Acts and Fictions About the History of Separation Churche and State. John Witte Jr

8/14/2019 Acts and Fictions About the History of Separation Churche and State. John Witte Jr.

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HISTORY OF SEPARATION OF CHURCH AND STATE 17

people^an ancient tradition still recognized and symbolized in theJewish rituals and prayers that take place at the Western (Wailing)Wall.

The New Testament comm anded believers to render to Caesar thethings that are Caesar's and to Cod the things that are Cod's,' ' andreminded them that two swords were e n o n ^ to govern the world.sChristians were wa rned that they shonld be not conformed to thisworld 9 bu t remain sepa rate from the world and its tem ptations, lomaintaining themselves in purity and piety. Echoing the Hebrew Bible,St. Paul spoke literally of a wall of se pa ra tio n' paries maceriae)between Christians and non-Christians interposed by the Law.n

Interspersed among these various political dualisms, the Bible includedmany other dualismsbetween spirit and flesh, soul and body, faithand works, heaven and hell, grace and nature, the kingdom of Cod andthe kingdom of Satan, and much more. 12

Early Catholic Views

These various biblical dualisms were repeated in some of the earlychurch constitutions. Among the earliest was the Didache (ca. 120 c.e.),

which opened with a call for believers to separate from the worldaround the m : The re are two Ways, one of Life and one of De ath; butthe re is a great separation b etw een the two Ways. i3 Th e Way of Lifefollows the commandments of law and love. The Way of Deathsuccumbs to sins and temptations. The two ways must remain utterlyseparate, and those who stray from the Way of^Life must be cast out.The Epistle of Barnabas (ca. 100-120 c.e.) prov ided similarly: Th ereare two ways of teaching and of authority, one of light and one ofdarkness. And there is a great difference between the two ways. Forover one are set light-bearing angels of Cod, but over the other angelsof Satan. And the one is Lord from eternity to eternity, but the other is

6. Ezekiel 42:1; Jeremiali 1:18-19 15:19-21; 1 Kings 3:1; Nehemiah 3:1-32, 4:15-20,12:27-43.7. Mark 12:17; Matthew 22:21; Luke 20:25.8. Luke 22:38.9. Romans 12:2.10 . 2 Corinthians 6:14-18.11. Ephesians 2:14. See historical interpretation of this text in Markus Barth, The Anchor


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18 JOURNAL OF CHURCH AND STATE

prince ofthe present time of darkness. i*These dualistic adages and images recurred in scores of late

apostolic and patristic writings of the second through fifth centuriesboth in the E ast and in the W est, is They beca tne th e basis for onpersistent model of separationism in the Christian Westthseparation of the pure Christian life and community governed breligious authorities from the sinful and sometimes hostile worlgoverned by political authorities. This apostolic ideal of separationistfound its strongest and most enduring institutional form imonasticism, which produced a vast archipelago of communities ospiritual brothers and sisters, each walled off from the world arounthem . 16 But separationism in this sense also rem ained a rec urr enspiritual ideal in Christian theology and hotnileticsajDerennial call tChristians to keep the Way of Life in the Church of^Christ separatfrom the Way of Death in the company of the Devil.

By the fifth century, Western Christianity had distilled these earlbiblical teachings into other models of separationism. The most famouwas the image of two cities within one world, developed by SAugustine, Bishop of Hippo (354-430). In his City of God (ca. 413-427),1'? Augustine con trasted the City of Cod w ith the City of M an. T hCity of Cod consisted of all those who were predestined to salvationbound by the love of Cod, and devoted to a life of Christian pietymorality, and worship led by the Christian clergy. The City of^Maconsisted of all the things of this sinful world, and the political ansocial institutions that Cod had commanded to maintain a modicum oord er and peace.is Augustine sotnetimes d epicted this dualism as twwalled cities separated from each otheri^particularly when he wadescribing the sequestered life and discipline of monasticistit or th

14. In Sciiaff The Teaching ofthe Twelve Apostles 227-28.15. Ibid., 18; Gerard E. Caspary, Politics and Exegesis: Origen and the Two Swords(Berkeley, Calif.: University of California Press, 1979); Lester L. Field, Jr., LibertyDom inion and the Two Swords: On the O rigins of W estern Political Theology (NotreDame, Ind.: University of Notre Dame, 1998), 180-398; Adolf von Hamack, TheConstitution and Law of the Church in the First Two Centuries trans., F.L. Pogson, edH.D.A. Major (New York: C.P. Putnam's Sons, 1910).16. Cerd Tellenbach, Chu rch State and Christian Society at the Time of the InvestitureContest trans., R.F. Bennett (Oxford: Blackwell, 1959), 25-29; Marilyn Dunn, TheEmergence of Mon asticism: From the Desert Fathers to the Early M iddle Ages (Oxford:Bl k ll 2000) D id K l Ch i i M i i (N Y k M G Hill 1969)


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earlier plight of the Christian churches under Roman persecution.20But Augustine's more dominant teaching was that dual citizenship in

both cities would be the norm until these two cities were fully andfinally separated at the Last Judgment of God 21 For Augustine, it wasultimately impossible to achieve complete separation of the City ofGod and the City of Man in this world. A Christian remained bound bythe sinful habits of the w orld, even if he aspired to the grea ter purity ofthe Gospel. A Christian remained subject to the authority of bothcities, even if she aspired to be a citizen of the City of God alone.

It was crucial, however, that the spiritual and temporal powers thatprevailed in these two cities remain separate in function. Even though

Christianity becam e the one estabhshed religion of the Rom an Em pire,patronized and protected by the Roman state, Augustine and otherChurch Eathers insisted that state power remain separate from churchpower. All magistrates, even the Roman emperors, were not ordainedclergy but laity. They had no power to administer the sacraments or tomete out religious discipline. They were bound by the teachings of theBible, the decrees of the ecumenical councils, and the traditions oftheir predecessors. They also had to accept the church's instruction,judgment, and spiritual discipline. Pope Gelasius (d. 496) put thematter famously in 494 in a letter rebuking Emperor Anastasius:There are indeed, most august Emperor, two powers by which this world is chieflyruled: the sacred authority of the Popes and the royal power. Of these the priestlypower is much more important, because it has to render account for the kings of menthemselves at [the Last Judgment]. For you know, our very clement son, that althoughyou have the chief place in dignity over the human race, yet you must submit yourselffaithfully to those who have charge of Divine things, and look to them for the means ofyour salvation.22

This two pow ers passage bec am e a locus classicus for many latertheories of a basic separation between pope and emperor, clergy andlaity, regnum and sacerdotium.23

In the course of the Papal Revolution of the eleventh to thirteenthcenturies, this model of two separate powers operating within theextended Christian empire was transformed into a model of two swords

20. Jean Bethke Elshtain, Augustine and the Limits of Politics (Notre Dame, Ind.;University of Notre Dame Press, 1995); J. van Oort, Jerusalem and Babylon: A Study intoAugu stine s City of God and the Sources of His Doctrine ofthe Tw o Cities (New York: E.J.Brilt, 1991); Eugene TeSelle, Living in Tw o C ities: Augu stinian Trajectories in PoliticalThought (Scranton, Pa.: University of Scranton Press, 1998).21. Augustine, C ity of God, 481-93.


