In Freedom of Expression, we have been discussing, among many other things, the usefulness of the “wall of separation” metaphor first coined by Jefferson and cemented in American jurisprudence by Hugo Black in Everson v. Board of Education. The metaphor has been used describe the proper relationship between church and state, and the appropriate administration of the Establishment Clause.
The First Amendment is widely interpreted to contain both a free exercise clause, giving Americans a constitutional right to religious expression and practice, and an establishment clause, prohibiting government from establishing, endorsing or unfairly burdening or aiding any one religion over others. As we have been wrestling with it, this tension between “no aid” and “no hindrance” is highly problematic. The results often produce some odd compromises, like the Allegheny County v. ACLU plan of rotating displays at Christmas.
My question for the class in this post: Is the wall, or Black’s “high wall”, the best metaphor? Is it even an appropriate metaphor? Or has it actually been detrimental, leading us down false roads of inquiry and public policy? Have the limitations implicit in the metaphor, realizing all metaphors to be inherently limited, actually hurt constitutional law? If you agree that the wall metaphor is deficient, can you think of a better one? One that leads us down better, or at least less destructive, roads of discourse and public policy?
James Madison, for example, proposed instead a line, one that undulates and changes, accommodating various levels of cooperation and collaboration depending on the circumstances.
I proposed in class the metaphor of a shoreline, a metaphor that recognizes that you cannot hold back the sea, that there will be a co-mingling of land and sea — we call it the beach, or shore — and one that acknowledges varying levels of interaction. Think of an inlet, a set of circumstances, such as school vouchers, in which the government allows religious expression and exercise alongside secular expression. The water is allowed to pool, but it is contained.
Taylor Damron added to this metaphor the notion of silt, or those areas such as public monument parks in which there is liberal mixing of the secular and the religious. Think Pleasant Grove City v. Summum, the case we just litigated.
The premise for me in the shoreline analogy is that the question is not whether government should be permitted to affect religion or vice versa. The question is how, and a metaphor of a wall diverts us from wrestling with the First-enfranchised right of religious freedom and with the difficulties of finding, determining, negotiating the terms of cooperation (intermingling). I, therefore, am an accommodationist. The separationists among us will disagree with me, and that’s cool (how boring class would be if we all agreed on everything!).
I await your answers. (Let me hear from you by midnight Sunday.)
October 30, 2008 at 11:02 pm |
Much as I would like to be a pure separationist, uncompromising separationism runs into the same fate as First Amendment absolutism; it runs into another right. In this matter, while there are many areas where the church and state clearly may not mix at all, there are other areas, like school prayer and public Christmas displays, where the rigid enforcment of separation of church and state is not possible. In situations where people are not being coerced to participate in religious activity, courts will simply have to judge by the circumstances and try to take the action which results in the least damage to anyone’s rights.
Painful as a metaphor this bad is to contemplate, I suggest a horribly mixed metaphor. In some areas, separation of church and state will function as a wall, while in other areas, there will be areas of uncertainty, blurred lines, that courts should not interfere with until and unless someone’s rights are violated. Absolutism when the right of an individual not to be coerced into another’s belief(as in the case of a teacher leading an “involuntary” prayer; nothing a teacher “suggests” can be truly involuntary before college) is needed, but it cannot be automatically applied to all areas, or the courts will do far more harm than good to the rights of the citizenry. So perhaps we should think of separation of church and state as a irregularly shaped wall behind the shore, with considerable areas it does not block, and other areas where parts of the wall jut forward, shielding particularly sensitive areas.
But while I think my legal argument has some merit, with its odd hybrid of absolutism where it is most needed and accomodation whenever absolutism is not badly required, my metaphor is clearly lacking. Could someone please come up with a better one?
October 31, 2008 at 6:36 pm |
My metaphor is going to seem a bit strange, but the point is similar to that of a shoreline. The relationship between church and state is more like a cell membrane than a wall. Obviously, the nucleus and other cellular organelles of our country are our governmental institutions. It is necessary for the cell to function and even live. The church is what is outside the cell itself. It is separated from the inside of the cell by a membrane. But, as you might know, the cell membrance is selectively permeable. In other words, it recognizes certain things as being dangerous to the cell and keeps them out. Likewise, it recognizes things that are okay – perhaps even needful – for the cell and allows them to cross the membrane and enter it.
