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2. Remarks at James Madison High School in Vienna Virginia, 2 Pub. Papers 1075, 1076 (July 12, 1995); see also e.g. Curry, Thomas J., The First Freedoms: Church and State in America to the Passage of the First Amendment (Oxford U. Press 1986)Google Scholar; McConnell, Michael W., Why Is Religious Liberty the “First Freedom”?, 21 Cardozo L. Rev. 1243 (2000)Google Scholar.

3. Dreisbach, Daniel L., Origins and Dangers of the “Wall of Separation” Between Church and State, 35 Imprimis 1, 1 (10 2006)Google Scholar.

4. Hamburger, Philip, Separation and Interpretation, 18 J. L. & Pol. 7, 7 (2002)Google Scholar. See also Hamburger, Philip, Separation of Church and State 1 (Harv. U. Press 2002)Google Scholar (“Jefferson's words seem to have shaped the nation.”) [hereinafter Hamburger, Church and State].

5. See e.g. Dreisbach, supra n. 3, at 1 (“For many Americans, this metaphor has supplanted the actual text of the First Amendment to the U.S. Constitution, and it has become the locus classicus of the notion that the First Amendment separated religion and the civil state, thereby mandating a strictly secular polity.”); Hamburger, Church and State, supra n. 4, at 1 (“Jefferson's phrase … provides the label with which vast numbers of Americans refer to their religious freedom.”).

6. Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting).

7. See e.g. Witte, John Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties 48–50 (Westview Press 2000)Google Scholar (noting that “separation of church and state guarantees ‘ecclesiastical purity and liberty’—the independence and integrity of the internal processes of religious bodies”).

8. Cf. e.g. Witte, John Jr., God's Joust, God's Justice: Law and Religion in the Western Tradition 160–162 (William B. Eerdmans Publg. Co. 2006)Google Scholar (discussing the “separation and cooperation” of church and state in American Puritan thought and practice); Hamburger, Church and State, supra n. 4, at 2-3 (contrasting “a differentiation or distinction between church and state” with “something more dramatic—a distance, segregation, or absence of contact between church and state”).

9. See generally Shaffer, Thomas L., The Christian Jurisprudence of Robert E. Rodes, Jr., 73 Notre Dame L. Rev. 737 (1998)Google Scholar.

10. See e.g. Rodes, Robert E. Jr., Forming an Agenda—Ethics and Legal Ethics, 77 Notre Dame L. Rev. 977 (2002)Google Scholar.

11. See e.g. Rodes, Robert E. Jr., Pilgrim Law (U. Notre Dame Press 1998) [hereinafter Rodes, Pilgrim Law]Google Scholar; Rodes, Robert E. Jr., Law and Liberation (U. Notre Dame Press 1986)Google Scholar.

12. See e.g. Rodes, Robert E. Jr. & Pospesel, Howard, Premises and Conclusions: Symbolic Logic for Legal Analysis (Prentice Hall 1997)Google Scholar.

13. See e.g. Rodes, Robert E. Jr., A Prospectus for a Symbolist Jurisprudence, 2 Nat. L. Forum 88 (1957)Google Scholar.

14. See e.g. Rodes, Robert E. Jr., On Law and Chastity (Carolina Academic Press 2006)Google Scholar.

15. See e.g. Rodes, Robert E. Jr., Pluralist Establishment: Reflections on the English Experience, 12 Cardozo L. Rev. 867 (1991)Google Scholar.

16. See e.g. Rodes, Robert E. Jr., Catholic Universities and the New Pluralism, in The Challenge and Promise of a Catholic University 305 (Hesburgh, Theodore M. ed., U. Notre Dame Press 1994)Google Scholar.

17. See e.g. Rodes, Robert E. Jr., The Canon Law as a Legal System—Function, Obligation, and Sanction, 9 Nat. L. Forum 45 (1964)Google Scholar.

