Publication Date
5-2025
Document Type
Article
First Page
262
Abstract
The First Amendment of the United States Constitution begins with a provision that prevents the government from making laws that create an “establishment of religion.” That provision seems direct and emphatic, but it is also enigmatic. If you ask people to articulate what it means, they will say that it creates a “wall of separation” between church and state. This wall of separation metaphor now defines the relationship between religion and government in America, effectively displacing the text of the First Amendment.
President Thomas Jefferson introduced the wall of separation metaphor in an 1802 letter to the Danbury Baptist Association. Over a hundred years later, the Supreme Court adopted the metaphor in Everson v. Board of Education. Since Everson, however, the Court has disavowed the wall metaphor because it does not adequately reflect the normal and nuanced relationship between religion and government in the United States. Nevertheless, the power of the wall metaphor endures. The metaphor continues to be cited as authoritative by courts on a regular basis and influences government officials who navigate the day-to-day interactions between government and religion.
Scholars have commented on the wall metaphor in numerous articles and books. This article builds on that scholarship by making two contributions. First, it explains why the wall metaphor needs to be replaced by the Supreme Court—not just explained, denigrated, or even disavowed. It argues that the wall metaphor is so deeply entrenched that its application cannot be eliminated unless the Supreme Court offers a replacement metaphor. Replacing it is especially urgent now that the Court, in Kennedy v. Bremerton School District, abandoned the test set out in Lemon v. Kurtzman for evaluating the constitutionality of state-church interactions. Without the Lemon test, people may be inclined to lean even more heavily on the wall metaphor. Second, this article advances a replacement metaphor: a door. A door metaphor, like the wall metaphor, connotes separation. But a door of separation also captures the natural, varied, and legitimate flow between the government and religious people, their organizations, activities, and ideas. This article shows how a door metaphor most accurately reflects the Supreme Court’s religious establishment jurisprudence, from Everson to Kennedy.
Repository Citation
Robert
W.
Gomulkiewicz,
Separated By a Door Not a Wall: Replacing a Powerful Establishment Clause Metaphor,
27
U. Pa. J. Const. L.
262
(2025).
Available at:
https://scholarship.law.upenn.edu/jcl/vol27/iss2/1