Separation of Church and State in America - Jefferson to Bush
There are two stories of separation of government and religion in the United States. One is the Christian story of Pilgrims who fled religious tyranny and founded a country where every man was free to worship as he chose and every woman was free to worship as her husband or father chose. This strong faith built a strong nation, a virtual Garden of Eden, until the mid-20th Century when the Supreme Court kicked God out of the public schools, Elvis wiggled his hips while teenage girls screamed, and the nation degenerated into a secular Babylon.
The other is the freethinkers' story a band of far-sighted colonists fled the moribund traditions of European tyranny by Divine Right to establish colonies which were kept under the thumb of the corrupt king until a group of brilliant atheists, led by Thomas Jefferson, got together and invented freedom. They cast off the shackles of established churches and gave us secular government, enabling the nation to grow economically, geographically, and most important intellectually until the mid 20th Century when panic about the Soviet Union caused us to put "under God" in our flag salute and growing fundamentalism took over our government, legislator by legislator, until we became a people of babbling, drooling idiots.
It is my understanding that this latter description of Americans is the one Europeans favor.
While there is some truth in both of these versions, truth, real truth, the whole unbiased truth is scarce. However scarce it may be, the supply still exceeds the demand.
Two revisionist histories which are receiving a lot of comment this year illustrate this. Both are reported as very scholarly searches, though the one getting the most attention has earned this appellation even before publication. Daniel Dreisbach's book, Thomas Jefferson and the Wall of Separation Between Church and State came out in late August of 2002, too late to review for this talk.
The other, Philip Hamburger's Separation of Church and State is indeed a well-researched, carefully documented quest, not for truth, but for facts which, when taken out of context, will support his view that separation is a 20th Century invention. Indeed, he omits the central statement of church-state law in the U.S. The Bill of Rights was written to limit the powers of the national government only. No serious legal scholar would argue that the states were restricted from establishing religion until the 14th Amendment to the Constitution, passed in 1865. But even then, the Supreme Court interpreted it very minimally, guaranteeing only limited due process until the 1930's, when-piece by piece-they started to incorporate individual liberties as restrictions on the states. In 1947, the church-state decision, Everson vs. Board of Education, incorporated the establishment clause.
We will talk more about Hamburger's take on Everson later, but let us now go back to the founding of the country which is still called The Great Experiment.
At the time of our Revolution, nine of our thirteen colonies had state-established churches, Congregational in the North and Anglican in the South. They overlapped, with no apparent understanding of the contradiction, with the eight new states who adopted Jefferson's clause, which he had proposed for his home Virginia, that granted freedom of religion, "according to the dictates of conscience." Jefferson's own Virginia did not embrace this language until ten years later. Freedom of religion was an emerging idea and even where the language of secularism took hold, the reality was more difficult.
All states had some religious restrictions. Even Pennsylvania, the state most Americans think of as the leader in religious liberty, required those in public office to swear that the Old and New Testaments were divinely inspired.
On reflection, none of this should surprise us. Many of our settlers had been religious fanatics England had sent away. Their descendants not only lacked modern travel and communication advances, about half lacked basic literacy. The Deists, prominent among our founding fathers, were a tiny minority among the populace or even the leaders at the state level. Catholics wisely stayed in Maryland, which had been established for them. Jews, like the Deists, may have represented a disproportionate number of intellectuals and leaders, but were much too rare to dare into popular consciousness, let alone popular politics. The religious minorities which people knew were the Baptists and Methodists. Giving the Baptists a right to exist-though in many cases much less than equal rights-seemed quite liberal and even a bit frightening.
Notwithstanding Hamburger's ludicrous assertion that Thomas Paine got the idea of a secular government from Christian theology-a discipline which Paine abhorred and which has over the centuries offered little comfort to the secularist-the concept of separating the legitimate powers of government from the illegitimate powers of religion was new, and the laboratory we were testing it in was not equipped with the accessible diversity of robust thought and rowdy superstition which the United States enjoys today.
