Let's review the first U.S. Supreme Court case to mention Jefferson's "wall of separation" metaphor in a substantive way.
Shortly after the "Civil War," Mormon polygamists challenged the constitutionality of statutes against polygamy.
"Separation of church and state," they said.
"Freedom of religion," they argued.
"Christian nation," the Court ruled.
The 1878 case of Reynolds v. U.S., 98 U.S. 145 (1878), cited Jefferson's letter to the Danbury Baptists, which is generally credited with the creation of the "wall of separation" metaphor:
'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.
Sounds noble, but the Court turned down the polygamists' argument, saying in effect, if you're a polygamist or a witch doctor ready to sacrifice a virgin to the sun-god, "freedom of religion" and 50˘ will get you a cup of coffee. In a Christian nation you can believe anything you want to put between your ears, but—and this is surely more significant—the punitive power of the civil magistrate will not tolerate overt acts which are contrary to Christian morality.
In 1890 the U.S. Supreme Court again reviewed a challenge to Christian penal sanctions under the "wall of separation" metaphor.
Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.
And on this point there can be no serious discussion or difference of opinion. Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind.
Davis v. Beason, 133 U.S. 333, 341-43 (1890)
To criminalize unChristian acts is no offense against "freedom of religion," the Court said, because these acts do not even rise to the level of genuine religion.
The Court in Beason repeated the analysis of the Reynolds Court twelve years earlier:
In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a
necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
Two years after Beason, the Court in Holy Trinity v. U.S. would declare at some length that America "is a Christian Nation."
Thus for well over 100 years after Jefferson used the "wall of separation" metaphor, the "wall" protected churches from the state, but never protected a rebellious or pagan state from the obligations of Christian morality. It was a "one-way" wall.
Another case is LATE CORPORATION OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS et al. v. UNITED STATES, 136 U.S. 1, May 19, 1890. The Court said the following:
It is distinctly stated in the pleadings and findings of fact that the property of the said corporation was held for the purpose of religious and charitable uses. But it is also stated in the findings of fact, and is a matter of public notoriety, that the religious and charitable uses intended to be subserved and promoted are the inculcation and spread of the doctrines and usages of the Mormon Church, or Church of Latter-Day Saints, one of the distinguishing features of which is the practice of polygamy,-a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. Notwithstanding the stringent laws which have been passed by congress,-notwithstanding all the efforts made to suppress [136 U.S. 1, 49] this barbarous practice,-the sect or community composing the Church of Jesus Christ of Latter-Day Saints perseveres, in defiance of law,
in preaching, upholding, promoting, and defending it. It is a matter of public notoriety that its emissaries are engaged in many countries in propagating this nefarious doctrine, and urging its converts to join the community in Utah. The existence of such a propaganda is a blot on our civilization. The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity, and of the civilization which Christianity has produced in the western world. The question, therefore, is whether the promotion of such a nefarious system and practice, so repugnant to our laws and to the principles of our civilization, is to be allowed to continue by the sanction of the government itself, and whether the funds accumulated for that purpose shall be restored to the same unlawful uses as heretofore, to
the detriment of the true interests of civil society. It is unnecessary here to refer to the past history of the sect; to their defiance of the government authorities; to their attempt to establish an independent community; to their efforts to drive from the territory all who were not connected with them in communion and sympathy. The tale is one of patience on the part of the American government and people, and of contempt of authority and resistance to law on the part of the Mormons.
Whatever persecutions they may have suffered in the early part of their history, in Missouri and Illinois, they have no excuse for their persistent defiance of law under the government of the United States.
"One pretense for this obstinate course is that their belief in the practice of polygamy, or in the right to indulge in it, is a religious belief, and therefore under the protection of the constitutional guaranty of religious freedom. This is altogether a sophistical plea. No doubt the [Kali] Thugs of India imagined that their belief in the right of assassination was a religious belief; but their thinking so did not make it so. The practice of suttee by the Hindu widows may have sprung from a supposed religious conviction. The offering of human sacri- [136 U.S. 1, 50] fices by our own ancestors in Britain was no doubt sanctioned by an equally conscientious impulse. But no one, on that account, would hesitate to brand these practices, now, as crimes against society, and obnoxious to condemnation and punishment by
the civil authority. The state has a perfect right to prohibit polygamy, and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced. Davis Beason, 133 U.S. 333, ante, 299.
