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Reflections on the Separation of Church and State, 44 Arizona Law Review 293 (2002)

Abstract

I call my lecture "reflections" on the separation of church and state in part because I have no strong assertions to make about it. Indeed, I will confess to those here present that after two decades of laboring in the salubrious vineyards of constitutional law, about half of that spent as what I suppose one would call a specialist on religion, I continue to find the concept of separation of church and state baffling, utterly baffling. I do not mean by this admission to suggest that I am an opponent of it; quite the contrary, I am fairly sure that I favor it. The problem is that I have only the dimmest idea what the words mean, and therefore have but the haziest notion of what it is that I favor; and I rather suspect that a fair number of those who use the words, including some eminent jurists, share my confusion.

I suppose many people would describe the separation of church and state as a mandate of the First Amendment; others would suggest that it is a fundamental principle of liberal democracy; yet I can find no serious reason to believe that either of these postulates is true; or, rather, if true, neither one is sufficiently unambiguous to admit of serious dialogue. In other words, when we use the phrase "separation of church and state," I suspect that few of us can really guess what the other is talking about. And this has been true all through the nation's history. Roger Williams and Thomas Jefferson, had they been contemporaries, could have had an entirely incoherent conversation on the doctrine, because they understood it so differently. One can stretch back earlier. The Apostle Paul who wrote Romans 13 and Constantine the Great who absorbed the organized Christian church into the Roman state could both have used the phrase, too, but would have intended to convey sharply distinct ideas.

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2002

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