I’m sure this metaphor has problems, but the point is that there are ways of keeping certain things separate and ways of allowing things to intermingle – much like Dr. Carroll’s metaphor of the inlet. The wall of separation is much to limiting, and I do believe it has been harmful to our Constitution and to our nation. I think it has created too much of a black and white area and not enough grey. As a result, I think it actually hurts by limiting free exercise in favor of avoiding the endorsement of a particular religion. It has made words like “God” and “Merry Christmas” taboo because they represent highly religious ideals. If this is the course our country is taking, then how is the First Amendment going to remain effective? In my personal opinion, I believe this is an area in which the First Amendment has actually becoming harmful rather than protective because of the metaphor of the wall.
I suppose I might be labeled an accommodationist, and that’s fine. I just think grey is a prettier color than black or white.
November 1, 2008 at 8:10 pm |
Thank you for coming up with a better metaphor. The cell membrane metaphor actually makes a lot of sense. Ultimately, most cases don’t involve a massive violation of separation of church and state. Courts are required to use their judgement in cases which aren’t clearcut and obvious, and there isn’t an reliable, universally applicable rule they can go by in many instances. Being an accomodationist and seeing shades of grey as well as black and white isn’t particularly enjoyable, but it is necessary.
November 2, 2008 at 10:06 am |
I guess that I kind of agree with Rebecca because as I was thinking about what metaphor I personally would use, I came up with the idea of a sponge. A sponge can soak up most things, but there are of course the occasional leaks when the liquids pass through when they are not intended to. In the area of church and state these “leaks” seem to often result in bizarre exceptions to the laws that should probably not be deemed acceptable by ‘all or nothing’ separationists. I guess that U am a separationist since the idea of certain religious things being allowed while others are not seems highly hypocritical and I think we would be better off not allowing them at all. Basically what I think I am saying overall is that the wall metaphor is highly misleading in its impenetrability, a wall is strong and solid, which is not an accurate portrayal of the true level of separation that exists between church and state.
November 2, 2008 at 10:08 am |
Sorry, I am typing in the dark, I meant “I am” not “U am”.
November 2, 2008 at 1:22 pm |
I think Rebecca’s metaphor is a very good one. I maybe biased because I am a bio major. Back to the question, I think that the wall metaphor is misused. The metaphor was introduced by Jefferson and justice Black built the wall. This metaphor of a wall has been an instrument in the separationist language used for discriminatory purposes i.e. anti-
Catholic. Jefferson’s use of the metaphor had a different context than it si presumed now. I do not think he would have wanted religious bodies to be separate and not have a role in shaping their government. I think Jefferson did not want a state religion and he did not want the government to prohibit the religious practice of others. The reason the metaphor is misleading is because the First Amendment only restricts government; however, the wall restricts religion. I think Rebecca’s semi-permeable cell membrane is good metaphor for what Jefferson had intended.
November 2, 2008 at 3:16 pm |
Just like many of my peers, I also feel like Black’s high wall metaphor for the separation of church and state is far too strong and verges on being an inappropriate term for the situation. The wall metaphor hints at the fact that one side of the divide is being protected from the other, i.e. one is good while the other inherently evil. As a result, the wall metaphor indirectly brings about discrimination against religion and religious expression because we are trying to completely separate two items that cannot stand without each other. Thus, I think this metaphor has led us down the wrong path because it has shifted our focus from treating the two equally to “defending” the state from religious interference. In order to thrive as a nation, the Constitution must have an equal provision for both. Now, we know what a non religious regime looks like and how it indirectly forces its inhabitants to accept its “nonreligious” view. The USSR and North Korea are perfect examples of this fact. Neither country was allowed to practice religion because the “secular” rubric ran so strong that it forbid anyone from partaking in any religious statement other than atheism…which is in turn a religious statement in itself. Atheists focus more on God than many other religious people I know. Conversely, we must take a look at the theocracies like Saudi Arabia and Iran. They believe so strongly in one religion that they enforce it on all the inhabitants. Sound familiar? Well, it should because nonreligious and solely religious states have one thing in common: both enforce a “set of beliefs” onto the populace. Although our Founding Fathers did not experience Communism and the like, they still fled to America in order to practice religious freedom. As a result, the Constitution included the freedom to practice religion as well as freedom of speech. Just like John Milton argued in his Areopagitica, false ideas “serve to polish and brighten the armoury of Truth, even for that respect they were not utterly to be cast away.” Essentially, Milton is stating that an open forum of ideas is ideal because Truth will always find a way to distinguish itself from the madness. Thus, it is only logical for the “state” part of the equation to give religion the freedom to move. It should not dictate every action, but one cannot effectively have a republic and take out religion because by doing so we crush the rights of the people.
