Do we have separation of church and state?

What did Jefferson mean when he wrote about a "wall of separation" between the church and the state? How have we interpreted the pair of clauses in the 1st Amendment regarding religion? And what is the current relationship between church and state when it comes to the Supreme Court, religious schools, taxes, and growing religious nationalism? Today we talk to Katherine Stewart, author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism and Morgan Marietta, Chair of Political Science at the University of Texas, Arlington and founding editor of the SCOTUS Decisions Series. Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:08Nick Capodice?

  Hannah, you don't want to like come clean on the most embarrassing civics gaffe that you've made?

• 0:14Hannah McCarthy?

  I, no, I don't want to do that, no.

• 0:18Nick Capodice?

  I was gonna, I was gonna start with mine, but I am just not gonna do it. I'm not going to admit my most ignorant gaffe since I started this job. It's too embarrassing to even say out loud. But if any of you happen to see me in the real world and you ask me in person, I will tell you. So, I bring it up because Hannah, you refrained from referencing the West Wing until your government shutdown episode. And today, I break my fast.

• 0:44Hannah McCarthy?

  Mm-hmm.

• 0:45Nick Capodice?

  I start with a West Wing episode that saved me from another blunder.

• 0:51Speaker 02

  The law, separation of church and state.

• 0:53Speaker 03

  Who told you that?

• 0:54Speaker 02

  You know exactly what I'm talking about. So the government and the church are not supposed to do, they're not supposed to be the same thing.

• 1:00Speaker 03

  And you think there's a law?

• 1:01Speaker 02

  There is.

• 1:01Speaker 03

  What kind of law?

• 1:02Speaker 02

  What the hell?

• 1:03Speaker 03

  City, state, federal?

• 1:05Speaker 02

  I don't know about those things, but I know there's a law.

• 1:07Hannah McCarthy?

  Oh, I know this episode.

• 1:09Nick Capodice?

  You do? Red Mass?

• 1:10Hannah McCarthy?

  Of course. Yeah, this is the one about the Catholic Mass held the Sunday before the Supreme Court first convenes in October, right? And there's this guy who's talking to Charlie.

• 1:22Nick Capodice?

  Anthony.

• 1:22Hannah McCarthy?

  Okay, yeah, Anthony. Anthony says that it is against the law to have a mass that all of these politicians are supposed to go to because of the separation of church and state. And Charlie challenges Anthony to show him where exactly separation of church and state exists in the Constitution.

• 1:43Nick Capodice?

  That is the one. If I had not seen that episode Hannah, I would have told you that there is a clear law, somewhere, saying that there is a separation of church and state.

• 1:55Hannah McCarthy?

  I mean, the idea is in there. It's in the First Amendment.

• 2:00Hannah McCarthy?

  But it does all make me wonder why we all know that phrase, separation of church and state. Where does that come from?

• 2:06Nick Capodice?

  Well Hannah, we have got a long, fuzzy, gray road to walk.

• 2:14Nick Capodice?

  You're listening to Civics 101. I'm Nikcapadice.

• 2:16Hannah McCarthy?

  I'm Hannah McCarthy.

• 2:17Nick Capodice?

  And today, we are talking about the separation of church and state. We are going to look into the framers' intentions, the controversy about this separation since our founding, the modern interpretation in the courts, and finally, the growing movement of nationalism in the name of religion. But yeah, let's start with that question. Where does this phrase come from?

• 2:38Speaker 04

  As you know, the phrase separation of church and state is not in the Constitution. But that's because the Constitution requires quite precise language. And that phrase, separation of church and state, is not sufficiently exact for that document.

• 2:54Speaker 05

  The separation of church and state as an idea, as a principle, surely is part of the US Constitution. But that does not mean that we have agreed now, or in the past, or in the future, exactly what that principle is, or how it should be applied.

• 3:12Speaker 04

  My name is Katherine Stewart. I'm an author and journalist. My book is titled, The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism.

• 3:21Speaker 05

  I'm Morgan Marietta, professor and chair of political science at the University of Texas at Arlington, and co-editor of the annual SCOTUS series.

• 3:28Nick Capodice?

  And before we get into the history, I have to start with a really compelling idea that Morgan told me at the start of our interview. It was something Franklin Delano Roosevelt said on Constitution Day in 1937.

• 3:40Speaker 05

  FDR, 1937, has this great quote on this, that the Constitution of the United States was a layman's document, not a lawyer's contract.

• 3:48Speaker 06

  This great layman's document, therefore, was a charter of general principles, completely different from the wherewas' and the parties of the first part, and the fine print which lawyers put into leases and insurance policies and installments.

• 4:12Speaker 05

  And that's the reason why the phrase separation of church and state is so important. It's an understandable phrase that's meant for ordinary discussion. It's not literally in the Constitution, but it's the way that we talk about and understand this.

• 4:27Nick Capodice?

  So this separation as an idea is in the First Amendment, which I'm going to get to in short order. But the words in that expression come from the 1800s.

• 4:37Speaker 04

  Thomas Jefferson offered those words as a paraphrase in a letter to the Danbury Baptist Association in Connecticut in 1802. Baptists at the time were a fairly marginalized and often despised group, religious group. And they were worried that a nation dominated by other Protestant sects and denominations would force them to do things that they simply didn't want to do. So Jefferson was really assuring them that they didn't have to worry, that the government wasn't going to take sides when it came to religion, and that they were going to have full and equal rights as citizens. So that phrase, separation of church and state, is a really good paraphrase for those ideas and principles.

• 5:21Hannah McCarthy?

  It's interesting to me that such a massive thing, something one might consider a bedrock principle of America, was first used in a letter to a small association in Connecticut after our Constitution was written.

• 5:37Nick Capodice?

  I know, but what surprised me about it is that it wasn't just a small, personal missive he just slapped together. The Library of Congress enlisted the help of the FBI, forensic experts, to reveal how many drafts and how many edits he made of this letter. It was important to Jefferson. He talked about it a lot. His actual words were, quote, "a wall of separation between church and state."

• 6:03Speaker 04

  Another really important document to remember is the Virginia Statute of Religious Freedom. It's a statement written by Thomas Jefferson in 1786. And in that statute, he laid the ground for the First Amendment protections for religious freedom. It discusses in some detail both freedom of conscience and also the principle of church-state separation. And it's really well worth a read. But I think it's important to remember that the Virginia Statute of Religious Freedom came about because there was this crisis where everyone was asked to pay a tax to support the Anglican Church. And-- Other denominations were really upset about that. They didn't want to pay for an American religion. And Jefferson and Madison agreed that no one should have to pay money to support a religion

• 6:48Speaker 04

  they do not wish to support. And that's why we have that statute of religious freedom, which anticipates the Bill of Rights and the First Amendment.

• 6:55Nick Capodice?

  And as a quick aside, if you're talking original Constitution, not including the amendments, the word religion is only mentioned once in the whole thing. It's in Article VI, quote, "No religious test shall ever be required as qualification to any office or public trust under the United States."

• 7:11Hannah McCarthy?

  Okay, let's get into the First Amendment, those actual words upon which this idea is based.

• 7:18Speaker 05

  So the actual phrase is, "Congress shall make no law." Oh, it's important to note here, people get confused about this. They think, oh, you mean Congress, you mean that states can violate this? This is about the Civil War and the Fourteenth Amendment. We have broadened this out. We read it now to mean government. So you take Congress and you ax it out and you say government. So, "Government shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

• 7:43Nick Capodice?

  Worth noting here that while we might think of the First Amendment primarily being about speech, religion, religion comes first in the actual words. And there are two clauses in those 16 words, which we refer to as the establishment clause and the free exercise clause. And those 16 words, again, for the people in the back, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

• 8:10Hannah McCarthy?

  Two clauses in 16 words. Let's break them down.

• 8:15Nick Capodice?

  You got it, McCarthy. Establishment first.

• 8:17Speaker 05

  Establishment clearly was referring to the practice in Old Europe and in the early colonies of having an established church, to which you had to give some kind of obedience or give money. But Americans in the court have seen it much more broadly than that. It's not just about having an official church. It's about having any endorsement of religion or entanglements with religion. Question is, how far does that go? Does it go to a wall of separation? Does it go to this complete argument that there can be no religious presence at all?

