Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

U.S. Constitution, First Amendment

To most attorneys and others schooled in Constitutional law and history, “separation of church state” is a bedrock concept: although we may argue about what it means in a particular case, we accept it as an abstract but fundamental precept embodied in the First Amendment.   Some people who apparently view things more literally – including an occasional candidate for public office – question the very existence of the concept; they point out, correctly, that neither the First Amendment nor any other provision of the U.S. Constitution contains any of the words “church,” “state” or “separation.” See, e.g., http://www.hnn.us/article/132813

Let me say up front that in my view, the literalists’ point is specious; to argue that separation of church and state is an illegitimate doctrine because the First Amendment does not mention it specifically is akin to arguing that Great Britain is not required to acknowledge the existence of the United States of America because the Declaration of Independence did not alert King George III that it was to be the name of the new nation that the Colonists planned to form. To the contrary, I believe that “separation of church and state” is among our most legitimate Constitutional precepts, not only because the principal architects of the First Amendment – Thomas Jefferson and his close friend and ally James Madison – fought for the separation of church and state even before the Bill of Rights was adopted, but also because Jefferson himself explained the First Amendment’s establishment clause in those very terms.

Jefferson was a religious skeptic who was often accused during his lifetime of being an atheist. Historians often characterize him as a deist or Unitarian, but while his theology was very much Unitarian in spirit, the Unitarians were not formally organized into a sect until 1825, the year before his death. Nevertheless, Jefferson embraced the theology of Joseph Priestly, who is widely viewed as the founder of Unitarianism, and regularly attended Priestly’s church in Philadelphia when he was in the city.

Both Jefferson’s personal attitude toward religion and his formulation of the proper relationship between religion and government were grounded in the rationalist philosophy of the Enlightenment, especially the views of Francis Bacon, Isaac Newton and John Locke. The dominant spirit of the Enlightenment was skepticism toward all orthodoxy, unbridled enthusiasm for the pursuit of knowledge, and optimism that free inquiry would lead men to discern the truths inherent in the nature of the universe. Jefferson believed that an alliance between government and religion was unnatural, because religion is a private matter wholly dependent upon internal persuasions and personal conscience. Men and women, Jefferson said, are answerable for their religious beliefs only to God. In his Notes on Virginia he summed up his views in pithy language:

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, nor breaks my leg.

Jefferson’s avowed disinterest in the religious views of his fellow men did not prevent his holding a lifelong, deep-seated antipathy toward the clergy — especially the Anglican clergy. His biographer Fawn Brodie attributes Jefferson’s hostility to preachers to his experiences at ages 14 and 15, when his tutor was James Maury, a self-righteous and bigoted Anglican priest who deprecated Presbyterians and Baptists as “dupes and deceivers,” and who considered Indians to be heathen barbarians. Whatever its source, Jefferson’s disdain for the clergy put destruction of the power of the Anglican Church at the top of his personal priorities. As Ms. Brodie says, “No other statesman of his time would match Jefferson in his hatred of the established faith.” She reports that in 1816, when he was 73, Jefferson wrote to a friend, “I am not afraid of the priests. They have tried upon me all their various batteries, of pious whining, hypocritical canting, lying and slandering, without being able to give me one moment of pain.”        Jefferson apparently expected that organized religion would die out and that everyone would become, at most, Unitarians. If so, he presumably was very disappointed when instead they became Baptists and Methodists and that after the Revolution, religion became stronger in the United States rather than weaker.

