Church And State: "Once More Unto The Breach"
By Paul J. Piccard, Professor of Political Science Emeritus, Florida State University
Mary Piccard Vance, Attorney, Tallahassee, Florida
Ann M. Piccard, Instructor, Stetson University College of Law
- The "Wall" Is a Membrane.
- Allowing "Free Exercise" and Prohibiting "Establishment" Conflict
- The First Amendment Now Limits State and Local Governments
- Where Does This Leave Us
- Endnotes
We do not know how old the problem of church and state is. Perhaps primitive societies had to reconcile the authority of shamans and chiefs. In its contemporary form the problem dates at least from late medieval or early modern times. Dante has the Lombard spirit Marco say:
Rome, which produced the good world, used to have
Two suns, which made people see one road and the
Other-the world`s road and the road of God.
One has stifled the other, for sword
And shepherd`s crook are one now, and they go
Badly with each other, as by force they must-
Because, thus joined, neither fears the other.[i]
American colonial and early federal history illustrates the damage done to both church and state when the two were too closely intertwined. Some Colonies had firmly established churches. Even as States, some continued to have an official religion. The Salem witch trials were the work of a government in thrall to the religion of the day.[ii] The church`s ability to turn to the government for enforcement of its views did the church no great service.
On the other hand the lethargy (and worse) of Church of England clergy in America may be attributed in part to their subsistence on government.[iii] The corruption of the church by state sponsorship likewise earned the state no credit from today`s perspective.
Whatever the problems were at the state level, the formation of "a more perfect Union"[iv] insulated the federal government from religion. First the Constitution stipulated that "no religious Test shall ever be required as a Qualification to any Office of public Trust under the United States."[v] The only official qualifications for the presidency are that the President must have been born a citizen of the US at least 35 years before taking office and have been a resident of the US for 14 years.[vi]
Despite this official limit on eligibility many informal qualifications are required. As late as today, no woman has ever been nominated for the presidency by one of the two major parties. Neither has an observant Jew. For decades prior to 1960 political science college textbooks pointed out that a Catholic could not be elected President. John F. Kennedy changed that. From a religious perspective his was a curious campaign. A practicing Catholic promised not to let his religion interfere with his official choices and his opponent, a nominal Quaker, like most politicians of the era, bragged on his war record.
Religion remains an important consideration in presidential politics. Professor John M. Swomley expressed concern in this journal[vii] about President Bush`s appointments of Roman Catholics, raising the possibility of a theocracy. From a contrasting point of view during the presidential election campaign in 2000 candidate Bush was subjected to severe partisan attacks for being embraced at Bob Jones University and for his appeal to fundamentalist Protestant Christians. How can a poor politician win?
Aside from religion in presidential politics, the relationship between church and state remains a thorny affair. The First Congress proposed a constitutional amendment to create some distance between the national government and religion. The First Amendment of the Bill of Rights starts:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .[viii]
This wonderful provision, to which we owe so much that we cherish in both the secular and spiritual aspects of our lives, has a curious history. It has been transformed into the concept of "separation of church and state" and saddled with the unfortunate metaphor of "a wall of separation between church and state."[ix] And it has evolved from a limitation on the central government to a bewildering variety of constraints on state and local governments.
The "Wall" Is a Membrane.
The "wall" suggests two worlds, as isolated from each other as East and West Berlin during the Cold War. Imagining such a wall one may see two spheres, politics and religion, neither of which may impinge on the other. Such separation is impossible because both church and state necessarily deal with human relations, the one telling us the right way to act, the other commanding how we must act. The "wall" is a permeable membrane filtering out some gross intrusions. It limits government actions more than it does religious ones, but both state and church are constrained.
Churches are constrained because our freedom of religion does not cover human sacrifice, immoral or criminal acts, polygamy,[x] some forms of snake handling,[xi] and the ceremonial use of peyote[xii]among other prohibited activities. The state is allowed to breach the "wall" to prohibit much of what might be sanctioned or even required by religion.
Governments are constrained because they may not designate an official church or impose narrow sectarian discipline on the general public in accordance with a particular religion. American government, however, may codify ancient religious commandments without treading on the principle of non-establishment. The Torah tells us not to murder or steal. The religious origin of those commandments does not prevent government from enacting them in an attempt to limit murder and theft.