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ruling a unified C hristendo m by law. 24 In the nam e of freedom of thchurch lihertas ecclesiae). Pope Gregory VII (1015-1085) and hissuccessors threw off their political patrons and protectors andestablished the Catholic Church itself as the superior legal and pohticaauthority of W estern C hristendom . The ch urch now claimed m ore tha na spiritual and sacramental power over its own affairs, a spiritual officwitnin the Christian empire. It claimed a vast new jurisdiction, apolitical authority to make and enforce laws for all of ChristendomThe pope and the clergy claimed exclusive personal jurisdiction oveclerics, pilgrims, students, heretics, Jews, and Muslims. They claimedsubject matter jurisdiction over doctrine, liturgy, patronage, education

charity, inheritance, marriage, oaths, oral promises, and moral crimesAnd they claimed concurrent jurisdiction with state authorities ovesecular subjects that required the church's special forms of Christianequity. 25

This late medieval system of church government and law wasgrounded in part in the two-swords theory. This theory taught that thepope is the vicar of Christ, in whom Christ has vested his wholeauthority. 26 This authority was symbolized in the two swordsdiscussed in the Bible,2'7 a spiritual sword and a temporal sword. Chrishad metaphorically handed^ these two swords to the h ighest being inthe human worldthe pope, the vicar of Christ. The pope and lowerclergy wielded the spiritual sword, in part by establisWg canon lawrules for the governance of all Christendom. The clergy, however,generally delegated the temporal sword to those authorities below thespiritual realmemperors, kings, dukes, and their civil retinues, whoheld their swords o f and for the chu rch. These civil magistrateswere to promulgate and enforce civil laws in a manner consistent vdthcanon law. Under this two swords theory, civil law was by its naturepreempted by canon law. Civil jurisdiction was subordinate toecclesiastical jurisdiction. Th e state answered to the church.28 PopeBoniface VIII (d. 1303) put forth this two-swords theory in 1302:We are taught by the words of the Gospel that in this Chureh and in its power thereare two swords, a spiritual, to wit, and a temporal. . . . [B]oth are in the power of the

24. For the transmutation of the two-powers image to two swords, see Brian Tiemey, TheCrisis of Church and State 1050 1300 (Englewood Cliffs, N.J.: Prentice-Hall, 1964), 53.25. Harold J. Berman, Law and Revolution: The Formation ofthe Western Legal Trad ition(Cam bridge, Mass.: Harvard University Press, 1983), 85-119, 165-200; Udo Wolter, Amtund Officium in mittelalterlichen Quellen vom 13. bis 15. Jahrhunde rt,Zeitschrift der


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HISTORY O F SEPARATION O F CH UR CH AND STATE 21

Church, namely the spiritual and [temporal] swords; the one, indeed, to be wielded forthe C hureh , the oth er by the Chu rch; the former by the priest, the latter by the ha nd ofkings and knights, but at the will and sufferanee of the priest. For it is necessary thatone sword sliould be under another and that the temporal authority should besubjected to the spiritual. . . . If, the refore, the earthly power err, it shall be judged bythe spiritual power; if the lesser spiritual power err, it shall be judged by the higher,competent spiritual power; but if the supreme spiritual power [i.e., the pope] err, itcould be judg ed solely by God, no t by man.29

Two communities, two cities, two powers, two swords: These werefour main models of separationism that obtained in the WesternCatholic tradition in the first 1500 years. Each model emphasized

different biblical texts. Each started with a different theory of thechurch. But each was designed ultimately to separate the church fromthe s tate. On o ne ex treme , the apostolic m odel of two comm unities wasa separationism of survivala means to protect the church from ahostue state and pagan world. On the other extreme, the late medievalmodel of two swords was a separation of preemptiona means toprotect the church in its superior legal rule within a unified world ofChristendom.

Early Protestant Views

The sixteenth-century Protestant Reformation began as a call forfreedom from the late medieval two swords regime freedom of thechurch from the tyranny of the pope, freedom of the individualconscience from canon law and clerical control, freedom of stateofficials from c hurch power and privilege. Fr eed om of the Christianwas th e rallying cry of th e early Reformation.30 Catalyzed by M artinLu the r's (1483-1546) posting of^the N inety-Five T heses in 1517 and his

burning of the canon law books in 1520, early Protestants denouncedchurch laws and authorities in violent and vitriolic terms, and urgedradical reforms of church and state on the strength of the Bible.

After a generation of experimentation, however, the four branchesof the Protestant Reformation returned to variations of the same fourmodels of separationism that the earlier Catholic tradition hadforgedtwo com mu nities, two cities, two powers, two swordsaddingnew accents and applications.

The Anabaptist traditionAmish, Hutterites, Mennonites, Swiss

Brethren, German Brethren, and othersreturned to a variation of theapostolic model of two communities. Most Anabaptist communitiesseparated themselves into small self sufficient intensely democratic


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com munities, cordon ed off from the world by what they called a wallof separation. 3i These separated comm unities governed themselvesby biblical principles of' discipleship, simplicity, charity, andnonresistance. They set their own internal standards of worship, liturgy,diet, discipline, dress, and education. They handled their own internalaffairs of property, contracts, commerce, marriage, and inheritance,withou t ap peal to the state o r to secular law. 32

The state, most Anabaptists believed, was part of the fallen world,and was to be avoided so far as possible. Though once the perfectcreation of God , the world was now a sinful regime beyond theperfection of Christ 33 and beyond the daily concern of the Christianbeliever. God had allowed the world to survive by appointingmagistrates who used the coercion of the sword to maintain a modicumof order and peace. Christians should thus obey the state, so far asScripture enjoined, such as in paying their taxes or registering theirproperties. But Christians were to avoid active participation in andinteraction with the state and the world. Most early-modemAnabaptists were pacifists, preferring derision, exile, or martyrdom toactive participation in war. Most Anabaptists also refused to swearoaths, or to participate in political elections, civil litigation, or civic

feasts and functions.34This early Anabaptist separationism was echoed in the seventeenth

century by Rhode Island founder Roger Williams (1604-1680), who in1643 called for a hedge or wall of Separation be twe en th e G arden ofthe C hurc h and th e W ilderness of the world. 35 It was elabo rated byAmerican Baptist and other Evangelical groups bom of the GreatAwakening (ca. 1720-1780). These latter American groups wereprincipally con cem ed to protect the ir churches from state interference.They strove for freedom from state control of their assembly and

worship, state regulations of their property and polity, stateincorporation of their society and clergy, state interference in theirdiscipline and g ove m m ent, state collection of religious tithes and taxes,

31. The phrase is from Menno Simons, quoted in Dreisbach, Thomas Jefferson and theWall of Separation 73. See comparable sentiments in The Complete Writings of MennoSimons c. 1496-1561 trans. L. Verduin, ed. J.C. Wenger (Scottdale, Pa.: Herald Press1984), 29, 117-20, 158-59, 190-206. See also the call for separation in the SchleitheimConfession (1527), art. 4, in Howard J. Loewen, One Lord One Church One Hope and

One God: Mennonite Confessions of Faith in N orth Am erica (Elkhart, Ind.: Institute ofMennonite Studies, 1985), 79-84. For the biblical roots of this Anabaptist separationism,see Biblical Concordance of the Swiss Brethren 1540 trans., Gilbert Fast and Galen A.


