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As has become the current pattern, the First Amendment’s Establishment Clause keeps providing fodder for the courts.

The Supreme Court will hear Salazar v. Buono during its upcoming session, involving whether a cross in an isolated area of Mojave National Preserve, first erected in 1934 as a war memorial, will be held unconstitutional. It is attracting a great deal of interest. Not only has Justice Samuel Alito, Jr., replaced Justice Sandra Day O’Connor, the swing vote holding that a display of the Ten Commandments in a Kentucky courthouse was “an impermissible governmental endorsement of religion” four years ago, but it will also provide the first real look at Sonia Sotomayor’s views on such issues.

There is also controversy over inscribing “In God We Trust” on the wall of the new U.S. Capitol Visitor Center. The phrase was not included, even in its replica of the House chamber, despite the fact that it appears above the speaker’s rostrum there. Congressman Dan Lundgren (R-CA) introduced a resolution to now add it on the Visitor Center wall, along with the Pledge of Allegiance, supported by all but 10 members of the House. But The Freedom From Religion Foundation has challenged that as an unconstitutional violation of the separation of church and state.

As these controversies and recent history illustrate, America has moved a very long distance from “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause has been used in recent years to sue for everything from banning crosses or the Decalogue from public property to preventing Boy Scout meetings on state or local government property, in cases that did not relate to Congress, did not involve passing a law and did not establish a particular religion.

What has turned the Establishment Clause into such a major source of legal wrangling?

The greatest cause has been the transformation of the Establishment Clause into “the separation of church and state.” The key step was the ruling in Everson v. Board of Education (1947). The Supreme Court re-interpreted the establishment clause as something very different, requiring a separation of church and state, supposedly based on Thomas Jefferson’s letter to the Danbury Baptists. However, that transformation cannot be justified.

Using Jefferson’s phrase in a letter as an authoritative legal interpretation of the First Amendment is highly questionable. Jefferson was not even in America when the Constitution was written. The letter was written a decade later, and was personal and private, rather than a attempt to rewrite the meaning of the Establishment Clause (How many other cases of phrases in private correspondence overriding explicit Constitutional language can you think of?).

The Baptist’s letter to Jefferson stated that “the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor,” and was intended only to defend “what religious privileges we enjoy…as inalienable rights.” He had no objection to either statement, even though neither is consistent with current expansive church and state interpretations.

Jefferson’s response directly addressed fears of a nationally established government-supported church, when European governments routinely had official religions, to Baptists in Connecticut, who had been abused by its official Congregationalist church in the past. For instance, in 1744, “fourteen persons were arrested for holding a Baptist meeting…tried, fined, and driven on foot [in February]…twenty-five miles, and thrust into prison, without fire, food, or beds, where they remained…for several weeks.”). It was not an attempt to redefine the issue from a specific Constitutional right into an alternative vague and slippery legal concept.

The strained interpretation of Jefferson’s letter is also inconsistent with Jefferson’s own words and actions. For instance, in his second Inaugural Address, he stated, “in matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the general government, I…have left them, as the constitution found them, under the direction and discipline of State or Church authorities.” That clearly violates the current interpretation of the Establishment Clause, supposedly based on Jefferson’s views.

In addition, Jefferson quoted the Establishment Clause immediately before “thus building a wall of separation between Church & State.” That meant he was referring to its specific ban against a federally imposed religion. It did not impose any other limits on the federal government. It clearly did not make governmental endorsement of religion impermissible. Yet since Everson, courts have accepted that dramatic redefinition.

Justice Hugo Black’s majority opinion in Everson not only created the precedent that the Establishment Clause meant the separation of church and state, it even added the addendum that “That wall must be kept high and impregnable. We could not approve the slightest breach.” Justice Wiley Rutledge’s opinion went even farther, saying that “a complete and permanent separation of the spheres of religious activity and civil authority” was required. This took a restriction preventing the federal government from imposing a religion and turned it into one denying virtually any role for religion in the public square.

