Cahiers Péguy


Where Did We Lose Our Way?

I want to understand the principle of separation of church and state, as it was intended by the founders of our country. The principle is explicit in the First Amendment of the US Bill of Rights (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) and was first named in an 1802 letter by Thomas Jefferson: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” . . . The clear intent of the First Amendment—sanctioned by Jefferson, as Scripture was sanctioned by the early Church Fathers—is to protect religion against state meddling. When did the principle flip-flop? When did religion become the meddler and the state (in a democracy, the will of the majority) become the victim?

I recently thought of these questions in the midst of an intrafamily brouhaha over religion, when a (Christian) family member wrote: “The constitution separates church and state because we are a pluralistic, multi cultural, multi racial society. Our government is for all. Church or temple or mosque is not for all. Religion should remain a personal matter between people and their God or like spiritual inspiration. . . . ”

In fact, the Constitution separates church and state because religion is sacred (of higher value) and the Founding Fathers recognized that it needs protection. But relativists like my relative now invoke the “principle” to defend their position.

The issue has returned to my mind today while reading about the legal battle currently playing out in San Francisco, between the city and Catholic Charities, about whether the state can force a religious organization to place orphaned children with same-sex couples. With the guidance of Cardinal William Levada, the prefect of the Congregation for the Doctrine of the Faith and former Archbishop of San Francisco, Catholic Charities has refused to do so. In court, the city has termed CC’s stance “discriminatory and defamatory.”

What would Thomas Jefferson say about this? We know what the Thomas More Law Center, representing a couple who are countersuing on behalf of the CC position, said: “Anytime something is promoting religion, the line becomes far clearer towards prohibiting the conduct, whereas if the action in question is hostile towards religion, the line moves further towards defending the government that's taken the action.”

Is what I’m saying. Where and when did we lose our way?

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About Webster Bull

Webster Bull is a writer and publisher living in Beverly, Massachusetts, north of Boston. His latest book is "Something in the Ether: A Bicentennial History of Massachusetts General Hospital, 1811-2011," to be published in April 2011. You can follow Webster on Facebook.
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  1. Good questions.

    The primary purpose of the First Amendment religion clauses is not to protect religion or government, but rather to protect individuals’ religious freedom. The free-exercise clause does this directly by constraining the government from prohibiting individuals from freely exercising their religions. The establishment clause does this indirectly by constraining government from promoting or otherwise taking steps to establish any religion, thus assuring that individuals are free to exercise their religions without fearing the government will favor the religions of others and thus disfavor theirs.

    Some who nonetheless would like to use government to promote their religion have argued that the First Amendment works only in one direction–to protect churches from government, but not the other way around. This, they suppose, would leave them (and churches) free to insinuate their religion into government and thereby effectively establish it as the nation’s religion. To the extent that the First Amendment prevents that, it can be said, I suppose, to protect government from churches.

    Separation of church and state does not prevent citizens from making decisions and voicing opinions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. In this context, the principle of separation of church and state does, though, constrain government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

    Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you.

  2. Oops! I meant to comment, too, on the San Francisco case. One aspect of church-state matters is the difficultly of determining whether and, if so, when the government should require people to do things contrary to their faith. The government could hardly operate if anyone could opt out of laws with the excuse that their religion requires or allows it. The courts have confronted this sort of issue and have ruled that the government cannot enact laws specifically aimed at a particular religion, but it can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning traffic, pollution, taxes, crimes, contracts, fraud, negligence) and require everyone, including those who may object on religious grounds, to abide by them. Thus, the government can forbid discrimination against specified people and apply that law even to those who say their religion allows or requires them to discriminate. And the government can adopt land use laws and apply them to regulate where churches are located. In rare (one hopes) circumstances, such a generally-applicable law could put an individual in an ethical Catch-22 if it requires one to take actions one considers immoral. For just this reason, when such binds can be anticipated, provisions may be added to laws affording some relief to conscientious objectors.

  3. Doug,
    Thanks for your comments and I will read the Wake Forest document with interest. I’m not sure I read an unequivocal “decision” in the SF case from your second comment, and even if it were unequivocal, the case I refer to had an undecided jury, exactly as the Wake Forest document appears to have. The main question in my post is about the drift: How did we stray from the intent of the Founders to the secular position today, when humanists use a “revised” or “updated” interpretation of their intent to justify a position the Founders never anticipated.

    Furthermore, might it not be that a refusal to place an orphan with a same-sex couple is as much about the child as it is about the couple? Might Catholic Charities not be protecting the child’s right to be raised by one man and one woman, in conformity with Catholic belief? Because once you force CC to do otherwise, the next step is forcing Catholic doctors to perform abortions. No?

  4. I’m not sure what you have in mind about a “revised” idea of the founders’ intent.

    Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    Some also make much of various statements by founders about their religiosity. While many founders were Christian of one sort or another, care should be taken not to make too much of individual founder’s religious beliefs. In assessing the nature of our government, the religiosity of the various founders, while informative, is largely beside the point. Whatever their religions, they drafted a Constitution that plainly establishes a secular government in the sense that it is based on the power of the people (not a deity) and says nothing substantive of god(s) or religion except in the First Amendment where the point is to confirm that each person enjoys religious liberty and that the government is not to take steps to establish religion and another provision precluding any religious test for public office. This is entirely consistent with the fact that some founders professed their religiosity and even their desire that Christianity remain the dominant religious influence in American society. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion. It is entirely possible for thoroughly religious folk to found a secular government and keep it separate from religion. That, indeed, is just what the founders did.

    The First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

    I hesitate to say much about the Catholic Charities issue since I know so little about it. Reasonable people may differ, I suppose, on how the general legal principles, described in my earlier comment, are applied in a particular case.

  5. It’s hard to find knowledgeable people on this topic, but you sound like you know what you’re talking about! Thanks

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