The civic catechisms and canticles of our day still celebrate Thomas Jefferson's experiment in religious liberty. To end a millennium of repressive religious establishments, we are taught, Jefferson sought liberty in the twin formulas of privatizing religion and secularizing politics. Religion must be “a concern purely between our God and our consciences,” he wrote in 1802. Politics must be conducted with “a wall of separation between church and state.” “Public religion” is a threat to private religion, and must thus be discouraged. “Political ministry” is a menace to political integrity and must thus be outlawed.

These Jeffersonian maxims remain for many today the cardinal axioms of a unique American logic of religious freedom to which every patriotic citizen and church must yield. Every American public school student learns the virtues of keeping his Bible at home and her prayers in the closet. Every church knows the tax law advantages of high cultural conformity and low political temperature. Every politician understands the calculus of courting religious favours without contravening religious causes. Religious privatization is the bargain we must strike to attain religious freedom for all. A wall of separation is the barrier we must build to contain religious bigotry for good.

Separation of church and state was certainly part of American law when many of today’s public opinion-makers were in school. In the landmark cases of Cantwell v. Connecticut (1940) and Everson v. Board of Education (1947), the United States Supreme Court for the first time used the First Amendment religion clauses to declare local laws unconstitutional. The Court also for the first time read Jefferson’s call for “a wall of separation between church and state” into the First Amendment. In more than 30 cases from 1947 to 1985, the Court purged public (that is, state) schools of most of their traditional religious teachings and trappings, and cut religious schools from much of their traditional state patronage. Lower courts, in hundreds of cases, struck down many other traditional forms and forums of church-state cooperation in the public square.

After nearly forty years of such cases, it is no surprise that Jefferson’s metaphor of “a wall of separation between church and state” became for many the source and summary of American religious freedom. Indeed, many within and beyond the United States think Jefferson’s words are enshrined in the First Amendment. It is discomfiting to realize that the constitutional text is actually more prosaic and restrained. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

“Metaphors in law are to be narrowly watched,” Justice Benjamin Cardozo once warned, “for starting as devices to liberate thought, they end often by enslaving it.” So it has been with the metaphor of a wall of separation.  This metaphor has held popular imagination so firmly that many have not noticed that separation of church and state is no longer the law of the land in America.

In the past two decades, the Supreme Court has abandoned much of its earlier separationism and reversed several harsh precedents on point. In more than a dozen cases, the Court has upheld government policies that support the public access and activities of religious individuals and groups – so long as these religious parties are voluntary, and so long as non-religious parties are treated the same way.  So, religious counsellors could be funded as part of a broader federal family counselling program. Religious student groups could have equal access to public classrooms that were open to non-religious student groups. Religious organizations could have the same access to public facilities, forums, and funds that were already opened to other civic organizations. Religious student newspapers were just as entitled to public university funding as those of non-religious student groups. Religious schools were just as entitled to participate in a state-sponsored school voucher program as other private schools. Religiously-based civic groups were just as entitled as their secular counterparts to run after-school recreational and remedial programs for public school elementary students.

The Supreme Court has defended these holdings on wide-ranging constitutional grounds, and it has not yet settled on a consistent new logic. One consistent teaching of these recent cases, however, is that public religion must be as free as private religion. Not because the religious groups in these cases are really non-religious. Not because their public activities are really non-sectarian. Not because their public expressions are really part of the cultural mainstream. To the contrary, they deserve to be free, just because they are religious, just because they engage in sectarian practices, just because they sometimes take their stands above, beyond, and against the mainstream. Religions provide leaven and leverage for the polity to improve.

A second teaching of these cases is that the freedom of public religion sometimes requires the support of the state. Today’s state is not the distant, quiet sovereign of Jefferson's day from whom separation was both natural and easy. Today’s state is an intensely active sovereign from whom complete separation is nearly impossible. Few religious bodies can now avoid contact with the modern welfare state’s pervasive regulations concerning education, charity, welfare, child care, health care, family, workplace, taxation, security, and so on.  Both cooperation and confrontation with the modern state are almost inevitable for any religion. 

When a state’s regulation imposes too heavy a burden on a particular religion, the free exercise clause provides a pathway to relief. When a state’s appropriation imparts too generous a benefit to a particular religion, the establishment clause provides a pathway to dissent. But when a government scheme provides public religious groups and activities with the same benefits afforded to all other eligible recipients, constitutional objections are now rarely availing.  And, even in those rare cases when the Court objects, Congress now stands ready to craft special statutory remedies, exemptions and earmarks.

A third teaching of these cases is that freedom of public religion also requires freedom from public religion. The state must strike a balance between coercion and equality. The state cannot coerce citizens to participate in religious ceremonies and subsidies that they find odious. But the state cannot prevent citizens from participation in public ceremonies and programs just because those citizens happen to be religious. It is one thing to outlaw Christian prayers and broadcasted Bible readings from the public school; after all, students are compelled to be there. It is quite another thing to ban moments of silence and private religious speech in these same public schools. It is one thing to bar direct tax support for religious education, quite another thing to bar tax deductions for parents who choose to educate their children in religious schools. It is one thing to prevent government officials from delegating their core police powers to religious bodies, quite another thing to prevent them from facilitating the charitable services of voluntary religious and non-religious associations alike.

Today, so-called “Christian right” groups have seized on this insight better than most. Their recent rise to prominence in the public square and in the political process should not be met with glib talk of censorship or reflexive incantation of Jefferson's mythical wall of separation. The rise of the Christian right should be met with the equally strong rise of the Christian left, of the Christian middle, and of sundry Jewish, Muslim, Hindu, Buddhist, and other groups who test and contest its premises and policies. That is how a healthy democracy works. The real challenge of the Christian right is not to the integrity of American politics but to the apathy of American religions. It is a challenge for peoples of all faiths, and of no faith, to take their place at the table and to engage in deep, direct, candid and cogent conversation not only about legal and political technicalities, but also about “the weightier matters of the law.”

John Witte, Jr. is Jonas Robitscher Professor of Law and Director of the Center for the Study of Law and Religion Program at Emory University in Atlanta.