Consequently, I suggest the metaphor of a human limb. A limb contains bone and muscle, and although the two are distinctly diverse and play different roles, they have to connect at the tendon in order for the body to work. There needs to be a tendon for the separation of church and state. In some cases, the muscle and bone will overlap, while in others they will not have an opportunity to touch because the tendon is what connects them to each other. God provides us with numerous examples of how two different items can work the most efficiently when they are placed together. Each piece will serve to check and balance the other. As a result, religion serves as a powerful force of expression, while the state is the medium through which expression must be passed. Thus, without religion we have a vacuum in our souls, but without the strengthening power of the government, we most likely would not continue developing as a nation. Therefore, we must have outlets for religion and the state to interact. I highly doubt that our Founding Fathers wanted to restrict religion in any way. Instead, they wanted the populace to have a safe means of expressing it, and as long as it caused no harm (Scalia) then it could freely be expressed.
Ultimately, I guess I could be deemed an accommodationalist because I want to see the church and state work together for the benefit of the community. My metaphor hopefully encourages cooperation between the two forces, rather than an absolute unwillingness to give and take which is demonstrated the “high wall” metaphor. The two components must work together. After all, a strict adherence to the high wall metaphor is misleading because the wall is supposed to limit the government . . . not religious expression (Thushy).
November 2, 2008 at 6:30 pm |
The shoreline metaphor is a very good one, but if I were to have to come up with a different one I would like to think of a garden.
The government sectors off an area and buys some soil to set up a garden in which religion has the ability to grow and flourish. Of course the government should not go out and buy a large bag of Christianity seeds to plant in the garden — that would be a dull garden indeed–, but instead those religious followers must plant the seeds themselves. It is not the government’s responsibility to water the garden; they have to worry about watering the grass. It is a communal garden that all people can enjoy and while they are enjoying it they must water it if they want to enjoy it much longer. However, the government does have the responsibility to construct a small “garden wall” to keep the various religions from leaving the garden and transplanting themselves in the bermuda grass, or in some other sector of government. The occasional flower growing just outside of the garden is no problem as long as it still looks pretty. But if kudzu, for instance, is introduced to the garden and then spreads without restriction, soaking up the grass’s resources, the government’s got to go get the machete from the tool shed.
Religion (the garden) is not completely apart from government and society. It is within the yard so people can easily enjoy it and check out the flowers and whatnot. But it does have its own distinct area within that yard. It is not beyond possibility to expand the walls of the garden or allow a little overflow of plant life, but the grass (rest of government) has to continue to grow.
November 2, 2008 at 6:46 pm |
I think Rebecca and I were on the same page as far as more accurate metaphors go. While I had not come up with so eloquent an explanation as to why, the phrase “selectively permeable” continually came to mind when I tried to come up with a new metaphor. Like most everyone else has said before me, true protection of freedom of speech requires that our government recognize both the freedom to express religious beliefs and to be free from coercion to believe a certain way. As such, the Supreme Court must interpret the Constitution in such a way that the two rights can overlap when necessary (i.e. that religious thought can “permeate” the “cell wall” of government occasionally). Decisions such as the Rosenberger ruling that recognized that speech is speech regardless of whether or not it is religious in nature and the principle that Scalia introduced–that the government must allow religious symbols until the point that violence results from it are good examples of such an interpretation.
I think Alyssa’s metaphor of the human limb is even more accurate, however. The idea of two distinct but essential rights balanced by a smaller, more flexible middle ground necessary for function perfectly describes the ideal relationship between the interpretation of freedom of expression and freedom of religion.
I too, am an accomodationalist. The church and state both play equally important roles in the lives of American citizens, whether or not individuals are of a particular religious denomination. While I believe even the staunchest separationist would recognize the existence of grey area between two explicit rights, only an accomodationist can acknowledge the important role these delicate balances play in defining how our government functions.
