SECULARISM, THE CHURCH & THE STATE
A substantial number of Americans, including many Catholic Christians, seem to have “internalized a (mis)conception of the constitutional ‘separation of church and state’ according to which religion, and religious authorities, should have nothing to say about the conduct of public life.” R. George, The Clash of Orthodoxies: Law, Religion and Morality in Crisis, p. 280 (ISI Books 2001); see also “The Failure of Catholic Political Leadership” by R. George & W. Saunders at www.catholiceducation.org. President John F. Kennedy, in a 1960 campaign address to the Greater Houston Ministerial Association articulated his popular belief “in an America where the separation of church and state is absolute” and embraced the essentially Protestant view that religion is a “private affair” that is to be separated from public life. (for video of JFK’s speech click here). It is a view held by many Catholic Supreme Court Justices over the years, including liberal Justice William Brennan in Roe v. Wade and conservative Justice Antonin Scalia concerning death penalty cases. It hearkens back to Thomas Jefferson’s famous 1802 Letter to the Danbury Baptist Association referencing a “wall of separation between church and state,” one that the Supreme Court declared in the 1947 Everson v. Board of Education case "must be kept high and impregnable." It hearkens further back to Roger Williams, William Penn and their colonial experiments in religious liberty, to George Mason’s 1776 Virginia Declaration of Rights, to Jefferson’s 1786 Virginia Act for Religious Freedom, to Madison’s 1785 Virginia Memorial and Remonstrance Against Religious Assessments and to Article VI of the U.S. Constitution that sets forth that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” James Madison, the “Father of the Constitution,” would even write in a letter to Edward Livingston in 1822 that “religion and government will both exist in greater purity, the less they are mixed together” and that “Religion flourishes in greater purity, without than with the aid of Gov’t.” Madison Letter to Edward Livingston, July 10, 1822.
Yet, as Catholics, we ask in earnest whether we can in this way live freely, peaceably and in good conscience in a pluralistic society. Is this church state separation consistent with our Christian faith in a democratic America? Can an America that purports to protect foundational, natural and unalienable rights also publicly quiet Christians in general and the Catholic Church in particular with regard to matters of justice, human dignity and the public good? It is tempting to agree wholeheartedly with Jefferson, Madison and JFK, to stand for religious liberty and to give in to a personal desire to privatize and separate our faith and our holy days from our secular business – and even our academic life. The biblical admonition to “render unto Caesar’s what is Caesar’s and render unto God what is God’s” may even seem to encourage precisely that. Yet, the question “who are we?,” – or better yet, Christ’s question: “who do you say I am?,” – demands a serious, considered response from each of us.
Ours is a religion of evangelization, encounter and engagement. In his 2008 address to the U.S. Catholic Bishops, Pope Benedict XVI implored Catholics to resist the “tendency to treat religion as a private matter” and warned “[t]hat to the extent that religion becomes a purely private affair, it loses its very soul.” (See Article entitled Respecting Religion by Michael Sean Winters, September 2008). Being Catholic Christians calls us to be children of God first, to embrace and keep the Lord’s Commandments and to make Jesus Christ the focal point of our lives. This remains the teaching of our Church and its Bishops throughout the ages. Our heritage and history is a rich and compelling one devoted to teaching and upholding the inherent, equal and inviolable worth and dignity of every human being, performing works of charity and mercy and ensuring social justice and assistance, particularly to those ignored, marginalized or oppressed in society. For faithful Christians, religion is not rendered irrelevant by politics but only by our own lack of faith, understanding and fidelity to Jesus Christ. Many wonderful, current books elaborate on this theme from the Catholic perspective – many are good, insightful reads that are genuinely worth your time and energy. See, e.g., CCC, Pars. 1730-1748, Pars. 2232-2257; C. Chaput, Render Unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life (Random House 2009); C. Anderson, A Civilization of Love: What Every Catholic Can Do to Transform the World (2009); C. Chaput, Living the Catholic Faith: Rediscovering the Basics (Servant 2001); R. George, The Clash of Orthodoxies: Law, Religion and Morality in Crisis, p. 280 (ISI Books 2001); John Paul II, Evangelium Vitae (1995); P. Kreeft, Back to Virtue (Ignatius 1992).
Notwithstanding, many perplexing questions remain for inquiring students to ponder. Where is the separation of church and state in the Constitution? Does being a Catholic Christian require our silence or impotence in the public arena of politics and democratic government? We know that the First Amendment expressly protects the "free exercise of religion" and the Declaration of Independence and America itself was founded upon John Locke’s notions of the social contract and its foundational proclamation that “all men are created equal and endowed by their Creator with certain inalienable rights, among these are life, liberty, and the pursuit of happiness.” Yet, we hesitate to fully understand or embrace the concept of “natural rights” because of the absence of similar language in the Constitution and the First Amendment of the Bill of Rights. We know that Jefferson and Madison championed religious liberty and a separation of religion from the political, and may even honestly acknowledge the differing views of George Washington, the Father of our Nation, and John Adams, the 2nd President who is often heralded as the Father of the American Revolution and a significant Founder in his own right.
Briefly in this regard, the piety of George Washington is evident in his frequent invocations to divine providence and his first Inaugural Address (April 1789) to the new nation wherein Washington gives thanks profusely to “that Almighty Being who rules over the universe, who presides in the Councils of Nations, and whose providential aids can supply every human defect. . . .” During that same address, he made this remarkable statement about our nation’s founding for all generations to recall:
In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own . . . . No people can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency.
The 1789 Thanksgiving Proclamation issued by Washington reveals his views concerning our individual and national duties to the Creator; his admonition that a government devoid of religious influence may not succeed is clearly set forth in his famous 1796 Farewell Address :
. . . Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.
Not content to stop there, Washington concludes his Farewell Address with more relevant questions for succeeding generations:
Observe good faith and justice [towards] all Nations. Cultivate peace and harmony with all. Religion and morality enjoin this conduct; and can it be that good policy does not equally enjoin it? . . . Can it be that Providence has not connected the permanent felicity of a Nation with its virtue? The experiment, at least, is recommended by every sentiment which ennobles human Nature. Alas, it is rendered impossible by its vices?
Washington teaches us in his words precisely what St. Thomas Aquinas and many Popes, including the late John Paul II, teach us today – that faith and reason are compatible with God and His natural law.
President John Adams, a devout Christian in his own right, was no less subtle in his 1797 Inaugural Address acknowledging God. Adams promised a young and uncertain nation that his solemn duty warrants consideration and “a decent respect for Christianity [as] among the best recommendations for public service” and he invoked upon it the blessing of “that Being who is supreme over all.” Later in his first term, Adams declared religion to be a necessary precondition to our national Wisdom. By letter dated October 11, 1798 to the Officers of the First Brigade, Adams advises the Officers of the Massachusetts Militia that “. . . we have no government armed with power capable of contending with human passions unbridled by morality and religion.” His now famous words should inform every American concerned about political and social issues today and cause us to rethink our “constitutional” doctrine of separation of Church and State:
Avarice, ambition, revenge or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
After his Presidency, in the wake of the War of 1812, Adams reflected in a sober fashion that “[a]ll that men can do, is to modify, organize and arrange the powers of human society, that is to say, the physical strength and force of men, in the best manner to protect, secure and cherish the moral, which are all the natural rights of mankind.” De Mooy, The Wisdom of John Adams, pp. 63-4.
Today, we have seen the demise of atheistic, communist and fascist regimes and the horrors perpetrated by them in the 20th century and remain concerned by the rise of modern secularism and the new, popular atheism in the 21st century. We rejoiced as Pope John Paul II opened the doors and hearts of the Church at the dawn of the new millennium but remain saddened by the experience of the European Union in denying their Christian heritage and are alarmed by the influence of political correctness in the face of Islamic fundamentalist threats. We regret the struggles caused by religion and hesitate, but remain compelled, to commit to the natural law principles of justice and equality that Rev. Martin Luther King and Mother Therese devoutly and peacefully advocated as central to the civil rights and progress of all mankind. The abolition of slavery was made possible with the significant assistance of a prayerful and devout Christian population during the 1800’s, through and beyond the Civil War, and continuing through the civil rights movement of the 20th century. The latter found a compelling rationale in both scripture and natural law theory, a powerful advocate in Rev. Martin Luther King, Jr. and a timeless witness in his famous 1963 Letter from Birmingham Jail. As Americans, we take pride in being a nation of laws and seek to uphold and defend the Constitution even when our politicians fail to do so, yet we appear to insist at the risk and expense of both of our country’s other Charter documents: the Declaration of Independence and the Bill of Rights. Because of our charitable, Christian nature or, perhaps because of the first Catholic Supreme Court Justice Roger Taney and his dreaded Scott decision, or the history and conflict of European Western Civilization or maybe President Kennedy’s famous September 12, 1960 Address to the Greater Houston Ministerial Association, many Catholics have chosen to endorse the concept of Separation of Church and State and many remain predisposed to quickly and uncritically relegate religion to the private sphere.
