Many conservative politicians, pundits and evangelical Christians say that there is no such thing as “Separation of Church and State,” and that the phrase has no legal significance. They point out that the while the phrase was used by Thomas Jefferson in a letter, that it never appears anywhere in the Constitution.

They are incorrect about the significance and common use of the phrase.  “Separation of Church and State” is a tremendously important part of our history, and a fundamental factor in the legal reasoning used by United States Supreme Court, particularly regarding the Establishment Clause in the First Amendment:

The Establishment Clause is the clause in the First Amendment of the US Constitution that prohibits Congress from establishing, promoting, encouraging, or opposing or disallowing any religion:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

“Separation of Church and State” may indeed be best known from what is now called the “Danbury” letter, written by Thomas Jefferson in 1802, to the Danbury Baptist Church. And while the phrase is not in the Constitution,  that is certainly not the end of the story!

First, the phrase “Separation of Church and State” did not just appear that one time in that 1802 letter by Jefferson.  The phrase has had a long and distinguished history of being specifically used by men ranging from President James Madison, to former Supreme Court Chief Justice Warren Burger (a Republican), President John F. Kennedy, and former Presidential candidate, United States Senator, and conservative Republican icon, Barry Goldwater.

And second, words and phrases do NOT need to be in the Constitution for them to be found and used by the Supreme Court, to make profound changes in our law and society. 

Let us first take a short look at the long and continuous use of the phrase “Separation of Church and State” by the Supreme Court and major political leaders.

In the famous “Danbury” letter, President Jefferson said in 1802:

“Believing with you that … Man … owes account to none other for his faith or his worship …. I contemplate with sovereign reverence the …. act of the whole American people which declared that [Congress] should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State  … this expression [is] the supreme will of the nation …”

In Reynolds v. United States, in 1879, the Supreme Court wrote about Jefferson’s 1802 “Danbury” letter.  The Court said:  ” [Jefferson’s letter] may be accepted almost as an authoritative declaration of the scope and effect of the first amendment thus secured.”

In the 1947 case of Everson v. Board of Education, the Supreme Court said:  “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 very same case, Supreme Court Justice Wiley Rutledge stated that the First Amendment was designed to create “a complete and permanent separation of the spheres of religious activity and civil authority…”  And Justice Hugo Black agreed, writing: “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.” 

Just one year later, Justice Felix Frankfurter wrote, in McCollum v. Board of Education, (1948):

“We find that the basic Constitutional principle of absolute separation was violated when the State of Illinois, sustained the school authorities of Champaign in sponsoring and effectively furthering religious beliefs.” 

Jumping ahead nearly 25 years, there is this significant quote from Chief Justice Warren Burger, a conservative Republican appointed by President Nixon. Writing in Lemon v. Kurtzman, (1971), Burger said:

“As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal.” 

Many notable individuals in our Nation’s history have used the phrase “Separation of Church and State.”  President James Madison often used this phrase. (Madison was the primary author of our Constitution.)   Madison said:

“the religious devotion of the people has been manifestly increased by the total separation of the church from the state“ (1801).

And two years later he stated: “The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries.”  

And nearly a decade later, Madison said: “Our government is very new and successful example therefore of a perfect separation between ecclesiastical and civil matters….”

Modern Presidents and candidates for that Office have also used the phrase. Here is John F. Kennedy, speaking in 1960, on this issue: “I believe in an America where the separation of church and state is absolute …” 

Kennedy also said, just weeks prior to being elected President:

“Whatever one’s religion in his private life may be, for the officeholder, nothing takes precedence over his oath to uphold the Constitution and all its parts—including the First Amendment and the strict separation of church and state.”

And four years later, presidential candidate, and conservative Republican icon Barry Goldwater said: “Religious factions will go on imposing their will on others unless people recognize that religion has no place in government and public policy.”

Let us now explore the fact that words and rights themselves do not need to be in the Constitution for them to be found by the Supreme Court. 

The Supreme Court has a long and established history of finding new constitutional rights, expanding the meaning of others, and adding rights, principles and words that do not even appear in the document! The Court has long used their authority to create Constitutional Rights to make profound changes in our law and society.

For example, the word “Privacy” never appears anywhere in the Constitution, yet the United States Supreme Court found that we do indeed have a Constitutional Right to Privacy, in Griswold v. Conn. (1965). 