November 2, 2008 at 8:46 pm |
I like the idea that Rebecca came up with, about a membrane and being selectively permeable. There’s a big difference between a state sponsoring a religion and a state allowing a religious group to use a classroom. In some ways I also agree that the wall approach has hurt our society, in that some religious groups have gotten beaten down when they shouldn’t have been. I think that there are also different levels of intermingling that need to be considered. Again, there’s complete separation, and then subtle changes down to church and state being one and the same. There’s a grey area there that needs to be realized and expanded. I don’t have a great picture or metaphor to explain it though.
November 2, 2008 at 9:53 pm |
I don’t believe the wall metaphor is quite as evil as it has been argued to be. Perhaps a better picture would be of a chain-link fence. In any case, the two institutions must be completely separate MOST of the time in orders for each to function and thrive separately. The fewer times and in as inobtrusively that the two intermingle, the better each one is, and as a result, the better the people are. As long as everyone has an equal right to pursue thier own religion, the governement can and should be neutral towards it by both not overly-pursecuting it and not giving religions special treatment.
For those times, hopefully as few and far between as possible, that religion and government must mix (which I admit is unavoidable at times) the fence metaphor might show how they can be SEPARATE but not fully SEPARATED. You can still see to the other side of a fence and talk together — nothing is hidden from the other, and the two are essentially neighbors, friendly and cordial as much as need be.
As the years go by, the fence will feel the wear and need to be mended. Each neighbor can fix the holes and strenghten the fence, or let the holes stay if it is a good spot (if there is an exception to the separation). Over time, the fence will grow and change with the people who oversee it and maintain it — when it’s time to change something, the government can “mend” it by”amending” the law. (terrible pun… but I kind of like it)
Basically I think the two institutions need to be as separated as possible, but freedom of expression, even if religious expression, is a greater compelling interest to the government than possibly offending someone.
November 2, 2008 at 10:17 pm |
First I would like to point out the fact that this site forgot the time change (for the benefit of anyone who happens to post at 11:59 tonight
Anyway, being an accommodationist, I believe the wall metaphor to be flawed as religious people are also citizens and cannot be treated altogether differently. Being a French major, I of course went to language for a metaphor. I thought of English and French and, while they are two separate languages, they share words. While the “languages” function in two separate ways, the shared words are areas where they are talking about the same thing, areas such as public squares or public funds to reimburse parents for transporting their children to schools. There are also bilingual people: people who are religious, but who contribute to the government as well.
However, after reading the other metaphors, mine is my least favorite. I like the cell membrane metaphor because it perfectly describes what the judicial system has been doing thus far; it has kept out some things (statues, practices, etc.) and let in others. I like the garden metaphor because it shows why the two institutions cannot be completely separate; all plants need the same access to the soil. Understandably, the ones that care enough to “water” their “plants” will have the best section of the garden. Finally, I like the chain link fence metaphor because it shows how the relationship changes over time. Why should the government mend a perfectly good hole that doesn’t hurt those who choose not to use it and allows others greater freedoms?
November 2, 2008 at 10:57 pm |
Posting this late, I find everyone before me has said a lot of what I would have said, but this is what I have to add. By trying to not favor one religion over another, the government strays dangerously onto the side of hindering religion, and I think this is the path that the interpretation of the First has started to lean towards. I think it is important to restrict religion a little more in public schools because children are more likely to be easily influenced and coerced by what their school teaches them, whereas adults should know enough about their own beliefs to tolerate other’s while practicing their own.
I like Rebecca’s metaphor, and I came up with something that is pretty similar. I like the idea of a screened-in porch. The screen protects everything inside from bugs, leaves, and other debris while allowing light and fresh air to enter and nourish those who are inside. The porch would be very dark and boring if the walls were solid. The wall would prevent those inside from seeing the light and breathing freely. Still, the people inside appreciate the protection the screen gives from the full conditions outside. It would be overwhelming if thousands of bugs were able to enter.
November 3, 2008 at 1:29 am |
In keeping with the membrane theory as mentioned earlier, the church-state delema is less about the big issues and more about the small “silt-like” things involved in each case. The hints of religious expression throughout our society are dispersed into the world of law even in the election of presidential candidacy. I mean, though it is not legislature, an elected official of that much importance has the direct ability to influence legislature by way of veto, mixing water(executive) and land(legislature) to make silt(popular vote persuasion).