• 8:50Speaker 05

  But that might start to violate the second part, which is free exercise. A free exercise of religion raises the question of what is a religion? It's clearly belief. So the government can't tell you what to believe or what to say. But religions are not just about belief, they're also about behavior. That belief tells you to act in a certain way, or wear certain things, or engage in certain kinds of behaviors. And the question is, how far does that go? Because of its behavior as well as belief, those behaviors can start to infringe upon other people.

• 9:23Hannah McCarthy?

  I just want to jump in here and say, I like the idea of the Constitution being understandable, a layperson's document. But even if we think we understand what it says, it still comes down to interpretation. How have people, and most importantly, of course, the courts, interpreted those 16 words?

• 9:45Nick Capodice?

  Well, Morgan talked with me a bit about that specifically. Many Supreme Court decisions have read them differently over the years. But he boiled it down to three. Three interpretations.

• 9:56Speaker 05

  It basically goes like this. The dual clauses could mean protection, neutrality, or separation.

• 10:07Nick Capodice?

  And before this trio, Hannah, let me just relate a personal, I don't know, what do you call it, a bugaboo? Hannah, do you have a word that you like always misinterpret that you get wrong?

• 10:16Hannah McCarthy?

  Not anymore, but kind of like family lore. We in the McCarthy household always used the term enervate to mean like giving energy, right? Like, that was so enervating. Because it sounds like energizing, but actually the word enervate means the exact opposite.

• 10:38Nick Capodice?

  I have the exact same problem with the word secular. The exact same thing. I think it means the opposite of what it means. So secular means nonreligious. I don't have trouble with nonreligiousness as an idea. It sounds religious, right? Seculare.

• 10:56Nick Capodice?

  So if there's just one person out there like me who has trouble with the definition of secular, no, we are in the same canoe.

• 11:06Nick Capodice?

  Okay. Back to Morgan's trio of interpretation of the Establishment and Free Exercise Clause. Number one, protection.

• 11:15Speaker 05

  And protection means that the original purpose was to protect the liberty of the mind, to protect the existence of religion. Madison argued very clearly that religion flourishes more when government does not interfere with it. It was meant to protect religion by not letting one religion dominate others. If you put the Catholics in charge, they'll dominate Protestants. And if you put the Baptists in charge, they'll dominate the other Protestant denominations. If you want a religious society, you have a separation of church and state. But that was meant to let them flourish. You can argue that separation of church and state is meant to have society be more and more secular, but the founding idea may not have been that at all. And the idea could be protection of religion.

• 12:03Nick Capodice?

  All right, you ready for number two?

• 12:04Hannah McCarthy?

  Yep.

• 12:05Nick Capodice?

  Number two, neutrality.

• 12:08Speaker 05

  Neutrality. And this suggests that the meaning of the dual religion clauses is you must treat religion and secularism neutrally, and all religions neutrally, and all criticisms of religion neutrally. So anything that goes to the seculars, the religious get. Anything that goes to the religious, the seculars get. And neutrality. And this phrase of neutrality, the Supreme Court has used this many, many different times, often without agreement of what neutrality means, though.

• 12:40Hannah McCarthy?

  What does Morgan mean when he says the justices cannot agree on what neutrality means?

• 12:46Nick Capodice?

  I'll get to that real soon, but let me get number three out of the way first.

• 12:49Speaker 05

  The third version is separation.

• 12:53Speaker 05

  And there was a very important case, the Lemon case, 1971, Lemon v. Kurtzman. And the Lemon test said that essentially, we had to avoid any kind of entanglement, that whenever a public institution was advantaging one over the other, or even becoming excessively entangled with religion in any way, this was a violation of the Constitution.

• 13:21Speaker 07

  I discern eight, eight grounds on which church-state cases have been founded by this court. And I venture to say this is the first piece of legislation ever before this court that violates all eight.

• 13:34Nick Capodice?