The two religious clauses of the First Amendment do not limit the fundamental democratic rights embodied in the rest of the Amendment. The freedoms of speech, press, and assembly are available to people with a religious agenda. Religious people have the same right to petition the government-that is, to lobby-that everyone else has. American governments may be prohibited from granting some of these petitions, but the faithful may ask.
Why is this first provision of our Bill of Rights so often controversial? One reason is that it touches very sensitive, very personal beliefs. Different people with equally fervent beliefs may disagree with each other. People who are very sure that they know "the truth" find tolerance of and compromise with error very difficult. Try to get a friend to agree with you that 2 + 2 = 3.9. No matter how many 9`s you add to the right of the decimal point your friends will insist that only precisely 4 is the correct answer.
Allowing "Free Exercise" and Prohibiting "Establishment" Conflict
Another reason for controversy over the religious prohibitions in the First Amendment is that the two provisions necessarily conflict with each other.[xiii] Two examples illustrate the contradictions. If the state taxes religious institutions and property it interferes with "free exercise" of religion. If it bestows tax exemptions on religions it "establishes" them.[xiv] Government cannot always honor both provisions at the same time.
Likewise when the government conscripts people for the military and removes them from their congregations, pastors, and religious teachers, it may be making a law prohibiting the conscripts from exercising their freedom of religion. If, to remedy this violation of the Constitution the government then provides chaplains and places of worship, it finds itself establishing religion.
This brings us to the controversies over various forms of religion in government facilities such as parks and schools. Many people are galled that secular interests are allowed the use of public places, but religious ones are banned. Some of these people understand very well that religion is a unique and precious part of their lives, but in order to gain access to public facilities, they ask that it be treated like the Future Farmers of America, Young Republicans, or a chess club. But religion is not like secular institutions. Both in our lives and in constitutional law religion is very special.[xv] It does not require and may not have the state`s imprimatur.
The step from a government seal of approval to other and obnoxious forms of political involvement in religion might be too tempting to resist. Americans avoid the second step by prohibiting the first.
Christians, especially, might be expected to appreciate this effort to insulate religion from politics. Jesus said: "And when ye pray, ye shall not be like the hypocrites: for they love to stand and pray in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have received their reward. But thou, when thou prayest, enter into thine inner chamber, and having shut thy door, pray to thy Father who is in secret, and thy Father who seeth in secret shall recompense thee."[xvi]
We can understand why so many politicians are eager to be seen praying in public and why they wish to be identified with public prayers in school and elsewhere, but understanding why so many Christians seem favorably impressed is more difficult.
The New York Regents prayer was a particularly bland and innocuous prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."[xvii]
Although this is not even a Christian prayer in that it does not invoke the name of Jesus, it assumes a universal acceptance of one concept of the nature of God and one name for God without allowing for other concepts and names. It is a blatant form of the imprimatur of the State of New York.
The decision of the United States Supreme Court[xviii] banning the New York school prayer does not and could not "take God out of the public schools." God by any name needs no green light from anyone to be in a classroom, to attend graduation ceremonies,[xix] to go to football games in Texas,[xx] or to be in public places. Banning the New York Regents prayer does not and could not prohibit students and teachers from praying.
Public school prayers, however, must be personal and private. They cannot be official or sanctioned prayers. They cannot be identified as school policy. Under the court decisions in the New York and Texas cases students never need worry if their prayers are acceptable to their teachers and classmates. Nor need they worry if skipping prayers might meet with disapproval by their teachers, principals, or peers.
By banning official or sanctioned prayers the law enhances the freedom of religion of dissenters and protects the sanctity of personal prayers. In the seventeenth and eighteenth centuries dissenting Europeans had to flee their homes and native lands. In the New World they found a sanctuary for their religious beliefs but as the new dominant force some of them did not tolerate freedom for minority religions. They sometimes established their own religion to the exclusion of others. Therein lies the telling difference between their way and our way under the First Amendment.
The First Amendment Now Limits State and Local Governments
Historians and legal scholars may debate the intentions of the people who added the Bill of Rights to the Constitution but taken by itself the First Amendment is clearly a limitation on the national Congress without reference to state and local government. The history of how it came to limit all American governments is long and tortuous. We may summarize it briefly
In 1833 the United States Supreme Court held that the Fifth Amendment required only the national government to provide due process of law.[xxi] If a state or local government denied a person due process the issue did not create a federal case. The matter had to be resolved at the state level. This precedent remains in effect today only in a technical sense. During the late nineteenth century and through the mid twentieth century the Supreme Court whittled away the ability of state governments to deny any person due process and equal protection of the laws. More and more the states were held to the same standard as the national government so that today many Americans feel fully protected by the Bill of Rights although some of it may not apply to the states.
