By Jonathan Zirkle, J.D.
Letter to the Religious Liberty Commission at the U. S. Department of Justice, July 6, 2026
Dear Chair Patrick, Vice Chair Dr. Carson, and the members of the Religious Liberty Commission:
The separation of church and state is among America’s greatest achievements, grounded in the Constitution and central to our freedom. The Religious Liberty Commission’s report undermines this principle by proposing to replace the wall of separation between church and state with a bridge.
The wall of separation was not a secular invention imposed upon religion—it was built by people of faith, to protect faith. Breaching that wall will set the churches against one another in competition for government money and favor, and set the church against the state as each seeks power over the other–eroding the very freedom the Commission claims to defend. The Commission has recommended increasing government funding of religious activities and recommended repealing the Johnson Amendment.
Both of these recommendations, if followed, will bring the corruption of the political process into the churches. In making its recommendations the Commission has relied upon a faulty retelling of our history.
The American Development of Separation of Church and State
The establishment of a wall of separation between the church and the state first appeared in the modern world in 1636 when Roger Williams founded the colony of Rhode Island. The success of Roger Williams’ experiment would later inspire the colonies of Pennsylvania, New Jersey, and Delaware, and to a lesser extent other colonies to roll back their religious legislation long before the Revolution of 1776. By 1790, all but three of the original 13 had disestablished their churches, and by 1833, the final state, Massachusetts, had disestablished its church as well.
No state would ever enter the Union with an established church. The United States had learned from the colonies that liberty prospered better where church and state were separate. While the states themselves would take some time to extricate themselves from religious entanglements, the drafters and signers of the Constitution recognized the value of religious liberty.
Alexis de Tocqueville, the French statesman who toured the United States from 1831 to 1832, observed this about the cause of religion’s power in America and how religion indirectly influenced the nation.
In order to learn more about [the separation of church and state], I questioned the faithful of all communions. … To each of them I expressed my astonishment and revealed my doubts, and I discovered that they differed among themselves only on matters of detail: to a man, they assigned primary credit for the peaceful ascendancy of religion in their country to the complete separation of church and state. I state without hesitation that during my stay in America I met no one — not a single clergyman or layman — who did not agree with this statement.
The [clergy] are careful to remain aloof from public affairs and do not involve themselves in the machinations of the parties. Therefore, one cannot say that religion in the United States influences the laws or the specifics of political opinion, but it does shape mores, and it is by regulating the family that religion endeavors to regulate the state.
The Commission itself recognizes “that religious liberty remains one of the greatest sources of American strength,” and that “preserving it will require vigilance, education, and renewed commitment from institutions and citizens alike.” The report then goes on to highlight a list of areas where religion and religious people are under attack. These areas of attack are fairly portrayed, and all people of faith should be concerned about the attack. America is in a culture war, and much of the battle is over values that are informed by religion.
While the report does not go so far as to explicitly state that atheistic secularism is a religion, it certainly functions as one, and when the state supports secularism in its worst forms, the state is taking sides in the culture war against religion. This needs to stop.
The Commission’s Revisionist History of the American Experience
First, the Commission tells a false history of religious liberty in the colonies and in the early history of the nation. It completely ignores that the idea of building a wall of separation between the church and the state is a very old idea, which was fully enunciated in 1644 by Roger Williams.
Next, they ignore the fact that Pennsylvania, New Jersey, and Delaware followed Rhode Island’s example by keeping a wall of separation between the church and the state. They also ignore that other colonies, seeing the freedom and success of the states which preserved the separation of church and state, repealed laws which supported their established churches in order to attract more immigrants.
By 1776, the founding fathers concluded that separation of church and state had been a success, and while not using the phrase “separation of church and state,” drafted the concept into the Constitution. The inclusion of separation of church and state, impressed upon James Madison by members of the Baptist church, united the Baptists and the members of other denominations to support the Constitution and ensure its adoption. Baptist support was contingent upon the addition of the First Amendment, which was speedily adopted after the adoption of the Constitution. Thus without separation of church and state, the Constitution would never have been adopted.
Nevertheless, the Commission would have us believe that religious liberty did not exist in the states prior to the adoption of the Constitution, and that the concept of a wall of separation was the invention of Thomas Jefferson, and not central to the freedoms of our nation. They state that the idea of a wall of separation comes from a single letter, forgotten until the Supreme Court in Everson v. Board of Education, 1947, completely omitting the rich history of both the phrase and the idea.
The metaphor of creating a wall of separation between the church and the state was first written by Roger Williams in a reply to John Cotton in 1644, and then reproduced and expanded upon in his magnum opus, The Bloudy Tenent of Persecution, for Cause of Conscience, published in London in the same year. Parliament banned the book. The metaphor was well known to the founding fathers, probably through the works of James Burgh, raised a Scottish Presbyterian who later became a devout Protestant dissenter.
