home page

JEFFERSON TO THE DANBURY BAPTISTS, 1802

In Everson v. Bd. of Educ., 330 U.S. 1 (1947), the U.S. Supreme Court was called upon to decide whether a local law pursuant to a New Jersey statute authorizing the use of public funds to reimburse parents for money spent by them for the public bus transportation of their children to Catholic parochial schools violated the Establishment Clause of the First Amendment. In laying the foundation for its decision, the Court examined the meaning of the Establishment Clause in its historical context. Reasoning that the most influential movement for religious liberty prior to the Bill of Rights took place in Virginia, the Court examined the writings of Thomas Jefferson and James Madison, who lead the fight for religious liberty in that state. The Court ultimately concluded that the Establishment Clause was intended to erect "a wall of separation between church and state." This phrase was excerpted from a letter written by Thomas Jefferson to the Danbury Baptist Association. Since its pronouncement in Everson, this phrase has become the popular standard for examining whether government actions violate the Establishment Clause.

In spite of the popularity of this phrase, it is quite likely that the Court's reading of the Danbury letter was incorrect. Although Jefferson penned this phrase, most likely he did not intend "building a wall of separation between church and state" to mean complete independence of religion and government. First, Jefferson was writing to a Baptist Association who firmly believed in church autonomy. The ideas which lead to this oft-cited phrase came from a sermon given by Baptist Roger Williams, entitled "The Garden in the Wilderness," in which Williams explains that the purpose of civil government is to allow religion to flourish, not to be regulated. Thus, Jefferson's use of the phrase "a wall of separation" was an idiom with a particular meaning to the Baptists to whom the letter was addressed.

The "wall of separation" referred to limitations on federal power. In fact, the "act of the whole American people" is the ratification of the First Amendment. At the time of this letter, the Establishment Clause only applied to the federal government. The First Amendment did not create a wall of separation in any state jurisdiction. In fact, the Supreme Court in Everson correctly points out that many states continued various activities for nearly 50 years after the ratification of the First Amendment that would clearly have violated it had it applied to state actions. However, the Supreme Court incorrectly assumes that because the First Amendment now applies to the states, Jefferson's comments in this letter must also be read as if applicable to the states as well. This is inaccurate history. Thus, the Court's interpretation that Jefferson's "separation" statement was intended for the whole federal and state political system is misleading.

In addition, even if the "wall of separation" were meant to be applied to the states, what exactly did Jefferson mean? The Court suggests the phrase is absolute. According to the Court, "that wall must be kept high and impregnable. We could not approve of the slightest breach." Everson, 330 U.S. at 18. Jefferson's actions as President of the United States are important guidelines in understanding what he meant by the "wall of separation." In 1803, one year after the Danbury letter, Jefferson made a treaty with the Kaskaskia Indians, wherein he pledged money to build them a Roman Catholic Church and to support their priests all from federal funds. Jefferson apparently saw no conflict between asking Congress to implement the treaty's provisions by appropriating funds, and the prohibition that "Congress shall make no law respecting an establishment of religion . . ." In addition, Jefferson signed three extensions of "An act regulating the grants of land appropriated for Military Services, and for the Society of the United Brethren for propagating the Gospel among the Heathen." This act granted free of charge titles to sections of land to the United Brethren. In addition to holding the land in trust for Indians who were already Christians, the United Brethren used resources derived from cultivating and leasing the land to send out missionaries to proselyte among the non-Christian Indians. Once again, had Jefferson been an absolutist, as the Everson Court suggests, he would have vetoed not one, but all three extensions of this act. Thus, the Danbury letter is significant because when taken out of context, it provides the foundation for an absolute separation of church and state. Not only was Jefferson referring to the federal government, but his activities while in office also indicate that he was not an absolutist.

In addition to putting a modern gloss on Jefferson's letter to the Danbury Baptist Association, the Supreme Court most likely erred in using Jefferson as a primary example of legislative history surrounding the enactment of the Bill of Rights. Although Jefferson ardently supported the freedom of religion and disestablishment, Jefferson's thoughts and actions, which were somewhat more conservative than his contemporaries, may not be an accurate reflection of legislative history. Throughout the time of the debates surrounding the Bill of Rights and the movement for religious freedom, Jefferson was serving as Ambassador to France. His only knowledge and understanding of the debates came through correspondence from men like James Madison. In fact, the Danbury Baptist letter was written more than a decade following the ratification of the Bill of Rights.

Lewis Roca Rothgerber Religious Institutions Group

MESSRS. NEHEMIAH DODGE, EPHRAIM ROBBINS, AND STEPHEN S. NELSON, A COMMITTEE OF THE DANBURY BAPTIST ASSOCIATION, IN THE STATE OF CONNECTICUT.

January 1, 1802.

GENTLEMEN,--The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

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 should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.

Source: VIII The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private 113-14 (H.A. Washington ed., 1854).


DISCLAIMER / ATTORNEY ADVERTISING

Copyright © 2002-2014 by Lewis Roca Rothgerber LLP. All rights reserved.














Lewis Roca Rothgerber LLP

Serving the Southwest and Beyond

Phoenix and Tucson, Arizona
Silicon Valley, California
Denver and Colorado Springs, Colorado
Las Vegas and Reno, Nevada
Albuquerque, New Mexico
Casper, Wyoming

Click here to contact us.