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and more. Some Am erican Baptist groups went further to argueagainst tax exemptions, civil immunities, and property donations aswell. Religious hodies that received state benefits, they feared, wouldhecome too beholden to the state and too dependent on its patronagefor survival.36

The Lutheran tradition returned to a variation on Augustine's two-cities theory. The fullest formulation came in Martin Luther's complextwo-kingdoms theory, which provided what Lu ther called a paperwall betw een the spiritual and temporal estates.s' God has orda inedtwo kingdoms or realms in which humanity is destined to live, Lutherargued, the earthly kingdom and the heavenly kingdom. The earthly

kingdom is the realm of creation, of natural and civic life, where aperson operates primarily by reason and law. The heavenly kingdom isthe realm of redemption, of spiritual and eternal life, where a personoperates primarily by faith and love. These two kingdoms embraceparallel forms of righteousness and justice, governm ent and orde r,truth and knowledge. They interact and depend upon each other in avariety of ways. But these two kingdoms ultimately remain distinct. T heearthly kingdom is distorted by sin and governed by the Law. Theheavenly kingdom is renewed oy grace and guided by the Gospel. A

Ghristian is a citizen of both kingdoms at once and invariably comesunder the distinctive government of each. As a heavenly citizen, theChristian remains free in his or her conscience, called to live fully bythe light of the Word of God. But as an earthly citizen, the Christian isbound by law, and called to obey the natural orders and offices ofhousehold, state, and visible church that God has ordained andmaintained for the governance of this earthly kingdom.

In Luther's view, the church was not a political or legal authority.The church has no sword, no jurisdiction, no daily responsibility forlaw. The church and its leadership were to separate itself from legalaffairs and attend to the principal callings oli' pre ach ing the word,administering the sacraments, catechizing the young, and helping theneedy. While the church should cooperate in implementing laws, andits clergy and professors were to preach against injustice and^ advise th emagistrates when called upon, formal legal authority lay with the state.The local magistrate was God's vice-regent called to elaborate naturallaw and to reflect divine justice in his local dom ain.

The Calvinist Reformation returned to a variation on the two-powers model, in which both church and state exercised separate but


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coordinate powers within a unitary local Christian commonwealth.Calvinists insisted on the basic separation of the offices and operationsof church and state . Adverting frequently to St. Paul's image of a wallof sepa ration, John Calvin (1509-1564) insisted tha t the politicalkingdom and spiritual kingdom must always be examinedseparately. Fo r the re is a great difference . . . be tween ecclesiasticaland civil pow er, and it would be unwise to mingle these two, whichhave a com pletely different nature. 38 But Calvin and his followersinsisted that the church play a role in goveming the local Christiancommonwealth. In Calvin's Geneva, this role fell largely to theconsistory, an elected body of civil and religious officials, with original

jurisdiction over cases of marriage and family, charity and socialwelfare, worship and public morality. Among most later CalvinistsFrench Huguenots, Dutch Pietists, Scottish Presbyterians, CermanReformed, and English Puritansthe Genevan-style consistory wastransformed into the body of pastors, elders, deacons, and teachers thatgovemed each local church congregation without state interferenceand cooperated vAth state officials in defining and enforcing publicmorals.39 These early Calvinist views on separationism cam e toespecially prominent expression in the New England colonies andstates. 40

The Anglican tradition retumed to a variation on the two-swordstheory, but now with the English Crown, not the pope, holding thesuperior sword within the unitary Christian commonwealth ofEngland.4i In a series of Acts passed in the 1530s, King Henry VIII(1491-1547) severed all legal and political ties between the Church inEngland and the pop e. Th e Supremacy Act of 1534 declared theEnglish mo narch to be the only sup rem e head of the Ch urch andCommonwealth of England, with final spiritual and temjporalauthority.42 Th e English monarchs and Parliamen ts thus established auniform doctrine, liturgy, and canon by issuing the Book of CommonPrayer (1559), the Thirty-Nine Articles (1563/71), and the Authorized

38. Ioann is Calvini Institutio Religionis Christianae (1559), translated as Institutes oftheChristian Religion, ed. John T. McNeill, trans. Ford Lewis Battles (Philadelphia, Pa.: TheWestminster Press, 1960), bk. 3, ch. 19.15; bk. 4, ch. 11.3; bk. 4, ch. 20.1-2. See furtherJohn Witte, Jr., Moderate Religious Liberty in the Theology of John GalvinCalvinTheological Journal 31 (1996): 359-403.

39. Josef Bohatec, Calvins Lehre von Staat und Kirche mit besonderer Berucksichtigungdes Organismusgedankens (Breslau: M. and H. Marcus, 1937); Richard G. Gamble, ed.,Calvin s Thought on Econom ic and Social Issues and the Relationship of hurch and State


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(King James) Version of the Bible (1611). They also assumedjurisdiction over poor relief marriage, education, and other activities,delegating some of this responsibility back to Convocation, the churchcourts, or parish clergy. Clergy were appointed, supervised, andremoved by the C rown and its deleg ates. Com mu nicant status in theChurch of England was rendered a condition for citizenship status inthe Commonwealth of England. Contraventions of royal religiouspolicy were punishable both as heresy and as treason.

A whole battery of apologists rose to the defense of this alliance ofChurch, most notably RicEard Hooker (ca. 1553-1600). Hooker'slengthy apologia for the Anglican establishment included a sustainedrebuke to English separationists. In the later sixteenth and seventeenthcenturies various non-Anglican Protestant groups in EnglandPuritan s, Brownists, Ind ep en de nts , and othe r self-styled Separa-tists 43had called the English church and state to a greater separationfrom each other and from the Church of Rome. They also had calledtheir own faithful to a greater separation from tlie Church andCommonwealth of England. Hooker had no patience with ariy of this.In his massive eight-book Laws of Ecclesiastical Polity (ca. 1593-1600),Hoo ker recognized a natural separation betw een the Chu rch and the

Commonwemth of England. But he insisted that these two bodies hadto be under one chief Govemor. ^* Fo r Hooker, Separatists whosought to erect a wall of separation betw een Ch urch andCommonwealth would destroy English unity and deprive its church ofthe natural and necessaty patronage and protection of the Crown. Itwas a short step from this argument to the bitter campaigns ofpersecution in the early seventeenth century that drove manythousands of Separatists from England to Holland and to NorthAmerica.

