Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offence.
—Robert Frost, “Mending Wall”
After Shakespeare’s “The first thing we do, let’s kill all the lawyers,” the second-most misunderstood legally related phrase might be Thomas Jefferson’s “a wall of separation between church and state.” The Supreme Court’s decisions in Town of Greece v. Galloway, 134 S. Ct. 1811 (May 5, 2014), and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (June 30, 2014), and its injunction in Wheaton College v. Burwell, 134 S. Ct. 2806 (July 3, 2014), brought President Jefferson’s words into present commentary on these and similar cases involving religious organizations, persons, and activities, chiefly—perhaps most vociferously—with respect to judicial, legislative, and regulatory actions relating to marriage equality, family planning, and abortion. Some commentators appear to misapprehend his words, as contained in the First Amendment or otherwise in the United States Constitution and, as prohibiting any presence of religion in the public sphere, any judicial, legislative, or regulatory action in favor of religiously motivated or related activity, or any involvement by clergy or religious persons or organizations in judicial, legislative, or regulatory matters; some call for removal of tax-exempt or nonprofit status or both for religious organizations. This could seem tantamount to a reverse religious test: Anyone or anything “religious” cannot enter the public sphere. However, these commentators tend not to claim this prohibition if the religious organization or person advocates or otherwise participates in the public sphere to advance a justice issue—those noted above and voting rights, minimum wage, income inequity, immigration reform, equal rights, the death penalty, and other criminal justice matters—on the same policy side.
This article outlines the history of the third president’s phrase, certain key Supreme Court decisions, and the phrase’s bearing on advocacy by faith communities and persons of faith on justice issues, to suggest that those who appear to espouse complete exclusion of faith from the public sector should, like the Court, consider the matter on an issue basis, the better to articulate their separation assertions without projecting an image of convenient constitutional cherry-picking.