  The Lemon Test: Lemon v. Kurtzman. So in the 1960s, both Rhode Island and Pennsylvania had laws that gave money to religious private schools. The court voted eight to one that this violated the First Amendment. In his opinion, Chief Justice Warren Burger said that these laws established, quote, "an intimate and continuing relationship," end quote, "between church and state." And the word that the court used in this opinion is entanglement. Church and state cannot be entangled. They must be separate.

• 14:10Hannah McCarthy?

  What is the test, though, in the Lemon Test? Is it like you can look at a law and check off some boxes and determine if it's constitutional or not?

• 14:19Nick Capodice?

  Yeah, essentially, it's three prongs, a fork, if you will. Prong one: purpose. Does the law have a religious purpose? Prong two: effect. Does the law advance or inhibit religion in any way? And prong three: entanglement. Does the law result in an excessive government entanglement with religion? You check any of those boxes? You failed the Lemon Test. That law is unconstitutional.

• 14:45Speaker 05

  And it essentially meant that we had to have a full separation between the two, which means that public institutions are essentially secular by constitutional mandate. That was the reigning understanding for about 50 years until very recently. And with the current constitutional revolutions, the Supreme Court has essentially abandoned separation.

• 15:07Hannah McCarthy?

  Very recently? What happened?

• 15:10Nick Capodice?

  I'm gonna tell you about how the Lemon Test is now pretty much irrelevant, and we'll talk about everything going on when it comes to church and state in the modern courts era right after this break.

• 15:22Nick Capodice?

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• 16:08Nick Capodice?

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• 16:29Hannah McCarthy?

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• 17:14Hannah McCarthy?

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• 17:42Nick Capodice?

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• 18:27Nick Capodice?

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• 18:47Hannah McCarthy?

  We're back. We're talking about the separation of church and state. And Nick, you just spent a lot of time explaining what the lemon test was, only to say that it does not matter anymore.

• 18:58Nick Capodice?

  Yep. Lemon is gone, Hannah. No more lemon. Happening today, the US Supreme Court set to hear the case of a former Bremerton High School football coach, Joe Kennedy.

• 19:06Speaker 02

  Joe Kennedy, last coach of the Bremerton High School football team. Seven years ago, the school district fired him for praying on the field with his players.

• 19:13Nick Capodice?

  Kennedy v. Bremerton School District 2022. Now, listeners might know this as the praying coach case. This is about a high school football coach named Joseph Kennedy, who prayed at the 50 yard line at football games, students eventually joining in. The school board asked Kennedy to stop to pray somewhere else or at some other time. He did not, and his contract was not renewed as a result. Again, here's Morgan Marietta.

• 19:39Speaker 05

  And there is a strong debate about the facts of the case. And I like to set that aside a bit because the facts that the Supreme Court recognized were these, that he did in fact pray. He did have some students join him, but he wasn't asking them to. They did it of their own free will. It was on his personal time. It wasn't in class. That is not allowable. He wasn't proselytizing. But what he was was someone who was in this

• 20:08Speaker 05

  Middle ground between whether he's a private citizen or he's the government himself. A teacher in a public school is both of those things. And this is why this is a tough case. He is a person. And under the free exercise clause, he is a citizen with rights to be religious and the state can't coerce him into not being religious.

• 20:30Nick Capodice?

  But also, he is a member of the government. He is a public school teacher. And a member of the government cannot coerce students to be religious.

• 20:41Hannah McCarthy?

  So this coach, you know, as a private citizen and also a government employee, he's kind of straddling that border, right? If we're talking coercion, it's like, who is coercing whom? Either he's coercing students to be religious or the government is coercing him to not be religious.

• 21:01Nick Capodice?

  Exactly. It is a very, very tricky situation.

• 21:04Hannah McCarthy?

  So what did the court decide?

• 21:05Nick Capodice?

  The court decided six to three in favor of Coach Kennedy. In the opinion by Justice Neil Gorsuch, he says the school's case for firing the coach, quote, rested on a mistaken view that it had a duty to ferret out and suppress religious observances, even as it allows comparable secular speech. And in her dissent, Justice Sonia Sotomayor expressed that the court had long said teachers cannot lead prayer in school and that this decision, quote, charts a different path, yet again paying almost exclusive attention to the free exercise clause's protection for individual religious exercise, while giving short shrift to the Establishment Clause's prohibition on state establishment of religion, end quote.