18. See e.g. Rodes, Robert E. Jr., Workmen's Compensation for Maritime Employees: Obscurity in the Twilight Zone, 68 Harv. L. Rev. 637 (1955)CrossRefGoogle Scholar.

19. See Shaffer, supra n. 9, at 757 (“Much of Rodes's scholarship has been in the field American legal academics call ‘the law of church and state.’”).

20. In a discussion of the “School Question,” Murray observed that

[t]he public school system still, of course, merits strong defense, the more so as it gradually succeeds in relating itself realistically to the religious realities of the United States. But the old dual pattern is out of touch with contemporary socio-religious reality. The notion of “public education” as meaning a unitary and monolithic school system which singly and alone is entitled to public support has been rightly called (by Mr. Robert E. Rodes, Jr.) “an aberration in the general picture of our society, which is pluralistic.”

Murray, John Courtney, We Hold These Truths: Catholic Reflections on the American Proposition 147 (Sneed & Ward 1960)Google Scholar.

21. Rodes, Robert E. Jr., Religious Education and the Historical Method of Constitutional Interpretation—A Review Article, 9 Rutgers L. Rev. 682 (1955)Google Scholar.

22. Witte, supra n. 8, at 209.

23. See generally e.g. Esbeck, Carl H., Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. Rev. 1385, 1395–1447Google Scholar.

24. Witte, supra n. 8, at 210. See generally id. at 210-224.

25. Matt 22:21 (all Biblical citations are taken from the New Am. Bible). The next verse records that when the Pharisees heard this, “they were amazed, and leaving him they went away.”

26. The text of this letter is available through the Internet Medieval Source Book, Medieval Sourcebook: Gelasius I on Spiritual and Temporal Power, 494, http://www.fordham.edu/halsall/source/gelasius1.html (accessed Dec. 20, 2006).

27. Boniface VIII, Unam Sanctum (1302), reprinted in Medieval Worlds 77, 77 (Roberta Anderson & Dominic Aidan Bellenger eds., 2003).

28. Williams, Roger, Mr. Cotton's Letter Lately Printed, Examined and Answered (1644)Google Scholar, reprinted in 1 The Complete Writings of Roger Williams 392 (Russell & Russell 1963)Google Scholar.

29. See generally e.g. Garnett, Richard W., The Freedom of the Church, 4 J. Cath. Soc. Thought 59 (2007)CrossRefGoogle Scholar.

30. Letter from the Danbury Baptist Association to Thomas Jefferson (Oct. 7, 1801) (on file with the Thomas Jefferson Papers Manuscript Division, Library of Congress, Washington, D.C.), http://baptiststudiesonline.com/wp-content/uploads/2007/02/danbury-letter-to-jefferson.pdf (accessed Mar. 9, 2007). See generally e.g. Dreisbach, Daniel L., Sowing Useful Truths and Principles: The Danbury Baptist, Thomas Jefferson, and the Wall of Separation, 39 J. Church & St. 455 (1997)CrossRefGoogle Scholar.

31. Letter from the Danbury Baptist Association, supra n. 30.

32. Dreisbach, Daniel L. & Whaley, John D., What the Wall Separates: A Debate on Thomas Jefferson's “Wall of Separation” Metaphor, 16 Const. Comment 627, 631 (1999)Google Scholar.

33. Id. at 632, 631 (“The surviving manuscripts reveal that Jefferson's reply was written with meticulous care and planned effect.”). The letter's political context and the motives and concerns that probably shaped it are described in Hutson, James H., Thomas Jefferson's Letter to the Danbury Baptists: A Controversy Rejoined, 56 William & Mary Q. 775 (1999)CrossRefGoogle Scholar. See also Hamburger, Church and State, supra n. 4, at 144-161 (noting that Jefferson “elevated anticlerical rhetoric to constitutional law”).