Both sides of the Separation argument run deep and contain profound arguments and theories. For the busy student, many of them can be readily grasped by reading the opinions issued in two Supreme Court cases decided on the same day that seem to conflict. In the 2005 case of McCreary County v. ACLU of Kentucky, the Supreme Court held that various manifestations of a display at a County courthouse that featured the Ten Commandments, including an exhibit entitled “Foundations of American Law and Government,” violated the Establishment Clause of the Constitution and had “no legitimizing secular purpose.” On the same day, the Supreme Court decided the case of Van Orden v. Perry that upheld as constitutionally valid a display of a monument inscribed with the Ten Commandments that was situated on the grounds of the Texas State Capitol building. The majority opinions and the various dissenting and concurring opinions filed in these cases frame the general issues well from each side’s perspective and offer a wonderful glimpse of the role of religion in American history in the process. The opinions are well-written, “easy reads” with no real technical language or esoteric doctrines involved, and are must-reading for every Christian interested in First Amendment issues. They will leave you pondering their rationales for some time. Welcome to the realm of political philosophy!!
I. The central focus of political philosophy and, indeed, western civilization, necessarily concerns the respective roles of religion, government, virtue, liberty, justice and morality in society. In the work “History of the Peloppenesian War,” Thucydides asks whether politics involves fear, self-interest or honor, i.e., virtue. Socrates obediently accepted his death after being convicted by the State of blaspheming “the Gods of the State” and corrupting Athenian youth. In Plato’s Apology, Socrates seeks to explain that his teachings and actions were motivated, ironically, by “divine wisdom” and “service to the God” that required him to care chiefly for the improvement of souls. Contemplation of Socrates through Plato’s works Euthyphro, Apology, Crito and Plato’s Republic is generally insightful to students of philosophy, young and old. In these, as in Plato’s later work “Laws,” Plato saw the cardinal virtues as necessary to both just individuals and just states. In his works “Politics” and “Nicomachean Ethics,” Aristotle too recognizes the supreme importance of virtue in society and sees the polis (city-state) as an extension of the natural family. To Aristotle, politics is the “master science,” a normative discipline that is consistent with virtue and naturally aims at achieving the happiness and virtuous action of those in society. These classical political philosophers and many others through the centuries, readily saw that no significant distinction could truly exist between the family, virtue and citizenship, and perhaps as a result, between the Church and the State.
Classical political philosophers from Greece and Rome to medieval philosophers, including Saints Augustine and Thomas Aquinas, weighed in on these matters with a sharp focus on fostering good and virtuous citizens and a just society. Augustine’s City of God, Aquinas’ Summa Theologica and John Locke’s Treatises on Government, should be familiar to students of political philosophy and Catholic students, in particular, as should political theories of the “two swords,” “divine right of kings” and “natural law.” Of great interest too is the Roman era, the classic epoch in history when pagan Rome ultimately gave way to Christianity; the period in which Jesus lived, was crucified and resurrected and the Church was instituted, persecuted and elevated. It affords another wonderful opportunity to study the church/state issue. Many students are familiar with the Emperor Constantine the Great and his actions, such as the famous Agreement and Edicts of Milan in 312 A.D. that elevated the status of Christians and Christianity in the Roman Empire to the official religion. Lesser known is Cicero, a central and powerful Roman lawyer, legislator, political philosopher and staunch defender of the Roman republic whom argued that moral concerns rooted in natural law took precedence over positive law and political considerations, and provided the basis for criticizing and justifying the latter. The Broadview Anthology of Political and Social Thought, Vol. I, p. 251 (Broadview Press 2008).
Many modern and post-modern philosophers since the Enlightenment period have wrestled with the separation issue and discerned concepts of positivism and secular humanism to respond to what they perceived to be the social and political challenges of their time. See, e.g., G. Tinder, Political Thinking: The Perrenial Questions (6th ed.), Chs. 1 & 2 (Longman 2003). Whether you’re familiar with them or not, a great place to start your consideration of this subject is simply by asking whether it is possible or desirable for persons of faith to fully separate our public lives from God and our Christian faith. Can we truly do so when the Old and New Testaments are loaded with political references to Kings, governments and the laws? Jesus Christ, the King of Kings, told Pilate that his Kingdom was “not of this world.” He was accused by the State of being the King of the Jews and was crucified publicly on a cross bearing such an inscription. At Christ’s birth, three wisemen (or three Kings) journeyed to Bethlehem guided by the Star to pay Him homage. John the Baptist proclaimed that the Kingdom of God is at hand and Jesus gave Peter the “keys to the Kingdom.” As Catholics, we even celebrate the feast day of Christ the King each year just prior to Advent, thanks to Pope Pius XI in 1925. In his Encyclical entitled Quas Primas, Pope Pius XI urged us to live up to our holy vocation and said this about the universal nature of God’s reign:
31. When we pay honor to the princely dignity of Christ, men will doubtless be reminded that the Church, founded by Christ as a perfect society, has a natural and inalienable right to perfect freedom and immunity from the power of the state; and that in fulfilling the task committed to her by God of teaching, ruling, and guiding to eternal bliss those who belong to the kingdom of Christ, she cannot be subject to any external power.
There is more! As Catholics we pray the Our Father as Jesus taught us and make a humble request to the Father for “thy Kingdom come, [and] thy will be done on earth as it is in heaven.” We meditate upon the holy name of Jesus, that greatest of names by which all knees shall bend. We hold marriage to be a Sacrament that is publicly celebrated in a Church where we seek God’s blessing over us in that sacred union of man, woman and God as one. We are humbled and awed knowing that we are “a chosen race, a royal priesthood, a holy nation, a people of his own” called to “[g]ive honor to all, love the community, fear God, [and] honor the king.” And we must live "the Greatest Commandments" to love God with all of our mind, heart, strength and being and love our neighbor as ourselves.
None of this is new to us. We know and may even appreciate that our sincere loyalties as Christians must be first to God, but also to our neighbors. It is a loyalty seemingly divided but ultimately consistent with our love of God as our faith matures and our understanding of justice and ordered love grows. The cardinal virtue of Justice is necessary and integral to love and must be tempered by “the greatest of” the theological virtues – Love. See, e.g., Pope John Paul II’s Message for World Day of Peace 2002 and 1980 Encyclical Dives in Misericordia (“love is ‘greater’ than justice: greater in the sense that it is primary and fundamental. Love, so to speak, conditions justice, and in the final analysis, justice serves love.”). Saint Thomas Aquinas reminds us of the consistency of faith and reason while Pope Benedict XVI reassures us that “[t]he demands of love do not contradict those of reason.” Charity in Truth: Caritas in Veritate, p. 59 (Ignatius Press 2009). But does all of this necessarily mean that a high, impenetrable wall of separation must exist between government and ourselves? What does it mean to “render unto Caesar” and “render unto God” that which is due to each?
II. There is tension and ambiguity in the First Amendment and in our Catholic experience and heightened sensitivities to the various issues involved. The First Amendment provides in pertinent part, simply that “Congress shall pass no law respecting an establishing of religion, or prohibiting the free exercise thereof. . . .” Yet, these two distinct but inseparable clauses are the focus of much admiration, contention and consternation today by Americans from all walks of life. The framers “opposed an established church because they believed that it was a threat to the free exercise of religion” and none of them “believed that a governmental connection to religion was an evil in itself.” The Heritage Guide to the Constitution, p. 302 (Regnery Publishing, Inc. 2005). In actuality, many of the 13 original states had either established churches or laws restricting non-Christians from holding office. For example, the Delaware Constitution of 1776 required officeholders to “profess faith” in the Holy Trinity and “acknowledge” that the Holy Scriptures were “given by divine inspiration.” Six states specifically adhered to Protestant religious establishments and “four [states], Delaware, North Carolina, Pennsylvania, and South Carolina, called for assent to the divine interpretation of the Bible, with Pennsylvania and South Carolina further requiring belief in heaven and hell, and South Carolina – the only one among the thirteen – still speaking of religious “toleration”; . . . See, generally, H. Abraham and B. Perry, Freedom & the Court: Civil Rights & Liberties in the United States (8th ed.), pp. 258-59 (University Press of Kansas 2003). Thus, it was clear to the Founders, and should not be surprising to us, that the Establishment Clause “prohibits Congress from legislating either to establish a national religion or to disestablish a state religion.” The Heritage Guide to the Constitution, p. 303. In his famous dissent in the 1985 Wallace case, Justice William Rehnquist similarly notes that the Establishment Clause “had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations.” Wallace v. Jaffree, 472 U.S. 38, 106 (1985); see also H. Abraham & B. Perry, Freedom & the Court, p. 259 (“Hence it is not surprising that the First Amendment was widely regarded as a protection of state establishments against congressional action.”). Beyond this, however, there is little that is clear and much to learn on the issue of Separation of Church and State. The issues raised by the doctrine are profound, complex and crucial to understanding politics in America.
