The Magazine

Up Against the Wall

If only the Supreme Court had Washington's clarity.

Feb 16, 2009, Vol. 14, No. 21 • By KEVIN R. KOSAR
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The Everson decision was a debacle that irreversibly plunged the Court into a moral and public policy snarl. As it has attempted to explain what the establishment clause permits and forbids, the Court has more deeply entangled itself.

These obfuscatory adjudications have bewildered legislators and elicited more lawsuits seeking to discern where the contours of the wall lie. May a state provide books or services to special needs children at parochial schools? May a principal recite a nondenominational prayer at a high school graduation? May a high school permit religious groups to rent school facilities?

The list is endless, precisely because there is no wall of separation between church and state. For there to be one the Court had to erect it, brick by brick, case by case. The First Amendment, as Black knew, was designed to discourage religious controversies. Perversely, the High Court's church-state decisions have fanned disputes.

The Everson decision is a dismaying example of the Court's fallibility. Nine justices propagated bad history. It is crudely Hegelian to assert that the First Amendment was the high expression of a social evolution toward the absolute separation between church and state. And it is factually inaccurate. From the founding of the republic to this day, government and religion have been deeply intertwined. The government does not tax churches. Federal Pell grants can be used to pay tuition at religious colleges. The federal government incorporated the Episcopal foundation that built the National Cathedral in Washington. Both the Senate and the House of Representatives have used tax dollars to pay chaplains for more than 200 years.

Additionally, relying heavily on the writings of just two of the Founders was egregiously selective. The choice of Jefferson was especially odd. He was not at the Constitutional Convention, nor did he serve in Congress when Madison introduced the Bill of Rights as amendments to the Constitution. He was minister to France during 1785-89 and his own beliefs on church-state separation are far from clear. As president, he refused to declare days of Thanksgiving and prayer; but as Virginia's governor, he did so.

One wonders how different things might be today if the Supreme Court had taken into consideration George Washington's approach to religion. Arguably, Washington is much more representative of the Founders' views on church and state. He presided over the Constitutional Convention and was president when the Bill of Rights was ratified. Unlike Jefferson's, his religious views did not attract ridicule and opprobrium. And according to this easy-reading study, Washington's approach to church and state issues was a pragmatic mixture of high-mindedness and good horse sense.

Throughout his adult life, he expressed deep belief in the inherent importance of freedom of conscience. In a 1783 speech to a New York congregation, General Washington professed that "the establishment of Civil and Religious liberty was the motive which induced me to the Field [of battle]." While he was exasperated by some Quakers' insistent refusal to partake in the Revolutionary War effort, he respected their right to believe. And while he thought that everyone should bear arms in defense of the country, he was willing to make exceptions for those who were "conscientiously scrupulous against it."

Though no adherent of Roman Catholicism, Washington found the anti-Catholic shenanigans on Pope Day appalling, and called for its end: The rights of conscience in others were to be respected because, he declared, "God alone is the Judge of the hearts of Men and to him only in this case are they answerable."

Tara Ross and Joseph C. Smith Jr. show that Washington's views on church and state also had a utilitarian bent: "To the degree that official uses of religion could be relied upon for the general good of the community," they write, "he was in favor of such measures. If such measures harmed the community, however, he was opposed."

Thus, when Washington believed that religious services would benefit the soldiers who served under him in the revolution, he asked Congress to pay for chaplains of every denomination. When he thought the public would benefit from prayer, he issued proclamations for days of worship and prayer.

Yet, behind these calculations of benefit and cost was an abiding belief that the health of the republic was intimately related to the virtue of the public and its representatives. In his 1783 letter to state governors notifying them of the disbandment of the Continental Army, Washington wrote: