Elie Mystal mocks Republican Senate candidate Christine O'Donnell for posing the titular question. I have little or no use for O'Donnell. As someone whose vocation is principally the study of Delaware corporation law and, of late, the creeping intrusion of federal law into areas traditionally left to the states, I take a great deal of interest in who Delaware sends to Washington. O'Donnell leaves me unimpressed.
Yet, even a stopped clock can be right twice a day. As all ought to know, the term "separation of church and state" does not appear in the Bill of Rights. Instead, the infamous wall metaphor appears in Thomas Jefferson's correspondence. There is a perfectly respectable body of opinion that says the First Amendment was intended to preclude an establishment of a church at the federal level, while leaving the question of whether to have an established church to the states.
The idea that there should be no American equivalent of the Church of England is a highly attractive one. As someone who is an adult convert to Catholicism from Baptism, I would have been out of luck either way. An established church in America likely would have been some version of Anglicanism or one of the derivatives thereof, not my cradle or adult faiths.
But there's a hell of a big gap between saying that we don't have an official church to whom we all pay taxes and saying that a city can't put a creche on public property. Yet, the extra-constitutional Jeffersonian wall metaphor has become the underpinning for making that leap. So asking why that metaphor dominates the text strikes me as a perfectly reasonable question.