43. On various English and New England separatists, see Norman Allen Baxter, Historyofthe Freewill Baptists: A Study in New England Separatism (Rochester, N.Y.: AmericanBaptist Historical Society, 1957); Edward H. Bloomfield, The Opposition to the EnglishSeparatists, 1570-1625 (Washington, D.G.: University Press of America, 1981); StephenBrachlow, The Communion of Saints: Radical Puritan and Separatist Ecclesiology 1570-1625 (Oxford: Oxford University Press, 1988); Ghamplin Burrage, The Early EnglishDissenters in the Light of Recent Research 1550-1641) (Gambridge: Gambridge University

Press, 1912); James Robert Goggins, John Smyth s Congrega tion: English Separatism,Mennonite Influence, and the E lect Nation (Scottdale, Pa.: Herald Press, 1991), 29-68, 128-32; Timothy George John Robinson and the English Separatist Tradition (Macon Ga :


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Early Enlightenment Views

The principle of separation of church and state also had solidgrounding in early En lightenm ent sources. On e of the earliest andmost influential sources was John Locke's (1632-1704) famous LetterConcemins Toleration (1689), which had a great influence on severalAm erican founders, notably Thomas Jefferson (1743-1826). In thitract, Locke had distilled the liheral EngHsh and Dutch learning of theseventeenth century into an elegant plea for church and state to endtheir corrosive alliances and to end their corrupt abridgments of theliberty of conscience.45 [A]bove all thing s, Locke ple aded , it is necessary to distinguish exactly the business of civil government fromthat of religion, ancf to settle the just hounds that liel)etween the oneand the other. 46 The church, Locke wro te, must be absolutelysepara te and distinct from the commonwealth. *? For the church issimply a voluntary society of m en, joining themselves togeth er of theiown accord in order to the public worshipping of God in such manneras they judge acceptable to Him, and effectual for the salvation of theirsouls. 48 Church m em bers are free to en ter and free to exit thissociety. They are free to determine its order and organization and

arrange its disciphne and worship in a manner they consider mostconducive to eterna l life: Nothing ought, nor can be transac ted in thissociety, relating to the possession of civil and worldly goods. No force isto be made use of upon any occasion whatsoever. For force belongswholly to the civil magistrate. 49

State force, in turn, cannot touch religion, Locke argued. The stateexists m erely to pro tec t persons in their outward lives , in th eirenjoym ent of life, liberty, and pro perty. True and saving religionconsists in the inward persuasion o f the m ind, which only God can

touch and tend.so A person cannot b e com pelled to true belief ofanything by outw ard force^whether through confiscation of es tate,imprisonm ents, [or] torm ents or through mand atory comp liance with articles of faith or forms of worsh ip estab lished by law. For laws areof no force without penalties, and penalties in this case are absolutelyim pertinent, because they are not pro per to convince the mind, si It isonly light and evidence that can work a change in men's [religious]

45. John Locke, Letter oncerning Toleration (1689), in The W orks of John L ocke 12thed., 9 vols. (1824), 5:1-58 . Locke wrote two subsequent such letters and had a fragment of f h l d hi d h i 1 0 h fi l f 1689 h b


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rite of religion, as a test for his holding the com mand of a regiment. T oprofane, in such a manner, a religion, which you pretend to reverence,is an impiely sufficient to bring down upon your heads, the roof of thesacred building you thus defile. 57

The French revolutionary Marquis de Condorcet (1743-1794), whoinfluenced Thom as Paine (1737-1809) and othe rs, pu t his case tosepara te religion from the S tate, in the shriller anti-Catholic term sthat would dom inate the Fre nch Revolution. W hile it was imp ortant to leave to the priests the freedom of sacram ents, censures, [and]ecclesiastical functions, Co ndorce t conceded, the state must take stepsto remove the traditional influence and privileges of the CathoRc

Ch urch and clergy in society. 58 Th e sta te was not to give any civileffect to anv of their decisions, not to give any influence over marriagesor over birth or death certificates; not to allow them to interven e in anycivil or political act; and to judge the lawsuits which would arise,between them and their citizens, for the temporal rights relating totheir functions, as one would decide the similar lawsuits that wouldarise between the members of a free association, or between thisassociation and private individuals. 59 Such anti-clerical and an ti-Catholic separationist sentiments were quite typical of the French

revolu tionaries. And, in the following decades, these kinds ofsentiments inspired a devastating political and popular attack on theclergy and property ofthe Catholic Church.eo

F I V E U N D E R S T A N D I N G S O F S E PA RAT IO N O F C H U R C H A N D S TAT E

IN THE FO U N D IN G ER A

The eighteenth-century American founders called on this Europeanand colonial legacy to press at least five concerns in the name ofseparation of church and state.

First, the founders invoked separationism to protect the churchfrom the state. This had been a common Christian understanding ofseparation of church and state since the first century. It was cap turedin the Christian clergy's perennial call in subsequent centuries for freedom ofthe church or what the Edict of Milan of 3 3 had calledthe free exercise and practice of religious groups. 6i This

57 . Ib id , 2:118.58. Ibid., 2:119.


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understanding of separation of church and state was prominent ineighteenth-ce ntury Am erica. The Am erican founders' principalconcern was to protect church affairs from state intrusion, the clergyfrom the magistracy, church properties from state interference,ecclesiastical rules and rites from political coercion and control. ElishaWilliams (1694-1755), the New England Puritan jurist, spoke for manychurc hm en whe n he wro te in 1744: [E]very church has [the] right tojudge in what m anne r G od is to be worshipped by them , and what formof discipline ought to be obse rved by them , and what clergy are to be elected by them , from all of which the state must he utterlyseparate. 62 George W ashington (1732-1799) wro te in 1785 of the

nee d to establish effectual barriers so that the re was no threat to thereligious rights of any ecclesiastical Society, includ ing particularlybeleagured minorities like Jews, Gatholics, and Quakers, to whom hewrote several tender letters.63 Thomas Jefferson called for governmentto resist wha t he called interm edd ling with religious institutions, theirdoctrine s, discipline, or exercises. Every religious society has a rightto determine for itself the times for these exercises, & the objectsprop er for the m , according to their own peculiar tenets, Jeffersonw rote. And no ne of this can concern or involve the state.64 A dec adelater, Tunis Wortm an (d. 1822), a Jeffersonian, wrote:It is your duty, as Christians, to maintain th e purity and inde pend ence of the chu rch, tokeep religion separate from politics, to prevent an union between the church and thestate, and to preserve the clergy from tem ptation, corruption and repro ach. . . . Unlessyou maintain the pure and primitive spirit of Christianity, and prevent the cunning andintrigue of statesmen from mingling with its institutions, you will become exposed to arenewal of the same dreadful and enormous scenes which have not only disgraced theannals of the church, but destroyed the peace, and sacrificed the lives of millions.65

This first understanding of separation of church and state wascaptured especially in state constitutional guarantees of the freeexercise rights of peaceable religious groupsthe right of religiousbodies to incorporate and to hold property, to appoint and removeclergy and other officials, to have sites and rites of worship, education,charity, mission, and burial, to maintain standards of entrance and exitfor their members, and moreall of which were specified in several

(Cambridge: Cambridge University Press, 1984), 71-73.