Note that the Court acknowledges past persecution of the Mormons, but distinguishes its decision from that embarrassing lawlessness.
And of course, the Court is clear that "religious freedom" belongs to those who practice the True Religion. The Court refuses to acknowledge that the practices of the worshippers of Kali even rises to the level of "religion." Even if they were "no doubt" sincere.
The modern Supreme Court has completely reversed this thinking, of course, calling even atheism a "religion," determining "religion" only on the basis of a "sincerely held belief." Separationist Leo Pfeffer, who argued for Roy Torcaso in the US Supreme Court, admits:
It is reasonable to suggest that an earlier generation would have been surprised at a holding that the term religion as used in our Constitution and laws does not encompass belief in God [as it did] in the 18th century, when our Constitution was written, [when] the meaning then generally ascribed to God [was] the deity depicted in the Bible.
This admission refutes the separationist's assertion that the Founders had atheists in mind when they spoke of "religious freedom." But then Pfeffer describes the God of the Bible as "anthropomorphic," and claims that America in the mid-twentieth century would hardly accept such a definition, and the only conclusion is that neither the term "God" nor "religion" can be given a precise or static definition. In other words, the Constitution does not mean what the Founders intended it to mean, it means what we in the 20th century WANT it to mean. The Founders believed in religious freedom for those who worship the God of the Hebrew-Christian Scriptures. But we can't limit religious freedom to that envisioned by the Founders, 'cuz they liked the Bible
and we don't. So for us, the Constitution's definition CANNOT be static, because we want to change it. Pfeffer's view is mere subjectivism, and subjectivism in law inevitably leads to fascism:
The state may constitutionally prohibit assassination, human sacrifice, and polygamy; but this is so not because the belief of the Hindu Thug, the primitive Briton, or the 19th century Mormon does not constitute "religion" within the meaning of the First Amendment's free exercise clause, but only because the societal interest in the preservation of human life or of the monogamous family is deemed by the state to be paramount to the Thug's or Briton's or Mormon's right to exercise his religion.
Church, State, and Freedom, 1953, rev ed 1967 ch 15. [emphasis added]
This is exactly the opposite of what the Court held and what the Founders believed. James Madison spoke of "false religions." The Supreme Court above said "To call their advocacy [of criminal action] a tenet of religion is to offend the common sense of mankind." But Pfeffer hates this idea. He says all religions are equal [equally wrong], and the State has the power to decide what is right and what is wrong (Genesis 3:5).
Notice that today the State no longer considers heterosexual monogamy an important state interest. Christian marriage can now be destroyed by the State. Pfeffer and his co-conspirators have steered a shift to pure fascism. For the Founders, the government was "under God," and Christians -- and only Christians -- had religious freedom. We all had freedom because the State was limited by Christian principles, and when we saw the State exceeding Biblical limits, we could call it to account, by imposing God's requirements on the State. For Pfeffer and the Humanists, however, the God of the Bible no longer has anything to do with "religion," Christians cannot tell the State what it can or cannot do, ANYTHING can be a genuine
"religion" -- even human-sacrificing Aztecs and assassins of Kali -- but the STATE will determine the extent of your rights, limited by the morality of no religion (except that of Secular Humanism, the worship of man the power-grabber).
It is undeniable that in 1890 the US Supreme Court did not believe in the ACLU version of "separation of Church and State," and the ACLU did not get that doctrine out of the Constitution.
The Constitution does not require us to believe the ACLU.
The foregoing disproves the "separation of church and state." But it is far from satisfying to both Humanists and non-Theocratic Christians. Both groups want to be more politically correct, but both groups also want the State to enforce their morality.
Only "anarcho-Theocracy" completely avoids the objections of both groups. As anarchists, we do not believe the State should imprison polygamists, and the Humanists are relieved. As Theocrats, however, we denounce the myth of "separation" and believe that all of life must be governed by Christian standards. David Little, Professor of Religious Studies at the University of Virginia, has raised questions which help show the necessity for anarcho-Theocracy.