As American Catholics, we are sensitive to various sides of the Separation issue. Catholics were a minority religion when the Constitution was enacted:
When the Constitution was ratified in 1789, Catholics numbered less than 1 percent of the nation’s four million inhabitants. The first report on the church’s membership, in 1785, estimated the Catholic population as twenty-five thousand, of whom sixteen thousand resided in Maryland and seven thousand in Pennsylvania. Outside these more tolerant states, Catholics were not only few in number but also generally barred from voting; even Maryland denied the ballot to Catholics. Before and after the American Revolution, noted politicians voiced the prevalent anti-Catholic sentiment.
P. Irons, God on Trial, p. 19 (Viking Press 2007). Maryland was initially chartered as a private, Catholic colony but ceased to remain one; its colonial history is interesting to Catholics and worth studying on this issue - click here to read more on Maryland. As James Madison would perceptively ask in his 1785 Virginia Memorial and Remonstrance Against Religious Assessments :
Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?The antagonism that often accompanies conflict on the Church/State issue is often directly related to the battle for control over the civil state by the political state and our very liberty is implicated and determined by the outcome. Political institutions and processes in a liberal democracy historically represented only one segment of civil society. “In the eighteenth century, however, politics (in the narrow sense) either absorbed all other forms of the social order or became so heavily influenced by particular interests that public policy functioned mainly as an organizational structure for protecting those interests. In both cases, the traditional distinction between politics and other social spheres vanished.” L. Dupre, The Enlightenment and the Intellectual Foundations of Modern Culture, pp. 185-86 (Yale University Press 2003). Today, viewpoints attributable to influential legal scholars such as Roscoe Pound purport to summarize the “historical development of the law” as increasingly providing “for the common good and the satisfaction of social wants,” claims and desires, as well as “an ever wider spectrum of human interests.” S. Vago, Law and Society (8th ed.), p. 24 (Pearson/Prentice Hall 2006).
Given the increasing encroachment of the political on the civil state, it is important to recognize, rather than ignore or trivialize, the hostility of some European and Enlightenment movements to the Papacy and to the Roman Catholic Church abroad and in America while discerning the battle for control over the civil state that the political state always wages. We should look anew at the “terror” of Robespierre and Cardinal Richelieu and the ensuing, rabid anti-clericalism in France to determine its origins and conflicts from the perspective of the Church as well as the State. As Catholics, we experienced collectively the dangers of religious persecution here in America during the various waves of immigration from across the Atlantic Ocean and during defining European events such as the Great Schisms, the Kulturkampf and the Glorious Revolution in England. Still in our minds are the Great Awakenings and State Constitutions enacted in the early republic that were essentially anti-Catholic in New York, Massachusetts and New Jersey through the 1820’s, 1830’s and 1840’s, respectively, and in New Hampshire as late as 1877.
Particular historical events in America also serve to remind us that Catholics have been victims of persecution too, e.g., the Nationalism of the 1800's and the anti-catholic bias of the "Know-Nothing" party, the Oyster Wars, the 1834 burning of the Ursuline Convent in Charlestown, Massachusetts, the national, political campaigns of New York Governor Al Smith and John F. Kennedy, and the New York Bible controversies and Philadelphia Bible Riots of 1844 that broke out after Catholic students requested the reading of the Douhay-Reims Bible rather than the King James version in public school. See generally, the New Advent online encyclopedia; see also L. Epstein & T. Walker, Constitutional Law for A Changing America: Rights, Liberties and Justice (5th ed.)(CQ Press 2004)(“What we often forget, however, is that as the colonies developed during the seventeenth century, they too became intolerant toward ‘minority’ religions; many passed anti-catholic laws or imposed ecclesiastical views on their citizens.”). This, as we also recognize the role of the Christian religion and the Catholic Church beyond America in opposing persecution, human rights violations and communist, socialist and Nazi attempts to control the Church and the various Christian denominations throughout the 20th century, a phenomenon that continues in China and parts of the Arab world today. See, e.g., Freedom House website; Pope John Paul II, Memory and Identity: Conversations at the Dawn of the New Millenium (Rizzoli Int’l 2005); Pope Leo XIII’s Encyclical Rerum Novarum (rejecting the main tenet of socialism); see also: M. Burleigh, Sacred Causes: The Clash of Religion and Politics, pp. 164-201 (Harper Collins 2007); J. O’Sullivan, The President, the Pope and the Prime Minister (Regnery 2006); H.W. Crocker III, Triumph: The Power and the Glory of the Catholic Church, pp. 401-08, 422 (Three Rivers Press 2001); G. Weigel, Witness to Hope, p. 441-42 (HarperCollins/Cliff Street 1999)(“noting Pope John Paul II’s conviction that “communism was a moral evil”); cf. Catholic League website; Cardinal Clemens von Galen's August 3, 1941 Sermon. Despite all of these “lessons” of history, modern sentiments continue to the effect that Catholicism remains the last-acceptable prejudice and are often opined by many believers such as William Donohue and the Catholic League, and numerous best-selling Catholic authors and commentators, including Laura Ingraham, Sean Hannity, Bill O’Reilly, David Limbaugh and John Gibson.
Consequently, we are particularly sensitive to the fact that Catholic Christians have both benefitted from and felt aggrieved by the various decisions of the U.S. Supreme Court under the Establishment and Free Exercise Clauses of the First Amendment. In the 1899 case of Bradfield v. Roberts, 175 U.S. 291, the U.S. Supreme Court recognized that Roman Catholic nuns could lawfully undertake to construct and operate a hospital and receive $30,000 in public funds from the District of Columbia for construction purposes without running afoul of the First Amendment. In 1925, the Supreme Court in Pierce v. Society of Sisters, 268 U.S. 510 (1925), unequivocally recognized the right of parochial schools to exist and the liberty rights and “high duty” of parents – not the State – “to direct the upbringing and education of children under their control.” 432 U.S. 534-35. The Pierce case involved a challenge by the religious Society of Sisters to Oregon’s new law requiring all 8-16 year olds to attend public schools. Like many Roman Catholic schools, the one operated by the Society of Sisters faced imminent closure because of the law’s mandate. The law’s supporters included the Ku Klux Klan and the law was widely seen as anti-Catholic in nature. See Epstein & Walker, Constitutional Law for A Changing America (4th ed), p. 110. While the Court did not invoke the 1st Amendment expressly, it clearly viewed the case as one involving liberty rights that curtailed the powers of the State. The Supreme Court subsequently reaffirmed the benefits of parochial schools in Mueller v. Allen, U.S. (1983) pursuant to the Establishment Clause and upheld Minnesota’s educational expense assistance (in the form of tax deductions) for private school parents, notwithstanding that 95% of the law’s beneficiaries attended sectarian, religious elementary schools.
In the landmark 1947 Supreme Court case of Everson v. Board of Education, the U.S. Supreme Court upheld a New Jersey law that authorized municipalities to subsidize transportation costs for students in nonprofit, private or parochial schools because it viewed the costs as merely “incidental” to one’s education, i.e., “general State law benefits” that are provided to “all its citizens without regard to religious beliefs.” The Everson case adopted the famous (or perhaps infamous) “wall of separation” metaphor and nationalized the Establishment Clause of the First Amendment declaring that:
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.
Everson v. Board of Education, 330 U.S. 1, 18 (1947). Justice William Rehnquist would later vehemently criticize this strict separationist approach and the Everson Court’s reliance on the Jeffersonian metaphor in his dissenting opinion in the 1985 case of Wallace v. Jaffree, a case involving an Alabama law’s authorization for a daily period of silence “for meditation or voluntary prayer” in all public schools. The Court in Wallace v. Jaffree struck down Alabama’s law as having “no secular purpose” and found it violative of the Establishment Clause of the First Amendment. Chief Justice Rehnquist in his dissenting opinion blasted the Court’s interpretation of the Establishment Clause declaring it “a mistaken understanding of constitutional history.” According to Rehnquist, the wall-of-separation-metaphor is “useless as a sound guide to constitutional adjudication,” it mischievously diverts judges attention “from the actual intentions of the drafters of the Bill of Rights,” it “has never been fully defined,” and “should be frankly and explicitly abandoned.” Wallace v. Jaffree, 432 U.S. 38 (1985)(J. Rehnquist, dissenting). Rehnquist viewed Jefferson’s 1802 Letter to the Danbury Baptist Association as “a short note of courtesy” and “a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.”