The Everson reading of the Establishment Clause was a sharp departure from prior court interpretations. In Reynolds v. United States (1878), for example, the Court summarized Jefferson’ s meaning as “the rightful purposes of civil government are…to interfere [only] when principles break out into over acts against peace and good order.” Interfering only to maintain peace and good order is a far cry from a complete separation of church and state. As Justice William Rehnquist put it in his dissent in Wallace v. Jaffree (1985), “the wall is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”

Beyond the redefinition of the Establishment Clause, its reach has also been broadened by the dramatically expanded scope of federal power. The Constitution, particularly the Bill of Rights, constrained the federal government to strictly limited, enumerated powers. It gave Washington no power to infringe on religion whatsoever, except for the possibility of establishing a federal religion. The Establishment Clause prohibited that. But now federal government has grown so extensive that its tentacles touch everything, including every religious issue, in some way. The separation of church and state is then invoked as a way to eviscerate any connection to any specific religion whenever anyone decides to object. But using a bloated-beyond-Constitutional-recognition federal government (allowed by another failure of the courts) as an acceptable reason to shrivel the allowed roles for religion is very nearly the opposite of the Establishment Clause’s purpose of protecting rights of religious expression against federal encroachment.

The burdens imposed by Everson have been further inflated by a radical reinterpretation of the Fourteenth Amendment. The First Amendment did not apply to the states. It only applied to the federal government. In early America, states were acknowledged to have powers with regard to religious matters, as evidenced by state-established churches that continued well after the Constitution’s ratification. What was banned was a federally established or supported church. But creative judicial interpretation of the Fourteenth Amendment (see Raoul Berger’s work for a thorough treatment) extended much of the Bill of Rights to the states. What was intended to only limit the federal government is now applied to every state and local government as well (since local governments are creatures of the state). The originally-accepted powers of states with regard to religious matters disappeared, replaced with a ban on anything that could be taken to imply any degree of endorsement of any aspect of Christianity (interpreted as the “established” religion).

These steps have turned the Establishment Clause on its head, “transforming the constitutional guarantees against discrimination on grounds of religious differences into provisions that necessitate it,” in scholar Philip Hamburger’s words. They undermine the moral basis of our liberties, expressed in George Washington’s admonition that “Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” Such a separation of church and state is not the protection against federal dictation of religion that the Constitution called for.

Beyond the Supreme Court’s redefinitions and the mushrooming of government, there is another important reason for the boom in church and state litigation. That is a changed interpretation of the 1976 Civil Rights Attorney’s Fees Awards Act.

The 1976 Civil Rights Attorney’s Fees Awards Act originally had nothing to do with church and state issues. It amended the Civil Rights Act of 1964 to allow successful civil rights plaintiffs to be awarded attorney’s fees. However, the ACLU and other groups have managed to widen the interpretation of civil rights suits to include church and state challenges, and have been using that act to collect rich attorney fee settlements in such cases (e.g., $540,000 in the Roy Moore case in Alabama and $790,000 in the San Diego Boy Scout case). The result is that every government body with any link to religion, however tenuous (e.g., the cross in the Los Angeles County seal), can be turned into an involuntary ACLU donor. And financially strapped government bodies, faced with the uncertainty of conflicting precedents and the potential of having to pay both their own defense fees and plaintiff attorney’s fees all the way to the Supreme Court, are being widely cowed into submission.

All of these changes have drastically transformed the legal landscape of church and state issues in America. Undoing any of them, even in part, would lessen the turmoil and controversy. Is Salazar v. Buono likely to do so?

The case cannot change the interpretation of the 1976 Civil Rights Attorney’s Fees Awards Act, which is not at issue (though Congressional legislation to change it has been introduced). But the others could be reached by the Court.

Unfortunately, the Court is very unlikely to suddenly shrink the federal government back to only its enumerated powers, when it not only abetted, but often ramrodded, the overreaching. It is unlikely to undo its long-established abuse of the Fourteenth Amendment , which expanded the Establishment Clause’s reach from only the federal government to every level of government. But there is always hope that the Court will overturn the Everson misinterpretation and the precedents built on it, returning us to the Constitution as the highest law of the land and returning the federal government to its sole religious role of defending others’ “peace and good order” against violation.

Given that the Court, when not in the mode of finding new rights in “emanations from penumbras,” tends to rule on narrower, technical grounds (such as whether Mr. Buono actually has standing to sue or whether a subsequent property transfer executed by the government changes anything from the status quo), that is probably unlikely. But maybe it will surprise us.

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