34. Letter from the Danbury Baptist Association, supra n. 30.

35. Hutson, James, “A Wall of Separation”: FBI Helps Restore Jefferson's Obliterated Draft, 57 Lib. Cong. Info. Bull. 136 (06 1998)Google Scholar. Hamburger, Church and State, supra n. 4, at 162 (“[H]is epistle was not widely published or even noticed.”). Professor Dreisbach has noted that Jefferson's Letter to the Danbury Baptists first received wide circulation in 1853, when it was included in an edition of his works. See Dreisbach, supra n. 30.

36. Hamburger, Church and State, supra n. 4, at 163-180 (contrasting the Baptists' views relating to religious freedom with Jefferson's version of separationism).

37. Dreisbach & Whaley, supra n. 32, at 635.

38. See generally Hamburger, Church and State, supra n. 4. See also Witte, supra n. 8, at 231 (“[T]he principle of separation of church and state became one of the strong new weapons in the anti-Catholic arsenal.”). Cf. Laycock, Douglas, The Many Meanings of Separation, 70 U. Chi. L. Rev. 1667, 1679 (2003)CrossRefGoogle Scholar (agreeing that, in the early-to-mid 19th century, “separation took on a new meaning, roughly but fairly summarized as restricting Catholic influence[,]” but insisting also that “separation” has and has long had many meanings).

39. Reynolds v. U.S., 98 U.S. 145, 164 (1878).

40. Everson v. Bd. of Educ. of Ewing Township, 330 U.S. 1 (1947).

41. See e.g. Murray, John Courtney, Law or Prepossessions?, 14 L. & Contemp. Probs. 23, 40 (1949)Google ScholarPubMed (“The absolutism of [Everson] … is unsupported, and unsupportable, by valid evidence and reasoning—historical, political, or legal—or on any sound theory of values, religious or social.”). See generally e.g. Hamburger, Church and State, supra n. 4, at 454-478.

42. Everson, 330 U.S. at 16.

43. Id. at 18.

44. See Hamburger, Church and State, supra n. 4, at 463-472; McGreevy, John T., Catholicism and American Freedom: A History 183–186 (W.W. Norton & Co. 2003)Google Scholar.

45. See e.g. Lupu, Ira C., The Lingering Death of Separationism, 62 Geo. Wash. L. Rev. 230 (1994)Google Scholar.

46. Wallace, 472 U.S. at 91 (“It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.”).

47. See e.g. Dreisbach & Whaley, supra n. 32, at 627 (“No word or phrase is associated more closely by Americans with the topic of church-state relations than the ‘wall of separation between church and state.’”).

48. See e.g. Zelman v. Simmons-Harris, 536 U.S. 639, 686 (2002) (Stevens, J., dissenting) (“Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.”).

49. See e.g. Good News Club v. Milford C. Sch., 533 U.S. 98 (2001); Rosenberger v. Rector & Visitors U. Va., 515 U.S. 819 (1995). Cf. Locke v. Davey, 540 U.S. 712 (2004).

50. Stratton, Jim, Harris' Comments Draw Fierce Reaction, Orlando Sentinel A1 (08 26, 2006)Google Scholar.

51. Pope Benedict XVI, God is Love: Deus caritas est ¶ 34 (U.S. Conf. Cath. Bishops 2006). See also e.g. Ratzinger, Joseph Cardinal, The Salt of the Earth: Christianity and the Catholic Church at the End of the Millennium 240 (Ignatius Press 1997)Google Scholar (“[S]eparation is ultimately a primordial Christian legacy and also a decisive factor for freedom.”).

52. Benedict, supra n. 51, at 36 (“The Church … cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice.”).

53. Id. at 34.

54. Zorach v. Clauson, 343 U.S. 306, 312 (1952). See also Eisgruber, Christopher L. & Sager, Lawrence G., Religious Freedom and the Constitution 23 (Harv. U. Press 2007)CrossRefGoogle Scholar (“Churches—to say nothing of religion in general—can never be wholly separated from the state. … The question that matters is how church and state should mix, not whether they will do so.”).

55. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). See also Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (“No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government.”).

56. For a detailed discussion of the importance of moral anthropology—that is, of claims about who and what we are and why it matters—for our thinking about religious freedom, see e.g. Smith, Steven D., Believing Persons, Personal Believings: The Neglected Center of the First Amendment, 2002 U. Ill. L. Rev. 1233Google Scholar.

57. Rodes, Robert E. Jr., The Last Days of Erastianism—Forms in the American Church-States Nexus, 62 Harv. Theological Rev. 301 (1969)CrossRefGoogle Scholar.

58. The American Heritage Dictionary of the English Language 1120 (3d ed., Houghton Mifflin 1992)Google Scholar.

59. Shaffer, supra n. 9, at 757.

60. Id.

61. Rodes, Pilgrim Law, supra n. 11, at 140-141.

62. Id. at 140.

63. Id. at 141.

64. See e.g., Esbeck, supra n. 23, at 1582, n. 710 (stating that Erastianism involves “complete state supremacy over the church”); McConnell, Michael W., Establishment and Disestablishment at the Founding, Pt. 1: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2189 (2003)Google Scholar (“The technical term for governmental control over the church in the English tradition is ‘Erastianism.’”); Laycock, Douglas, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev. 1047, 1053 (1996)Google Scholar.

65. Rodes, Robert E. Jr., Pluralist Christendom and the Christian Civil Magistrate, 8 Cap. U. L. Rev. 413, 418 (1979)Google Scholar [hereinafter Rodes, Pluralist Christendom]. See also Rodes, Pilgrim Law, supra n. 11, at 141 (“I have extended the term Erastian to cover any view of the church as one of the complex of institutions public and private through which Christians hope to implement an agenda for the whole society in a given time and place.”).

66. Rodes, supra n. 57, at 304. See also e.g. Rodes, Robert E. Jr., The Passing of Nonsectarianism: Some Reflections on the School Prayer Case, 38 Notre Dame Law. 115, 130 (1963)Google Scholar [hereinafter Rodes, Passing of Nonsectarianism] (stating that Erastianism “rejects the rigorous duality of the church and state in favor of a unified religiously oriented society, whose religious orientation is the responsibility of its total institutional structure”).

67. Rodes, supra n. 57, at 304. See also id. at 330 (“[Most churches' day-to-day understanding of what they are about is characterized by an Erastian acceptance of a place among the various institutions by which an overall and traditionally Christian society underwrites the pursuit of happiness by its members.”).

68. Id. at 304.

69. Rodes, Pilgrim Law, supra n. 11, at 141. See also Rodes, supra n. 57, at 305 (explaining that the High Churchman

see[s] the institutional church as standing over against society in general, rather than as constituting one of the institutions through which society in general conforms itself to the will of God. … The High Church attitude tends to point up the shortcomings of society, and to offer the Christian a way of dissociating himself from them, rather than of ameliorating them. In the past, High Churchmanship has sought an institutional witness in forms that express the independence of the church, and her freedom from the corruptions besetting rest of society.

70. Rodes, Robert E. Jr., From Pierce to Nyquist: A Free Church in an Expensive State, in Freedom & Education: Pierce v. Society of Sisters Reconsidered 47, 52 (Kommers, Donald P. & Wahoske, Michael J. eds., Center for Civil Rights, U. Notre Dame L. Sch. 1978)Google Scholar.

71. Rodes, Pluralist Christendom, supra n. 65, at 418.

72. Rodes, supra n. 57, at 305-306. “On the whole, a general denunciation of the world's ways in America has been left to fringe churches, which form enclaves and mind their own business, rather than bearing witness against the overall society.” Id. at 306. See also Rodes, Passing of Nonsectarianism, supra n. 66, at 131 (“American nonsectarianism was the product of a people bemused with its own potential for secular achievement in the development of a new land.”).