The year 1971 brought the important, consolidated case of Lemon v. Kurtzman, 403 U.S. 602, to the U.S. Supreme Court. The case involved challenges to separate statutes enacted in Pennsylvania and Rhode Island that provided public assistance to students in parochial schools, 95% of which were affiliated with the Roman Catholic Church. The Pennsylvania law in issue authorized the State Superintendent of Schools to use state tax money for secular, educational expenses in private schools, including their purchase of textbooks, instructional materials and payment of teachers’ salaries, but only for secular subjects and courses taught in public schools, provided that the law’s recordkeeping requirements were also met. The Rhode Island statute sought to improve the quality of private, elementary school education through the authorization of salary supplements of up to 15% of current salaries, but as in Pennsylvania, only for teachers of secular subjects, provided that they agree in writing not to teach religion while receiving the statutory subsidies. In Rhode Island, the recipients of the salary supplements were all employed at Catholic schools and roughly 2/3 of the teachers were apparently Roman Catholic nuns.
The Court in the Lemon cases decided that both the Pennsylvania and the Rhode Island statutes violated the Establishment Clause because “the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.” 403 U.S. at 614. In so holding, the Court stated that:
Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. . . . Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.
403 U.S. at 614. In describing the “sole question” before the Court, Chief Justice Burger admitted that a constitutional “choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government.” 403 U.S. at 625. According to the Chief Justice, “[t]he Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglements are inevitable, lines must be drawn.” Id.
Catholics remain perplexed after the Lemon decision given the Court’s conflicting language and decisions in subsequent cases. In Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993), the Supreme Court held that an Arizona school district was authorized to publicly fund a sign language interpreter in a Catholic high school under the federal IDEA law that facilitates federal assistance to individuals with disabilities consistent with the Establishment Clause. In Zelman v. Simmons-Harris, the Supreme Court upheld Ohio’s Pilot Project Scholarship Program, in essence a State tuition voucher or tuition aid program that was enacted to provide “educational assistance to poor children in a demonstrably failing public school system,” and through which 96% of scholarship recipients enrolled in private, religious schools – in a State in which 82% of the State’s private schools are religious and the Archdiocese of Cleveland operates. Chief Justice Rehnquist, writing for the majority in both cases, writes in Zelman that it is “clear” under the Establishment Clause:
that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. . . .
536 U.S. 647. The educational assistance provided to parochial schools has been extended to the leasing of textbooks for math, science and other subjects to parochial schools in Board of Education v. Allen, 392 U.S. 236 (1968) and in Agostini v. Felton, 521 U.S. 203 (1997) to the provision of public school teachers in private, parochial schools to facilitate remedial education for qualifying students under Title I of the Elementary and Secondary Education Act of 1965, thus alleviating the need for such services to be held in trailers rather than in parochial schools. However, direct aid to religious institutions for projectors (that may be diverted for religious purposes) and similar commonly-used, educational items appear to be too much like government subsidizing private institutions and has been held to run afoul of the Establishment Clause. See: Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)(Amendments to NY Education and Tax Laws authorizing maintenance and repair funds and per pupil grants to nonpublic schools, largely Roman Catholic, to benefit poor held unconstitutional); Meek v. Pittenger, 421 U.S. 349 (1975)(instructional equipment loan program using public funds for projectors held unconstitutional but certain textbook loans upheld where 75% of Pennsylvania’s private schools are Church-related or religiously affiliated); but see: Mitchell v. Helms, 530 U.S. 793 (2000)(overruling Meek and upholding federal funds for educational, library and computer resources to Louisiana and its private elementary and secondary institutions, the vast majority of which are Roman Catholic). But then again, what are Catholics to make of the many state Blaine Amendments that appear to have originated from anti-catholic concerns and which have yet to be meaningfully addressed by the Supreme Court? [For a further description of Blaine Amendments, visit the Pew Forum’s 2008 Q&A on "The Blaine Game"].
In the realm of higher education, the Supreme Court ruled in the case of Roemer v. Maryland Public Works Board, 426 U.S. 736 (1976), that four Roman Catholic Colleges were not “pervasively sectarian” and could receive public funds and grant assistance from the Maryland Council for Higher Education, notwithstanding their formal affiliations with the Roman Catholic Church. In Rosenberger v. University of Virginia, 515 U.S. 819 (1995), a State institution cannot rely on the Establishment Clause to exclude an approved, independent, student organization and its overt Christian publications (some of which highlighted C.S. Lewis) from the use of student government funds for printing costs, particularly where the University’s policy was to promote multicultural views. In Witters v. Washington Dept. of Services for Blind, 474 U.S. 481 (1986), the Establishment Clause was not a bar to the use of public funds, in the form of a vocational tuition grant, by a blind student who desired to attend a Christian college to become a pastor, missionary or youth director. However, in Locke v. Davey, 540 U.S. 712 (2004), Chief Justice Rehnquist believed it appropriate to exclude an individual’s choice to study theology at a private Christian college and to become a minister from the ambit of the recipient’s public Promise Scholarship.
The line-drawing by the Supreme Court under the Free Exercise Clause concerning Christian crèche scenes, the Ten Commandments and school prayer have been less satisfying and more perplexing. In Lynch v. Donnelly, the Supreme Court through Chief Justice Burger wrote that the crèche was a “passive symbol” that is “identified with one religion” but also part of “an unbroken history of official acknowledgement by all three branches of government of the role of religion in American life.” Lynch v. Donnelly, 465 U.S. 668, 674 (1984). Acknowledging that the issue of excessive entanglement “is one of kind and degree,” the Chief Justice candidly concluded that “[i]f the presence of a crèche violates the Establishment Clause, a host of other forms of taking official note of Christmas, and our religious heritage, are equally offensive to the Constitution,” a result that the Court could not countenance. 465 U.S. at 686. In fact, Justice Sandra Day O’Connor wrote in her concurring Opinion that public holiday celebrations “which have cultural significance even if they also have religious aspects” constitute a legitimate secular purpose. 465 U.S. at 691. Not so apparently in downtown Pittsburgh. The Supreme Court, just five years later, determined that a Roman Catholic group’s grand holiday crèche display in the Allegheny County Courthouse for nearly ten years violated the Establishment Clause while the prominent display by a jewish group of a Menorah, accompanied by a Christmas tree outside of the Pittsburgh county and municipal complex did not violate the Establishment Clause. (See Justice Blackmun’s Opinion in County of Allegheny v. ACLU, 492 U.S. 573 (1989)). Increasing the confusion and anger, the Court in a 1995 case known as Capitol Square Review Bd. v. Pinette, 515 U.S. 753 (1995), seemed to be more sympathetic to the KKK’s request to erect a Cross during the Christmas season on a state-owned park in Columbus, Ohio. The Court in that case determined that Ohio violated the First Amendment rights of the KKK when it denied their request while granting permission to others to erect a Menorah and a Christmas Tree. It can be legitimately and sincerely asked: Why is a KKK cross and a Christmas Tree acceptable but not a crèche, the Ten Commandments, the Lord’s Prayer or a non-denominational, traditional prayer in school, at a football game or convocation under the same First Amendment?
III. Contemplate the meaning of “Liberty” and these three salient points! If you read this far, you must be seeking in earnest a greater understanding of Secularism and the doctrine of Separation of Church and State. The issues warrant further, serious study and, regrettably, all of the answers are not forthcoming here. Several salient, guiding concepts that will focus your understanding are worth contemplating further at this point. Consider first the concepts of “liberty” and “neutrality” and whether State neutrality on the Separation issue is possible at all. Whatever your conclusion to the first question, honesty requires all students to recognize that secularism and the modern humanistic tendencies that seek to define it may well contain significant bias against or hostility towards Christianity. Third, we must regain an appreciation for the genius of the Founders in enacting the First Amendment and ensuring through the Free Exercise Clause that religion will have a prominent place in politics for as long as “we the people” believe and assert that our judeo-Christian heritage is important to our national and individual identities.
