The wall of separation between church and state is likely the most misunderstood concept in constitutional law. In this and hopefully an additional post or two, I intend to provide some historical background to that debate from the perspective of the English common law. I will ultimately conclude with the thoughts of Blackstone, but first I would like to build a factual background.
By way of citing first principles, it must be clearly understood that the language creating a wall of separation between church and state is nowhere to be found in the U.S. Constitution or the Bill of Rights. The First Amendment to the Bill of Rights actually declares that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Notice that the amendment simply prevents Congress from passing a law regarding the establishment of religion or the free exercise thereof. It does not abrogate anything in the common law regarding the law of nature. It does not prohibit the states from making any law regarding religion. It says nothing about the rule of law or the authority of Scripture. The authority of Scripture was inherently maintained within the common law.
The first sighting of the wall of separation in our legal heritage was in the case of Reynolds v. United States, almost one hundred years after the adoption of the Bill of Rights. The famous language comes from a letter Thomas Jefferson wrote from France to the Danbury Baptist Association.
The opinion in Reynolds arose out of a case involving a prosecution and conviction of Reynolds for bigamy. Reynolds claimed that he was a Mormon and he had a religious conviction encouraging polygamy. One of the questions before the Court was whether Reynolds had a defense of religious belief or duty. The court gave a concise background to the First Amendment as well as Jefferson’s letter. It stated,
Of [the Constitutional] convention, Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff.Works 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations.
1 Jeff. Works 79. Five of the States, while adopting the Constitution, proposed amendments. Three — New Hampshire, New York, and Virginia — included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress, the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say:
Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions — 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 and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.
Based on Jefferson’s letter, the court made the following two cryptic but decisive conclusions: “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”
Several things should be pointed out about this passage. First, it is extremely rare, if not suspect, to cite as authority one advocate for legislative language. This is particularly true where the advocate was not even present to hear the debate on the proposal. However, after some further reflection on Jefferson’s language—to be made in the remaining series—Jefferson’s thoughts appear to comport with the common law understanding of the roles of church and state. Second, the Congress was precluded from imposing limitations on worship, faith, conscience and opinion. Third, Congress is free to make laws regarding violations of social duties or to preserve good order. Forth and finally, Jefferson saw that the “natural right,” provided by natural law, was the supreme authority.
After resolving the roles and responsibilities of church and state, the court addressed the question. It is ironic, at least from the modern understanding of the meaning separation of church and state, that the Supreme Court cited the common law for its conclusion that the prohibition against polygamy was valid and the conviction should stand.
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I, it was punished through the instrumentality of those tribunals not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.
The Court’s holding in Reynolds and Jefferson’s advice comport with common law as described by Blackstone, particularly as described in the section “Of Husband and Wife.” Blackstone writes,
Our law considers marriage in no other light than as a civil contract. 1 The holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriage, is the province of the spiritual courts; which act pro salute animæ. ( a ) And, taking it in this civil light, the law treats it as it does all other contracts: allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.
The common law clearly limited the extent of its authority over the holiness and spiritual aspects of marriage, not wanting to interfere with moral issues. Later Blackstone observed that the common law courts will take cognizance of the ecclesiastical court, but not be bound by it. In one case, where an ecclesiastical court declared a marriage void ab initio, while the common law recognized the ruling, it did not acquiesce to the ruling. The common law court made the marriage voidable. To declare the marriage void would have made the children of the marriage illegitimate, a result that would have set poor public policy for the stability of the society. So, according to the common law, the civil contract was separate from the religious union. The common law was independent of the ecclesiastical law.
However, the common law was bound by a higher natural law, even Scripture. In discussing one of the disabilities to contract for marriage, Blackstone set forth,
The first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void: polygamy being condemned both by the law of the New Testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express, that “duas uxores eodem tempore habere non licet.”
While the common law was not bound by the ecclesiastical law, it was bound by the higher natural law. It was bound not for the purpose of controlling thought but for the good of a stable and moral society.
The Court in Reynolds followed this pattern. While recognizing the religious conviction, it also recognized that the Court could not be bound by each individual’s moral conviction. Instead, relying on Jefferson’s observations, it enforced the common law presumption, based on Scripture and the nation’s heritage, that polygamy is rightly prohibited in a stable and moral society. It was bound by a higher moral conviction.
This is the proper separation then of church and state, a state that is not bound, but independent, of the Church, but a state that is subject to a higher authority, namely natural law.
- “Overthrow the Men Who Pervert the Constitution” (godfatherpolitics.com)