Thomas Jefferson’s letter was not first quoted by the Supreme Court in 1947, but rather 68 years earlier in 1879 in the case of Reynolds v. United States. The Commission ignores a long line of Presidents who felt compelled to explicitly support the concept of a wall of separation. Besides Thomas Jefferson, James Madison, one of the primary drafters of the Constitution, said that there should be a “separation between religion and government,” and that religion flourished better without government patronage.
George Washington’s diplomats negotiated, and John Adams signed the Treaty of Tripoli, which stated that “the Government of the United States of America is not, in any sense, founded on the Christian religion.” President Fillmore said that “Church and state should be separate, not only in form, but fact. Religion and politics should not be mingled.”
President Grant said, “Keep the church and the state forever separate.” President Garfield said that it would be dangerous to use public funds for religious schools and that “The separation of the Church and the State in everything relating to taxation should be absolute.” President Theodore Roosevelt said there must be “complete severance of Church and State.”
In attacking the Supreme Court decisions of the 1940s, the Commission resorts to two tactics that cannot survive scrutiny: a personal attack on Justice Hugo Black, and claims of philosophical influence that the timeline of history makes impossible. The Commission states, “Even a few Supreme Court decisions seemed to track with this train of thought [defined earlier in the report as that of Nietzsche, Foucault, Sartre, and the belief that ‘God is dead’], culminating in a 1947 opinion, in which Justice Hugo Black, a former Ku Klux Klan member, repurposed a metaphor coined by Thomas Jefferson in an attempt to legitimize the new critical philosophy by placing it in the constitutional tradition.
Specifically, the Supreme Court ruled on a series of decisions in which it used the ‘wall’ metaphor to regulate a child’s access to religious education and later to ban school prayer and public displays of religion (like the Ten Commandments).
Without any support for the notion that Justice Black wrote opinions in accordance with the anti-Catholic philosophies of the Klan, the Commission attempts to persuade the public that Justice Black was racist and that his opinions should be disregarded. This is an ad hominem attack commonly used in the highly charged political debates of today, but counterproductive to finding truth and establishing unity. It is only useful in persuading the uninformed. The suggestion that Everson “tracked” with Nietzsche, Foucault, Sartre, or later critical theory is historically implausible.
Foucault’s major works postdated Everson, Sartre was never a source of American Establishment Clause doctrine, and the Court grounded its reasoning in American sources: Madison, Jefferson, disestablishment, and the First Amendment tradition. To attempt to smear the Supreme Court with Justice Black’s much earlier Klan membership and with Nietzsche, Foucault, and Sartre is disingenuous.
While Justice Black held that the Constitution established a wall of separation between the church and the state, in the same decision, the decision attacked by the Commission, Justice Black held that government reimbursement for transportation to Catholic schools was constitutional.
How ironic! The Commission faults Justice Black for anti-Catholic bias from his Klan past, yet the very decision it attacks is one in which he upheld government support benefiting Catholic schoolchildren. And it faults him for following philosophies that no serious legal historian would argue influenced the Court’s reasoning.
The Commission correctly states that much of the hostility towards religion in America today is based upon a “broader cultural assumption that religious belief should remain invisible while secular ideologies enjoy full freedom to influence public institutions.”
The Commission is correct to say, “People of faith should not be required to leave their religious convictions behind when entering the workplace, engaging in commerce, serving their communities, or participating in public debate,” and that “institutions should foster environments in which citizens with divergent convictions can work together while maintaining fidelity to conscience.”
Nevertheless, the Report goes on to continually overstate the case by saying that the “wall of separation” ideology creates a wall between personal faith and public life. While this may be true when the idea of a wall of separation is misconstrued and weaponized by secular atheists, it is not true that the wall of separation erected by the Constitution and so often referred to by generations of leaders who have gone before us is a wall between personal faith and public life.
The true wall of separation is between the state and the church. It is there so that a person can freely exercise their personal faith and freely engage in the public sphere, without prejudice or persecution. To deny that there is complete separation of church and state in the Constitution, aka “the wall,” and to deny that the wall can serve a useful purpose in protecting individual freedom is un-American and counter to both our experience and the knowledge and intent of our forefathers. The wall of separation is not a wall between religious people and public life; it is a wall between ecclesiastical power and civil power, protecting both religion and civil freedom.
The Commission’s Objectionable Recommendations
Based upon the above arguments, the Commission recommends that the United States adopt its recommendation to post in the workplace, to teach our students, and to teach as many citizens as possible that the Constitution neither creates nor requires the separation of church and state, and that there should be no wall of separation between church and state. If this false ideology is embraced by the people, it will allow for many different “reforms,” and eventually be used to justify any oppressive religious legislation so long as it is for the good of the people or represents the will of the majority.