A. The ideals of a strict separation between Church and State and “neutrality” on the part of the State with regard to religion are unattainable, illogical, legal fictions that amount to little more than arbitrary, judicial line-drawing. Through the years, the Supreme Court has endeavored to protect the religious liberty of all persons through a policy of neutrality that prohibits state endorsement or establishment of a church, prohibits government passage of laws that “aid one religion, aid all religions, or prefer one religion over another” (Everson, 330 U.S. at 15), and requires a secular purpose for state action that neither advances nor inhibits religion. In addition, the First Amendment is also said to require religious neutrality in the sense that the State may not affirmatively oppose or show hostility to religion by preferring non-believers over believers. See School District of Abington Tp. v. Schempp, 374 U.S. 203, 225 (1963). To judge legislation or state action by these general standards actually requires the Court to presumptively choose atheism and secularism over the Christian roots and traditions of our nation. Such an inherent, arbitrary bias manifests itself in dishonest fashion as “religious liberty” or “neutrality” yet results in decisions that trivialize, reject and even persecute religion. Clearly, the Founders intended the First Amendment to be a protection from religious persecution. How then can we countenance decisions that appear in obvious ways to favor views of atheist objectors and non-believers over the Christian heritage and history of our nation? Does the Court actually fail to recognize that disallowing non-denominational prayers at football games or graduations deprives the believers of their free-exercise rights in favor of the rights of non-believers who may be offended or feel uncomfortable? Why does the Court not view itself as “bristling with hostility to religion” when it bans passive, public displays of the Ten Commandments, the Bible or the Creche and protects blasphemous, pornographic or obscene expression under the same First Amendment? Does the Court not see the offense to Christians and believers everywhere when they protect the rights of those who find prayer to God “offensive,” notwithstanding our nation’s motto “In God We Trust?” Exactly what is “offensive” about the Lord’s Prayer or the Ten Commandments? Why does the Court not see the futility or meaninglessness of the First Amendment without God? “Without acknowledgment of God by governing authorities, we have no moral basis and no freedom of conscience.” R. Moore, So Help Me God, p. 110 (Broadman & Holman Publishers 2005). Did not the Declaration of Independence and the Farewell Address of the Father of our Country tell us as much?
The late Pope John Paul II unequivocally affirms that “[t]here is no freedom without truth.” Memory and Identity, p. 39. The Supreme Court’s history of the “neutrality” doctrine underscores its fictitious, arbitrary nature and demonstrates its inability to attain its stated goals. Aside from the unanswered questions above, the Court has sought to accommodate religion more often than resorting to its strict separation from the State. It has adopted the amorphous “secular purpose” and “excessive entanglement” tests and, thereafter, adopted several alternative, revised tests that served only to render their ambiguous, subjective nature obvious and evident. See, generally, A.T. Mason & D.G. Stephenson, Jr., American Constitutional Law: Introductory Essays and Selected Cases (14th Ed.), pp. 536-541 (Pearson/Prentice Hall 2005); L. Epstein and T.G. Walker, Constitutional Law for a Changing America: Rights, Liberties and Justice (5th Ed.), Ch. 4 (CQ Press 2004). And the Court has included non-theistic religions, the practice of Santeria and even atheism and secular humanism within the confines of First Amendment protection. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)(ordinance prohibiting animal sacrifice and geared toward prohibiting Santeria practice violates 1st Amendment); School District of Abington Tp. v. Schempp, 374 U.S. 203, 225 (1963)(“the State may not establish a ‘religion of secularism’”); Torcaso v. Watkins, 367 U.S. 488, 495, n. 11 (1961)(secular humanism is a religion akin to theistic religions); Kaufman v. Mccaughtry, 419 F.3d 678 (7th Cir. 2005)(atheism held to be a religion).
In light of the above, the conclusion is inescapable that government neutrality under the First Amendment amounts to a myth and constitutes a subjective, legal fiction; one that necessarily results in an official acceptance, accomodation or rejection of religion and God in every case before the Court. According to Justice Oliver Wendell Holmes, the laws and every legal system bear a close relationship to the goals, aims, ideas and ends of society.
Law reflects the intellectual, social, economic, and political climate of its time. Law is inseparable from the interests, goals and understandings that deeply shape or compromise social and economic life.
S. Vago, Law and Society (8th ed.), p. 3 (Pearson/Prentice Hall 2006). According to Fr. Richard Neuhaus:
The very vocabulary of politics is inescapably moral. With respect to innumerable issues, we debate what is right and what is wrong, what is fair and what is unfair, what serves and what disserves the common good. In any society, moral judgments draw upon the deepest beliefs and convictions held by the people of that society. In America and most of the world, those beliefs and convictions are inseparable from religious traditions.
R. J. Neuhaus, American Babylon: Notes of a Christian Exile, pp. 108-09 (Basic Books 2009). It is precisely for these reasons that an atheistic culture or state should be strenuously opposed by Christians. Pope Benedict XVI teaches and 20th century history, at the very least, confirms that state promotion or imposition of practical atheism “deprives its citizens of the moral and spiritual strength that is indispensable for attaining integral human development, and it impedes them from moving forward with renewed dynamism as they strive to offer a more generous human response to divine love.” Charity in Truth, Sec. 29.
Moreover, the complete separation of church and state logically and inevitably leads to the very overlap which it so studiously and dogmatically seeks to avoid. The rise of liberal democracies and the modern political state require the importance of a thriving civil state, of which religion is a part, in order to successfully protect the liberties of the citizens from a dominant, oppressive or tyrannical state. See, e.g., C. Drogus & S. Orvis, Introducing Comparative Politics, pp. 86-89 (CQ Press 2009); B. Crick, Democracy: A Very Short Introduction, p. 109 (Oxford Univ. Press 2002)(“History, reason and morality must throw into the democratic pot liberty, human rights, and the brotherhood of man. . . There is only a continual process of compromise between different values and interests, politics itself.”); R. J. Neuhaus, American Babylon, pp. 109-110 (Secularism is not "an order designed to exclude religion and religiously grounded moral discernment from our common life. . . . such an exclusion is not what the founders intended."); R. George, The Clash of Orthodoxies, p. 134 (“The value of constitutional democracy lies ultimately in its capacity to serve and secure the common good, which demands, above all, the protection of fundamental human rights.”); Federalist Paper No. 51 (“Justice is the end of government. It is the end of civil society.”).
A secular State must necessarily adopt a code of justice and standards of conduct for its citizens to adhere to for the betterment of all within the State. Christianity, not surprisingly, entails notions of social justice, virtue, values and what is good and best not only for the individual but for the peace and justice of society too! The overlap in these areas is significant and simply cannot be trivialized or ignored with regard to matters of social justice, liberty and human dignity in a democratic, representative form of government. The marginalization of Christian views on these societal issues by the State that inevitably results from the Separation doctrine and its ensuing secularism results only in the growth and strengthening of State power, the imposition of secular views on Christians, the co-option of the civil state by government, the erosion of morality, virtue, faith and religion by government as a competing agent of political socialization, and the ultimate loss of liberty commensurate with the aforesaid occurrences. We should readily see that the Christian views of justice, liberty, virtue and human rights spoken of by Lincoln, Reagan and many of the Founders that made the goal of religious liberty one worthy of protection should not be undermined and subverted in the process.
B. The concepts of Secularism and Humanism are not necessarily hostile to Christianity and its natural law traditions, but are often seen and taught as such. The rise of modern secularism in western civilization coincides largely with the decline of monarchism and the advent of liberal democracies in Europe during the Enlightenment period and in America to a lesser extent thereafter. Yet, issues regarding the respective roles of church and state arose in various forms throughout the history of western civilization. There is something extraordinary, however, about modern secularism that continues to fascinate us even today.
Perhaps our fascination derives from an increasing realization and appreciation that much of our law, including western notions of government and individual rights, are rooted in distinctly Christian concepts of limited government, natural law, human freedom and human dignity. Founding Father James Madison, 4th President of the United States, declared that the very rights for which the revolution was fought “were the ‘rights of human nature.’” The Declaration of Independence, touted by Jefferson its author as “an expression of the American mind,” embodied and declared the views of the Founders that “rights were God-given and government by consent was rooted in ‘the Laws of Nature and of Nature’s God.’” Jefferson characterized the American Bill of Rights as “what the people are entitled to against every government on earth, general or particular; and what no just government should refuse or rest on inference.” No doubt Jefferson recognized the equality of all men and recalled their “unalienable rights” bestowed by the Creator, rights that John Locke and others wrote so profoundly and persuasively about in Christian terms. In his First Inaugural Address, Jefferson himself declares “freedom of religion” to be the bedrock of American justice “acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greatest happiness hereafter – with all these blessings, what more is necessary to make us a happy and prosperous people?”