This change in the reach of the Bill of Rights has resulted from the Fourteenth Amendment that says, in part: "No State shall. . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."[xxii]
At first the Supreme Court held that these requirements dealt only with natural persons, particularly the former slaves for whom it was written. The states still had a virtually free hand for regulating such businesses as slaughterhouses.[xxiii] Later, however, a strange thing happened. The due process clause began to provide a substantive protection for businesses generally-that is, the states were forbidden under the Fourteenth Amendment to impose a variety of regulations regardless of the process involved. Railroads especially gained some protection from populist restrictions that state legislatures sought to impose.[xxiv]
Thus business interests, not religions, acquired a stake in the Fourteenth Amendment. Corporations rather than individual citizens gave the Amendment its teeth. Only in the twentieth century were the provisions of the Amendment interpreted to protect civil liberties. The process of binding the states by First Amendment requirements started not with religion but with freedom of the press and of speech.[xxv]
The legal stage was thus set by the mid-twentieth century to prohibit state and local governments from restricting freedom of religion and from establishing religion. The variety of specific issues to be construed as covered by the First and Fourteenth Amendments is staggering. Complaints both by cranks and by people with a legitimate grievance (as though we could always tell them apart) kept percolating up through the courts.
Activities that have been challenged, in addition to those already mentioned, include teaching evolution,[xxvi] abortion, ritual animal slaughter, Ku Klux Klan cross burning on public property, religious dress while teaching in public schools, conscientious objection to military service or saluting the flag, provision of public services or supplies to church schools, income tax exemption for the cost of private schools, released time for religious instruction, religious displays on municipal ground, proselytizing with loud sound systems in residential neighborhoods, Seventh Day Adventist observance of Saturday as the Sabbath, compulsory schooling of Old Order Amish children, various Sunday blue laws, refusing conventional medical treatment for children, and the sale of contraceptives and alcohol. All of these issues require resolution on a case by case basis. The Constitution and applicable laws may be changed, but in the meantime judges get to decide and we do not fight holy wars against each other.
Where Does This Leave Us?
Two things will change in the evolution of public policy regarding church and state. The specifics of a great variety of controversies will change. People dissatisfied with the latest judicial interpretations of the Constitution and statutes will seek to reopen the question on the basis of slightly different circumstances. The arena in which decisions are made will change. Membership on the Supreme Court will change, maybe some Justices will change their views, and the national environment or ambiance will change.
Thus even matters which seem settled today may be brought back to a boil and new conditions will introduce new issues. What can we do to ease the controversies? Perhaps nothing, but maybe both sides of the forthcoming disputes can moderate their positions. A sort of rule of reason or of reasonableness would help matters.
For example, when the Roman Catholic Church prescribed fasting on Fridays it did so as a discipline for its members and did not seek to impose the rule on others. Baptists who used to invoke the government on behalf of prohibition now are mostly satisfied to abstain from drinking without preventing Episcopalians from falling into sin. The Puritans who once imposed draconian restrictions on the way people behaved on Sundays are now generally content to live and let live, merely disapproving the frivolous behavior of others. Catholics who lobbied for laws against the sale of contraceptives have moved to more important matters for state intervention. Orthodox Jews in Jerusalem may demonstrate to outlaw public transport on the Sabbath, but in America they leave such sacrilege in private hands. Some Muslims in foreign lands may abuse women for violating the dress code; American Muslims tolerate the wayward ways of non-Muslim women.
The faithful of small minority religions are generally content to adhere to their own observances without invoking government support to impose their views or God`s on others. Believers from larger denominations have more political clout. If, when they are tempted to enlist government on their side, they would be as self-restrained as less popular religions, many of the problems of church and state would evaporate.
Likewise the secular humanists, agnostics, and atheists could be more modest about picking their public fights. Much of what they might object to as purists is not worth litigating. The national motto on our currency, the invocation of God at the opening of Supreme Court sessions, the flagrant use of chaplains in legislatures, Congress, prisons, and the military-these seem to us to be peripheral matters that do not seriously challenge the rights and way of life of non-believers.[xxvii]
The memorial service held in Yankee Stadium for the victims of the attack on the World Trade Center provided a wonderful example of the rule of reason. The program showcased a wide range of religious leaders-bishops of various Christian denominations, Protestant clergy, rabbis across a broad spectrum of Jewish theology, Muslims with different perspectives, and others. Pop culture stars presided and performed. The State of New York was represented by the Governor, the City by its Mayor. All, secular and religious, were enthusiastically cheered at all the appropriate applause lines whether in a speech or a prayer.