• 21:50Speaker 06

  For the first time in eight years, Joe Kennedy will coach under the Friday night lights here at Bremerton Memorial Stadium. While some fans are coming just to watch the football game, others will be here paying close attention to see what Kennedy does after the play clock runs out.

• 22:13Hannah McCarthy?

  Okay, Nick, we've talked about the Supreme Court's interpretation of church and state. Now I would love to understand something a little more tangible. Money. Churches don't pay taxes, right?

• 22:27Nick Capodice?

  No, they do not. Churches are exempt from local, state, and federal taxes.

• 22:31Hannah McCarthy?

  And can churches get money from the government?

• 22:35Nick Capodice?

  Whew, that is, that's a little more fuzzy. Here again is Katherine Stewart, author of "The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism."

• 22:45Speaker 04

  On the question of money, on the question of taxation, there has absolutely been backsliding because our founders were really clear that any form of government money for any church was unacceptable. Madison and Jefferson wrote that the very definition of tyranny, tyranny, they used that word, was to, as they put it, "tax Peter to pay for the religion of Paul." They said this repeatedly, that citizens shouldn't have to support religions they did not wish to support, and they were really adamant about that. But today, taxpayers are directly subsidizing religion in all sorts of ways, including tax exemptions, subsidies, direct funding through a variety of means.

• 23:29Hannah McCarthy?

  Does Catherine have any specific examples of this?

• 23:32Nick Capodice?

  Yep, she sure does.

• 23:34Speaker 04

  So one example is the crisis pregnancy centers, which take in nearly $100 million every single year in direct government money and taxpayer funding. The state of Ohio alone spent $14 million last year on these right-wing, typically faith-based programs. They act like they provide medical care, but things, you know, they don't. They exist to evangelize women in the form of religion that they want to promote, and they might do a few other things, but that is their purpose.

• 24:06Nick Capodice?

  A study that I found from 2021 cited that at least 10 states have used federal grant money to fund anti-abortion centers.

• 24:15Speaker 04

  Another example about this taxpayer funding of religion is vouchers for religious schools, which, as you know, school vouchers direct many millions of dollars in taxpayer funding to religious groups. They want the government to pay directly for religious schools, which are then free to teach Christian nationalist versions of American history or inculcate students in contempt for other faiths. And right-wing legal activists are setting up a case in Oklahoma right now to that end. So not paying tax to support any church you don't want was one of the clearest aims of our founders. We are where we are now because

• 24:54Speaker 04

  of five decades of investment in the infrastructure of what I call the Christian nationalist movement.

• 25:03Nick Capodice?

  And I have to jump in here to make something perfectly plain. When we talk about religious nationalism today, specifically in the United States, Christian nationalism, we are not talking about Christianity or any other religion. This is something entirely different.

• 25:20Speaker 04

  Listen, let's really be clear. Christian nationalism is not Christianity. It's not a religion. Christianity in America is very diverse. So Christian nationalism is a political phenomenon that involves exploitation of religion for political purposes. I think of it as combining two kinds of things. On the one hand, it's a set of ideas and ideology. And on the other hand, it's a political movement, an organized quest for power. As an ideology, it boils down to the idea that America was founded as a so-called Christian nation, Christian here referring to a very conservative or reactionary conception of that religion.

• 26:03Speaker 04

  And it says that all of our problems stem from the fact that we've supposedly forsaken this, you know, this kind of heritage. So it's a kind of, there's an ethnonationalism sort of built into it. But this ideology is a tool. It's really just a tool for a leadership-driven political machine that turns this story into political power.

• 26:27Hannah McCarthy?

  This ties into something else that I'm curious about. Can churches support political candidates? Like, can they give to campaigns?

• 26:34Nick Capodice?

  No, they cannot. And this is due to something called the Johnson Amendment.

• 26:38Speaker 04

  The Johnson Amendment is a provision in the US tax code has prohibited all 501(c)(3) organizations, nonprofit organizations, from endorsing or opposing political candidates. But of course, it's totally ignored or circumvented on the ground, often through what they call "values voting." They will put out voter guides that don't endorse any particular candidate, but they'll say, hmm, they'll say, they'll put the two candidates side by side. And how do they vote on abortion? And so you're supposed to look and say, hmm, this one checks all the boxes for biblical values, abortion, biblical marriage, et cetera. So that's one way they get around that. Now, you know, I've been working in this field for 15 years.