Scholar Dinesh D’Souza boldly argues that the secular doctrine of Separation of church and state “is a device supplied by Christianity to promote social peace, religious freedom, and a moral community.” D. D’Souza, What’s So Great About Christianity?, p. 53 (Regnery Publishing 2007). According to D’Souza, America’s Founders “in no way denied the Christian foundations of the American experiment,” but rather exhibited their genius by insisting “that the central government stay completely out of the business of theology.” Ibid. at 52. By doing so, the Christian civil state could effectively influence the political state and serve simultaneously as a check on or counter to “the powerful human instincts of selfishness and ambition” by its profession and hallmark practice of charity and compassion for the welfare of others. Ibid. at 53; see also T. Woods, How the Catholic Church Built Western Civilization, pp. 170-186 (Regnery Publishing 2005). Professor Marcello Pera writes that “our values, rights, and duties of equality, tolerance, respect, solidarity, and compassion are from God’s sacrifice. . . . even our institutions are inspired by Christianity, including the secular institutions of government that render unto Caesar that which is Caesar’s.” J. Ratzinger & M. Pera, Without Roots: The West, Relativism, Christianity, Islam, pp. 36-37 and 76 (Basic Books 2006). Dr. Thomas Woods, Jr. helps us rediscover the central and inseparable role of Christianity in our western government traditions in this way:
. . . the very idea of natural rights, for a long time assumed to have emerged fully formed from liberal thinkers of the seventeenth and eighteenth centuries, in fact derives from Catholic canonists, popes, university professors and philosophers. The more scholars investigate Western law, the greater the imprint of the Catholic Church on our civilization turns out to be, and the more persuasive her claim as its architect.
T. Woods, How the Catholic Church Built Western Civilization, p. 202; see also J. Maritain, Man and the State (University of Chicago Press 1950)(“The genuine idea of natural law is a heritage of Greek and Christian thought.”). Like Professor Robert George of Princeton University, a fellow Catholic, we should “take comfort” from being in the company of “America’s greatest statesman, from Thomas Jefferson to Lincoln to Martin Luther King Jr. They – and the central philosophic tradition of which they were, in turn, our nation’s principal bearers – argued that the basis of civil rights and liberties was natural law and the natural rights that derive from natural law.” R. George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis, p. 156 (ISI Books 2001).
Professor George opines in his work A Clash of Orthodoxies that Christian belief and morality are rationally and demonstrably superior to today’s orthodox secularism. Such a view hearkens back to Saint Augustine, who authored The City of God, in part, to defend the Church against accusations that Christianity itself led to the fall of the Roman Empire. Augustine saw that Christ’s love offered something to us that no government on earth could attain: true peace and justice. Indeed, Christ’s response to the worst offenses committed by mankind is love, mercy and forgiveness. Significantly, Augustine addressed the respective roles of government and religion and wrote of the two Cities recognized by the children of God:
We see then that the two cities were created by two kinds of love: the earthly city was created by self-love reaching the point of contempt for God, the Heavenly City by the love of God carried as far as contempt of self. In fact, the earthly city glories in itself, the Heavenly City glories in the Lord. The former looks for glory from men, the latter finds its highest glory in God, the witness of a good conscience. The earthly lifts up its head in its own glory, the Heavenly City says to its God: “My glory; you lift up my head.” In the former, the lust for domination lords it over its princes as over the nations it subjugates; in the other both those put in authority and those subject to them serve one another in love, the rulers by their counsel, the subjects by obedience. The one city loves its own strength shown in its powerful leaders; the other says to its God, “I will love you, my Lord, my strength.” (CG 14.28)
See, e.g., N. Melchert, The Great Conversation: A Historical Introduction to Philosophy (5th ed.), p. 258 (Oxford Univ. Press ). In doing so, Augustine recognizes that the Christian owes duties to each city, duties that sometimes overlap but that are not the same. See, e.g., D. Souza, What’s So Great About Christianity? at p. 48. Saint Aquinas recognized and “shared with classical political theory the central understanding that our fulfillment will come only in a true city, in communication with others in freedom and justice;” a true city being the city of God and one’s citizenship coming through His grace. A.S. McGrade, The Cambridge Companion to Medieval Philosophy, p. 277 (Cambridge University 2003).
In its true sense, a secular society should free man to find the Good and God without undermining the very foundations of natural law and Christianity upon which it necessarily and intractably rests. To do otherwise and upset these foundational pillars in the name of “religious liberty,” may well mark a return to the principles contained in Niccolo Machiavelli's political works “The Prince” and “Discourses on the First Ten Books of Titus Levy” and/or to a relativistic, pagan culture premised on the Sophist’s notion that “man is the measure of all things.” Machiavelli’s political theory, in essence, isolated and removed “political laws from the regulation of morality” and his “amoral way” clearly “foreshadowed the nationalistic and totalitarian concepts of the absolute state.” J. Collins, A History of Modern European Philosophy, p. 27 (Bruce Pub. Co. 1954). It is precisely this loss of respect and appreciation for our Christian heritage that caused Pope Benedict XVI to lament the “post-European techno-secular world” in which “Europe seems hollow . . . infected by a strong lack of desire for the future” when it should be enjoying its greatest successes. J. Ratzinger & M. Pera, Without Roots at p. 66.
Notwithstanding this lament, Pope Benedict XVI remains hopeful and applauds American Catholics for recognizing “the positive character of the separation between church and state, for both religious reasons and for the religious freedom that it” guarantees, as well as for their “significant contribution” to American society’s Christian consciousness. Ibid. at 112. Because of the Separation doctrine, the Pope remains hopeful that Protestants, Jews and others could continue to discover anew their commonalities with Catholicism and will serve jointly to defend against the negative pressures of secularization and the erosion of common judeo-christian, traditional values that can result from non-belief and indifference to the faith. Ibid. at 112-13. Former Alabama Chief Justice Roy Moore was similarly motivated when he said “[a]ll history supports the acknowledgment of God” at the unveiling of the Ten Commandments monument at the State Courthouse:
I knew that surrounding the Ten Commandments with historical documents to “secularize” the display had been invented by the federal courts to reduce the display to mere history, rather than the present reality of a living God. It was a subtle way of denying the truth, and I would not be a party to it.
R. Moore, So Help Me God, p. 148 (Broadman & Holman 2005). The Pope and Chief Justice Moore realized what perhaps our Founders understood, that secularism is a political and academic movement designed to foster assimilation, identity and primary allegiance to the State.
Students should come to recognize and appreciate the philosophical and political nature, as well as the significant consequences, of this debate. Academic freedom and the protections of the First Amendment are generally good things and we can rightly applaud and encourage the freedom to reason. The Enlightenment showed us the limits of reason but it can lead us to appreciate its depths and strengths – and even compel Christianity and Catholicism to mature and recognize their own advent nature. Indeed, it was from the Scholastics and the Church that those in the Renaissance, Reformation and Enlightenment ages were taught, educated and permitted to flourish. At the center of the Renaissance culture was the Holy Bible. Renaissance biblical scholarship and its focus on improving upon St. Jerome's work on the Vulgate "played an important role in laying the foundations for the Protestant and Catholic Reformations." Encyclopedia of the Renaissance, Vol. I, pp. 209-212 (Charles Scribner's Sons 1999). But to many Enlightenment figures, the view that “man’s reason . . . is his freedom and greatest power” displaced the importance of Christianity and the Christian God in public life and even in civil society. Acknowledge with honesty that there are significant aspects of the Enlightenment that promote a rigid, anti-Christian secularism “that resolutely denies the right of a public presence” to Catholicism, Christianity in general and the traditional views and values derived therefrom. J. Ratzinger & M. Pera, Without Roots at 113-14.
The rejection of Christ and, in particular, of his Paschal Mystery – the Cross and Resurrection – entered European thought in the late seventeenth and early eighteenth centuries, the era of the Enlightenment. First came the French Enlightenment, followed by the English and German versions. In all its different forms, the Enlightenment was opposed to what Europe had become as a result of evangelization. . . . So-called “Enlightened” European thought tried to dissociate itself from this God-Man, who died and rose again, and every effort was made to exclude him from the history of the Continent. This approach still has many stubbornly faithful adherents among thinkers and politicians of today.
