When you visit the National Constitution Center in Philadelphia on a school day in May you can barely reach the exhibits illustrating America’s constitutional and political history from its origins down to the lately shed judicial robe of former Supreme Court Justice Sandra Day O’Conner. Hoards of school children press the glass of every showcase and surround every free-standing object, reading the legends, listening to the recordings, fingering anything they can touch, jotting notes, and chattering inquisitively. They are only there on field trips, of course, and glad to escape school, but their curiosity seems real. And we could say their teachers have new incentive to stimulate that curiosity.
A portion of this new incentive could come from the opening of the ConstitutionCenter itself in 2003, supplying a high-tech educational resource and an inviting field-trip destination adjacent to the Liberty Bell and Independence Hall. It could also come from the continuing popularity of a Hollywood adventure movie released in 2004 called National Treasure swirling around fictional mysteries and legacies of the nation’s founding. But more consequential—or so I would like to think—is the fact that these teachers and their students live in a time when constitutional issues crackle in the political air. There are many reasons for this. But we need look no farther than controversial actions of the Supreme Court.
The Center aptly alerts visitors to the role of the Supreme Court in American history first with a presentation on the epochal case of Marbury v. Madison. In deciding this case of 1803, Chief Justice John Marshall and his colleagues elevated the Court’s original status among the three branches of government from the third rank to virtual equality. They did this by exercising a judicial power not prescribed in the Constitution: the power to interpret the Constitution as the ultimate law of the land and thereby to overturn acts of Congress as unconstitutional if the Court judges that appropriate.
The Center proceeds to note that Supreme Court Justices have often disagreed over how to use this power. And a wall panel pertinently explains that such disagreements nowadays often divide the Court between “originalists” (or “textualists”), who interpret the Constitution according to their understanding of the original meaning of the text itself, and the “non-originalists” (or “contextualists”), who interpret the Constitution according to their understanding of the historical contexts of both its framers and the cases that come before the Court.
Although the Center does not dwell on it, few constitutional issues mattered more to the nation’s founders, and perhaps none more sharply divides “textualists” and “contextualists” on the Supreme Court today, than the relation of church to state. In fact, questions about the relation of church and state animate public debate and inflame personal passions in America nowadays more than at possibly any time since the founding. This is not a bad thing, for it gives all Americans good cause to take interest in constitutional issues, even if it also gives us cause to take sides.
Conservatives deserve most of the credit for the current debate over church and state. During the past few decades they have increasingly decried court rulings and liberal legislation that, so the zealots among them contend, have delivered America over to a tyranny of secularism and have brought, in the words of the media liberal-baiter Bill O’Reilly, an outright “war on religion.”
As evidence, they point an accusing finger at the judicial banishment from public schools of official prayers, Bible readings, religious instruction, the teaching of “creationism” and “intelligent design,” displays of the Ten Commandments, and so on, along with restrictions of religious symbols on government property. They tag as kindred evils efforts to erase the words “under God” from the Pledge of Allegiance, as well as the legalization of abortion and the expansion of homosexual rights. Such pernicious acts, these conservative critics argue, have divorced church and state beyond anything envisioned by the nation’s founders.
As Republican Senator John Cornyn of Texas put it, apropos of Samuel Alito’s nomination to the Supreme Court, the Court’s rulings on church and state in recent decades “are way out of step with what the founding fathers intended.” More audaciously, demagogue O’Reilly tirelessly wages an angry televised crusade against perceived enemies of religion and what he labels the “bogus separation of church and state.” In this combative spirit, the Texas Republican Party threw down the gauntlet in its Platform of 2002 with the fighting words: “Our Party pledges to do everything within its power to dispel the myth of separation of church and state.”