• 27:23Speaker 04

  I've published two books on the topic. And I've attended some events at conservative-leaning churches that talk very specifically about political candidates. But I've attended even more that will say upfront, you know, "We don't endorse or oppose any particular candidate." But then the way they talk about the election leaves absolutely no question in anybody's mind how you're supposed to vote in order to reflect those so-called biblical values and get people to vote one way or another.

• 27:58Hannah McCarthy?

  Nick, all of this leads me to ask, can we think of religion as just speech? Speech from a religious point of view?

• 28:08Nick Capodice?

  One could argue that it is. But Catherine pointed out to me that it isn't according to our tax code. Religions enjoy tax privileges and benefits that for-profit and nonprofit companies do not. And also, religious organizations are permitted to do other things that would cause a nonreligious enterprise to be rightfully sued.

• 28:31Speaker 04

  Religions are allowed to do things that no other companies and nonprofits are allowed to do. They're allowed to discriminate against women. They're allowed to discriminate against people of other ethnic backgrounds. They're allowed to, you know, exclude gay people from positions of leadership. So when they want their special subsidies and their legal privileges and their tax privileges, they say, oh, we're just speech like everybody else. But when they want to get into public education, or when they want to force the programs into government, they say, no, no, we're just like everybody else. So they're really trying to have it both ways. They want to have their cake and eat it, too.

• 29:14Nick Capodice?

  So I want to end here with something that Morgan mentioned to me. I mean, I went into talking with him, thinking I had a pretty good handle on church and state. And I left the interview more uncertain than when I went in.

• 29:27Hannah McCarthy?

  Why? What did he say?

• 29:28Nick Capodice?

  Well, he talked to me a lot about rights versus powers. Who would you say that rights are for?

• 29:37Hannah McCarthy?

  I would say that rights are for people. We always say that rights protect people, often from power.

• 29:44Nick Capodice?

  Yeah. And I would go on to say, the more power you have, the fewer rights you need. Morgan told me, you can't have a conversation about church and state without first having a conversation about how you view the Constitution. Now Catherine pointed out the growing power of the religious nationalist movement. I mean, the subtitle of her book uses the word dangerous, the dangerous rise of religious nationalism. It is a fact that if we are talking about the Supreme Court, the current court has overwhelmingly ruled to advance conservative Christian values. But at the same time, when Morgan was telling me about

• 30:25Nick Capodice?

  the praying coach case, he pointed something out that I had not considered, that if we're talking about people, Americans, instead of organizations or courts, he told me that only one out of three Americans say they are churchgoers.

• 30:42Speaker 05

  But two out of three are not. And the people who have no religious beliefs at all, and no interest in it are about a quarter or a third of the population.

• 30:52Speaker 05

  But those people who have rights, they're now more protected. The coach is more protected now than he used to be because he is a minority. And minorities are what are the beneficiaries of rights protection. So you can't get around whether you're going to decide an original constitution is how you read it, or a living constitution is how you read it, especially in regards to religion. You've got to pick. And it either means that we protect religious citizens under an original constitution, or it means that we separate under a living constitution. And you must decide what this means.

• 31:42Nick Capodice?

  Well, that's church and state. I'm going to be thinking about it for a long time. Thank you, Charlie and Anthony. This episode was made by me, Nikepadiche, with Hannah McCarthy. Christina Phillips is our senior producer, and Rebecca Lavoy, our executive producer. Music in this episode by Jesse Gallagher, Hanu Dixit, Ikimashu Oi, Halis Niko, The New Fools, Howard Harper Barnes, Fabian Tel, Valante, Kurt Lindon, One Two Feet, Ava Lo, Chilco, Apollo, BioUnit, Eric Kilkeny, and the man who separates his songs in just the right key, Chris Zabriskie. Civics 101 is a production of NHPR and New Hampshire Public Radio.

• 32:27Speaker 07

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