This is a radical teaching that has the potential, over time, to roll back the freedoms we enjoy in this nation, and return us to the political conflicts and tyranny our forefathers came to America to escape. This is the underlying philosophical foundation of additional, objectionable recommendations that the Commission makes.
The Commission recommends that the United States support religious philanthropic organizations. It bases its argument on the idea that in times of need, to separate the physical help from spiritual help is to deny the full scope of the help that the person in need requires. This may be true in some circumstances. Nevertheless, this is an argument to the church that wishes to provide those services to fund them internally, and not rely upon the state.
For religion to rely upon state funding is for religion to take the role of an imposter, pretending to provide aid, when in fact it is the state that is making the aid possible. It also allows the religion that is relying upon government funding to use that funding as an aid in indoctrination and evangelism, thus the government is not remaining neutral.
The Commission argues that church members today must leave their religious beliefs at home to engage in humanitarian work. That should never be true for work that they do without the aid of the state, and should only be true to the extent the state is providing them assistance. This is for the protection of religion as much as it is for the state and its citizens. Anytime government money is available, a religion will modify its beliefs to adhere to the values of the government so that it can obtain funds.
Public money always brings public control. Furthermore, different religions may claim fairness requires equal funding, even though they do not provide equal services. This certainly will devolve into a quagmire that the state would do well to avoid.
The Commission recommends that the United States support religious education. All the reasons against supporting religious philanthropy apply here, as well as additional reasons.
The Commission argues correctly that the state benefits from a religious people. But the Commission errs in thinking the state can be involved in making people religious. In education, it is important what is taught. By supporting religious education, the state will be making decisions about what doctrines can be taught. This most commonly takes the form of accreditation. Many sectarian schools are not accredited for this reason. But it can go further. Will the state support a school whose religion teaches interracial marriage
is a sin, or that women should not receive higher education? Will the state support a school that teaches polygamy? What about a school that doesn’t teach many things, like the Amish?
This puts the state into the business of determining what values are worth supporting and what values are not. Don’t think that the decisions will only be required for that which may seem obvious to us today.
Today the Commission is recommending that the Ten Commandments be posted in schools and courthouses. Which Ten Commandments? The Ten Commandments of Exodus or Deuteronomy? One is more Jewish focused, one more focused on creation, both requiring the keeping of the seventh day, not the first day. Or maybe the Ten Commandments of a Roman Catholic catechism, which a Protestant will tell you dispenses with the law against graven images and a Catholic priest will tell you merely divides the commandments differently. Or maybe the state can just abbreviate the Ten Commandments, number them like a Protestant, and hope everybody is happy.
That is the solution in Texas. Texas is getting into the business of doctrine. A government that refuses to fund religious doctrine is not thereby endorsing secularism, rather, it is refusing to decide religious questions.
That restraint is not hostility to religion; it is the condition under which religious communities remain free and prosperous.
The Commission has one more recommendation that has the potential to expand the breach in the wall of separation. The Commission recommends repealing the Johnson Amendment. The Johnson Amendment prohibits churches from engaging in partisan politics, specifically supporting a candidate for election.
It does not prohibit the church from speaking on the issues of the day, or even telling its members how to vote regarding issues such as abortion and the right to life. What would repealing the Amendment do? Churches would become fabulous non-profit vehicles to engage in political activities.
Pastors are known to exhibit tremendous sway over their congregations. It is not hard to imagine the intense pressure that a pastor could feel to deliver his congregation’s votes for money. It is not hard to imagine that wealthy and powerful interests might attempt to influence political causes through the churches. Combine that with a patronage system whereby the congregations could receive government grants based upon the Commission’s other recommendations, and there is a recipe for disaster.
What failing congregation won’t make a little compromise for a little financial gain? As scripture says, “the love of money is the root of all evil” (1 Timothy 6:10).
As financial interests invade the churches, invariably the public will be able to smell hypocrisy, and any gains either the church or the state thinks may be had by their union will be lost. Only a dead, lifeless church on government life support will remain.
Today, the Johnson Amendment is already being dismantled by non-enforcement. In National Religious Broadcasters v. Bessent, the IRS and several religious plaintiffs proposed a settlement that would have substantially narrowed enforcement of the Johnson Amendment as applied to churches. This settlement was opposed by the Baptist Joint Committee and Americans United, two reputable religious liberty advocacy organizations, not secular humanists.
A federal district court found that it lacked jurisdiction on March 31, 2026. The effort to remove the barrier between tax-exempt churches and partisan campaign activity is expected to continue.
