The Ugly Origins of the Phrase “Separation of Church and State”

The fascinating story of how a phrase that isn’t in the Constitution became closely associated with it.

In a previous essay, we discussed how even First Amendment stalwart Thomas Jefferson, after first magnanimously refusing to exact revenge on his political opponents for prosecuting members of his own political party under a federal law that repressed free speech, went on to condone (or at least not object to) the prosecution of his own political opponents for their speech under state law.  At the same time, Jefferson mounted another attack on the speech of his political opponents, in this case ministers who were members of the Federalist political party (the party opposed to Jefferson’s party), who were delivering sermons against Jefferson’s political program.  Jefferson’s attack on Federalist ministers is the beginning of a fascinating story about the origins of the phrase “separation of church and state,” a phrase that isn’t in the Constitution, but which many people now believe is the literal law of the land.  That story is the subject of the present essay.

In his book entitled “Separation of Church and State,” Philip Hamburger, the John P. Wilson Professor of Law at the University of Chicago, provides an exhaustively researched account of the history of the oft-repeated notion of “the separation of church and state.”  And the history of that phrase is ugly.

The phrase originated when Thomas Jefferson (who, as the Ambassador to France, was in Paris when the Continental Congress framed the First Amendment) used it in a letter intended to silence clergymen who were members of the Federalist political party who were using their sermons in the Northeast to criticize Jefferson, a member of the rival Republican party of the time.

As Hamburger writes:

During the election of 1800, Republicans had reason to try to separate Federalist clergymen from politics.  Beginning in the 1790s, and now with renewed effort, Federalist ministers inveighed against Jefferson, often from their pulpits, excoriating his infidelity and deism ... In defense of Jefferson, Republicans argued that clergymen ought not preach about politics, and eventually, beginning in 1800, some made such arguments in terms of separation -- in particular, a separation of religion and politics.  Seizing upon the idea of separation -- a concept that until 1800 had been unusual and anything but popular -- these Republicans elevated it to a political principle.  Although establishment ministers had caricatured dissenters as seeking a separation of religion from civil government, and although dissenters had declined to seek separation, Republicans now endorsed it as a means of discouraging Federalist clergy, especially in Congregational New England, from preaching against Jefferson ... [I]n 1815, Jefferson wrote a letter arguing that ... the clergy should not have “the right of discussing public affairs in the pulpit”... Jefferson’s letter elevated anticlerical rhetoric to constitutional law ... Jefferson adopted the demand of his partisans, arguing that the First Amendment built “a wall of separation between church and state,” writing that “... I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”  ... Jefferson interpreted the U.S. Constitution to require a version of what his supporters had sought in the heat of the campaign ... If Jefferson had high hopes that his letter would promptly sow useful truths and principles, he must have been disappointed, for his epistle was not widely published or even noticed.

The phrase went largely unnoticed until, in the eighteenth and nineteenth centuries, there were attempts to amend the Constitution to explicitly require a separation of church and state:

Contrary to what may be expected, the nineteenth-century advocates who desired the separation of church and state as a constitutional right did not rely upon constitutional interpretation to secure this goal.  Instead, recognizing separation’s inadequate constitutional foundations, they sought constitutional amendments.  Only in the twentieth century, after the amendment process had been abandoned, did an interpretive approach prevail, and, by this means, separation became part of American constitutional law ... In the 1870s and 1880s anti-Christian secularists organized a national campaign to obtain a constitutional amendment guaranteeing a separation of church and state ... After the failure of the Liberal and Protestant proposals for a constitutional amendment, advocates of separation focused on constitutional interpretation.  They quickly forgot about arguments that an amendment was necessary and claimed instead that American constitutions had already, since their inception, fully guaranteed a separation of church and state.

Following those failed attempts, the Ku Klux Klan officially adopted the phrase as a means of articulating its disapproval of Roman Catholics in government:

No nativist or Protestant organization more prominently supported the ideal of separation than the Revised [Ku Klux] Klan.  Founded in 1915, this second Ku Klux Klan enjoyed particular success between 1921 and 1926, when it had about five million members and innumerable sympathizers.  It exerted profound political power in states across the country and, probably more than any other national group in the first half of the century, drew Americans to the principle of separation ... Separation became a crucial tenet of the Klan.  When recruiting members, the Klan sometimes distributed cards listing “the separation of church and state” as one of the organization’s principles ... Both in the South and the North, members even recited in their “Klansman’s Creed”: “I believe in the eternal Separation of Church and State.”  Commenting on such vows, an “authoritative” writer -- identified only as “931KNOIOK” -- explained: “The Klan is pledged to maintain inviolate and perpetuate forever the principle of complete separation of Church and State, and the Roman Catholics fight this, because no sincere and devout Roman Catholic does or is permitted to believe in the separation of Church and State.  The Roman Catholic Church is first, last and forever opposed to the separation of Church and State and in favor of the absolute control and domination of the State by the Roman Catholic Church.”

One of those Klan members was Hugo Black.  Who was Hugo Black?  As Hamburger explains:

Hugo Black was more than simply a Baptist and a progressive.  He was also a Klansman ... The Klan provided Black with his path to the Senate.  In September 1923 Black joined the powerful Richard E. Lee Klan No. 1 and promptly became Kladd of his Klavern -- the officer who initiated new members by administering the oath about “white supremacy” and “separation of church and state.” ... After Black decided to run [for U.S. Senate], Grand Dragon Jim Esdale told him, “Give me a letter of resignation and I’ll keep it in my safe against the day when you’ll need to say you’re not a Klan member.”  Recognizing the wisdom of this suggestion, Black gave Esdale a brief letter of resignation, signing it, “Yours, I.T.S.U.B. [In The Sacred, Unfailing Bond], Hugo L. Black.” ... Black appealed directly to Klan and other anti-Catholic voters.  According to Esdale, “I arranged for Hugo to go to Klaverns all over the state, making talks on Catholicism.  What kinds of talks?  Well, just the history of the church and what we know about it.  Not to talk on politics.  Hugo could make the best anti-Catholic speech you ever heard.” ... Then Imperial Wizard Hiram Evans awarded Black the very rare honor of a golden “grand passport.”  Upon receiving this, Black spoke of his gratitude for the Klan’s support: “I know that without the support of the members of this organization I would not have been called, even by my enemies, the ‘Junior Senator from Alabama.’ (Applause.)  I realize that I was elected by men who believe in the principles that I have sought to advocate and which are the principles of this organization.” ... Black had long ... 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.

Black later became a Supreme Court Justice and authored the Supreme Court’s 1947 decision in Everson v. Board of Education, which first enshrined the concept of “the separation of church and state” in constitutional law:

Hugo Black’s association with the Klan became public little more than a decade later, in 1937, when President Franklin Delano Roosevelt appointed Black as Associate Justice of the Supreme Court ... The Supreme Court finally interpreted the First and Fourteenth Amendments to require separation of church and state in 1947, in the New Jersey case of Everson v. Board of Education of the Township of Ewing ... Only in 1947 [,] did the Court clearly make separation the basis for a decision -- opining that the First Amendment required separation, that the Fourteenth Amendment applied it to the states, and that New Jersey’s subsidized school busing for both public schools and private schools did not violate the First and Fourteenth Amendments.  In this way, the Court recognized separation as part of American constitutional law ... Justice Black, writing for the majority, declared that separation was the constitutional standard: “In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and State.’”

In the next series of essays, we’ll explore some of the research and data available regarding the role of religion in individual people’s lives, and in society at large.