In spite of the revisionist thorn in our side, there is little doubt that Jefferson's wall was intended, as metaphorical walls must be, to be an impenetrable fortress against the use of the power of government to support a belief. If his vision was less pure than we atheists would like-his idea that these rights came from a Creator, with a capital C-it was as sturdy as any could wish, not allowing a presidential proclamation of a fast day, for example. Jefferson is often referred to as a Deist. Many nonbelievers take this to mean that he shared the proto-atheist philosophy of Thomas Paine, whose Deism was definitely that of a pre-Darwinian atheist who simply thought that a god was the logical explanation for our coming into being, but not for anything since that time. But Jefferson also called himself a Christian, though he was adamant that he did not believe in the divinity of Jesus; there is little doubt that he believed in a creator god.
The record is clear his notion of separation had some political viability. It was an issue in the election of 1800. The Rev. William Linn said, "The election of any man avowing the principles of Mr. Jefferson" would "destroy religion, introduce immorality, and loosen the bonds of society." And incumbent John Adams, who once called the idea of a divine Jesus "a conventional cover for absurdity" put aside his own feelings to oppose Jefferson's separation in a vain attempt to hold onto the presidency.
As you know, the election didn't settle the issue. There continued, of course, debate about fast days and secularist opposition to the payment of military chaplains. Interestingly, several states did not allow clergy to serve in their legislatures, with the understanding that men of god should not be men of government. James Madison, once safely in retirement, came out against the Congressional Chaplaincy, to no avail. But there was much to keep our secular ancestors busy, as the Christian God of our fathers seemed to stick his eternal nose into every aspect of public affairs, and even in areas where he was often rebuffed, he kept coming back.
With each period of rapid change, there were new evangelical reformers. By the 1820s, we had the General Union for Promoting the Observance of the Christian Sabbath, and in the 1830s, well-intentioned do-gooders started a prison program where all prisoners were isolated, to keep them away from bad influence, and required to read the Bible all day. We don't know the recidivism rate, but the suicide rate was high.
One Christian reaction to separation was church opposition to fledgling public welfare projects, such as poor houses. The reasoning was that when government and church were one, charity was their business, but when they were separate, charity was a church project. It is interesting to note that to this day, the United States provides much less in public welfare than Europeans with your state-established churches.
As the nation moved west, the church was usually the first building in a new settlement, and it often doubled as a city hall and sometimes as a school. In the 1870s, the Women's Christian Temperance Union had its first victories, achieving local option on the sale of alcoholic beverages, and in 1877, President Hayes appointed prominent atheist Robert Ingersoll as ambassador to Germany but had to withdraw the nomination in the face of strong religious opposition. I suppose they felt that the German people were just too easily corrupted.
These events, however, were side issues. Throughout the 19th Century, two developments dominated the debate on church-state separation, and there is irony in both.
First was the emerging public school system. One would think that a move to educate the populace would be a great boon to a secular government, but indeed the schools are-to this day-the fortresses the theocrats will not give up.
The other irony is that the fear of Catholic immigration created a nativist movement which, in adopting the vocabulary of secularism, converted many of the common folk to that secularism, even though their concern was to deny Catholics equal rights. Eventually, these two movements would become intertwined, but public education came first.
From the beginning, public schools included religious education, and from the beginning, there was controversy. Jefferson, of course, opposed Bible reading in school, suggesting it could be replaced by teaching historical fact and "the first elements of morality." This assertion that morality was to be found outside the Bible was conflict-ridden indeed. When political ally DeWitt Clinton defended Jefferson with the statement that "the primary design of sending children to school, is to learn to read and write, not to learn religion," he followed with a diatribe about the importance of the Bible as a moral guide, as he apparently felt it politically necessary.