David Little,"Thomas Jefferson's Religious Views and their Influence on the Supreme Court's Interpretation of the First Amendment," 26 Catholic University Law Review 57 (1976).
First, he quotes the rest of Jefferson's letter to the Danbury Baptists, with which the U.S. Supreme Court, above, began:
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 to man all his natural rights, convinced he has no natural right in opposition to his social duties.
Anyone who claims to have a "right" to act contrary to his social duties is mistaken, Jefferson would say, and the Supreme Court would add, "even if his actions stem from his religious beliefs." But how do we know what our "social duties" are?
Jefferson held that "common sense" was our moral guide.
Jefferson was emphatic and explicit: this simple guide is a sense, and one that has little need of what he calls "the uncertain combinations of the head." "This sense of right and wrong . . . is as much a part of man as his leg or arm. . . ." And, he concludes, this sense is "so much a part of our constitution that no error of reasoning might lead us astray from its observation in practice."
Jefferson believed this capability must be cultivated and tutored by means of education. Moreover, government and the force of law is required to intervene when a citizen's common sense fails him, that is, when he violates his easily perceivable social duties. (at 59)
"Jefferson was sure in his belief that there was a God. But his God was not the God of the preachers and theologians." (61)
The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket [n]or breaks my leg . . . . [I]f a sect arises, whose tenets would subvert morals, good sense has fair play, and reasons and laughs it out of doors, without suffering the State to be troubled with it. (Jefferson, Notes on Virginia, Q. XVII.)
"Accordingly," says Prof. Little,
the only thing worth knowing in religion is the common core of practical moral guidance that is the same the world over. And it follows from this that dogmas, which vary from religion to religion, are, as he said, "totally unconnected with morality." The dogmas are thoroughly dispensable; they will blow away in the wind. The moral teaching alone will be left. (62)
This religio-philosophical viewpoint undergirded his "Act for Establishing Religious Freedom," passed in the Assembly of Virginia in the beginning of the year 1786.
Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish
contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind; that our civil rights have no dependence on our religious opinions, more than our opinions in physics or geometry; that, therefore, the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to the offices of trust and
emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honors and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions
the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its offices to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.
The Writings of Thomas Jefferson, Volume 2, p.300-02
Religious dogmas are not the concern of the State until they "break out into overt acts" which are "in opposition to . . . social duties" and "good order." The question is inescapable: By what standard?
[P]art of the problem with Jefferson's position is precisely the indeterminacy of his method for knowing what counts as a social duty and what does not. (68)
The acts prescribed by the religions mentioned by the Supreme Court in the cases above show that this belief in the "common core" or morality in all religions is pure bullpucky. Assassination, slavery, polygamy, murder, "thuggism," are prescribed by the "great" religions of the world, and cannibalism and a host of other abominations are practiced by religions which are not called "great" by the Eastern Liberal Establishment. Prof. Little is correct:
In other words, Jefferson's expressed view of civil rights was dependent, up to a point at least, on his religious opinions! If one did not share Jeffersons's opinions, as many in history have not, one might well come to different conclusions about the character and range of civil rights. What explains the apparent contradiction on Jefferson's part is, I suggest, his belief that his own religious interpretations were not in a class with the ordinary beliefs and opinions of others, because his views were authenticated not by idle metaphysical and theological speculation, but by the method of common sense. (63, emphasis in original)
In the Reynolds case, "the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land." (98 U.S. at 162)
In response, the Chief Justice invoked, for the first time, Jefferson's phrase from the letter to the Danbury Baptists concerning the "wall of separation," and . . . also quote several passages from the Preamble to the Act for Establishing Religious Freedom:
Coming as this does from an acknowledged leader of the advocates of the [First Amendment], 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.