Conservatives blame this “myth” on a fallacious interpretation of the First Amendment. And some trace the fallacy to a Supreme Court decision of 1947. This decision came in the case of Everson v. Board of Education of the Township of Ewing. There a New Jersey man had sued the Board of Education and the state for violating the First Amendment by subsidizing with taxpayer money the transportation of children to parochial schools as well as to public schools. Writing for the majority, Justice Hugo Black surveyed the history of religious persecution and strife that had led to the First Amendment’s safeguards on religious liberty, then he stated categorically: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”
Justice Black was, as he noted, drawing on words of Thomas Jefferson, who as president had written a historic letter in 1802 to the Danbury (Connecticut) Baptist Association assuring them that the First Amendment guaranteed a “wall of separation between church and state.” One Supreme Court justice had previously cited Jefferson’s metaphor in a decision of 1878, but Black was now adopting it for the first time as a firm constitutional principle broadly and categorically separating religion from government.
Ironically, Black’s majority opinion in this case actually ruled for the defense. “New Jersey has not breached [the wall of separation] here,” Black concluded, because the subsidy merely facilitated the transportation to school of all children in the district, whereas to deny this subsidy to students of parochial schools would discriminate unfairly against them. The First Amendment, he explained, “requires the state to be neutral in its relations with groups of religious believers and non-believers, it does not require the state to be their adversary.”
The dissenters in the case embraced Black’s eloquent argument for the separation of church and state but figured it warranted a ruling for the plaintiff instead of the defense. “This is not,” they wrote, “just a little case over bus fares.” It was about “public money devoted to payment of religious costs,” and that “is the first step” toward “the establishment of religion.”
As it turned out, the majority holding for the defense in the case cast only a faint historical shadow. But Black’s dicta declaring that the First Amendment “erected a wall between church and state” that “must be kept high and impregnable,” and that this wall “requires the state to be neutral” regarding “religious believers and non-believers,” cast a distinct historical shadow. And to some eyes it was a long dark shadow indeed. For Black’s dicta set a precedent (echoed in subsequent rulings beginning the next year with McCollum v. Board of Education, which removed religious instruction from a few Illinois schools) that many conservatives, especially on the religious right, condemn for propagating a spuriously secular and even irreligious reading of the First Amendment’s opening lines.
Symbolically reflecting this conservative reaction, the fundamentalist preacher and activist Flip Benham, head of Operation Save America, has been known to sport retro wing-tip shoes in homage to pre-1947 America. More substantially, the Christian home schooling movement blossomed in the 1960s and 1970s, and Christian authors set out to rewrite American history to teach the hidden “truth” about it. The essence of this truth is, as Jeff Sharlet summarized in an article on the topic in Harper’s Magazine of December, 2006: “The nation was conceived of as Christian” by the founders, and therefore “the separation of church and state is either a myth altogether…or meant only to prevent a single denomination from prevailing.” A flood of textbooks and revisionist histories now purvey this “truth” by demonstrating how, contrary to the alleged ignorance and lies of secular historians, Christianity gave birth to this country and has overwhelmingly shaped its character and history. The internet now delivers these books to homes through hundreds of Web sites and resources dedicated to, as the Web site of the American Christian History Institute (founded in 1978) announces, “Restoring America’s Biblical Foundations” and “historic Biblical method of reasoning.” David Barton’s The Myth of Separation (1989) has become a standard work for this historical vision, and Barton’s high position in the Texas Republican Party surely got the book’s title phrase into the Party Platform in 2002. The more apocalyptic versions of this Christian American history also warn that in the last half century or so an evil cult of secularism has ascended—abetted by an overweening government and by adverse court rulings on church and state, abortion, and homosexuality—that may require God’s fiery intervention to annihilate.
The outspoken Supreme Court justice Antonin Scalia, moved by a kindred view of what he deems America’s wayward, latter-day judicial history, has repeatedly assailed that history and vowed to bring church and state closer together. He told an audience celebrating the nation’s second annual Religious Freedom Day in 2003, “the separation of church and state was not our tradition” originally. And he reiterates the charge from the bench at every opportunity.
