– Alan Garfield
Why would we want to separate church and state? Isn’t religion a positive force in society? Doesn’t it foster ethical behavior and encourage charity? Just think of all the church-run soup kitchens or the moral leadership provided by the Rev. Martin Luther King Jr.
So why would the framers build a wall separating church and state? Why not unite the two and combine their power for good?
Of course, the Constitution never explicitly says that there must be a wall separating church and state. But the First Amendment does say that “Congress shall make no law respecting an establishment of religion.” In a landmark 1947 decision, the Supreme Court explained that this clause was “intended to erect ‛a wall of separation between church and State’” and that this wall “must be kept high and impregnable.”
What were the framers thinking? Were they opposed to religion? Were they at war with Christmas?
Certainly not. Most were religious themselves.
The framers merely knew their history. And history taught them that combining church and state produces a volatile brew that is good for neither church nor state.
In its 1947 decision, the court recalled how many of the nation’s earliest settlers had left Europe “to escape the bondage of laws which compelled them to support and attend government-favored churches.” The Europe these settlers fled had been wracked by centuries of religious warfare as established churches sought to “maintain their absolute political and religious supremacy.”
“With the power of government supporting them,” the court recounted, “Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews.”
Making matters worse, the court continued, these practices “were transplanted to, and began to thrive in, the soil of the new America.” Colonies created “religious establishments” which all individuals, whether believers or not, were “required to support and attend.”
The court said that this imposition of taxes to pay ministers’ salaries and maintain church properties aroused “indignation” in the “freedom-loving colonials.” The framers adopted the First Amendment to address this indignation.
While the framers had front-row seats for internecine Christian warfare, we all know from contemporary history that religious battles are not unique to Christians.
Extremist Shia and Sunni Muslims are currently warring for domination in the Middle East; Buddhists are killing Muslims in Myanmar; Hindus and Muslims frequently fight in South Asia; and tiny Israel struggles to be both a Jewish state and a democratic one.
The framers, in their wisdom, sought to create a United States free of this religious strife. They knew that aligning church and state ignites endless battles over whose “church” is aligned with government. They knew that it was wrong to make taxpayers pay for the religions of others. They knew that religions receiving government support become beholden to their government benefactors. They knew that distributing public funds to religions creates divisiveness as sects vie for government largess.
The framers’ solution was simple but elegant: separate church and state.
The Declaration of Independence may have referred to “Nature’s God” and said that people were endowed by their “Creator” with unalienable rights, but the framers drafted a Constitution that makes no reference to “God.” And its only reference to religion reinforces separation of church and state. It provides that “no religious Test shall ever be required as a Qualification” to hold public office.
When the First Amendment was added to the Constitution, it enshrined the notion of separation in the Establishment Clause. At the same time, the framers protected private religious practice from government intrusion with the Free Exercise Clause, which provides that “Congress shall make no law . . . prohibiting the free exercise” of religion.
Time has proven the genius of the framers’ decision. Two hundred years after the First Amendment was adopted, Justice Sandra Day O’Connor rightfully observed that “Americans may count themselves fortunate.” While much of the world continues to be consumed by the “violent consequences” of governments aligned with religion, we have managed, thanks to our “regard for constitutional boundaries,” to avoid “similar travails.”
As the same time, O’Connor noted, separation of church and state has not harmed religion in America. To the contrary, it has allowed “private religious exercise to flourish.” Indeed, Americans are typically more religious than their counterparts in other developed nations.
Given how well separation has served us, O’Connor challenged anyone who wanted to “renegotiate the boundaries between church and state” to answer this “difficult” question: “Why would we trade a system that has served us so well for one that has served others so poorly?”
Still, there continue to be Americans who want to tear down the wall separating church and state. Indeed, our current president seems eager to lead the charge. At an Independence Day event intended to honor American veterans, President Trump couldn’t resist rehashing his campaign pledge that “we’re going to start saying ‛Merry Christmas’ again.”
Did the president somehow forget that not all veterans are Christian? Was he incapable of acknowledging the sacrifice of veterans without engaging in the very type of religious divisiveness our founders sought to avoid?
Unfortunately, President Trump is not alone in wanting to dismantle the wall separating church and state. Some Supreme Court justices, including Trump appointee Neil Gorsuch, seem eager to join the demolition.
That, at least, was a concern raised by the Supreme Court’s decision last month, which held that if Missouri offered to provide playground surfacing material to private schools, it had to offer the same material to church schools.
Of course, few were upset by the specific holding in that case. Religious schools receiving government subsidized playground material is not a big deal. If it keeps a few more kids from getting skinned knees, that’s great — although this government subsidy does also mean that the schools can now spend more of their own money on religious education.
The concern is with the larger implications of the court’s decision. It potentially set a legal precedent that religious institutions could not be excluded from offers of public funding to private institutions.
When it comes to giving religious schools rubberized playground material, that’s fine. But suppose that states wanted to give children vouchers to use for private school tuition. That’s not hard to imagine, since Secretary of Education Betsy DeVos is a major proponent of vouchers. The question raised by the Missouri case is whether states could restrict the use of these vouchers to secular schools and exclude religious schools.
The Missouri playground case suggests that states couldn’t do that. It implies that the restriction would amount to unlawful discrimination against religion.
But states that restricted voucher use to secular schools would simply be honoring the spirit of the First Amendment. After all, if vouchers are given to religious schools, vast sums of taxpayer money could be used, as Justice David Souter once observed, “for teaching the covenant with Israel and Mosaic law in Jewish schools, the primacy of the Apostle Peter and the Papacy in Catholic schools, the truth of reformed Christianity in Protestant schools, and the revelation to the Prophet in Muslim schools.”
Surely, taxpayer money should not be used to teach children about Mosaic law, Canon law, or Sharia law. It would be more appropriately spent in well-funded public schools teaching constitutional law.
The first lesson could be about the way our nation respects religious liberty by separating church and state. It seems that far too many Americans, including Donald Trump, missed that lesson.