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What the ACLU Gets Wrong about Separation of Church and State

In Everson v. Board of Education (1947), Justice Wiley Rutledge proclaimed that “no provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.” Like many jurists and academics since, he proceeded to argue that the Founders intended the First Amendment to create a strict separation of church and state. As evidence, he relied almost solely on a handful of statements by Thomas Jefferson and James Madison, most of which were made before or well after the Religion Clauses were drafted. 

Earlier this month I contended that there is no good reason to believe that America’s Founders were deists. There is even less reason to think that they desired the strict separation of church and state. This is true even for Jefferson, but I’m going to focus on the group of Founders most relevant for understanding the First Amendment: the men who drafted it. 

One of Congress’s first acts was to agree to appoint and pay congressional chaplains. Shortly after doing so, it reauthorized the Northwest Ordinance, which held that “Religion, Morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged.”

More significantly for understanding the First Amendment, on the day after the House approved the final wording of the Bill of Rights, Elias Boudinot, later president of the American Bible Society, proposed that the president recommend a day of public thanksgiving and prayer.

In response to objections that such a practice mimicked European customs or should be done by the states, Representative Roger Sherman, a Calvinist from Connecticut whose pastor was Jonathan Edwards Jr.,

justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself, but as warranted by a number of precedents in holy writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example, he thought, worthy of Christian imitation on the present occasion; and he would agree with the gentleman who moved the resolution.

Note that Sherman appealed directly to the Bible to support Boudinot’s proposal. His argument won the day. The House of Representatives agreed with Sherman, and the Senate agreed with the House. President George Washington—the indispensable Founder—agreed with Congress. On October 3, 1789, he issued a thanksgiving day proclamation, which reads in part:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore His protection and favor . . .

I do recommend . . . the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be. . . .

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions, to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our national government a blessing to all the People . . .

Similar proclamations were routinely issued by the Continental and Confederation Congresses and Presidents Washington, Adams, and Madison. Jefferson, it is true, refused to issue such formal proclamations, yet as Daniel L. Dreisbach has pointed out, he “employed rhetoric in official utterances that, in terms of religious content, was virtually indistinguishable from the traditional thanksgiving day proclamations.”

America’s Founders did not want Congress to establish a national church, and many opposed establishments at the state level as well. Yet there was virtually no support for the sort of separation of church and state promoted today by organizations such as the ACLU and Americans United for Separation of Church and State.


Mark David Hall is Herbert Hoover Distinguished Professor of Politics and Faculty Fellow in the William Penn Honors Program at George Fox University. He is the author or editor of a dozen books, including Roger Sherman and the Creation of the American Republic.

Image by Joshua Ness at Unsplash.



Complement with Mark David Hall on the faith of our founders, a student's guide to the study of law, and what reading Flannery O'Connor's stories reveal about American politics today.

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