James Madison was much less forthcoming about his religious beliefs than his close friend Jefferson. He was reared as an Anglican, and his early childhood teachers, like Jefferson’s, were Anglican clergymen, who often supplemented their meager salaries in colonial times by tutoring the children of influential parishioners. According to his biographer Ralph Ketchum, “[d]own through his graduation from college every one of Madison’s teachers, as far as we know, was either a clergyman or a devoutly orthodox Christian layman.” From ages 11 to 16 Madison attended a boarding school run by Donald Robertson, a Scottish-born minister and schoolmaster. Then he studied for two years at home under the Revered Thomas Martin, an Anglican rector who lived in the Madison household as a “family teacher.” Martin, whose brother Alexander later served as governor and United States Senator in North Carolina, was from a Scots-Irish family and had graduated from the Presbyterian-dominated College of New Jersey (now Princeton) in 1762. His influence presumably was critical to Madison’s decision to attend Princeton, although Madison later wrote that he avoided William and Mary, the expected choice of the Virginia gentry, because “the climate at [Williamsburg] is regarded as unfavorable to the health of persons from the mountainous region.” Although Williamsburg was known then (and now) for its “noisome vapors,” the unsuitable climate at William and Mary also may have included the college’s reputation as a party school with lax academic standards.

Madison wrote far less about his religious views than his close friend Jefferson, perhaps because he was reserved and less inclined than Jefferson to pronounce judgments, or perhaps because his scholarly, analytical mind never settled firmly on a personal creed. Ralph Ketchum characterizes Madison as “a rather passive believer” who accepted many of the basic tenets of Christian thought, such as the infinite worth of the human soul and the idea that each person was responsible for cultivating a proper relationship with God. It is hardly surprising that the framework of Madison’s personal philosophy would rest on Christian bedrock, given that virtually all of his teachers were clergymen. Yet Ketchum says that shortly after graduating from Princeton “Madison seems simply to have dropped his interest in doctrinal questions, troubling, so far as we know, neither to reject nor to reaffirm his religious tenets thereafter.” “Though not inclined to religious speculations,” Ketchum says, “Madison adhered to a calm faith in a moral, orderly universe presided over by a God beyond the limited capacity of man to conceive or understand.”   “It seems clear,” Ketchum says, “that he never embraced fervently nor rejected utterly the Christian base of his education. He accepted its tenets generally and formed his outlook on life within its world view.” Whatever he believed, Madison neither disparaged the beliefs of others nor sought to impose his own on anyone else.

Although Madison was reticent about his own religious views, he was vocal, and even vociferous, in the cause of religious freedom from early adulthood to the end of his life. In a letter to his Princeton classmate William Bradford dated January, 1774, when Madison was 23, Madison lamented the prosecution of Baptist ministers in nearby Culpeper County:

That diabolical Hell-conceived principle of persecution rages among some,” he wrote, “and to their eternal infamy the clergy can furnish their quota of imps for such business. This vexes me the most of anything whatever. There are at this time in the adjacent county not less than 5 or 6 well-meaning men in [jail] for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear talk or think of anything relative to this matter, for I have squabbled and scolded, abused and ridiculed so long about it, to so little purpose, that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us . . .”

Madison’s ardor can be traced directly to his experience at Princeton. Of Madison’s many Christian teachers, the most influential clearly was John Witherspoon, the Scottish-born Presbyterian minister who was president of the college. Although orthodox in his own beliefs, Witherspoon encouraged intellectual inquiry and defended every person’s “right to private judgment in matters of opinion.” Madison so admired Witherspoon that he stayed on in Princeton for six months after his graduation in order to study under him.

Jefferson and Madison apparently met in 1776 as fellow members of the Virginia House of Delegates.   As documented by their regular correspondence, much of which was written in their private code, they were lifelong friends and political allies thereafter. Their friendship, in which Madison’s quiet pragmatism and political skill both melded with and tempered Jefferson’s visionary outlook, also involved frequent visits back and forth between Jefferson’s home at Monticello and Madison’s family seat 23 miles away at Montpelier, in Orange County.

In 1776, the year he met Madison, Jefferson drafted two documentary pillars of the American historical canon: the Declaration of Independence and the Virginia Statute of Religious Liberty. Each includes rhetorical references that reflect Jefferson’s views about the relationship between God and government. In the former, Jefferson posited that the “the laws of Nature and of Nature’s God” entitled the American colonists to govern themselves and refers to inalienable rights having been endowed by the Creator. To Jefferson, “Nature’s God,” who is undeniably visible in the workings of the universe, gives man the freedom to choose his religious beliefs. This is the divinity whom deists of the time accepted—a God who created the world and is the final judge of man, but who does not intervene in the affairs of man. This God who gives man the freedom to believe or not to believe is also the God of the Christian sects.