It was altogether quite presumptuous for the faithful who participated in the Yankee Stadium memorial service to assume that this was a proper occasion to give testimony to their religious beliefs-altogether presumptuous and very wonderful. Clerics and laity whose predecessors recently regarded ecumenism as heresy simply joined each other in a healing moment. Surely the large crowd included non-believers who in other situations would oppose such a civic religious ceremony, but they too must have cheered and applauded the prayers, held hands and swayed, hugged and cried, along with their neighbors in the stadium.
Let us, therefore, in all circumstances, be alert to the fundamentals of our freedom to worship or not as we choose and let us be vigilant in guarding against the misuse of government even on our own behalf. With no hard wall between church and state let both serve our secular and spiritual interests as best they can. The faithful among us can work to make government more humane and closer to fulfilling God`s purposes. The dissenters among us can work to make government more humane and leave it to God to do God`s work.
Endnotes
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[i][1]Dante Alighieri, The Divine Comedy: II Purgatory, canto 16, trans. into blank verse by Louis Biancolli (NY: Washington Square Press, 1966), 66.
[ii][2]See Stanton D. Krauss, "Criminal Law: An Inquiry into the Right of Criminal Juries to Determine the Law in Colonial America," 89 Journal of Criminal Law and Criminology 111, 214 n. 364.
[iii][3]See James Madison, "Memorial and Remonstrance against Religious Assessments," James Madison: Writings, ed. by Jack M. Rakobe, Library of America, 29, 32 (1999).
[iv][4] Preamble, Constitution of the US.
[v][5] Article VI, Constitution of the US.
[vi][6] Article II, §1, Constitution of the US.
[vii][7]John M. Swomley, "The Threat of Theocracy," Christian Ethics Today, 7 (October, 2001), 20.
[viii][8]First Amendment, Constitution of the US.
[ix][9] Mr. Justice Black in Everson v. Board of Education, 330 US 1 (1947).
[x][10] The first major Supreme Court decision regarding freedom of religion involved polygamy in the Territory of Utah. Reynolds v. US, 98 US 145 (1979).
[xi][11] McDaniel v. Paty, 435 US 618, 634 (1978).
[xii][12] Employment Division v. Smith, 494 US 872 (1990).
[xiii][13] See Walz v. Tax Commission, 397 US 664 (1970). In trying to reconcile the two religious clauses the Supreme Court noted that both "are cast in absolute terms. . . either of which, if expanded to a logical extreme, would tend to clash with the other."
[xiv][14] In Murray v. Goldstein 385 US 816 (1966) the Supreme Court allowed a lower court decision upholding a tax exemption to stand.
[xv][15] "It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business or writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." Engel v. Vitale, 370 US 421, 434 (1962)
[xvi][16] Matthew 6, 5-6. Revised Standard (1901).
[xvii][17] Engel v. Vitale, 370 US 421, 422 (1962).
[xviii][18] Ibid,
[xix][19] Adler v. Duval County School Board, 250 F. 3d 1330 (11th Cir., en banc, 2001). The Circuit Court majority treated the case as a free speech case that did not involve religion as claimed by the plaintiffs.
[xx][20] Santa Fe Independent School District v. Doe, 530 US 290 (2000).
[xxi][21] Barron v. Baltimore, 7 Pet. 243 (1833).
[xxii][22] Fourteenth Amendment, §1, Constitution of the US.
[xxiii][23] Slaughter-House Cases, 16 Wall. 36 (1873).
[xxiv][24] Delaware v. Van Arsdale, 475 US 673, 698 n. 8 (1986), Justice Stevens dissenting.
[xxv][25]Gitlow v. New York, 268 US 652 (1925). Gitlow lost his case because he abused the right of free speech. Near v. Minnesota, 283 US 697 (1931). A Minnesota gag law violated freedom of the press.
[xxvi][26] The court cases and citations for this and other issues mentioned in this paragraph are available from Mary Vance at mvance@vlplaw.com or Ann Piccard at piccard@law.stetson.edu
[xxvii][27] Engel v. Vitale, 370 US 431 (1962).