In a dissenting opinion in McCreary v. ACLU (2005), for example, Justice Scalia proclaimed, “the Court’s oft-repeated assertion that the government cannot favor religious practice is false” because the principle of “‘governmental neutrality between…religion and non-religion’” has no source in “the words of the Constitution.” He went on to cite a litany of early “governmental invocation[s] of God” and traditional official practices favorable to religion (which other justices have also cited in upholding, not denying, the separation of church and state). He then accused the justices in the majority of outright “hostility to religion” for ruling in this case against displays of the Ten Commandments in Kentucky court houses. He further claimed that the majority’s errors not only traduced the Constitution but betrayed “the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors.”
Justice Scalia did not stop there. He added a flashy coda to his theme. While the First Amendment does allow government to promote “public acknowledgement of religious belief,” he wrote, as in displays of the Ten Commandments in courthouses, this government sanction belongs only to devotees of “monotheistic” religions. “It is entirely clear from our Nation’s historical practices,” he explained, “that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” In Justice Scalia’s “originalist” interpretation of the First Amendment, because monotheists wrote the Constitution and often invoked their God, that document implicitly grants wide latitude for the American government to advocate monotheistic religions but not other modes of religious belief or disbelief. Secularists who worry about the future separation of church and state in America might see in Scalia’s peculiar and far-reaching rejection of Justice Black’s “neutrality principle” here a piquant justification for their concerns.
Writing for the majority in this case, Justice David Souter politely labeled Scalia’s constitutional claim for monotheism a “surprise.” But in an impassioned concurring opinion, Justice Sandra Day O’Connor affirmed that “we do not count heads before we enforce the First Amendment,“ for “the religion Clauses…protect adherents of all religions, as well as those who believe in no religion at all.” And, she added resoundingly, given the troubles “around the world” stemming from “the assumption of religious authority by government,” anyone who seeks to “renegotiate the boundaries of church and state” in America must “answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”
The contentions of the religious right and Justice Scalia on the fallacious separation of church and state have, of course, found support aplenty in the Bush administration. Moved by his own born-again religious impulses as a man who names Jesus Christ his favorite philosopher, President Bush has acted to make government more hospitable to religion in a host of ways. To name a few: he has extolled Justice Scalia’s “originalist” jurisprudence and appointed like-minded justices to the courts; he has launched “faith-based initiatives” by executive order; his Department of Education has issued new guidelines assisting voluntary prayer in schools; he proclaimed Religious Freedom Day in the aftermath of 9/11 as a rallying call and morale boost for American believers; his Department of Justice, heavily manned by evangelical lawyers, has shifted its focus in civil rights from advancing racial equality to combating “religious discrimination” (which means undoing constraints on government aid to religion); and he welcomes a constitutional amendment banning gay marriage.
Such attitudes, ambitions, and actions by those on the political right opposing the separation of church and state have induced many on the political left, like Isaac Krammick and R. Laurence Moore in The Godless Constitution (1997) and members of Americans United for the Separation of Church and State (created in 1947 to combat government funding of religion after the paradoxical Everson decision), to discern here a dangerous deviation from what they view as the secular American tradition. Some fear that this deviation could take us down the road to theocracy—a goal unapologetically advocated by fanatical evangelicals. These liberal fears may be no less excessive than much of the right-wing rhetoric. But liberal critics can reasonably argue that the conservative assault on the separation of church and state at least distorts or ignores a lot of history. And they can start at the nation’s origins, where conservatives also like to start, but from a different perspective.
On looking into this history, we should first see that these divergent perspectives, which fuel the controversy over the separation of church and state today, derive from a certain tension between the two religion clauses of the First Amendment. These clauses say: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first, or Establishment Clause, protects religious freedom by preventing the federal government from granting any religion official pre-eminence or the legal authority to intimidate citizens. The second, or Free Exercise Clause, adds the protection that no federal law can prevent people from freely practicing their own religion.
Here is the tension: what some people consider “the free exercise” of religion other people consider an “establishment of religion” (a tension not lost on the Supreme Court, where it was most recently remarked by Justice Stephen Breyer in Van Orden v. Perry ). The secular left tends to stress the Establishment Clause to curtail the state sanctioned role of religion in public life. The religious right tends to stress the Free Exercise Clause for the opposite reason: to expand the state sanctioned role of religion in public life.