Chief Justice Waite then went on to establish that polygamy was in fact a violation of "social duties" and "subversive of good order" and did so on basically Christian grounds. But despite his endorsement of Jefferson's division between belief and action, as well as of Jefferson's view of the role of government regarding that division,
Waite himself did not respect the division. The Court's decision turned out to reach opinions and not actions only. In the first place, the sort of belief Reynolds held was precisely a belief about action, a belief that is not truly "held" unless it involves action. In believing intensely as a Mormon that he had a duty to practice polygamy, Reynolds' belief was that polygamy ought to be performed. Therefore, to prohibit Reynolds from acting on his belief was necessarily to stand in judgment not only on the action, but also on the correctness of the belief. (67)
Jefferson's commitments and convictions, and therefore Waite's, comprise a set of beliefs about right and wrong action that are not, at least to this author, "self evident."
Waite's arguments with respect to "good order" . . . place one set of beliefs about action against another. If it is true, as Waite alleged, that polygamy would eventually undermine monogamy and the principles of democratic government, then there is reason for the government to interfere with Mormon beliefs about polygamy in the interests of beliefs about monogamy and democracy. [B]ut then it is once more clear that the legislative powers of government do in fact reach opinions and not actions only.
The charge to the jury . . . noting the consequences of polygamy . . . which Waite found acceptable, is permeated with value-laden beliefs about action. To label the practice of polygamy a "delusion," and to speak unconditionally of "pure-minded women" and "innocent children" as "victims" and "sufferers" of "the evil consequences" of polygamy presupposes a rather vivid set of beliefs about right and wrong action. (68)
The seeds planted in Reynolds bore fruit in Davis v. Beason. Justice Field delivered the unanimous opinion of the Court:
And on this point there can be no serious discussion or difference of opinion. Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. [133 U.S. 333,
As Prof. Little observes, "This last sentence is of special interest to us in light of Jefferson's views of religion and common sense." (70) Justice Field continued:
The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The first amendment to the constitution, in declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others. . . .
Field's position is offensive to Secular Humanists like Leo Pfeffer, but Field's position is Jefferson's position.
For Jefferson, it will be recalled, the sure, clear guide of common sense established a standard by which to distinguish the worthy from the unworthy in religion. What was worthy in religion was of course that which conformed to the social duties dictated by common sense. To Jefferson, as well as to Field, common sense could only yield as the preferred religious point of view -- or, in Jefferson's words, "the plan of the Holy Author of our religion" -- a highly liberalized but still recognizable version of Christianity. Equipped with this sure common sense standard, there is no particular difficulty, no perplexity, about knowing which acts are, as Field stated, "inimical to the peace, good order, and morals of society." Therefore, there is no particular difficulty identifying which "tenets of religion" are valid
and which are not.(70)
Every law is based on moral assumptions which express the presuppositions of society's religion.
The oversimplifications and unexamined assumptions regarding beliefs about action that were uncovered in our investigation of Reynolds leap out at us in Davis. There is not the slightest hesitation in the latter opinion to disparage as unworthy basic Mormon beliefs about polygamy, or to employ the force of law in interfering with the implementation of those beliefs. Moreover, the normative assumptions of Field and the Court he represented are as manifest as they are undefended. The reference to "the common sense of mankind" reflects the Jeffersonian belief in a universal common sense that readily reveals right or wrong action to those who are in their "right" senses. But
that is a belief . . . . (71, all emphasis added except the word "is")
Every social order presupposes a religion. In our world the choice of religions on which we will base our social order is between Christianity and the religion of Secular Humanism. Those who claim to follow Jefferson without paying due homage to "the Holy Author of [his] religion" are either ignorant of Jefferson's beliefs or deceptive.
While the Court did not explicitly take a religious position in the decision against the Mormons, it did nevertheless assume a stance that bore directly on the religious beliefs of Mormons, and that position made the "free exercise" of some of those beliefs impossible.
In fact, the Court explicitly relied on the consensus of "Christian nations," but Prof. Little is nevertheless correct when he concludes,
[T]he Court, like all agencies of civil order, cannot avoid at times involvement in the sphere of belief, and, as in the Mormon cases, of passing judgment by implication on the correctness of beliefs.
The regulation and direction of the civil order itself depends on adopting a set of beliefs and values about the world that necessarily has implications for religious beliefs. To ignore that fact is to obscure one's vision by hiding behind a misplaced wall of separation.