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Vail Valley Voices: Some historical perspective on ‘church and state’

Henry Bornstein
Vail, CO, Colorado

Editor’s note: Henry Bornstein, a retired attorney who handled constitutional cases and studies the Constitution from a historical as well as legal perspective, replies in several parts to a recent Valley Voices column by Dick Gustafson addressing the separation of church and state. This is the second.

Dick Gustafson states in his recent commentary that “The Supreme Court without legal precedent” (and) “based on faulty logic” has taken the term “separation of church and state” “… out of context and based on a concocted theory that the Constitution protects the government and the people from religion. It all started in 1962 with the Warren Court …” citing Engel vs. Vitale.

The obvious implication is that the liberal Warren Court started this evil “out of context”… “concocted theory.” However, Mr. Gustafson fails to discuss the Engel case, so how does one know this? All one has to do is read the first sentence of the 1st Amendment to see that it states no such conclusion and neither does the Engel case. I will discuss this case in a later part.



Actually there is legal precedence: Reynolds v. U.S.; 98 U.S. 145 (1879). George Reynolds was a Mormon who was indicted under the charge of bigamy. His defense was that he was married under Mormon law and was exercising his right under the 1st Amendment to practice his religion. The Federal Revised Statutes prohibited bigamy. After a trial, he was found guilty of bigamy and the U.S. Supreme Court unanimously affirmed the District Court’s decision.

The Supreme Court held in part: “Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The 1st Amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is whether the law now under consideration comes within this prohibition. The word ‘religion’ is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed?”



At page 163, the chief justice discusses a 1784 bill proposed to the Virginia Legislature to pay for teachers of the Christian religion. The court stated: “This brought out a determined opposition. Amongst others, Mr. Madison prepared a ‘Memorial and Remonstrance,’ which was widely circulated and signed, and in which he demonstrated ‘that religion, or the duty we owe the Creator,’ was not within the cognizance of civil government.”

On page 164, Justice Waite quotes the exact portion from Jefferson’s letter to the Danbury Baptist Church that I have quoted below and in the same paragraph following Jefferson’s last word “duties,” he states the following: “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment (1st) thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” Thus in 1879, the U.S. Supreme Court recognized Madison’s separation of religion and civil government and Jefferson’s “wall of separation” without reservation — i.e., the separation of church and state. The court also held that civil law can take precedence over religious law.

In his next paragraph, Mr Gustafson asks: “So where did all this “separation” business get its start?” His answer is: Thomas Jefferson’s reply to a letter from the “Baptists of Danbury, Conn.” I can only assume that the conflict between the two “starts,” Engel in 1962 and Jefferson’s Danbury letter, refers to the legal start and to the historical start. Mr. Gustafson is wrong on both claims.



The following is a very short history of the concept of the “separation of church and state.”

One of the greatest teachers in Judeo-Christian history said: “Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s” (Matthew 22:21).

John Locke, (1632-1704) English, Oxford scholar, medical researcher, physician, political operative, economist and ideologue for a revolutionary movement, argued for an individual conscience, free from state control. “The concept of separating church and state is often credited to the writings of John Locke. According to his principle of the social contract, Locke argued that the government lacked authority in the realm of individual conscience, as this was something rational people could not cede to the government for it or others to control. For Locke, this created a natural right in the liberty of conscience, which he argued must therefore remain protected from any government authority. These views on religious tolerance and the importance of individual conscience, along with his social contract, became particularly influential in the American colonies and the drafting of the United States Constitution.” (Wikipedia).

This concept goes back to the early 1600s and was argued by many minority religions. The following quote is from an unknown source from 1614: “The Mennonites, the Separatists and the Baptists declared: ‘The magistrate by virtue of his office is not to meddle with religion, this or that form of religion, or doctrine; but to leave Christian religion to every man’s conscience, and to handle only civil transgressions.'”

This is the doctrine of the separation of church and state. The problem is that with all religions, as well as with the various denominations within a particular religion, the reformers generally claim liberty and freedom for their own beliefs but deny the same freedom to others. Sadly that was and is the history of this country.

In 1644, Roger Williams wrote “A Plea for Religious Liberty,” in which he stated: “Fifthly, all civil states with their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the spiritual or Christian state and worship.”

The concept of a separation of church and state, at least according to Madison’s thinking, seriously began with the Protestant Reformation. Martin Luther articulated a doctrine of the two kingdoms. Luther’s doctrine of the two kingdoms marked the beginning of the “modern” conception of the separation of church and state.

Are these not all proponents of the concept of the “separation of church and state”? This idea is not something that originated in 1962 in the Engel vs. Vitale case, nor is it a concept put forth only by “progressives,” secularists and liberals.

Mr. Gustafson proceeds to quote a small portion from the Jefferson letter. Here is the full paragraph as written by Jefferson that Mr. Gustafson took his selected words from: “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 legitimate 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.” –Thomas Jefferson to Danbury Baptists, 1802. ME 16:281

Mr. Gustafson continues: “This is a clear indication that religion was to be protected from the government, not the other way around.”

This statement appears to be a paraphrasing of a statement made by David Barton without giving proper credit.

What Mr. Barton actually said in a 1990 version of Barton’s video “America’s Godly Heritage” and is probably in his book: “On January 1,1802, Jefferson wrote to that group of Danbury Baptists, and in this letter, he assured them – he said the 1st Amendment has erected a wall of separation between church and state, but that wall is a one-directional wall. It keeps the government from running the church, but it makes sure that Christian principles will always stay in government.”

A reading of Jefferson’s letter clearly shows that no such statement was made.

In the September 2006 issue of Texas Monthly, it was noted that Barton denied making this statement, except that he did in his video.


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