John Paul II, Memory and Identity, p. 97 (Rizzoli 2005). Many enlightenment philosophers directed their criticisms and attacks against Christianity, Catholicism, faith and religion in their attempts to trivialize the spiritual and divine aspects of man and to define us as beings that are predominantly rational, materialistic, sensory or lesser in dignity and substance. See, e.g., "Christianity as the Soul of the West" by Christopher Dawson (1932). Yale Professor Louis Dupre writes:
. . . by the beginning of the modern age reality had ceased to be intrinsically intelligible and God no longer provided the rational justification of the world. Henceforth meaning was no longer embedded in the nature of things; it had to be imposed by the human mind.
Dupre, The Enlightenment and the Intellectual Foundations of the Modern Culture, pp. 2-3. The Enlightenment thinkers and the French Revolution shattered the notion of history measured by God’s divine purpose in Europe:
This process had a major impact on both politics and ideals. In terms of ideals, there was a rejection of the sacred foundation both of history and of the state. History was no longer measured on the basis of an idea that had preceded and molded it. The state came to be understood in purely secular terms, as grounded in rationalism and the will of the citizens.
J. Ratzinger and M. Pera, Without Roots, p. 62 (Basic Books 2006). The echo of the Enlightenment is captured clearly, though erroneously, in Baruch Spinoza’s phrase: “Reason is the realm of truth and wisdom, theology that of piety and obedience.” Thus, the very purpose of freedom in the political sense to Spinoza and other Enlightenment philosophers was “to make room for the freedom of reason.” K. Jaspers, The Great Philosophers, p. 342 (Harcourt, Brace & World, Inc. 1966); see also R. J. Neuhaus, American Babylon, p. 124, citing P. Gay, The Enlightenment: An Interpretation ("The great thing about the Enlightenment, Gay says, was the dawning of the way of reason that displaced the beliefs of 'traditional religion,' which had been dependent solely upon faith.").
France is the example often used of a secular European state – a nation that was historically Catholic. The French Revolution spawned an intense conflict between secularism and clericalism that “became especially acute in traditionally Catholic societies.” G. Almond, R. Dalton, G.B. Powell & L. Strom, European Politics Today, p. 14 (4th ed.)(Longman 2010). In France, as “in other European Catholic countries, the difference between the political right and left was largely determined by attitudes toward the Catholic Church,” and, regrettably, religious practice in France has been precipitously declining. G. Almond, et al., Europe Politics Today, p. 137-38 (4th ed.)(Pearson/Longman 2010). This modern separation of Church from the modern state along with the rise of legal positivism, (i.e., the liberal or secular notion that human dignity and legal rights are derived from governments, constitutions and social contracts), mark an Enlightenment thought that in the end produced an indifference and often disdain or disrespect for the true, divine foundations and dimensions of human rights and human dignity. As a consequence, it produced a worldview that overwhelmingly favored reason, virtually excluded faith in the public arena, and did serious damage to European identity and progress. J. Ratzinger, Without Roots, p. 66.
In France, rabid anti-clericalism and philosophers such as Jean-Jacques Rousseau, and Voltaire advanced particularly hostile perceptions of faith, religion and Christianity, while Baron deMontesquieu was more subtle in his influential work The Spirit of the Laws . Rousseau in Book 4 of “On the Social Contract” recognizes what he contends is the superior role of a civil religion in his concept of the “organic state” and observes “that the dominating spirit of Christianity was incompatible with his [Hobbesian] system,” notwithstanding his observation “that the interest of the priest would always be stronger than that of the state.” Thus, priests were often regarded as “the enemies” because they were perceived to have “rejected the claim of reason and based politics and morals on sacred texts and ecclesiastical authorities.” A. Bloom, The Closing of the American Mind, p. 258 (Simon & Schuster 1987). Regarding Christianity, Rousseau writes:
. . . since this religion has no particular relation to the body politic, it leaves laws with only the force the laws derive from themselves, without adding any other force to them. And thus one of the great bonds of a particular society remains ineffectual. Moreover, far from attaching the hearts of the citizens to the state, it detaches them from it as from all the other earthly things. I know of nothing more contrary to the social spirit.
We are told that a people of true Christians would form the most perfect society imaginable. I see but one major difficulty in this assumption, namely that a society of true Christians would no longer be a society of men.
Rousseau believed that we become men “only after we have become citizens.” Voltaire and his fellow Encyclopedists are similarly remarkable for their energetic, vitriolic attacks on faith and Christianity and “were anti-christian.” E. Gilson, Modern Philosophy: Descartes to Kant, pp. 334-36 (Random House 1963); see also L. Dupre, The Enlightenment and the Intellectual Foundations of Modern Culture, p. 251.
Interestingly, the Frenchman Rene Descartes, the “Father of the Enlightenment,” was a Catholic who had his faith called seriously into question by the events of his time. In the Meditations on First Philosophy, he concludes through the use of his reason and methodic doubt that God exists, that man is of a dual nature consisting of his mind and his body and that man is primarily a rational being, i.e., “a thing that thinks.” Descartes extreme skepticism and rationalist philosophy recognized only such things that can be known with certainty to one’s own mind, set him at odds with the Scholasticism of St. Thomas Aquinas and resulted in the banning by the Roman Catholic Church of his Meditations. T. Z. Lavine, From Socrates to Sartre, pp. 88, 99 (Bantam 1984); see also Pope John Paul II, Memory and Identity, pp. 8-9 (Rizzoli Int’l 2005)(Descartes “marked a decisive abandonment” of philosophy of St. Thomas Aquinas). Another Frenchman Blaise Pascal would address the attacks on God and Christianity in persuasive and compelling fashion in his work Pensees, published posthumously – a work that all Christians should familiarize themselves with. According to Prof. Allan Bloom, “Descartes and Pascal are national authors, and they tell the French people what their alternatives are, and afford a peculiar and powerful perspective on life’s perennial problems. They weave the fabric of souls.” Bloom, The Closing of the American Mind, p. 52 (Simon & Schuster 1987).
The German enlightenment bore the seeds of significant anti-Christian and anti-Catholic rhetoric as well. The 19th century Kulturkampf remains a sensitive and significant topic for Catholics. Martin Luther and his German brethren Georg Hegel, Karl Marx and Immanuel Kant, are key German figures whom espouse philosophies that go far in reminding us of the pitfalls and promises of the powers of the state and the implications of the Separation doctrine. Hegel, known for his “dialectical materialism,” touted the state as the “the format within which history could be best understood” and urged people to “commit themselves” to it, accepting it “as the principal institution from which they derive identity.” Like Rousseau, Hegel argued that people derive meaning only through service to the state and that they become free only when they become subject to it.” L. Baradat, Political Ideologies (9th ed.), p. 226 (Pearson/Prentice Hall 2006). Hegel’s theories inspired Karl Marx’s communist/socialist philosophy and further influenced the elitist and imperialistic views of Lenin, Stalin, Mussolini and Hitler. Ibid. at pp. 184-86, 227-231. The thoughts of Kant, Hegel and Marx also influenced Heidegger, the humanism of Jurgen Habermas and the anguished nihilism found in Friedrich Nietzsche's famous pronouncement that “God is Dead.” It is indeed difficult to forget Nietzsche’s chilling commentary that “we alone are divine” and that “Christianity has been the greatest misfortune of mankind so far.”
British enlightenment philosophers, such as Thomas Hobbes, John Locke and Scotsman David Hume, offer secular views that show varying degrees of hostility to man’s dignity and religion in general. The social contract theory, often credited to Hobbes and Locke, provides that the state is a rational creation of all of the individuals within it “rather than being created by natural human impulse or being empowered by God.” Baradat, Political Ideologies (9th ed.) at 52. Locke put forth a view that saw human beings as generally good and that asserted the role of government to be the protection of the unalienable rights to life, liberty and property. See Stanford Encyclopedia of Philosophy and J. Collins, A History of Modern European Philosophy, pp. 355-63 (Bruce Pub. Co. 1954) for an excellent treatment of Locke and many other enlightenment philosophers. David Hume’s work was generally destructive in nature, purported to deconstruct science, ethics and religion, demonstrated the limits of reason and led Hume to conclude that the notion of “self” was incomprehensible and unfathomable to him.
