted.

Ah, there is the rub, isn’t it. What are “these principles?” Let’s look at the first amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

Can we agree that these are “first principles,” not a metaphor? Can we then go from the general to the specific? For nearly 200 years this amendment was used to insure that the US did not “establish” an official religion in the way that other countries did. It was also used to make sure that no one was prohibited from exercising his right to practice whatever faith he had. Somehow in the middle of the 20th century it was determined by the Supremes that exercising the right to proclaim one’s religion in certain venues of the public sphere was illegal. People who say that the wall of separation between church and state is a metaphor for “congress shall make no law respecting an establishment of religion” never get around to mentioning that “free exercise” part of the amendment.

Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

There you go again; now religious people are unpatriotic. I thought that dissent was the highest form of patriotism, or is that only the case when your side is out of power?

I know of no serious political figure one who wishes to undercut our government’s neutrality between religions and to establish a state religion. But just as our government is not supposed to side with one religion over against another, neither is it supposed to side with secularism over against religion. That would not only strike a blow against the plain statement of the first amendment, but it would also put the government at odds with most Americans who profess, in one way or another, a religious faith. It is no more right to make the government act in preference to one particular religious denomination than it is to refuse to act simply because a law is informed by religion. To insist that religion should be excluded from consideration in political issues is unrealistic. Religion forms the ethical basis for a great many people. It is simple religious bigotry to insist that only secular morality is a legitimate basis for law.

If there is one lesson to be learned from the Tea Party movement it’s this: you can only kick the American people to the side so often, deride their beliefs for so long, before they decide that they will not take it anymore. Absurd claims of protecting religious liberty which are used in an Orwellian sense to stifle legitimate and historic religious expression are only going to be ignored for so long. The general population of any country is mostly content to be left alone and avoid political conflict. But when they believe they are being oppressed they will eventually react, first with silent grimness, then with anger. And a ruling class that ignores this anger is in danger of a reaction for which they are not prepared. You may recall another one of Jefferson’s well known comment about watering the tree of liberty, another interesting and memorable metaphor.