Lauren Boebert wrong on Founding Fathers’ intent, experts say

Republican U.S. Rep. Lauren Boebert raised eyebrows when she gave an impassioned address to worshippers at a Colorado church on June 26.

While encouraging churchgoers to get more involved in their local governments to help shape policy, Boebert, who easily won her primary election on Tuesday, said she’s "tired of this separation of church and state junk."

"The reason we had so many overreaching regulations in our nation is because the church complied. The church is supposed to direct the government. The government is not supposed to direct the church," Boebert said. "That is not how our Founding Fathers intended it, and I’m tired of this separation of church and state junk. That’s not in the Constitution. It was in a stinking letter, and it means nothing like what they say it does."

Boebert is accurate that the words "separation of church and state" do not appear in the Constitution, but her statement glosses over what the Constitution does say about religion. Historians and legal scholars said her assertion that the nation’s founders intended for the church to direct the government is categorically wrong. 

You can hear Boebert’s entire remarks here:

The relevant part of the First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" 

This is known as the "establishment clause." It was included because European settlers came from a number of religious backgrounds, and the Constitution’s framers wanted to ensure that the country had no nationally established church like the Church of England, legal scholars Marci Hamilton and Michael McConnell wrote for the National Constitution Center, a nonpartisan project that brings together scholars from multiple perspectives to publish articles on the U.S. Constitution.

The words "separation of church and state" come from a letter written by Thomas Jefferson to the Danbury Baptist Association in 1802. In it, Jefferson wrote that the First Amendment had essentially built "a wall of separation" between church and state. The passage read:

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State."

Asked for more information about the congresswoman’s statement, Boebert’s spokesperson, Benjamin Stout, told PolitiFact that "Christian principles have informed and guided lawmakers in America since its founding. The Congresswoman believes that that should continue."

"The Congresswoman does not believe in a theocracy, or an established religion set by the state," Stout added. "That’s exactly what the establishment clause protects against."  

The limits of the establishment clause have been debated for centuries, experts said.

"I do not think that the metaphor used in (Jefferson’s) letter accurately conveys the meaning of the establishment clause," said Nicole Stelle Garnett, a law professor at the University of Notre Dame. "But the original understanding of the establishment clause — other than the fact it prohibited a national church — is contested."

Jefferson’s metaphor of a separation of church and state is one that courts and others have cited and "is one of the principles of religious liberty deeply entrenched in our constitutional order," said Nathan Chapman, a professor at the University of Georgia Law School and co-author of "Agreeing to Disagree: How the Establishment Clause Promotes Religious Pluralism and Protects Freedom of Conscience."

"People of good faith have disagreed about its application in specific cases, but it remains a distinctive feature of American constitutionalism," Chapman added.

Where experts generally agree is that Boebert was wrong to say it was the intent of the nation’s founders that "the church should direct the government." The Constitution is clear on that.

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"It is definitely not accurate to say that according to the Constitution ‘the church is supposed to direct the government,’ or even that such a thing would be permitted," said Nelson Tebbe, a professor at Cornell Law School. "We don’t know everything about what the establishment clause of the First Amendment disallows today, but we do know that it would not allow an official church, such as the Church of England. Nor would it be constitutional today to allow a church official or institution, as such, to have the authority to ‘direct the government.’"

Tebbe pointed to the Supreme Court’s 1994 ruling in Board of Education of Kiryas Joel Village School District v. Grumet. In that case, the New York state created a separate school district specifically for a community of Hasidic Jews, which would have given the group power to direct public funding. The community’s students attended private, religious schools but needed state funding to provide services for children with disabilities. The state’s attempt to solve the problem crossed "the line from permissible accommodation to impermissible establishment," the court said.

Chapman called Boebert’s comments about the church directing the government a "statement of political theology."

"Many Americans at the founding were Christians and very few, if any, believed" in the vision Boebert referenced, Chapman said. "The English model was of the king as the head of church and state. Americans uniformly rejected that. Some thought there should be more mutual influence, some less. But few thought the ‘church’ … should ‘direct’ the government, either as a matter of theology or politics." 

Steven Heyman, a law professor at the Chicago-Kent College of Law, said the whole point of the establishment clause is that there’s no national church, so "then there's no way for it to ‘direct the government,’ as Rep. Boebert claims."

While the establishment clause is open to interpretation, the Supreme Court in recent years has used what’s known as the "Lemon test" when considering cases involving government and religion, according to the Administrative Office of the U.S. Courts. 

That refers to a 1971 ruling in Lemon v. Kurtzman, which established a three-part test to determine whether a state action violated the establishment clause: 1) Whether the state aid had a secular purpose; 2) Whether it promoted or hindered religion; and 3) Whether there is excessive entanglement between church and state.

Justice Sandra Day O’Connor in 1984 proposed a modification of the Lemon test called the endorsement test, which asks whether the challenged government action endorses or disapproves of a religion, a test that many lower courts apply.

The Supreme Court, now led by a conservative majority, three of whom were appointed by former President Donald Trump, has made several recent rulings in religious plaintiffs' favor, includng one that specifically rejected both the Lemon and endorsement tests.

One came June 27, a day after Boebert’s comments. The court ruled 6-3 in favor of a Washington state public high school football coach who was disciplined after refusing to stop praying on the field after games.

Justice Neil Gorsuch wrote for the majority that the coach, Joseph Kennedy, was not praying as part of his job duties. He said that "both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor." 

Gorsuch wrote that "in place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’"

In her dissent, Justice Sonia Sotomayor argued that the coach’s prayers may have a coercive effect on students, and that the ruling prioritized the free exercise clause over the establishment clause. 

Another recent ruling came June 21, when the court ruled 6-3 that religious schools couldn’t be excluded from a program in Maine that offers tuition aid for private education.

In that ruling, Chief Justice John Roberts wrote that "Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment."

Boebert, in a talk to churchgoers, said the Founding Fathers intended that "the church is supposed to direct the government." 

While some of the framers were more open to the mixing of religion and the state, the Constitution as adopted did not go anywhere near what Boebert describes, constitutional experts say. The part of the First Amendment that reads, "Congress shall make no law respecting an establishment of religion," makes clear the founders’ desire to avoid the establishment of a national church, such as the Church of England, that could direct government.

That establishment clause has been interpreted by the court and scholars in various ways, but we find no interpretation suggesting its meaning to be that a church should direct the government. 

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