Garry on Church and State and the "Myth of Separation" in U.S. History

Patrick M. Garry, University of South Dakota School of Law, has posted an article, The Myth of Separation: America's Historical Experience with Church And State. It appeared in the Hofstra Law Review (2004). Here's the abstract:

This article examines the historical experience of the First Amendment's Establishment Clause. Throughout the colonial and constitutional periods of the United States, the classical concept of an exclusive state church dominated the American image of an establishment of religion. A state preference of one denomination over others was what was primarily thought to be an establishment of religion, as the Framers did not want to duplicate the English experience with the established Anglican church.

Late eighteenth century Americans agreed that government could provide special assistance to religion in general, as long as such assistance was given without any preference among sects. Both before and after the Revolution, Americans made a conscious distinction between two types of state action: the granting of exclusive privileges to one church, and a non-exclusive assistance to all churches. Only the former was considered to be an establishment of religion. The Framers' principal concern in drafting the Establishment Clause was to ensure equality among religions, not between religion and non-religion.

In modern First Amendment doctrines, the single most influential concept regarding relations between church and state is Thomas Jefferson's wall of separation metaphor. The author contends that the misapplication of Jefferson's metaphor has led the Courts to create a confusing maze of case law restricting public expressions of religious belief, exactly contrary to the Framers' intent. He asserts that to the extent that the First Amendment requires separation, it does so as a way of preventing government intrusion on personal and institutional religious autonomy. The constitutional intent behind separation was as a means of protecting religion, not the secular state.