In pursuing their ends, those on the right assert that the First Amendment prohibits only an established state church, not other official endorsements of religion. And, like Justice Scalia in McCreary, they can cite a litany of historically supportive instances, such as the daily invocation of God by the Supreme Court, morning prayers in Congress, and George Washington’s purported addition of the words “so help me God” to the presidential oath of office (despite this being historically undocumented and not reported until the 1850s). Those on the left acknowledge, and often mention, the same litany but consider its contents more ceremonial than substantive. They contend that the First Amendment prohibits not only an established state church but anything substantively implying or “respecting” it in intent or effect. That is the separation of church and state in spirit. And they can support this contention by drawing on the well-documented historical contexts surrounding and succeeding the framing of the First Amendment’s religion clauses.
Like the rest of the Bill of Rights, the two religion clauses were added to the Constitution to win the ratification of states demanding more protection from the federal government than they found in the text of the Constitution. These clauses also served an unusual political alliance in the eighteenth century. This was an alliance between secularists and religionists. The secularists, notably James Madison (who contributed more to the Constitution and the Bill of Rights than did anyone else) and Thomas Jefferson, saw the political empowerment of any religion as a threat to all democratic liberties as well as detrimental to religion. The religionists, notably Baptists and Presbyterians, saw the political empowerment of religion serving only dominant sects—a condition in Europe from which they had fled, but which still existed in the colonies—and therefore a threat to the free exercise of their own faith and to the welfare of Christianity in general.
Before the Constitutional Convention in 1787, Madison and Jefferson had carried out a successful struggle to secure religious liberty in their home state of Virginia. Not long after writing the Declaration of Independence, Jefferson had proposed a bill to the colonial legislature vigorously advocating the freedom of religion from political authority. Nearly ten years later this bill became law, assuring that “all men shall be free to profess, and by argument maintain, their opinion in matters of religion,” and that none “shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” This short document, the Virginia Statute for Religious Freedom, expressed Jefferson’s deepest convictions and set a standard for religious liberty and the separation of church and state in Virginia that the First Amendment would echo and that other states would follow.
Meanwhile, Madison had penned an influential brief in 1785 arguing that a bill sponsored by Patrick Henry before the Virginia legislature to provide public funding for “Teachers of the Christian Religion” portended “a dangerous abuse of power.” In this “Memorial and Remonstrance Against Religious Assessments” (later frequently quoted, especially by the liberal-minded) Madison identified that danger in many of the law’s probable consequences. But two of these consequences, one political and one religious, stand out for their historical relevance today.
First, Madison wrote, by taxing citizens for the dissemination of Christianity, even if all sects shared in the proceeds, the bill clearly entailed, “the establishment” of the Christian religion. And, he warned, “who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?” The political empowerment of religion in any form, he explained, has always caused troubles for “Civil Society,” and “in no instance have [ecclesiastical establishments] been seen [as] the guardians of the liberties of the people.” Hence, Patrick Henry’s bill “establishing” Christianity violated the “equal title to the free exercise of Religion” that all citizens of a democracy must possess.
Second, Madison argued in detail, the political empowerment or establishment of religion does religion itself more harm than good. It “is a contradiction to the Christian Religion,” he declared, to think it needs government backing to survive. “For it is known that this religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them.” Not only that, Madison went on, “the bill is adverse to the diffusion of the light of Christianity” because “it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced amongst its several sects,” unlike the religious oppression and religious rivalries over political power that have spewed “torrents of blood…in the old world.” What is more, Madison emphasized, “ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.” Just look at what happens “more or less in all places,” he said: “pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution.” By contrast to this sorry fate of established religions, he later proudly wrote in a letter of 1819 referring to Virginia, “the number, the industry, and the morality of the Priesthood, and the devotion of the people have been manifestly increased by the total separation of the church from the state.”
Madison’s forceful advocacy of that separation thwarted Patrick Henry’s bill and helped Jefferson’s Statute on Religious Freedom become law in Virginia. And, as the separationists expected, both democracy and religion benefited.
