What Does ‘Separation of Church and State’ Really Mean?

Sometimes, a phrase takes on a life of its own and becomes so rhetorically powerful that it can be deployed almost mindlessly, without real consideration of its original meaning. “Separation of church and state” is one such phrase.

Consider a couple of examples.

In 2011, fifth-grader Brian Hickman auditioned to dance to a contemporary Christian song for his public school’s talent show. Days later, Brian’s mom was told by the school principal that the “separation of church and state” prohibited her son from performing to the song.

Three years later, a Colorado high school student named Chase was told by an administrator that his Christian prayer meeting, held during a free period, would have to stop due to the “separation of church and state.”

These two stories bear several obvious and striking similarities. But here’s one more: Alliance Defending Freedom filed a lawsuit in both of these instances. And in both Brian’s case and Chase’s, the school backed down.

The appeals to the “separation of church and state” did not hold up. And for good reason: while the term may be a convenient rhetorical tool, it does not represent any real constitutional doctrine.

Where did the phrase originate?

The phrase “separation of church and state” is nowhere to be found in the U.S. Constitution. The term has been based on the First Amendment’s Establishment and Free Exercise Clauses, but those clauses merely state that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Rather, the phrase “separation of church and state” originates in a letter sent by President Thomas Jefferson to a group of Baptists in 1802. The Danbury Baptist Association, a group of 26 churches in Connecticut, had written to Jefferson to congratulate him on his election and convey their concern that the state’s system of government (in which the Congregational Church was the official or “established” denomination) had led to their ill treatment.

In their letter, the Baptists affirm their belief in religious liberty—“That Religion is at all times and places a Matter between God and Individuals”—and express their dismay that they enjoy this freedom only as “favors granted” rather than as an inalienable right.

Replying to the Danbury Baptists, Jefferson agrees that “religion is a matter which lies solely between Man & his God.” Further, the president notes that the language of the First Amendment’s Establishment and Free Exercise Clauses builds a “wall of separation between Church & State.”

This context clarifies that Jefferson was speaking of protecting religious exercise from an overbearing government. His response to the Danbury Baptists was a reassurance that the United States Congress would not impede their free exercise of religion.

Supreme Court precedent

Unfortunately, the promise of religious freedom shared by both Jefferson and the Danbury Baptists has not always been realized in American history. Indeed, Jefferson’s figure of speech has been distorted and wrenched from its original context.

Reviving a forgotten phrase

Prior to the mid-twentieth century, Jefferson’s words to the Danbury Baptists had been mostly ignored or forgotten. Reynolds v. United States (1879), a case concerning the prosecution of polygamy in what was then the Territory of Utah, was the first case to explicitly cite them.

But later, a case reintroduced and popularized the concept of “separation of church and state” in American jurisprudence: Everson v. Board of Education (1947). The case dealt with whether taxpayer funds in New Jersey could be used to bus children to religious schools. Justice Hugo Black, echoing Jefferson’s phrase, wrote in the majority opinion, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”

Ironically, though the Supreme Court upheld New Jersey’s program as constitutional, Jefferson’s words would be twisted to encroach on religious freedom for several decades to avoid “entanglement” between church and state.

The Lemon test

In the 1971 case Lemon v. Kurtzman, the Supreme Court created a way to evaluate whether government actions violated the Establishment Clause. Under Lemon, a law had to pass a three-part test to avoid violating the Establishment Clause:

• First, the law must have a secular purpose.
• Second, the law must not have the primary effect of promoting or disparaging religion.
• Third, the law must not excessively entangle the government in religion.

For decades, the Court used this vague, one-size-fits-all standard before finally abandoning it in the 2022 case Kennedy v. Bremerton School District. In that case, the Court declared that it would now look to “historical practices and understandings” to determine whether a government’s actions violate the Establishment Clause.

A trilogy of wins for free exercise

While the Kennedy case restored a proper understanding of the Establishment Clause, a series of other cases clarified the scope of the Free Exercise Clause.

Trinity Lutheran Church v. Comer

The 2017 case Trinity Lutheran Church of Columbia v. Comer centered on a Missouri state program that provided grants for playground resurfacing. Trinity Lutheran Church applied for a grant to resurface the playground of the church’s preschool. But the state denied the grant—simply because the preschool was operated by a religious organization.

Represented by ADF, Trinity Lutheran challenged Missouri’s decision and took the case all the way to the Supreme Court, which ruled that the state’s exclusion of churches from the program violated the Free Exercise Clause.

Espinoza v. Montana

Three years after Trinity Lutheran, the Court heard Espinoza v. Montana Department of Revenue, another case that involved public programs in the context of education. A Montana Supreme Court decision had invalidated a state tax credit program because families might use that money for tuition at a religious school. The Supreme Court reversed that ruling.

Carson v. Makin

Carson v. Makin, the third case in this “trilogy,” also involved a state educational program. The state of Maine operates a tuition assistance program in certain areas that helps families pay for tuition “at the public school or the approved private school of the parent’s choice.” But there was a catch: “sectarian” (i.e., religious) schools were not eligible. The Supreme Court ruled in 2022 that the “nonsectarian” requirement in Maine’s tuition assistance program violated the Free Exercise Clause.

The Constitution protects religious freedom

Contrary to what many believe, the “separation of church and state” isn’t a constitutional principle. Rather, it’s a misnomer rooted in a historical misunderstanding and subsequent jurisprudence.

While the church and the state are separate institutions, the Constitution does not demand that our governments have no engagement with religion. In fact, our nation’s history shows that the opposite is true: when governments work together with religious organizations and individuals, they can accomplish much good.

Similarly, the Constitution does not justify the censorship or exclusion of religious expression in public life. Every person has the God-given right to live and speak the truth, and the First Amendment protects that right.

Jefferson’s words should be understood as they were originally intended: as a bulwark to protect religious freedom, not a bludgeon to suppress religious expression.