73. Rodes, supra n. 57, at 306.

74. 344 U.S. 94 (1952).

75. Presbyterian Church U.S. v. Mary Elizabeth Blue Hull Meml. Presbyterian Church, 393 U.S. 440(1969).

76. 80 U.S. 679 (U.S. 1871).

77. Rodes, supra n. 57, at 317.

78. Id. at 317-324.

79. Id. at 323.

80. Id.

81. Id. at 324-329.

82. Id. at 324.

83. Id. at 324-325.

84. Id. at 326.

85. Id. at 327 (quoting and citing Madison's Memorial and Remonstrance).

86. Id. at 328. See also id. at 329 (noting that it is a “central core of High Church ideology that keeps the state out of the church's central concerns, that guards the borders of the kingdom of the individual and his God, that saves the means of salvation from unhallowed perversion”).

87. See e.g. Phillips, Kevin, American Theocracy: The Perils and Politics of Radical Religion, Oil, and Borrowed Money in the 21st Century (Thorndike Press 2006)Google Scholar; Linker, Damon, The Theocons: Secular America Under Siege (Doubleday 2006)Google Scholar; Goldberg, Michelle, Kingdom Coming: The Rise of Christian Nationalism (W.W. Norton 2006)Google Scholar. For a critical review of the genre, see Douthat, Ross, Theocracy, Theocracy, Theocracy, First Things 30 (08/Sept. 2006)Google Scholar.

88. See Rodes, Pluralist Christendom, supra n. 65.

89. Id. at 413 (“The problem with which this article deals begins, like so many other problems, with the conversion of the emperor Constantine ….”).

90. Id. at 414.

91. Id.

92. Id.

93. See e.g. Hauerwas, Stanley, After Christendom? How the Church Is to Behave if Freedom, Justice, and a Christian Nation Are Bad Ideas (Abingdon Press 1991)Google Scholar; Shaffer, Thomas L., Review Essay: Stephen Carter and Religion in America, 62 U. Cin. L. Rev. 1601, 1614-1615 (1994)Google Scholar.

94. Rodes, Pluralist Christendom, supra n. 65, at 414.

95. Id. at 415. See also Rodes, supra n. 16, at 308 (“We are called as Christians not merely to survive in the world but to help redeem it.”).

96. Rodes, Pluralist Christendom, supra n. 65, at 420.

97. Id. at 428.

98. Rodes, supra n. 21, at 690.

99. Rodes, Pluralist Christendom, supra n. 65, at 414.

100. Id. at 416. See also id. at 427 (“[L]imiting the exercise of power and according freedom and respect to all human beings are not obstacles to the application of Christian principles; they are the application of Christian Principles.”).

101. That is, “a division of society into separate religious ‘communities,’ each of which is recognized by the state as representing its adherents in all matters religious or related to religion.” Rodes, Passing of Nonsectarianism, supra n. 66, at 118.

102. That is, the “confinement of the values endorsed by the state … to those having to do with the world, or those not having to do with God.” Id. at 117.

103. Id. at 119. See also id. at 120 (“This continues to be the theme of some of the most vigorous opposition to pluralistic solutions, particularly in the schools.”); id. at 135 (“[T]he most telling objection to religious pluralism is that it is ‘divisive’—i.e., that it is inconsistent with our national aspiration to fraternal union.”).

104. Rodes, supra n. 15, at 879.

105. Rodes, Passing of Nonsectarianism, supra n. 66, at 131. Cf e.g. Garnett, Richard W., Religion, Division, and the First Amendment, 94 Geo. L. J. 1667 (2006)Google Scholar.

106. Rodes, Passing of Nonsectarianism, supra n. 66, at 134.

107. Id.

108. Id.

109. Id.

110. Id. at 137.

111. Id.

112. Rodes, supra n. 57, at 305.

113. Id. at 306.

114. See e.g. Rodes, supra n. 57, at 307-317; Rodes, Pluralist Christendom, supra n. 65, at 419; Rodes, supra n. 21, at 689-690.