This Right to Privacy (Griswold, 1965), was expanded by the Court, eight years later, in Roe v. Wade (1973), to include a Constitutional Right to abortion. 

The Right to an Attorney in a State Criminal trial is not mentioned in the Constitution, yet the Court found this Right, for all of us, in 1963, in Gideon v. Wainwright. 

Our Constitutional Right to Travel (traveling from one State to another), is mentioned nowhere in the Constitution, but dates back to at least 1858 (Paul v. Virginia). 

And the fact that it does not matter that he actual words “Right to Travel” do not appear in the Constitution is highlighted in a recent case where the Supreme Court said: “we need not identify the source of the Right to Travel in the text of the Constitution.” (Saenz v. Roe, 1999).

The Constitutional Right to marry a person of a different Race or Color is certainly not mentioned in the Constitution, yet this Constitutional Right was determined to exist by the Court, in the wonderfully named case of Loving v. Virginia (1967).

And the basic Right to Marry, is itself never mentioned in the Constitution, but, long, long ago the Court said that our Right to Marry is Constitutionally protected! 

The Constitutional Right for us to be protected by the Fourth Amendment against the Government wiretapping our telephones or other electronic devices, was found for the first time in Katz v. United States, (1967).  

And in Obergefell v. Hodges, (2015), the Supreme Court found that the Due Process and Equal Protection clauses of the Constitution, along with the Fourteenth Amendment, ensure that same-sex couples have the same fundamental Constitutional right to marry as opposite-sex couples do.

NOTE:   For a more detailed column about how the Supreme Court creates new rights and principles that are not actually found in the words of the Constitution, please read my column in the Constitution and Law category of my website:

             How the Supreme Court Creates New Rights

It is also worth mentioning that the modern Supreme Court does not see “Separation of Church and State” as an impregnable wall.   Over the past 40 years, the Supreme Court majority has consistently maintained that the “Wall” separating church from state does indeed have some small cracks, and that it is not intended to be entirely impermeable.

Perhaps the first modern Supreme Court case to demonstrate that the “Wall” created by “Separation of Church and State” does have some small holes in it, is Marsh v. Chambers, from 1983.   In this case, the Court upheld the Constitutionality of the State of Nebraska’s practice of opening each day of their legislative session with a prayer, given by a chaplain, who is paid with state taxpayer funds. The Court said that because opening each legislative session in Nebraska with a prayer was quite similar to the practice of many other State legislatures, and the United States Congress, it was somehow Constitutional because it had become a tradition! 

The Court said that because these session opening prayers had become such a long-standing tradition, they were therefore not really a violation of the “Separation of Church and State” concept regarding the Establishment Clause of the First Amendment. The Court also found that the Nebraska Legislature was not favoring or establishing one religion (Christianity), over all others, even though it was a fact that the prayers used to open each and every day of the Nebraska legislative session had been delivered by the same Presbyterian minister for 16 consecutive years! 

In the past ten years, the Supreme Court has continued to widen the cracks in the “Wall” separating Church and State.  Recently, in a case called Town of Greece v. Galloway, (2014), the Supreme Court created another hole the “Wall.”   

In a 5-4 decision, which reversed the result of the Appellate Court, the Supreme Court said that opening a local City Council meeting with a prayer does not violate the Establishment Clause, since the opening prayer is consistent with the tradition long followed by many States and Congress, as long as the town does not discriminate against minority faiths in determining who may offer a prayer, and the prayer does not coerce participation from non-adherents.  

In this Town of Greece decision, the five-member majority was not bothered by the fact that for more than a decade, the only prayers given had been Christian prayers, and that many of these prayers clearly suggested a preference for, or the primacy of, the Christian religion, by consistently referring to the Son of God, or to Jesus, our Lord and One True Savior.   Amazingly, the Court also saw no reason to believe that anyone in the audience, even those who had come before the Council for approval of a permit, or to ask the Council to vote a certain way on an upcoming City issue, would feel coerced or pressured to participate in these City Council sponsored Christian prayers.

What does the future hold for the Separation of Church and State, and the Supreme Court’s interpretation of the Establishment Clause in the First Amendment?  With the recent additions to the Court of Justices Neil Gorsuch and Amy Coney Barrett, both very conservative evangelical Christians, it is likely the wall between Church and State will continue to be weakened by the Court.