Public schools were state or local institutions, where the federal law had no impact. In some places, the separatist philosophy had influence, but as most communities were homogonous, the school term was short-lived, and attendance was not mandatory, debate was not usually passionate until the Catholics came to town. Then the schools became instruments of Protestant indoctrination. For example, in the 1820s New York City, as an act of separatist philosophy, denied school funds to all religions, Catholic, Methodist, Baptists, alike. The recipient of most of the funds was a private, secular organization called the Public School Society. Not only did their students read the Bible daily, their texts condemned Catholics in the worst possible terms.
Like most hatred, our bigotry here arose from fear. Our English heritage was one of Catholic-Protestant rotating persecution, and by the 19th Century we had a fair number of Protestants who had fled Catholic rule in France and come to think of it, southern Germany. I am speaking in English today because a Protestant named Anton Kirchhart chose flight over fight someplace very near here. When his grandchildren saw Catholics invading the shores of his refuge, they may well have panicked.
The resulting Nativist movement is the embarrassing, drunken and profane grandfather of us modern American secularists. There was nothing philosophically appealing about these Nativists. Because Catholics were thought to be against separation of church and state, the argument went, the Papists must be denied the right to vote. This is certainly a contention worthy of ridicule.
But in taking up the cry of separation and using it to justify a popular prejudice, they made the issue important to Americans who had not much cared about it, and if the Nativists concept of the idea was deeply flawed, the vocabulary they used often turned into rallying cries of more thoughtful people who began to contemplate what a truly secular government at all levels would give us. Unfortunately, the Nativists also propagated an ugly stereotype of an alien people who kept guns under their churches and who were breeding for the sole purpose of taking over the world. In the U.S., this was influential in politics and society until the 1960 election of John F. Kennedy.
By the 1870s, a move to declare in the Preamble to the Constitution that the U.S. is a Christian nation failed miserably, although this fairly weak statement would have roused spirited debate at the beginning of the century. But many Americans were not ready to commit to a thoroughly secularist philosophy. When the Fourteenth Amendment of 1865, which apparently gave all citizens the protection of the Bill of Rights, was interpreted much more narrowly by the Supreme Court, strong but ultimately unsuccessful attempts were made to extend the establishment clause to the states.
Interestingly, by the end of the Century, a new wave of religiously different immigrants had come to the U.S.-Jews, Chinese and some Japanese-who caused barely a ripple in our concept of separation. Though they suffered horrible prejudice, there is no record of significant attempts to pass laws concerning their religion or punishing them for holding it.
At the close of the 19th Century, the Nativists remained, most of them in their most infamous form-the Ku Klux Klan. Though they still gave some lip service to separation of government and religion, even inventing a ceremony using a coin to call up the Biblical injunction, "Render unto Caesar," there was no denying that their primary purpose was to terrorize Black Americans, Jewish Americans, and less often, Catholic Americans.
But another outgrowth of the secularist philosophy was the Liberal Alliance, later to become the Liberal League. These were the atheists, agnostics and other freethinkers of their day. They presented nine demands of liberalism, paraphrased here:
- Churches and other ecclesiastical property no longer be exempt from taxation.
- The employment of chaplains in Congress, the state legislatures, the military, prisons, asylums and other public institutions be discontinued.
- All public appropriations for sectarian education or charity shall cease.
- All religious services sustained by government be abolished, and the use of the Bible in public schools, as a text book or as a religious exercise, shall cease.
- The president and all governors shall not declare religious festivals or fast days.
- The judicial oath be replaced by a simple affirmation.
- Laws directly or indirectly enforcing the Sabbath as a day of worship be abolished.
- All laws enforcing "Christian" morality be abolished, and that only laws which conform to natural morality, equal rights, and impartial liberty be enforced.
- In the Constitution of the United States and of all the states, no privilege shall be conceded to any religionž and our entire political system shall be secular.
In 1929, the Freethinkers' League, repeated all of these demands except the eighth. Indeed, little changed in the first half of the 20th Century.
