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Kenneth R. Himes, O.F.M.
Rethinking the Wall of Separation
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.”
Those sixteen words, the first half of the
First Amendment to the U.S. Constitution,
have generated a lot of other words—written
and spoken—over the years. Interpretation
of those sixteen words has varied greatly
and there have been periods in American
life when one or the other school of interpretation has been predominant. Today, we
just may be in the midst of a new era in
Church-state relations due to a shift in the
interpretation of the First Amendment.
While the First Amendment addresses
only the power of the federal government,
the Supreme Court has made it clear that
the Fourteenth Amendment should be
understood as incorporating the provisions
of the First Amendment and applying them
to the individual states as well as the national government. So, not only Congress
but state legislatures are bound to “make no
law respecting an establishment of religion,
or prohibiting the free exercise thereof.”
Balancing between No
Establishment and Free Exercise
No establishment and free exercise: it is
the interplay of these two clauses that is at
the heart of public policy debates on Church
and state. May governments give tuition
vouchers, using tax revenue, to parents who,
then, use them to pay parochial school tuition? May employees sue employers who
do not provide for time off to meet religious obligations? As part of a religious
ritual, can participants engage in smoking
peyote or animal sacrifice? Can public
monies be used to set up religious symbols,
like a Christmas crèche, on public grounds?
Can high school students have use of a
classroom for a prayer group that meets as
an extra-curricular club? May religiously
sponsored agencies receive government
funding for provision of public services
while maintaining their overtly religious
message? These are just some of the issues
that have been debated and decided by our
courts.
To make sense of the case law, one has
to forsake any hope of finding a clear principle that is applied consistently. Instead,
the courts have settled these matters in
ways that sometimes split hairs that are
hard to see. (One famous instance was a
ruling in 1970 that the government could
provide books but not maps to parochial
schools on the premise that books went to
students but maps went to schools. This
prompted the Catholic senator from New
Kenneth R. Himes, O.F.M. is professor of moral theology at Washington Theological
Union and editor of this journal. His most recent publication is Responses to 101 Questions on Catholic Social Teaching (Paulist Press, 2001).
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York, Daniel Patrick Moynihan, to ask,
“What about an atlas, a book of maps?”)
More significant than any particular
court decision, however, is a shift in the
fundamental reading of the two clauses,
one that will have implications for the
Catholic community and all citizens.
Throughout our history as a nation there
has been a constant debate over how much
regulation of religion constitutes a violation of free exercise and how much cooperation with religious groups entails a
violation of no establishment. Broadly
speaking, one can see two stages in the
way the Supreme Court has viewed the
question and the onset of a third stage in
recent years.
Past Approaches
to Interpretation
The stages reflect the shifting place of
Catholicism in the life of the nation. For a
long period of time, from the founding of
the nation up to the middle of the twentieth
century, when mainstream Protestantism
dominated the ethos of American public
life, the emphasis in the Court’s reading of
religion cases was placed on free exercise.
Religion was seen as something vital to the
well-being of a democracy and government should be respectful of that role. Use
of the Bible in public schools, teacher-led
prayer in the classroom, official chaplains
in the armed services and legislatures,
Christmas decorations in the lobby of city
hall or the town square—this was all taken
for granted by the majority of Americans.
There was tolerance of a generic Protestant spirit in the institutions and folkways
of the nation. Dissenters to this state of affairs were Southern Baptists and other
non-mainline Protestants, as well as Jews
and Catholics.
The second stage of First Amendment
interpretation is rather recent, even if it is
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the stage that most Americans now living
think of as the norm, namely, strict separation of Church and state. Only in the middle
of the last century did this idea become the
new consensus. Although it was not a
novel idea at the time, it was only in 1947
that the metaphor of a wall of separation
entered the popular vocabulary of constitutional interpretation. The historical shifts
behind this development are many: the rise
of secularism in the popular culture, the
declining force of mainline Protestantism,
increased concern for the rights of minorities in a democracy, anti-Catholicism, and
anxieties about the growing power of the
Catholic Church in the United States. The
consequence of all these social changes
was a shift in constitutional interpretation
that gave greater weight to the no establishment clause than in the past.
In the new cultural climate of the midtwentieth century, the courts tended to
strike down any arrangement that placed
the state in a cooperative stance with organized religion. The net effect of this was a
movement to remove religion from public
life. Many Catholics were dismayed by
these events and saw in the resistance to
support for parochial schools, the removal
of “blue laws” on Sunday, opposition to
Christmas crèches on public property, and
other court-supported measures a lingering prejudice against their Church. But it
was not only Catholics who were troubled
by the direction of the courts. For the first
time Baptists and other evangelical Protestants who had been strict separationists
now came to wonder if the real enemy was
neither the state nor Catholicism, but secularism.
As a result, the rise of evangelical Protestantism as a political force in the last
quarter of the twentieth century was one
of the chief contributors to the onset of
what has been called the “culture war” between conservatives and liberals. Besides
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the usual issues of the economy or national security, politicians now had to reckon
with divisions on issues like abortion, gay
rights, drugs, school prayer, family life, sex
education, pornography, the influence of
movies and television in shaping public
morality. On many, if not all, of these items
evangelical Protestants saw Catholics as
allies, not enemies. Others, of course, also
had doubts about the increasingly “naked
public square” of American life. People of
varied or no religious affiliation saw in a
more public religion a resource for restoring values and standards to a nation that
had been deeply divided by the tumultuous changes of the sixties and seventies.
This broad sketch of the cultural shifts
in American life requires far more nuance
than what I have provided. But my point is
simply to underline that it has been the
cultural shifts in the nation that have led
Supreme Court justices to read the Constitution with new lenses. A relatively brief
period of strict separation, lasting less than
fifty years, already seems to be ending and
a new stage of Church-state relations is developing. This third stage is returning once
again to an emphasis on avoiding restrictions on free exercise rather than worrying
about maintaining no establishment. Last
spring’s decision upholding the Cleveland
voucher program is but one example of
this shift, adding to the momentum established by earlier decisions supporting
student-led voluntary prayer, and the right
of religious groups to use school facilities
after class time if other groups have the
same access.
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Conclusion
What is emerging is a new era of Churchstate relations that will be defined not by
strict separation but by treating organized
religion as similar to other institutions in
society. Government ought not favor any
particular religious institution but it ought
not make special rules to exclude religion
from the public square. Religion is but one
more voice and presence to be treated as a
legitimate public participant. As this new
stage develops there will be interesting
cases to watch. At present, attention is on
matters like school vouchers and the faithbased initiative of President Bush to supply
public monies to religiously-sponsored social service agencies. Less has been said
about other potentially divisive issues. For
instance, because religion was seen as a
special case in earlier constitutional interpretations, it was given a deference that
may be missing in the future. Courts may
be more willing to take on cases that involve personnel issues in a church, or subpoena church officials or documents in
matters that in an earlier age the courts
would have avoided.
The new stage of Church-state relations,
in other words, will not put an end to
thorny cases, passionate debates, or convoluted reasoning. What this new era virtually guarantees is that the remarkable
diversity and vitality of American religious life will play a very public role in the
life of the nation, and that debates about
how to describe that role will continue even
if strict separation no longer is the dominant viewpoint.
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