Symposium: The crumbling wall separating church and state

By Erwin Chemerinsky

As Justice Sonia Sotomayor powerfully observed in her dissent, the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer is unprecedented in American history: Never before had the Supreme Court held that the government is required to provide assistance to religious institutions. Despite a footnote that attempts to limit the scope of this holding, the decision is going to engender a great deal of litigation as religious institutions now will claim a constitutional right to a wide array of benefits provided by the government to non-religious institutions. The noble and essential idea of a wall separating church and state is left in disarray, if not shambles.

That notion was not invented by 21st-century liberal law professors. Rather, of course, it came from Thomas Jefferson in a January 1, 1802, letter addressed to the Danbury Baptist Association and published in a Massachusetts newspaper, where Jefferson said: “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.” The phase actually can be traced back to Roger Williams, the founder of the first Baptist church in America, who wrote in 1644 of the need for “a hedge or wall of separation between the garden of the church and the wilderness of the world.”

In 1947, when the Supreme Court in Everson v. Board of Education held that the establishment clause applies to state and local governments, all nine justices accepted this metaphor of a wall separating church and state as reflecting the commitment of the First Amendment. They also very much accepted the reasoning of James Madison, who said that it was unconscionable to tax some to support the religions of others.

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