Jefferson and Madison were not godless men. Few people in their day were. They often invoked God, even while affirming their secular political principles. But Jefferson and Madison understood that American democracy, with its many religious sects, could not thrive unless church and state were distinctly separated to head off religious strife. The framers of the Constitution, with Madison in the lead (Jefferson was then in France), honored this separation in several conspicuous ways: they studiously made no reference to God in the text of the Constitution (although the date of its signing was given in the European Christian convention “year of our Lord”); they insured in Article VI that “no religious Test shall ever be required as a qualification to any office”; and they attached the religious restrictions on government in the First Amendment.
But these secular-minded separationists also had allies among the minority dissenting clergy before the Revolution and after. And some of these clergymen were more adamant about formally separating church and state than were the secularists. They insisted upon constitutional protections against the political empowerment of religion which Madison had originally judged unnecessary because the Constitution gave government no authority in religious matters, and because he thought the very diversity of sects would prevent any from gaining dominance. One of the most prominent of these separationist clergymen was the New England Baptist Reverend Isaac Backus, an evangelical convert from Congregationalism during the First Great Awakening in the mid-eighteenth century.
Vexed by discrimination against his own sect and by taxation to sustain the established Congregational Church in Massachusetts, Backus nevertheless refused to solicit political privileges for his own flock. Instead, he sought a sharp break between church and state as the only prospect for evangelicals to enjoy religious freedom. He delivered a long sermon to this effect in 1773 entitled “An Appeal to the Public for Religious Liberty, Against the Oppressions of the Present Day.” There he ardently argued that “God has appointed two kinds of government in the world,” the “civil” and the “ecclesiastical,” and they “ought never to be confounded together.” For where they “are well distinguished according to the true nature and end of their institution, the effects are happy, and they do not at all interfere with each other: but when they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued.” He later reiterated some of these opinions at the Constitutional Convention in Philadelphia, where he also snapped that giving political power to religion “may make hypocrites, but cannot create Christians,” and that “liberty never flourished perfectly” where religions have held such power.
Similar conflicts and convictions led the Danbury Baptist Association to write to Jefferson in 1801 telling him how they “rejoice” over his election as president because “our sentiments are uniformly on the side of religious liberty.” They went on to avow that “religion is at all times a matter between God and individuals,” and that “the legitimate authority of civil government extends no further than to punish the man who does ill to his neighbors,” leaving “religious opinions” alone. Unfortunately, they added, the state of Connecticut still discriminated against Baptists, even as a few other states had established churches until Massachusetts abandoned the last of them in the 1830s. It was this letter that elicited Jefferson’s now-famous words on the First Amendment’s “wall of separation between church and state.” Jefferson knew this amendment protected religious freedom against only acts of Congress (constitutional protections against acts of the states had to await the Fourteenth Amendment in 1868, and it was not until 1940 that the Supreme Court, in Cantwell v. Connecticut began applying these protections explicitly to matters of religion), but he was thumping the principle. Evangelicals today who debunk that “wall of separation” would do well to recall their forebears who had assiduously helped build it and had even inspired Jefferson to frame the potent metaphor.
Backus and the Baptists did have some markedly different goals from the secularists. The secularists aimed to shield religious and other liberties from the political power of any religion or “faction”—the evil that Madison had famously inveighed against in Federalist Paper #10—that would attempt to impose its will on all people. For his part, Backus sought to nurture a nation of Christian believers, and he was convinced that separating church and state would give his faith the freedom to achieve that end, unconstrained by political privileges and undaunted by religious rivalries. But the formative alliance of secularists and religionists like Backus helped produce the constitutional separation of church and state that liberal-minded people today identify with the First Amendment and the American tradition.
Anyone who doubts that this separation took root in the early years of the republic has only to read that most astute observer of American life, Alexis de Tocqueville. A little more than half a century after Jefferson, Madison, Backus, and others joined in their common cause against perilous entanglements of church and state, Tocqueville arrived from France, officially to study prisons and unofficially to examine American democracy. The book he and his traveling companion, Gustave de Beaumont, later published on the prisons goes largely unread today. But the book Tocqueville published on his other topic is the most important ever written about this country: Democracy in America.