115. Rodes, supra n. 57, at 317.

116. Id.

117. Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition 23 (Harv. U. Press 1983)Google Scholar; see also supra n. 7, at 11-14 (discussing the “papal revolution”).

118. See e.g. Garnett, Richard W., Church, State, and the Practice of Love, Vill. L. Rev. (forthcoming 2007)Google Scholar; Garnett, supra n. 29.

119. See generally e.g. Chopko, Mark E. & Moses, Michael F., Freedom to Be a Church: Confronting Challenges to the Right of Church Autonomy, 3 Geo. J. L. & Pub. Policy 387 (2005)Google Scholar.

120. See e.g. Henriques, Diana B., Where Faith Abides, Employees Have Few Rights, N.Y. Times A1 (10 9, 2006)Google Scholar.

121. See e.g. Hamilton, Marci A., God vs. the Gavel: Religion and the Rule of Law 8 (Cambridge U. Press, 2005)CrossRefGoogle Scholar (contending that “[i]n recent decades, religious entities have worked hard to immunize their actions from the law” and “lobbying for the right to hurt others without consequences”). See also e.g. Brady, Kathleen A., Religious Group Autonomy: Further Reflections About What Is at Stake 6–7 (working paper, on file with author)Google Scholar.

122. See e.g. Hamilton, Marci, The Catholic Church and the Clergy-Abuse Scandal: Act Three, http://writ.news.findlaw.corn/hamilton/20030410.html, 04 10, 2003Google Scholar (arguing that “the so-called church autonomy doctrine is not really a legal doctrine at all, at least as far as the U.S. Constitution and Supreme Court are concerned. Rather, it is an insidious theory that invites religious licentiousness rather than civic responsibility.”).

123. See generally Garnett, Richard W., Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine, 51 UCLA L. Rev. 1645, 1662–1665 (2004)Google Scholar. See also e.g. Dinges, Williamet al., A Faith Loosely Held: The Institutional Allegiance of Young Catholics, 125 Commonweal 13 (07 17, 1998)Google Scholar.

124. See Bellah, Robert N.et al., Habits of the Heart: Individualism and Commitment in American Life 221, 235 (U. Cal. Press 1996)Google Scholar.

125. Murray, supra n. 20, at 204-205.

126. Id. at 204.

127. Id.

128. Bradley, Gerard V., Church Autonomy in the Constitutional Order: The End of Church and State?, 49 La. L. Rev. 1057, 1061 (1989)Google Scholar (contending that “church autonomy” is the “flagship issue of church and state,” the “litmus test of a regime's commitment to genuine spiritual freedom”).

129. Rodes, supra n. 57, at 306.

130. Bradley, supra n. 128, at 1064.

131. Rodes, supra n. 57, at 307. See also id. at 336 (noting that the lack of “an institutional High Church witness” is “a serious defect in our national life”).

132. Id. at 337-338.

133. Id. at 336. See also Murray, supra n. 20, at 204-205 (arguing that the “freedom of the Church … served as the limiting principle of the power of government”). See generally Garnett, supra n. 29.

134. See generally e.g. Hamilton, supra n. 120. But see e.g. Declaration on Religious Freedom, in The Documents of Vatican II 675, 694 (Abbot, Walter M. ed., Gallagher, Joseph, trans. 1965)Google Scholar (available at http://www.ewtn.com/library/COUNCILS/v2relfre.htm) (“[A] harmony exists between the freedom of the Church and the religious freedom which is recognized as the right of all men and communities and sanctioned by constitutional law.”).

135. Murray, supra n. 20, at 207.

136. Rodes, Pilgrim Law, supra n. 11, at 169.

137. See Rodes, Pluralist Christendom, supra n. 65, at 426.

138. Rodes, supra n. 57, at 348 (footnote omitted).