These “enlightened” thinkers, and many since their time, provide ample support for the common view that secularism is hostile to Christianity. See, e.g., J. Ratzinger & M. Pera, Without Roots, p. 113 (“Why in the varied panorama of secularism is there a prominent fringe that resolutely denies the right of a public presence to the Christian faith and its values?”); Bloom, Closing of the American Mind, p. 211 (“secularization “is the wonderful mechanism by which religion becomes nonreligion.”); L. Dupre, The Enlightenment and the Intellectual Foundations of Modern Culture, p. 256 (“Deism did indeed pave the road to atheism by undermining the traditional basis of religious faith”); R. George, A Clash of Orthodoxies, pp. 19-21 (“orthodox secularism is a tradition in crisis . . . . Christian teaching is rationally superior to secularism . . .”); R. Santorum, It Takes A Family: Conservatism and the Common Good, p. 103 (ISI Books 2005)(“secular fundamentalists [are] doing everything they can to marginalize faith.”); see also: S. Hahn & B. Wiker, Answering the New Atheism, p. 97 (Emmaus Road 2008)(“Christians and atheists inhabit different moral universes, where in great part what is good for the atheist is evil for the Christian, and what is evil for the atheist is good for the Christian.”); G. Weigel, The Cube and the Cathedral, p. 47 (Basic 2005)(atheistic humanism aspires to a view of human freedom and greatness that rejects and cannot coexist with the biblical God).
But today, we know that Neitzsche was wrong, that neither God nor Christianity are dead, that the Enlightenment project has essentially collapsed, and perhaps as G. K. Chesterston said, that God is the soul of our nation. Edmund Burke put it concisely:
We know, and what is better feel inwardly, that religion is the basis of civil society, and the source of all good and of all comfort. . . . We know, and it is our pride to know, that man is by his constitution a religious animal; that atheism is against, not only our reason but our instincts; and that it cannot prevail long.
E. Burke, Reflections on the Revolution in France (1790). Secularization theorists like Peter Berger have declared the “whole body of literature by historians and social scientists” on such a theory to be “essentially mistaken.” P. Berger, The Desecularization of the World: Resurgent Religion and World Politics, p. (Eerdmans 1999). There is a significant connection between politics and “the human good” and this connection “was a keystone of the political discourse of Antiquity within which and upon which medieval philosophers [such as Aquinas] worked.” A.S. McGrade, The Cambridge Companion to Medieval Philosophy, p. 277 (Cambridge Univ. Press 2003). At the core of St. Thomas Aquinas’ teaching is the notion that “sovereignty, dominance or freedom is never something that is limited or frustrated by (true) law, whether we are talking of the sovereignty of God, of the individual under natural law, or of the political sovereign.” Ibid. at 284-85; see also E. Gilson, Elements of Christian Philosophy, pp. 273-74 (Doubleday 1960). Even Spinoza was compelled to recognize the dominating reality of revealed faiths in the monotheistic religions and admits, despite his personal belief that religions are superstition, that love and justice are demanded through them, partially obtained by them and that they constitute a “rational core” that is “indispensable to the building of a free society.” K. Jaspers, The Great Philosophers, pp. 346, 348 (Harcourt, Brace & World 1966).
Thus, as Catholic Christians, we have come to know, and perhaps to more fully appreciate, that “the Truth shall set you free,” that man is “more free, the more he is at one with himself, the more he loves God.” Ibid. at 342. Yet, we also know that many are striving to come to the truth about themselves and God, about reason and faith, and about the goodness of man in general. The pain and struggle is evident throughout history as it is in many of the writings of the philosophers of the Enlightenment. We know that humanism derives as much from the celebration of a flourishing man with the help of religion in the Renaissance period as it does from modern philosophy. We know that despite its modern anti-religious bias, humanism struggles with and ultimately seeks the same objective, universal truths about the goodness of man as it works to create a political movement and state that can serve “the common good” as well as Christianity has served Western Civilization for millennia. Perhaps we can even recognize the advent and providential natures of history in such a movement, as well as the serious misgivings inherent in their attempts to excise God and religion from the political scene.
C. Consequently, Catholic Christians must recognize that rights not vigilantly guarded or asserted are lost; Christian identity and heritage not learned, recalled or appreciated diminishes all of us. Indeed, our faith and religion, if privatized or not lived, is rendered wholly or partly irrelevant and signifies a rejection of our Christian faith to such an extent. In truth, the earnest study of the history of the separation doctrine can leave you (and many law students, lawyers and judges) confused, conflicted, exhausted and ultimately unsatisfied. It will take you not only on a tour of western civilization, but of the essentials of your faith. At the very core of the Separation doctrine one must come face to face with his/her individual identity, faith and virtue, as well as our identity as a nation of believers. Truth be told, the founders ingenuously crafted a First Amendment that forces each of us to confront our collective identities as believers and our duty to protect “the free exercise of religion” for as long as we cherish our rights and identities as faithful, devout people of God:
In the coming years, these and other controversies will continue to probe the fuzzy boundaries of the establishment and free exercise clauses. The framers bequeathed certain values by way of a written constitution and left it to later generations to apply those values to situations the framers could not know foresee. The establishment clause calls for separation, while the free exercise clause leaves Americans free to work for objectives dictated by their faiths. Together, they guarantee that the division mandated by the one will forever be tested because of the freedom ensured by the other.
A. T. Mason & D. G. Stephenson, Jr., American Constitutional Law: Introductory Essays and Selected Cases (14th ed.), pp. 544-45 (Pearson/Prentice Hall 2005).
The debate over what the Founders believed and whether they were religious or Christian is interesting and intriguing but not dispositive. The brilliance of the First Amendment is found precisely in the tension between the Establishment and Free Exercise Clauses and that tension ensures a lively, continuous, public debate on the role of religion in America. The crucial question for Americans is simply one of identity – do we trust and believe in the wisdom and promises of our Christian religion and dutifully live out our Catholic faith? Are we worthy heirs of the Kingdom of God and His promises? When Jesus comes, will He find faith in us and in our nation sufficient to answer the Church’s daily prayer to “look not on our sins but on the faith of your [His] Church?”
The implications of the First Amendment are clear – we the people can ultimately influence and decide the role of religion in our society and define what the First Amendment means in the process! As long as America considers itself a nation of believers, values its Christian heritage and its judeo-christian philosophy of law, and refuses to permit its sincerely-held, religious principles and convictions to be marginalized in the public square, our religion and government will seek accommodation from each other rather than separation from one another. If America continues to recognize that the religious and moral traditions of its good, virtuous and orthodox religious people must serve constitutionally as effective and necessary checks and balances on the power, corruption and immorality of secular government for the good of society, then the ideals of a charitable, tolerant nation that does not discriminate on the basis of religious belief can be realized. As long as Americans realize that the doctrine of separation of church and state is a legal and political fiction that idolizes a secular, non-religious government, then Christians and religious of all denominations can confidently raise their many voices in unity for the virtues and values that are sacred, traditional and for the good of all. Americans already know through their history that separate is not necessarily equal. When American Catholics recognize the essential links between God, truth, justice and love, we can then seek to achieve in earnest – even with secularists who are struggling to seek truth and find the lack of it in an unswerving faith in mankind - the peace, prosperity and promises of God’s favor in abundance. “One need not investigate anything else, because Christianity is the necessary and sufficient condition of our history.” Bloom, The Closing of the American Mind, p. 211.
IV. Additional Resources on the Separation Issue
"Catholics in Political Life" adopted by U.S. Conference of Catholic Bishops, June 2004
"Faithful Citizenship" website of the U.S. Conference of Catholic Bishops
"Secularisms Special Pleading" by Hunter Baker, Associate Provost of Houston Baptist University, appearing in the Trinity Forum’s “Provocations,” October 2009.
"Secularity: On Benedict XVI and the Role of Religion in Society" by Fr. James V. Schall, S.J., Georgetown University, for Ignatius Insight, Jan. 9, 2007
"Refighting the Wars of Religion" by George Weigel, appearing in Commentary, Nov. 2007
"Separation of Church and State: Manifest Destiny or Manifest Heresy?" by David Palm appearing in Seattle Catholic, June 15, 2005.
"Secular Fundamentalism and Democracy" by Richard Ekins, published in the Acton Institute’s Journal of Markets & Morality, Spring 2005.
"Democracy and Religion in America" by Michael Novak, National Review, October 2, 2002
"Separation of Church and State" by University of Virginia Law Professor Stephen Smith, appearing in First Things, December 2002.
"The Catholic Virtue Tradition and the American Prospect" by Dr. Ralph McInerny, Director of the Jacques Maritain Institute at the University of Notre Dame, Keynote Address at Faith & Reason Institute, February 2001
"Jacques Maritain and Dignitatis Humanae" by Brian Jones, M.A. for Ignatius Insight
"Civilization Without Religion?" by Russell Kirk, Lecture delivered on July 24, 1992
"A World Split Apart" by Alexander Solzhenitsyn, delivered at Harvard University, June 1978
"Civilization in Crisis" by Christopher Dawson (1956).
"Is Humanism a Religion?" by G.K. Chesterton, Chapter 3 in “The Thing” (1929).