But for the would-be theocrat and the longsuffering secularist several events changed the American political landscape in the middle of the Century. The first was the 1947 Everson vs. Board of Education decision, in which Hugo Black wrote one of the most eloquent Supreme Court opinions ever written, recalling our history of religious intolerance and declaring the establishment clause to mean exactly what it says, that no law respecting an establishment of religion shall be made, and that this exalted principle applies to the states.
Hamburger's explanation that Black's reasoning was simply rationalization, that he invented the history and law he cited, rests entirely on the fact that a younger Hugo Black had been an anti-Catholic member of the Ku Klux Klan. Hamburger does not explain how this caused Black to rule in this case in favor of the Catholic school children and against the nativist petitioner.
That same year, in McCullem vs. Board of Education, the Court struck down religious instruction in public schools. More was to follow, including the well-known decisions forbidding school-sponsored prayer.
It is likely that America's panicked endeavor to win God's favor in the Cold War was as much a reaction to these edicts as it was to Godless Communism. For whatever reason, we added "under God" to our flag salute and made "In God We Trust" a national motto on a par with, and in many cases replacing, the noble E Pluribus Unum, From Many, One.
The effort to get God back into respectable politics got a boost from an unexpected source-the Civil Rights Movement. Since slavery, Southern Blacks, denied all Civil Rights, had been given even the simple freedom of speech and assembly only in the church. If any black man voted in a Southern town, it was the minister, who did not depend directly on whites for his livelihood.
The Civil Rights movement of the 1950s and '60s relied on the church, for there was no other possible gathering place. And, as black political leaders must be, the organizers were ministers. This gave us a popular, liberal political movement which was wholly dependent on traditional American Protestant religion. The opportunity to equate good law with God's law was not lost.
In the years since, the schools have again been the major battleground. The recent Newdow decision did not, as many people claim, strike "under God" from the Pledge of Allegiance, but it did temporarily bar its being recited in the schools. With too many exceptions, religious instruction and teacher-directed prayer have stayed out of our public schools, but the price religionists have been able to extract for this is much less support for public education and in many states a corruption of the science curriculum, which may avoid the subject of evolution altogether. To date, the courts have been unwavering in keeping the teaching of religious explanations for evolution out of the schools, though many teachers, administrators and school boards have been far less adamant.
The rapid technological and social changes of the past 25 years have made American society more religious, especially in their political rhetoric. We have had two presidents-Reagan and the current Bush-who seem to present themselves as religious leaders. They have given us increasingly conservative courts, inclined to vote in favor of religion, as in the recent school voucher case, where public money will go to sectarian schools.
Since 1994, the House of Representatives has been fervently religious. The religious right's ability to mobilize money and manpower puts fear in the hearts of many Congressmen who would like to oppose them. No bill promoting religion is too preposterous to pass the House of Representatives. The Senate provides protection against the most ludicrous and a Supreme Court which interprets the establishment clause narrowly, but to date has refused to ignore it entirely, bars a few of the more subtle violations.
Even though for many years charities of the various religions, Catholic Charities, Lutheran Social Services, the Salvation Army Social Services, have received most of their funding from taxes, these organizations must conform to federal law and claim they do not discriminate nor proselytize. Therefore, the Bush administration is pushing to expand a small program begun with little notice under the Carter administration, Charitable Choice, in which the government makes the choice to give my tax money to a religious charity which does not operate under the constraints of fairness and nonproselytizing.
In short, our history and our future are the same, and in our experience may be some lessons for 21st Century Europe, where diversity is an emerging reality. As a nation with disparate population, we are in a constant struggle to identify ourselves as a people. Some attempt to do this with religion, which has always served the function of defining the tribe, as well as excluding the outsiders. Others have valiantly preached the truth that the secular world is the only world which all humankind shares, and it is in this world that the government of a free people may rule.