A major shortcoming of the use of metaphor in legal analysis is that a metaphor, in equating two distinct objects, can easily lend itself to faulty comparisons. For instance, a wall restricts parties on both sides; but the First Amendment was meant to restrict only the federal government. When Justice Hugo Black in his decision in the 1947 Everson v. Board of Education case called Jefferson’s wall the definitive interpretation of the First Amendment, he capitalized on the image, declaring, “That wall must be kept high and impregnable.” This is an even greater broadening of the First Amendment’s scope. Dreisbach notes that some have called a high and impregnable wall a “wall of spite,” and that good neighbors would prefer a low New England stone wall, at which neighbors can meet and speak. An amicus brief filed in Everson warned against turning the wall of separation into an iron curtain. Others have suggested the images of a wall with doors or guarded gaps, like the Great Wall of China; a barbed wire fence; and even a prison wall. The fact that all of these conceptions of the wall with their conflicting legal corollaries can be (and are) drawn from Jefferson’s wall demonstrates how problematic the metaphor is.
Different readings of the wall metaphor result in an inconsistent array of decisions dealing with church and state: confusion over school vouchers, prayer, or crèches in public schools, the tune “God Bless America,” the words “Under God” in the Pledge of Allegiance, etc. More often than not, the metaphor’s ambiguity has made it an easy cudgel to be used by radical secularists and other unprincipled partisans to promote their political agendas. … – Daniel L.
Dreisbach’s Thomas Jefferson and the Wall of Separation Between Church and State
By Joseph A. P. De Feo
(book review from Catalyst March 2003)
catholicleague.org/research/dreisbach.htm
If we were to poll everyone in the US and asked them what “separation of church and state” meant, we would get 300 million different answers. One meaning appears to be what is termed “strict separatist”. Mine is different. So whose definition do we use? It doesn’t really matter because, like an “extraterrestrial is from outside the planet earth, “separation of church and state” is “extra-Constitutional” – from outside the Constitution., courts cannot interpret what is not in it. Besides, the phrase is so overly broad that it is meaningless. However, here is a court interpretation of the First Amendment from a case,
ACLU vs. Mercer Co., in which the Sixth Circuit Court ruled the following:
“…Under the endorsement [of religion] test, the government violates the Establishment Clause when it acts in a manner that a reasonable person would view as an endorsement of religion. … This is an objective standard, similar to the judicially-created ‘reasonable person’ standard of tort law. … Accordingly, we do not ask whether there is ANY person who could find an endorsement of religion, whether SOME people may be offended by the display, or whether SOME reasonable person MIGHT think [the government] endorses religion. Rather, the inquiry here is whether THE reasonable person WOULD conclude that Mercer County’s display has the effect of endorsing religion. …
“The ACLU makes repeated reference to ‘the separation of church and state.’ This extra-constitutional construct has
grown tiresome. The First Amendment does not demand a wall of separation between church and state.. See
Capitol Square, dismissing strict separatism as ‘a notion that simply perverts our history’. Our Nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion. See, e.g.,
Marsh v. Chambers, upholding legislative prayer;
McGowan v. Maryland, upholding Sunday closing laws; see also
Lynch, ‘There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789’;
Capitol Square, describing historical examples of governmental involvement with religion. After all, ‘[w]e are a religious people whose institutions presuppose a Supreme Being’,
Zorach. Thus, state recognition of religion that falls short of endorsement is constitutionally permissible.” – Sixth Circuit Court of Appeals,
ACLU of Kentucky vs. Mercer County, KY [Emphasis in original]
ca6.uscourts.gov/opinions.pdf/05a0477p-06.pdf
If we had erected a “wall”, religious people would never have been able to demand the abolition of slavery, since religious reasons were their motivation. In fact, “I wouldn’t own a slave, but will not force my beliefs on others” was actually used to straddle the political fence on the issue in antebellum times.
“The ‘wall of separation between church and State’ 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 – Justice William Rehnquist in
Wallace v. Jaffree