November 3, 2008 at 3:54 am |
I personally like the wall metaphor. I like the idea of total separation between church and state. I think they should coexist on each side of the wall. However, I realize that not everyone thinks this way and taking that into consideration I think that a “better” metaphor would be a “guard rail between church and state.” Much like the guard rails along the sides of roads, you can see what’s on the other side, and you can even step over it if you have to, but you’re protected from what’s on the other side if you happen to hit it.
Rebecca said something interesting about mentioning words like “God” and “Merry Christmas.” If you’re an individual and want to wish someone a “Merry Christmas” instead of “Happy Holidays,” I may not think it’s the best choice of words, but regardless, if that’s what you want to say then say it. Not everyone you speak to will celebrate Christmas, so a more generalized expression of ‘Happy Holidays” is better in my opinion (although that’s following the assumption that everyone celebrates something, which isn’t the case but it’s not an unreasonable assumption), but for the state to do that is a different matter. The state should remain secular. The state shouldn’t put up any religious images or phrases. It’s irrelevant. “In God We Trust” and “One Nation Under God” have no place on our currency and in our pledge respectively. What do they have to do with either? It can be alienating not only for those that don’t follow Christianity, but for others who don’t want religion displayed in their faces in places where it has no reason to be in the first place.
The First amendment protects the people from the church, as well as the church from the people. Religions should be allowed to exist and operate without public influence… and that should be reciprocated. If someone wants to be around religious things, then they can. They can go to church, go to a Christian bookstore, put up bumper stickers, etc. At the same time, if someone doesn’t want to be exposed to it then why should they be? Of course they can choose not to go to church, Christian bookstores, or buy religious bumper stickers, but it the fact that our government endorses religion on our money and in our pledge alone, excluding the controversy around things like the Ten Commandments and other religious symbols in public places, defeats the entire purpose. How can you protect people from religion when they look at a government endorsement every time they open their wallet? Why should children have to recite a pledge with the name “God” in it? Children recite the pledge because they’re told to, and because their classmates do it. They don’t sit down and think about what they’re saying, what it really means, and why they’re saying it. These publicly endorsed religious messages may very well affect us at a subconscious level, both as children and adults. Alyssa mentioned something about one side of the wall being good, the other evil. I totally disagree. Neither are good nor evil…. they’re just ideas and religion and it’s rituals and rites is the manifestation of one idea, while the state and it’s laws and our Constitution is another. On one side of the fence, or guard rail, is a Siamese Fighting Fish. On the other is another Siamese Fighting Fish. At the end of the day, they’re both fish. There isn’t a good fish and an evil fish. They’re just fish. They’re fish that can coexist as long as there is a divider in the aquarium, but they would clash if that divider was removed. That’s what the “wall” or “guard rail” or whatever you want to call it is. It allows religion and the state to coexist peacefully.
November 4, 2008 at 1:47 am |
well, i am not an actual student in this class, but i did read the following post and it’s replies, and figured no one would mind if l used my first amendment rights and expressed what i thought with a view from outside the classroom.
Dr. Carroll posed a question about the wall metaphor that Jefferson uses to describe the relationship of church and state, and i have to agree with him that it is indeed deficient in that fact that it lacks flexibility. BUT, one might argue with the facts that Clint has recently posted, about the fact that we still have religious notions engraved on our currency and in the words of our Pledge of Allegiance. And that brings up a few red flags on the “holes” in the wall that Jefferson built.
In reading all of the metaphors that everyone has come up with, i like the idea of an actual structure, just because it is something that man builds, maybe a wall structure is too rigid, but i believe that Dr. Carroll’s idea of a shoreline is just too natural, and uncontained. We as people decide what gets to go up between the church and the state, it doesn’t just naturally occur. We are beings of free will, and therefore the idea of something that happens without the hand of man doesn’t fully showcase the idea of what happens in our government. The same could be said about the cell membrane metaphor. Our cells and the membranes around them weren’t created by man.
I like the previous ideas posted by Andrea and Clair, the metaphor of a chain link fence, and that of a screened porch, in relevance to the fact that those are things that WE build. But I think the idea of those may be too flexible, or inflexible.