62. Elisha Williams, The Essential Rights and Liberties of Protestants (Boston, Mass.: S.Kneeland and T. C reen , 1744), 46.63. Quoted by Dreisbach, Thomas efferson and the Wall of Separation Beween Church


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early state constitutions and implementing legislation.66This understanding of separationism was also implicit in the Firs

Am end m ent free exercise guarantee . Ea rlier drafts of the FirsAmendment, and the cryptic House debates that have survived abouthese drafts, spoke repeatedly of the need to protect religious sectsdenominations, groups, or societies, to guarantee their rights toworship , pro perty, and practice.6 ? None of this concern for thdetailed rights of religious groups was rejected in the House debatesand can at least be plausibly read into the generic free exercisguarantee that was ultimately passed.

Second, the founders invoked the principle of separationism tprotect the state from the church. This was a more recent Westernunderstanding, but it became increasingly prominent in theseventeen th and eighteen th centuries. The sorest tyrannies have be ethose, who have united the royalty and priesthood in one person,wrote the authors of Cato s Letters in 1723. Chu rchmen when theyruled states, had not only double authority but also double insolencand remarkably less mercy and regard to conscience, prope rty, andthe dom ains and demand^s of statecraft.^s In the same vein, JohAdams (1735-1826) devoted much of his 1774 Dissertation on theCanon and the Feudal Law to documenting what he called the tyrannous outrages that the medieval Catholic Church and earlmodem Protestant churches had inflicted through their control of thstate. This was a wicked confederacy betw een two systems otyranny, Adams wrote with am ple bitterness.69 Draw ing on thessame historical lessons, John Jay (1745-1829) urged nis fellowconstitutional conveners in New York not only to expel civil tyrannybut also to guard against that spiritual oppression and intolerancwherewith the bigotry and ambition of weak and wicked priests an

princes have scourged^ mankind. ''^This second understanding of separation of church and state helpe

to inform the movement in some states to exclude ministers and otnereligious officials from partic ipa ting in political office. Such exclusionhaci been commonplace among seventeenth-century AmericanPuritans and Anabaptists. But argum ents for such clerical exclusionbecame more commonplace in eignteenth-century America. Minister

66. See esp. Ches ter J. Antieau, Phillip Mark Carroll, and Thomas CiirroU Burke, ReligionUnder th e State Constitutions (Brooklyn, N.Y.: Central Book Co., 1965).


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in political office, it was commonly argued, conld use tbe tbreat ofspiritual reprisal to force tbeir congregants, including fellow politicianswbo sat in tbeir pews, to acquiesce in tbeir political positions.Ministers could be conflicted over wbose interests to represent andservetbe interests of tbeir congregants or tbeir constituents.Ministers could have disproportionate influence on tbe politicalprocess since tbey represented Dotb religious congregants and politicalconstituents. M inisters wbo tried to serve botn G od and tbe statecould be distracted from tbeir fundamental callings of preacbing andteacbing, and tempted to train tbeir religious messages toward politicalcauses. M inisters could not enjoy both the benefit of exem ption of

taxation for themselves and the power to impose taxation on all others;this was even more odious than the great offense of taxation withoutrepresentation.'^i Besides, ministers often made poor politicians; theywere, as John Adam s pu t it, universally too little acquain ted with theWorld, and the Modes of Business, to engage in civil affairs with anyAdvantage. '2

These kinds of arguments led seven of the original thirteen states,and fifteen later states to ban ministers from serving in j)oliticaloffice.'73 Tbe South Carolina C ons titution (1778) contained^ typical

language:And whe reas, m inisters of the Gosp el are by their profession ded icated to the service ofGod and the cure of souls, and ought not to be diverted from their great duties of theirfunction, therefore no minister of the Gospel or public preacher of any religiouspersuasion, while he continues in the exercise of his pastoral function, and for twoyears after, shall be eligible either as governor, lieutenant-governor, a member of thesenate , house repres entativ e, or privy council in this State.' ''*

Third, the founders sometimes invoked the principle of separationof church and state as a means to protect the individual's liberty of

conscience from tbe intrusions of eitber cburcb or state, or botb

71. John Witte, Jr., ' A Most Mild and Equitab le Establishm ent of Religion': John Adamsand the 1780 Massachusetts Constitution, /ouma/ of hurch and State 41 (1999): 213-52,at 242ff ; Hamburger, Separation of Chu rch and State, 79-88.72 . Le tter to Abigail Adams (17 Sep tember 1775), quoted in Derek Davis, Religion andthe Continental Congress, 1774-1789: Contributions to Original Intent (Oxford/New York:Oxford University Press, 2000), 69. Adams was complaining about the Georgia delegate TheRev. John Zubly, whose stem Galvinist positions are ably described in Joel A. Nichols, AMan Tme to His Principles: John Joachim Zubly and Galvinism,Journal of Church andState 43 (2001): 297.


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eonspiring together. This had hee n an early and endu ringunderstanding of separationistn among eolonial Anabaptists and

Quak ers. This argum ent becam e mo re prom inent in eighteen th-centu ry Am erica. Every man has an equal right to follow the dictateof his own conscience in the affairs of religion, Elisha Williams wroteThis is an equ al right with any rulers b e they civil or ecclesiastical. ''James Madison put this case in his 1785 Memorial and Remonstrancecalling, for what he called a great barrier betw een c hurch and state todefend th e religious rights of the individual. Thomas Jefferson'sfamous 1802 letter to the Danbury Baptist Association also tied theprinciple of separation of church and state directly to the principle of

liberty of conscience. After his opening salutation, Jefferson's le ttereads thus:Believing with you that religion is a matter which lies solely between a man and hisGod that he owes account to none other for his faith or his worship, that the[legititnate] powers of government reach actions only, and not opinions, I contetnplatewith sovereign reverence that the act of the whole American people which declaredthat their legislature should make no law respe cting an establishm ent of religion, orprohibiting the free exercise thereof, thus building a wall of separation betweenchurch and State. Adhering to this expression of the supreme will of the nation inbehalf of the rights of conscience I shall see with sincere satisfaction the progress of

those sentitrients which tend to restore to man all his natural rights convinced he hasno natural right in opposition to his social duties.''6

