Sunday, November 23, 2008

Separation of Church and State: What does it mean?

In almost any discussion today regarding politics and religion, this popular axiom will be used for guidance, “the separation of Church and State.” While the separation of Church and State is true, one must ask what does it really mean? In a post-modern world, truth appears to be relative to the opinion or view of the speaker. In this way, separation of Church and State has taken on many different meanings depending on the speaker and the context in which it is invoked. This short paper will attempt to discover the historical foundation of this phrase, how it has changed over time especially with the ratification of the Fourteenth Amendment, giving a clear understanding of what the phrase means today.

“Separation of Church and state” is often referred to as the summary of the Bill of Rights First Article position on the structural relationship between the church and the state. There are extensive roots behind this concept dating back to the periods of the Enlightenment and the Reformation, but James Madison and Thomas Jefferson were instrumental in the Founder’s debates during the forging of the First Amendment.

It is important to note that the word “state” was not referring to the individual States of the Union in its early usage, but to the Federal Government. The framers of the US Constitution and the Bill of Rights were creating a new federal government that had limited powers over individual states. Therefore the First Article in the Bill of Rights applies only to the Federal Government, specifically the Congress since Congress is the legislative branch responsible for making laws. Therefore, the Bill of Rights limits the powers of the Federal government; it does not vest it with any new powers. This can be illustrated from early US history where, for example, Connecticut used state taxes to support the Congregational church and the Federal government could not interfere.

It is noteworthy that every state voluntarily disestablished their support of state religions. States recognized how governmental support of a state church or states sponsored denomination was actually detrimental. Entanglement with Government actually held back some religions, while artificially propping up others. Therefore, each state voluntarily disestablished without federal involvement; the first state to disestablish was in 1776, and the last was in 1833. In all these proceedings, the First Amendment was never cited or used as a rational supporting their actions.

All this would change with the Civil War victory and passage of the Fourteenth Amendment in 1868. The specific wording that impacted the First Amendment is, “No State shall . . . deprive any person of . . . liberty . . . without due process of law.” The primary intent of the Fourteenth Amendment was civil rights, and this was its primary function for about fifty years. But in Meyer v. Nebraska (1923), German Protestants were convicted of teaching their children in German; the Supreme Court reversed this decision noting how the defendant’s fundamental liberties were protected under the Fourteenth Amendment. These fundamental liberties included religious liberty. This began a progression of decisions expanded the meaning of ‘liberty’ in the Fourteenth Amendment. Justice Cardozo wrote an opinion about the “liberty” protected in the Fourteenth Amendment, “I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the States”.

In Cantwell v. Connecticut (1940), the free exercise clause was expressly applied to the states through the Fourteenth Amendment, and by extension to all county and municipal governments. Then in Everson v. Board of Education (1947), the disestablishment clause was expressly applied to the states through the Fourteenth Amendment. John Witte writes, “by so incorporating the First Amendment religion clauses into the Fourteenth Amendment due process clause, the Court set in motion the creation of a new national law on religious liberty, governed by the federal courts and enforceable against federal, state, and local governments alike. . . . [This incorporation] has shifted final authority over the American Experiment from the states to the United States Supreme Court.

The Founders had a great concern about the liberty of conscious and had recognized the “unalienable right of private judgment in matters of religion.” Their concern was initially framed as a concern of individual states and the First Amendment specifically limited the Federal Government in the area of religion. With the ratification of the Fourteenth Amendment, the Courts picked up the founders concern for each individual’s liberty of conscious. One could understand the Court’s decisions to be in harmony with the founder’s initial concerns to limit governmental authority in the area of Church and State; all the Court did was take the separation between church and state that originally was applied only to the federal government and expand its application to all government at all levels, federal, state, and local governments. In this sense, the Court is upholding the primary concerns of the founders.

If the Court is upholding the primary concerns of the founders regarding the separation of church and state, why is there such criticism of the courts and their decisions towards religion? First, the courts rulings have neutered states’ authority in the area of religions. Traditionally, a state’s sovereignty was protected from the Federal government’s interference. States could promote a public religion, that is, a common system of beliefs, values, and practices drawn eclectically from the multiple denominations within a community. With the passage of the Fourteenth Amendment, the Court used the Fourteenth Amendment to expand the First Amendment to all levels of government. Today, no government voice is able to promote or defend the commonly held beliefs of a community since any individual can object. This has led to a second criticism, that the Court is maintaining a position of neutrality regarding religions matters. The Court’s neutrality is forcing all levels of government to maintain neutrality, again because of the Court’s position on the Fourteenth Amendment.

Finally, the Courts neutrality and its defense of each individual’s liberty in the area of religion is creating equality between religion and nonreligion. During a house debate in 1789 over the disestablishment and free exercise clauses of the first amendment, Benjamin Huntington stated “he hoped that amendment would be made in such a way to secure the rights of conscience, and a free exercise of the rights of religious, but not to patronize those who profess no religion at all.”

Looking at the abortion issue, in 1972 abortion was generally held to be an evil and was not legal in most states. It would have been virtually impossible to make abortion legal via legislation. However, the Supreme Court ruled abortion legal because of the Fourteenth Amendment’s liberty; and there was no governmental voice that could stand against their decision. Commonly held belief (public religion) within a community that had been promoted and protected by the states, is now pushed aside in favor in an individual rights, beliefs, and their right of privacy. In Roe v. Wade, the Court recognized the state of Texas’ position that life begins at conception and continued throughout the pregnancy; but it also recognized Jane Roe’s desire for an abortion based upon another theory of life. Even though the majority of people in the State of Texas felt abortion was wrong, a position held in common by the community, the Court ruled in favor of Jane’s Roe’s individual rights based in part upon the Fourteenth Amendment. The Church and the State have been separated and prevented, in my opinion, from being able to promote any form of a public religion; that is the common system of beliefs, values, and practices drawn eclectically from the multiple denominations within a community. Richard Neuhaus’ The Naked Public Square bears witness to this fact and highlights the difficulties of a democracy where popular values are excluded from the public forum.

In summary the popular axiom, “the separation of Church and State” has changed in many respects, while also remaining the same. This can be explained in part because American society has greatly changed these past 212 years, since the Bill of Rights took effect on December 15, 1791. Modern America not only has Protestants and Catholics as they did in colonial days, but now includes Muslims, Hindus, Atheists, Agnostics, Satanists, Witches, Moonies, and a growing number that are simply nonreligious. The complexity of individual rights and rights to privacy that exists today had not even entered into the minds of the founders of our nation. The separation that existed 212 years ago was healthy since there was retained by the States the authority to promote the public religion. Today, both the Church and the State are powerless towards promoting any public religion resulting in what Neuhaus called the naked public square. “Separation of church and state” on main street has come to means an individual’s rights to be separated from the Church, and the individual’s right to maintain a privacy concerning their private morality. Abortion is no longer a community issue; it is a woman’s choice. Adultery and fornication are no longer vices the community sought to discourage in favor of marriage and chastity; instead, these have become private decisions in an amoral society protected by a neutral Court. Similar statements could be made about homosexuality, divorce, same-sex marriages, euthanasia, and the list goes on and on. As the voice of the church is no longer respected in the public square, the state and municipal government’s voice on morality being restrained by the courts, it appears the future morality and social values will be directed by individuals under the protection of the Supreme Court. But the Court continues to struggle over religious issues, so the final chapter has still to be written. While the separation that exists today between Church and State has changed significantly from the separation Thomas Jefferson or James Madison described; it must be said that the First Amendment continues to be the best security of religious freedom when compared with other nations. While it isn’t perfect, it continues to provide a solid foundation to keep both church and the state in check.