The Virginia Statute for Religious Freedom, which Jefferson formally introduced in the Virginia Assembly in 1779, is the forerunner of the First Amendment’s establishment and free exercise clauses. Its first paragraph proclaims, in majestic language, that freedom of thought is a natural right.

I. Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishment or burthens, 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 his Almighty power to do . . .

The second paragraph is the act itself, which states that no person can be compelled to attend any church or support it with his taxes. It says that an individual is free to worship as he pleases with no discrimination.

II. Be it enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

The third paragraph reflects Jefferson’s belief in the people’s right, through their elected assemblies, to change any law. Here, Jefferson states that this statute is not irrevocable because no law is (not even the Constitution). Future assemblies that choose to repeal or circumscribe the act do so at their own peril, because this is “an infringement of natural right.”

III. And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the act of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such as would be an infringement of natural right.

Although passage of the Statute was blocked for several years by Assembly members who were friendly to the Anglican Church, the colony’s changing religious demographics – particularly the rapid growth of the Baptists and Methodists in the western part of the state — worked against them. As early as 1776 Baptists and Presbyterians submitted petitions (one of which contained almost 10,000 names) asking the Assembly to free them from “a long night of Ecclesiastical bondage.” They requested that “all Church establishments be pulled down, and every tax upon conscience and private judgment be abolished” in order that Virginia might become “an asylum for free inquiry, knowledge, and the virtuous of every denomination.”   At Madison’s urging, it was passed by the Virginia General Assembly on January 16, 1786 in the aftermath of the defeat of a proposal by Patrick Henry and other members to levy a tax for the support of Christian ministers. At the time, Jefferson was in Paris serving as minister to France, so Madison had the pleasure of writing to him that the bill had become law and had thereby “extinguished forever the ambitious hope of making laws for the human mind.”

1800. When Jefferson ran for President in 1800, many clergymen told their congregations that a vote for him was a vote against Christianity, and that if he were elected they would have to hide their Bibles in their wells. As a candidate, Jefferson refused to curry favor with the clergy, pointing out to Benjamin Rush that both the Congregationalist and Episcopal churches still entertained hopes of being named the established church of the United States. Each knew that his election “threatens abortion to their hopes,” he wrote, “and they believe rightly: for I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.” (The personal oath that Jefferson described to Rush is now inscribed in the rotunda of his memorial in Washington, D.C.)

1801-1804. During his presidency Jefferson compiled a pamphlet entitled Syllabus of an Estimate on the Doctrines of Jesus, Compared with Those of Others, in which he characterized Jesus’ moral system as “the most perfect and sublime that has ever been taught by man” but made it plain that he did not accept Jesus as divine. In later life he compiled a personal, expurgated New Testament from which he excluded all references to the supernatural, including the Virgin Birth, the miracles and the Resurrection, leaving in only “the matter which is evidently his, and which is as easily distinguishable as diamonds in a dunghill.” The resulting pamphlet was published after his death as The Jefferson Bible.

In October of 1801 Jefferson received a letter from the Danbury Baptist Association in Connecticut complaining that because the Congregational Church was the “official” church of the State, “what religious privileges we enjoy, we enjoy as favors granted, and not as inalienable rights. “We are sensible,” they wrote, “that the President of the United States is not the National Legislator and also sensible that the national government cannot destroy the laws of each State, but our hopes are strong that the sentiment of our beloved President, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these States–and all the world–until hierarchy and tyranny be destroyed from the earth.”

Jefferson replied in a letter dated January 1, 1802. He expressed his agreement with the Baptists’ sentiments, saying:

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 government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.

Jefferson’s grave is on the grounds of Monticello. He prescribed that its simple marker would credit him with the three achievements of which he was most proud: authorship of the Declaration of Independence and the Virginia Statute of Religious Freedom, and founder of the University of Virginia (which, by the way, initially had neither a chapel nor courses for the study of theology).