In Jefferson's formulation he re, separation of chu rch and s tateassured individuals of their natural right of conscience, which eould beexercised freely and fully to the point of breaching or shirking sociaduties. Jefferson is not talking of separating politics and religionaltogether. Indeed, in the very next paragraph of his letter. PresidentJefferson performed an avowedly religious act of offering prayers onbehalf of riis Baptist corre spo nde nts. H e wro te: I reciprocate your

kind prayers for the protection and blessing of the common Father andCreator of man.Fourth, the founders occasionally used the principle of separation

of church and state to argue for the protection of individual states frominterference by the federal government in governing local religiousaffairs. As Daniel Dreisbach has shown, Jefferson pressed thisfederalistjurisdictional sense of separation as well. H e said many timethat the federal government had no jurisdiction over religion; religionwas entirely a state and local ma tte r in his view. As he p ut it in his

Second Inaug ural: In ma tters of religion, I have considered that itsfree exercise is placed by the constitution independent of the [federalgovernm ent I have therefore un dertake n on no occasion to prescribe


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constitution found them, under the direction and discipline of State orChu rch authorities.' 78 The sepa ration that Jefferson h ad in mind he rewas between local church-state relations and the federal government.The federal government could not interfere in the affairs of localchurch es. i\nd the federal governm ent could not interfere in theaffairs of local states vis-^-vis these local churc hes. U nd er thisfederalist jurisdictional reading of separationism, state governmentswe re free to patron ize and p rotect religion, or to pr oh ib it o r abridgereligion, as the ir own state constitutions dictated^ Bu t the federalgovernment was entirely foreclosed from the same.

Some scholars have imputed this fourth understanding ofseparation of church and state into the First Am endm ent provision that Congress shall make no law respecting an establishment of religion.The argument is that Congress shall make no laws respecting any stateestablishment of religion. In 1789, wh en the First Am end m ent wasbeing drafted, seven of the original thirteen states still had some formof religious establishment, which both their state legislatures andconstitutional conventions had defined and defended in the priordecade, often against strong opposition from religious dissenters.Moreover, Virginia had just passed Jefferson's bill for the

establishment of religious freedom , also against firm opposition, nowfrom the traditional Anglican establishm ent. Having just d efendedtheir state estabUshments (of whatever sort) at home, the newmembers of Congress were not about to relinquish control of them tothe new federal governm ent. This is a plausible reading of the respecting language in the First Am endm ent, though the evidencefor this reading is very thin . This federalist read ing of theestablishment clause is becoming more prominent in the literaturetoday, and has recendy captured the imagination of Justice ClarenceThomas in several opinions.''^

Fifth, the founders invoked the principle of separation of churchand state as a means to protect society and its members fromunw elcom e participation in and suppo rt for religion. Already in latercolonial America, several religious groups used separationism to argueagainst the established church policies of mandatory payments oftithes, required participation in swearing oaths, forced attendance atreligious services, compulsory registration of church properties andm ore. At the t u m of nine teen th cen tury, the language of separation ofchurch and state also began to fuel broader campaigns to remove


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traditional forms and forums of religion in law, politics, and societaltogether, and of special state protection, patronage, and participatioin religion.

This was the most novel, and most controversial, understanding oseparation of churc h and state in the young Am erican republic. But began to gain rhetorical currency in the nineteenth century, as PhiliH am bu rger has shown. Th e first notorious instance cam e in 180during the heated election debates between Thomas Jefferson'Republican party and John Adams' Federalist party. Adams' partaccused Jefferson of being the anti-Christ and the new wh ore oBabylon, a Jacobin infidel and secularist be nt on destruc tion of thnecessary religious foundations of law and necessary alliances of churcand state. Jefferson's party accused Adams of bein g a Puritan po peand religious tyrant be nt on subjecting the whole nation to iiisuffocating beliefs and to his smug, self-serving ministers who stoo foursquare against liberty and progress. o

These proved to be only the opening shots in a century-lonAmerican battle over the meaning anci means of separating church anstate. Th e battles broke out therea fter over dueling , freemasonrylotteries, drunkenness, Sunday laws, slavery, marriage, divorcewomen's property rights, women's suffrage, religious educationblasphemy prosecutions, enforcement of Christian morals, and trioreThese were battles fought in Congress and in the courts, in states anon the frontier, in churches and in the schools, in clubs and at thballot box. They were largely wars of words, occasionally wars of armThe battles included many fatniliar foesRepublicans and Federalistthe north and the south, native Atned cans and new emigrants. Thealso included a host of newly established political groups: the KnowNothing Party, the American Protective Association, the NationaLiberal League, the American Secular Union, the Ku Klux Klan, andozens of other new groups.

Let me just focus on one running episode in this great nineteenthcentury battle, namely, the repeated clashes between Protestants anCatholics over separationism. Th e long and sad story of the an tiCatholicistti of nineteenth-century American Protestants is well knovmAround 1800, American Protestants and Catholics had seemed ready tpu t their bitter and bloody battles behin d them . But with the swellintide of Catholic emigres into Atnerica after the 1820sall demandinwork, building schools, establishing charities, converting souls, angaining influencenative-born Protestants and patriots began t


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What several recent studies have made clear is that the principle ofseparation of church and state became one of the strong new weaponsin the an ti-Catholic arsenal. Foreign Catholics were for the union ofchurch and state, the propagandists claimed. Am erican Protestantswere for the sepa ration of church and state. To be a Catholic was tooppose separationism a nd Am erican-style liberties. To be a Pro testan twas to defend separationism an d American-style liberties. To bash aCatholic was thus not a manifestation of religious bigotry, but adem onstration of Am erican patriotism. Protestants and patriots beganto run closely together, often tripping over each other to defendseparationism and to decry and deny Catholics for the ir failure to do so.All this is a pro pe r corrective that students of Am erican religious libertyneed to hear.

But it is important that the corrected story not now be read as asimple dialectic of Protestant separationist hawks versus Catholicunionist doves. And it is important to be clear that the Prote stant-Catholic battle over separation of church and state had two sides, withCatholics giving as welf s taking, winning as well as losing.

First, it must be remembered that many American Catholic clergyin antebellum America were themselves separationists, building their

views in part on ancient patristic models of two communities, twocities, and two pow ers. M oreover, a good num be r of Am ericanCatholic clergy saw separation of church and state as an essentialprinciple of religious liberty and embraced the doctrine withoutevident cavil or concern . Alexis de Tocqueville 1805-1859), for one ,no ted this in his Democracy in America 1835):In France I had seen the spirits of rehgion and of freedom almost always marching inopposite directions. In America I found them intimately linked together in joint reignover the same land. My longing to understand the reason for this phenomenonincreased daily. To find this out, I questioned the faithful of all communions; Iparticularly sought the society of clergymen, who are the depositaries of the variouscreeds and have a personal interest in their survival. As a practicing Catholic I wasparticularly close to the Catholic priests, with some of whom I soon established acertain intimacy. I expressed my astonishment and revealed my doubts to each ofthem; I found that they all agreed with each other except about details; all thought thatthe main reason for the quiet sway of religion over their country was the competeseparation of church and state. I have no hesitation in stating that throughout my stayin America I met nobody, lay or cleric, who did not agree about that.81