The fence metaphor shows flaws in the fact that both sides are responsible for the mending. Religious groups have freedom because of our government, not the other way around, so i don’t think the repairs should be mutual. But I do believe that we have rights in that freedom where the government can’t interfere.
For me, the screened porch metaphor shows flaws in the fact that the inside of the porch has nothing pleasant to offer the outside of the porch, and that it is contained by a roof. But even still there are great points that lie in both of those structures, and each of those metaphors spur me to a different thought. Let’s consider the metaphor of a garden lattice.
The government designs and builds the lattice as a separation between the church and state. The church does not build the structure itself, but rather they can plant whatever they would like on their side of the lattice to cover any holes that they would like, and the state can place vines to grow up between the holes on their side of the lattice where they don’t want to see through to the other side. Either side can trim and cut the vines on their side where they feel that the vines are too thick. Each side is responsible for their own vines and upkeep. But ultimately the upkeep of the lattice is placed solely on the government. Sometimes, where one side may have trimmed all the vines down to see nothing but the lattice, the other side may still have thick vines on their side, but the lattice stops one side from trimming the other sides vines. Other times, both sides have trimmed the vines completely to allow a significant Light to pass from one side to the other, allowing an intermingling relationship, but as far as either one is concerned, that is only through specific areas/holes of the lattice.
I think this shows a good metaphorical view of the relationship between the church and state, where religious groups are dependent on the government to exist, but that the state has given church groups and themselves the right to adjust where they share light and can intermingle.
In relationship to the idea that we as a country still pledge allegiance to a nation under God, both sides of the lattice have been trimmed to allow that significant Light to pass through.
Therefore the idea of a hole in Jefferson’s wall no longer holds a negative connotation, but rather shows the idea of the church and the state mutually trimming down vines on both sides of the lattice, to allow a close intermingling relationship with each other.
November 5, 2008 at 8:59 pm |
Clint, it isn’t that absolutism isn’t great in the abstract. It would be wonderful if there was a way to make that abstraction into a set of laws. Unfortunately, the dual imperatives of neither helping nor harming religion makes being an absolutist impossible. Even in free speech, where I literally cannot think of a situation short of “fire in a crowded theatre” where I approve of restrictions, I am not an absolutist, though I would love to be. If Hugo Black, not exactly the least opinionated of men, recognized the need for some accomodation, while remaining as committed as possible to preserving the religious freedom of all, then it is clearly not possible to effectively translate ideological absolutism into cold, hard law.
You cannot avoid(and should not want to) being exposed to religion, any more than religion can avoid being exposed to you. What you can object to, and rightly, is the government taking sides. Personally, I take “Merry Christmas” or “Happy Holidays”, or any other good wishes, in the spirit that they are meant.
Thanks to Jehovah’s Witnesses(who brought the case), you don’t have to say the Pledge of Alleigance either as a whole or in part. Nor should you have to say something you don’t believe because of our country’s desire to claim during the Cold War that God was on our side. I agree that the Pledge should not be recited before high school(at least), and it the case of high school it should be either TRULY voluntary or not said at all. And by TRULY voluntary, I mean that the teacher does not “encourage” students to say it, as if any “suggestion” made by a teacher at any time before college is actually optional.
People are not, and should not, be “protected” from religion, any more than one religion is protected from another religion or set of beliefs. What people do have a right to be protected from is government sponsorship of religion.
One of the best parts of America, to me, is the constant conflict of beliefs. People should not live in the intellectual equivalent of bomb shelters, trying to avoid dispute or disagreement. You probably enjoy shocking religious people, and certainly try often enough; why not afford them the same privilege? The only thing you, or any other American, should have the right to expect in terms of protection from religion is that the govenrnment should be a neutral party. While some of the ideas you have are good and should be enforced, I respectfully disagree with the idea that a separation as rigid as the one you propose is legally possible.
November 7, 2008 at 5:13 pm |
So good to hear from Dixi! Welcome to the mix. I just put up a post on photography, and I’ll bet you have some cool perspectives on that, as well.
For church-and-state, I do like your metaphor of latticework, something that is erected by man for the purpose of marking boundaries, but that does permit interaction, sunlight, conversation.