The Commission should reverse its recommendation for repealing the Johnson Amendment, and instead, recommend its enforcement.
The Commission Correctly Identifies a Peril, but Not the Solution
Commissioner Bishop Robert Barron made an important observation about secularism. He said, “[T]here’s a philosophical issue which is secularism proposing itself as some kind of neutral ground, but it’s not neutral ground. Secularism as an ideology is a totalizing system. It wants to dominate the whole of life and therefore to exclude religion [from the public square].”
Commissioner Kelly Shackelford makes a particularly insightful comment that “the one thing a totalitarian regime will never allow is citizens who hold an allegiance to one higher than the government. So, whenever that type of power of coalescing comes together, the first flashpoint is always going to be religious freedom. And if you lose there, you will lose everything else. So, what we’re really dealing with here is the precipice of all our freedoms.” This should be particularly sobering when combined with the Commission’s observation that “contemporary progressive opposition to religious liberty … seek[s] freedom for its own views but coercion of religious groups whose traditional beliefs conflict with current trends such as transgenderism.”
The Commission is correct in urging the courts to view atheism and atheistic determinism as ideologically and functionally similar to religion.
Just as secularism as an ideology is a totalizing system, religion, when granted power, tends toward the same result. Combining church and state together, financially or otherwise, will result in one or the other demanding power and control over the other.
History has shown us that the stronger the bond between church and state, the more oppressed the society. The union of church and state is the recipe for the kind of totalitarian regime warned about by Commissioner Shackelford. This is not a new discovery.
In a letter to Thomas Jefferson, John Adams wrote, “Checks and Ballances, Jefferson, however you and your Party may have ridiculed them, are our only Security, for the progress of Mind, as well as the Security of Body.—Every Species of these Christians would persecute Deists, as Soon as either Sect would persecute another, if it had unchecked and unballanced Power. Nay, the Deists would persecute Christians, and Atheists would persecute Deists, with as unrelenting Cruelty, as any Christians would persecute them or one another. Know thyself, human Nature!”
The church and state should remain forever apart, neutral towards each other, and neutral towards secularism.
Finally, the country as a whole should not be swayed by arguments made for religion in the military. It is true, the military should be very careful not to support or oppose any religion, but it is also true that the military must be able to provide religious services to its members. The reason they must provide those services is that in the military, especially when deployed, there are no alternative means to obtain religious services. A service member deployed in a foreign land may not be able to go to the local Baptist, Catholic, Seventh-day Adventist, or Mormon church, or synagogue or mosque, because they may not exist in the area, nor would it necessarily be safe to go off base to attend one.
Conclusion
Just before and after the Revolution, the disestablishment of the state churches was an important project of our founding fathers. It was not without controversy. The experience of it should not be lost upon us.
Reverend Lyman Beecher was a Congregationalist minister, one of the most influential evangelical preachers of the early 1800s, and a leader in the movement to maintain the established church of Connecticut. Before 1818, he argued for the need of an established church. He said, “So the democracy, as it rose, included nearly all the minor sects, besides the Sabbath-breakers, rum-selling tippling folk, infidels, and ruff-scuff generally, and made a dead set at us of the standing order.”
He believed that an established church was the only way to counteract these evil influences. In 1818, Connecticut voted to disestablish its church. Beecher described the experience. “For several days I suffered what no tongue can tell for the best thing that ever happened to the state of Connecticut. It cut the churches loose from dependence on state support. It threw them wholly on their own resources and on God.”
He went on to observe, “They say ministers have lost their influence; the fact is, they have gained. By voluntary efforts, societies, missions, and revivals, they exert a deeper influence than ever they could by queues, and shoe buckles, and cocked hats, and golden-headed canes.”
Tocqueville observed on his trip to America, “When I arrived in the United States, it was the country’s religious aspect that first captured my attention.” By speaking to Americans, he learned religion flourished because of the complete separation of church and state, not in spite of it. That is precisely the lesson the Commission would have the nation unlearn, or rather, learn again the hard way.
The Commission is wrong to treat separation of church and state as a modern innovation. In America, the separation of church and state formed the foundation of our dearest freedoms, supported by Baptists, dissenters, and citizens of every faith, vindicated by disestablishment, and praised by foreign observers as religion and freedom thrived together.
As Roger Williams warned, freedom of conscience must be defended: “Having bought truth dear, we must not sell it cheap, nor the least grain of it for the whole world, no not for the saving of souls, though our own most precious…”
For all of the foregoing reasons, I respectfully ask that the Commission revise its account of American history and withdraw or substantially modify its recommendations. America will do best to forever maintain a complete separation of church and state.
Sincerely,
Jonathan Zirkle, JD
President, Pillar of Freedom