Second, many Protestant anti-Catholic writings started not so much

as gratuitous attacks upon American Catholics as counterattacks toseveral blistering papal condemnations of Protestantism, democracy,li i lib t d ti f h h d t t I Mi i


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and all states that granted hberty of conscience, free exercise, and freespeech to their citizens. Fo r the pope it was an absnrd and erroneou sproposition which claims that liberty of conscience must be maintainedfor everyone. 82 Th e po pe den ounce d freedom to publish anywritings whatever and disseminate them to the peop le. . . . The Ch urcnhas always taken action to des troy the plague of bad books. 83 H edeclared ana them a against the detestab le insolence and probity ofLu the r and other Protestan t sons of Belial [i.e., the Devil], those sores and disgraces of the hum an race wh o joyfully deem them selves'free of all.' 84 Even wo rse, the po pe averred, were the plans of thosewho desire vehemently to separate the Church from the state, and to

break the mutual concord between temporal authority and thepriesthood. 85 The reality, the p op e insisted, was that state officials received their authority not only for the government of the world, butespecially for the defense of the Church. 86

In the blistering Syllabus of Errors (1864), the papacy condemnedas cardinal errors the propositions that:18. Protestantism is nothing more than another form of the same true Christianreligion, in which it is possible to be equally pleasing to God as in the Catholic Church.

19 . The Church is not a true, and perfect, and entirely free society, nor does she enjoypecuhar and perpetual rights conferred upon her by her Divine Founder, but itappertains to the civil power to define what are the rights and hmits with which theChu rch may exercise authority. . . .

24. The church has not the power of availing herself of force, or any direct or indirecttemporal power. . . .

55. The Church ought to be separate from the State, and the State from the Church.87

In place of these cardinal errors, the papacy declared that theCatholic Church was the only true church, which must, as in medievalcenturies past, enjoy power in both spiritual and temporal affairs,un hin de red by the state.ss Six years later, the Vatican Council d eclaredthe pope's teachings to be infallible and again condemned Protestantsas heretics wh o dared subordina te the divine mag isterium of theCh urch to the judgm ent of each individual. 89

82. Gregory XVI, Mirari vos On L iberalism and R eligious Indifferentism) (1832), para.14.83 . Mirari vos, paras. 15-16.84. Mirari vos, para. 19. Belial means the spirit of evil personified or fallen angel.Belial, Oxford English Dictionary (Oxford: Oxford University Press, 1971).


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refused to uphold a new federal law forbidding contracts with foreigc l e r ^ , a vital issue for Catholic clergy.96 In Bradfield v. Roberts(1899), the Court upheld, against establishment clause challenge, federal grant to buila a Catholic hospital in the District of Columbia.^In Quick Bear v. Leupp (1908), the Court upheld the federadistribution of funds to Catholic schools that offered education tNative Am ericans.^s In Order of Benedict v. Steinhauser (1914), theCourt upheld a monastery's communal ownership of property againclaims by relatives of a deceased monk.99 In Pierce v. Society of Sisters(1925), the Court invalidated a state law making public schooattendance mandatory, thereby protecting the rights of Catholiparents and schools to educate children in a religious schooenvironm ent. 100 A good nu m be r of these Sup rem e Co urt holdingwere, in part, expressions of the principle of separation of church anstate. And there were many more such Catholic victories in statcourts, in cases where separation was again used as a means to protereligious consciences, efergy, and corporations from state interference, loi

This is not to say that anti-Catholic and broader anti-religioumeasures were always struck down, and it is not to say that separatioof church and state was not sometimes put to blatantly discriminatorpurposes in the last half of the nin etee nth cen tury. A num ber of staconstitutions adopted the spirit of separation of church and stat(though not the language) in the context of education and statfunding. Thirty-five state constitutions ultimately insisted that state anlocal governments grant no funds to religious schools. Fifteen statconstitutions insisted that state schools rem ain free from sectariainfluen ce or from the control of religious officials and institu tionThese provisions were certainly motivated, in part, by the growing bia

against em erging Catholic prim ary and secondary schools. 102 But theprovisions also testified to the growing number and power of Baptisand Methodists who, following their eighteenth-century forbearerurged a greater separation of church and state for their own distinctivtheological reasons that had nothing to do with anti-Catholicism.

In the later nineteenth and early twentieth centuries, twenty-nin

96. Chureh ofthe H oly Trinity v. United States143 U.S. 457 (1892).

97. radfield v. Roberts 175 U.S. 291 (1899).98. Quick ear v. Leupp 210 U .S. 50 (1908).


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state constitutions broadene d the ir rule of no-state-funding-for-religionto apply not only to religious schools but to all religious causes andinstitutions. The Nevada Constitution (1864), for example, providedbriefly: "No public funds of any kind or character whatever. State,county, or municipal, shall be used for sectarian purpose[s]."i03Several states echoed the strong language of the 1870 IllinoisConstitution:Neither the General Assembly nor any county, city, town, township, school district orother public corporation shall ever make any appropriation or pay from any public fundwhatever, anything in aid of any church or sectarian purpose, or to help support orsustain any school, academy, seminary, college, university or other literary or scientificinstitution, controlled by any church or sectarian denomination whatever; nor shall anygrant or donation of land, money or other personal property ever be made by the Stateor any such public corporation to any church or for any sectarian or religiouspurpose.104

Today, these state constitutional provisions against funding ofreligion and religious education are often called "state-Blaine" or"mini-Blaine" amen dm ents, in reference to the Representative Blaine'spropose d a m end m ent to the C onstitution that was narrowly defeated inthe Congress in 1875.los The anti-Catholic and sometimes anti-religious and anti-clerical prejudices that Blaine and otherschampioned certainly figured in some states-particularly in newWestern states on whose new state constitutions Congress imposed itsprejudices as a condition for granting the rights of statehood. But againthis evidence should not be over-read. First, a nu m be r of the stateconstitutional provisions against religious funding antedated Blaine'sefforts, and the language they used was often very different fromBlaine's proposed federal am end m ent. Second, a good nu m ber of thestate constitutional delegates who sought to outlaw govemment aid toreligion were themselves clerics, who used familiar seventeenth- andeighteenth-century Protestant and Enlightenment arguments forseparation of church and state that had little to do with anti-Catholicism or anti-clericalism.106 Th ird, it must be rem em be red th at

103. Constitution of Nevada (1864), Art. XI.IO,104. Constitution of Illinois (1870), Art. V III.3.105. 4 Congressional Record 5190 (1876); Alfred W . Meyer, "The Blaine Amendm ent andthe Bill of Rights," Harvard Law Review 64 (1951): 939; F. William O'Brien, "The Blaine

Amendment, 1875-1876," University of Detroit Law Journal 4

(1963): 137-205; ibid., "TheStates and 'No Establishment": Proposed Amendments to the Constitution Since 1789,"Washbum Law Journal 4 (1965): 183-210; Steven K. Green, "The Blaine Amendment


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these separationist arguments against govemment funding of somreligions were often coupled with separationist arguments for rehgioutax exem ptions for all religions. Th irty-thre e state constitutionultimately included new provisions exempting from property taxatioall properties devoted to rehgious worship, religious charity, anreligious education, and others introduced detailed new statutes opoin t. 10'? These new tax exem ption provisions were not Ju s t Pyrrhivictoriesattempts by religious bodies to seize indirect funding nowthat they lacked the political pow er to com m and direct funding. Taexemption provisions were presented as a better way to ensure nonpreferential state support to all religious organizations, rather thacontinuing to give preferential state to those rehgious groups who hamajoritarian power to extract funding from the legislatures.los

W H A T P L A C E FO R S E PA R AT IO N O F C H U R C H A N D STATE T O D AY ?

