Constitutional legal scholar Philip Hamburger, formerly a professor of law at the University of Chicago and currently professor of law at Columbia Law School, argues in "Separation of Church and State" that America's modern conception of the First Amendment's Establishment Clause has failed to make an adequate distinction between the establishment of religion, which the founders intended to prohibit, and the "separation of church and state," a later development that was almost never cited by eighteenth century Americans. Hamburger offers both academic and non-academic readers alike a thoroughly researched and engaging presentation of the history of the Establishment Clause and how it came to be misapplied to the detriment of religion in the American public square.
How did the nation depart from a Constitution that guaranteed religious liberty to erect a "wall of separation between church and state"? Hamburger traces the problem to Thomas Jefferson, who in 1802 in his Letter to the Danbury Baptist Association reflected on "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.'" Jefferson's phrase would later be adopted by the Supreme Court. Justice Black, writing for the majority of the Supreme Court in Everson v. Board of Education of Ewing (1947), adopted Jefferson's separation of church and state and made it "the foundation of subsequent establishment clause jurisprudence." Five years later, Justice Douglas in Zorach v. Clauson (1952), affirmed Black's basic principle but expressed concern over the extent to which its implications could be taken. Although the separation of church and state must be complete, the First Amendment did "not say that in every and all respects there shall be a separation of Church and State," for if this were the case, municipalities would even be prohibited from providing police services to churches or other religious groups.
Yet things would soon change. Within the context of private, religious schools, Chief Justice Burger writing for the majority in Lemon v. Kurtzman (1971), held that statutes could only provide funding for religious schools when the following elements were met: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ... finally, the statute must not foster `an excessive government entanglement with religion.'" Applying these elements, the Court struck down a Pennsylvania and Rhode Island statutes that provided aid to non-public schools, including church-related schools. The Court would go further, excluding religion in public schools in Wallace v. Jaffree (1985) (Stevens, J.), nativity scenes in Allegheny County v. Greater Pittsburgh ACLU (1989) (Blackmun, J.), and prayer at a graduation ceremony in Lee v. Weisman (1992) (Kennedy, J.). Throughout this chaos, the dissents of Justices Rehnquist and Scalia often fell on deaf ears. As Rehnquist articulated in Wallace, the separation standard lacked historical support and "proved all but useless as a guide to sound constitutional adjudication."
Hamburger concludes by highlighting the fact that the original opponents of the government establishment of religion did not demand a complete separation between church and state; although they opposed governmental financial benefits to established churches, they typically did not reject the conventional view that "there was a necessary and valuable moral connection between religion and government." Today, however, the opponents of establishment have taken us to a different place, where the mere hint of government endorsement of religion is viewed as contrary to the constitution. The nation thus finds itself in a place where the very religious liberty that the U.S. Constitution was designed to protect has instead become undermined.
