The Serpentine Wall of Separation

Authors

John Witte Jr., Emory UniversityFollow

Abstract

The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy, Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform . . . unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." If we persist in this experiment, Justice Jackson warned his brethren, "we are likely to make the legal 'wall of separation between church and state' as winding as the famous serpentine wall designed by Mr. Jefferson for the University he founded." While a majority of the United States Supreme Court embarked on a four-decade project of building this "serpentine wall," Justice Jackson took little further part in the effort. He continued to regard the separation of church and state as essential to the protection of religious liberty, along with the freedoms of conscience, exercise, and speech. But he had no patience with unilateral or extreme applications of any of these First Amendment principles, not least the principle of separation of church and state. Imprudent application of this latter principle, he wrote, would draw the Court into "passionate dialectics" about "nonessential details" that were often better left to state and local governments to resolve. In his last years on the bench, Jackson thus led the Court in a case that denied standing to a party who argued that religious instruction in a public school violated the separation of church and state. He was the sole dissenter in a church property dispute case, where the Court read the principle of separation to require a state to defer to the internal religious law of the disputants rather than apply its own state laws. He dissented again from the Court's decision to uphold a public school program that gave students release time to participate in religious events off site. Arguing that this was precisely the kind of case where the principle of separation did apply, he complained: "The wall which the Court was professing to erect between Church and State has become even more warped and twisted than I expected."

Recommended Citation

John Witte Jr., The Serpentine Wall of Separation, 101 Mich. L. Rev. 1869 (2003).
Available at: https://repository.law.umich.edu/mlr/vol101/iss6/21