All this changed rather dramatically with the Supreme Court casoi Everson v. Board of Education (1947). This case made two majormoves at once. First, the Court applied the First AmendmenEs tablishm ent C lause to the states: Congress shall make no law. . . .now becam e, in effect, Governments o f any kind shall make no lawrespecting an estabhshment of rehgion a rejection of the originafederalist und erstan ding of separation of chu rch and state. SecondJustice Black read into the Establishment Clause a strict separationislogic that was amply coated and coded with the anti-rehgiousentiments that Black had absorbed as a former member of the KKlux Klan. Th e anti-Catholic and som etimes anti-religious sen timentof the later nineteenth century were suddenly lifted to a constitutionamandate for the entire nation.

Th e First A m endm ent Establishm ent Clause means at least this,Justice Black wrote for the Everson court: N either a state nor the F ed -eral Governm ent can set up a chu rch. N eith er can pass laws which aione religion, aid all religions, or prefer one religion over another. . . No tax in any amount, large or small, can be levied to support anyreligious activities or institutions, whatever they may be called. N eith ea state nor the Federal Government can, operuy or secretly, participatin the affairs of any religious organizations or groups, or vice versa. Ithe words of Jefferson, the clause against estaLhshment of rehgion blaw was intended to erect 'a wall of separation between church and


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state'. iO9In later cases, Justice Black stressed that a union of governm ent

and religion tends to destroy government and to degrade religion.Religion is too personal, too sacred, [and] too holy, to permit its

'unhallowed perversion' by a civil magistrate. no Religion is also toopowerful, too sinister, and too greedy to permit its unhinderedpervasion of the civil magistracy. [TJhe same powerful religiouspropagand ists who are allowed to sueeeed in malang one inroad onthe s tate and its laws. Justice Black vwote, douhtless will eontinuetheir propaganda, looking toward complete domination and supremacyof their particu lar brand of re li^ on . A nd it is nearly always by insidious

approaches that the citadels orj religious] liberty are more successfullyattaeked . iii The First Am end m ent has erected a wall of separationbetween ehureh and state. That wall must be kept high andimpregnable. We could not approve the slightest breach. ii2

The Supreme Court applied its strict separationist logic with specialvigor in cases challenging tne traditional state patronage and protectionof religious education . The Co urt p urge d religion from trie publicsehool and removed religious schools from many traditional forms ofstate support. In more than two dozen cases after Everson the Court

held that publie sehools could not offer prayers or moments of silence,could not read Scripture or religious texts, could not house Bibles orprayerbooks, could not teach theology or creationism, could not displayDecalogues, could not use the services or facilities of religious bodies.At the same time, states could not provide salary and servicesur)plements to religious schools, could not reimburse them foradministering standardized tests, could not lend them state-prescribedtextbooks, suppUes, films, or eounseling sendees, could not allow taxdeductions or credits for religious schoo ltuition, and m ore .us

In Lemon v. Kurtzman (1971), the Court distilled the separationistlogic of its early cases into a general test to be used in all E stablishm entClause cases. Hen ceforth every law challenged un de r theEstablishment Clause would pass constitutional muster only if it couldbe shown (1) to have a secular purpose; (2) to have a primary effectthat neither advances nor inhibits religion; and (3) to foster noexcessive entang lem ent betwee n church and state.n* Th e Lemon testrendered the EstabUshment Clause a formidable obstacle to manytraditional forms and forums of chu rch-s tate cooperation. Particularly


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deductions for parents who wish to educate their children in the faitIt is one thing to prevent government officials from delegating thecore police powers to religious bodies, quite another thing to preventhem from facilitating the charitable services of voluntary religious annon-religious associations alike. It is one thing to outlaw governm entprescriptions of prayers, ceremonies, and symbols in public forumquite another thing to outlaw governmental accommodations of privatprayers, cerem onies , and symbols in public forums. To pressepara tionist logic too deeply into unessentials not only triviaUzesthe place of religion in public and private life, as Stephen CartearguesiiS; it also trivializes the power ofthe Constitution, converting

from a coda of cardinal principles of national law into a codex of pettprecepts of local life.Too zealous an interpretation of the principle of separation o

church and state also runs afoul of other constitutive principles of thFirst Amendment^particularly the principles of liberty of consciencand religious equality. Th e Co urt m ust be at least as zealous iprotecting religious conscience from secular coercion as protectinsecvilar conscience from religious coe rcion . The Court should be aleast as concerned to ensure the equal treatment of religion as tens ure the equality of religion and non-religion. It is no violation of thprinciple of separation of church and state when a legislature or couraccommodates judiciously the conscientious scruples of a religiouindividual or the card inal callings of a religious body. It is also not violation of this principle when government grants religious individualand institutions equaf access to state benefits, public forums, or tadisbu rsem ents that are open to non-religionists similarly situated. Tdo otherwise is, indeed, to move toward what Justice Stewart onccalled the establishm ent of religion of secularism. us

Individuals should exercise a comparable prudence in seekinprotection from public religion. In the public religion schem es onineteenth-century America, it was not so much the courts as thfrontier that provided this freedoma place away from it all, wherone could escape with one's conscience and co-religionists. Today, thefrontier still provides this freedomif not physically in small towns anwild mountains, then virtually in our ability to sift out and shut out thpub lic voices of religion tha t we do n ot wish to hear.

Both modem technology and modem privacy make escape to thefrontier considerably easier than in the days of covered wagons andmu le trains. Just tu m off Pat Ro berston or Jerry Falwell. T u m awa


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Forgo th e m ilitary chaplain s pastoral eounseling. Sldp the legislativeehaplain s prayers. W alk by the town hall s menorah and star. Do notread the Deealogue on the elassroom wall. Do not join the religiousstude nt group. D o not vote for the eoUared candidate. Do not browsethe Evangelieals new spapers. Avoid the sendees of the Catholiceounse lors. Shun the readings of the Scientologists. T u m down thetrinkets of the colporteurs. T u m back the ministries of the hate-m ongers. All these eseapes to the virtual frontier, the law does and willprotect^with force if neeessary. Such voluntary self-protections fromreligion will ultimately provide far greater religious freedom for all thanpressing yet another tired eonstitutional ease.


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Documents

Acts and Fictions About the History of Separation Churche and State. John Witte Jr