An aristocrat by birth, Tocqueville had plenty of doubts about democracy, even though he considered it historically inevitable and had modest hopes for it. Wary of its leveling tendencies, he disdained American democracy’s socially corrosive and conformist “individualism” (a word he gave currency), ridiculed its materialistic “hypocrisy of luxury,” and rued its general vulgarity. And he suspected that its inclination to let social equality eclipse personal liberty could bring the tyranny of a vast paternalistic government to enforce that equality. These kinds of criticisms later made Tocqueville a mentor to many modern conservatives.
But what Tocqueville found most remarkable, surprising, and positive in America was the condition of religion. Among the many penetrating observations, arresting analyses, and prescient predictions of Democracy in America, none are more significant, thought-provoking, and germane to America today than those on this subject. He deserves to be quoted at length because what he says on religion in America is insufficiently known and should be required reading for participants in the current debate on the relation of church and state. What is more, as a thinker respected by conservatives, and one who deemed religion both necessary for human well-being and indispensable to democracy, he also bears a credibility that should give pause to those who judge the separation of church and state in America to be a fallacious, come-lately, liberal idea.
“On my arrival in the United States,” Tocqueville writes, “it was the religious aspect of the country that first struck my eye.”* Americans were extraordinarily religious. And even more extraordinary, they identified their religiosity with democratic liberty. “Among us [the French],” he explains, “I had seen the spirit of religion and the spirit of freedom almost always move in contrary directions. Here I found them united intimately with one another: they reigned together on the same soil.” He set out “to know the cause of this phenomenon.”
“To learn it,” he continues, “I interrogated the faithful of all communions.” And to his heightened astonishment, everyone told him the same thing: “All attributed the peaceful dominion that religion exercises in their country principally to the complete separation of church and state. I do not fear to affirm that during my stay in America I did not encounter a single man, priest or layman, who did not come to accord on this point.”
Tocqueville could not have been more unequivocal about this. And the more he probed the topic, the more eye-opening and momentous the facts became to him. The clergy in America, he observes, “seemed to distance themselves from power voluntarily and take a sort of professional pride in remaining strangers to it.” And yet, religion was prospering through “an innumerable multitude of sects” that influenced both “mores” and “intelligence.” He began to “wonder how it could happen that in diminishing the apparent force of a religion one came to increase its real power.”
This new curiosity led Tocqueville to reflect on how the relation of religion to politics in America differed from that in Europe, and on the consequences of the differences for both religion and liberty. The conclusions he reached are as emphatic as his observations on the separation of church and state in America are unequivocal.
“I know that there are times,” Tocqueville says, “when religion can add to the influence that is proper to it the artificial power of the laws and the support of the material powers that direct society.” However, “in obtaining a power that is not due to it,” he cautions, “it risks its legitimate power.” That happens because “when a religion seeks to found its empire only on the desire for immortality that torments the hearts of all men equally it can aim at universality,” but “in allying itself with a political power, religion increases its power over some and loses the hope of reigning over all.” Consequently, by “uniting with different political powers, religion can therefore contract only an onerous alliance. It does not need their assistance to live, and in serving them it can die.”
In short, when religion acquires political power, it loses its soul. At the same time, it rouses hatred among those who suffer at the hands of that power. Tocqueville’s older contemporaries had seen this happen dramatically in France as the political power of the Catholic Church had alienated Enlightenment thinkers, stimulated irreligion, and become the target of revolutionaries shouting Voltaire’s battle cry: Écraser l’infâme!—Crush the infamous thing! The effects of allying church and state, as Tocqueville now understood even better than before, were bad for both religion and liberty.
Tocqueville goes on to explain why a wide separation of church and state counts even more in democracies than in traditional societies. “Insofar as a nation takes on a democratic social state,” he writes, “it becomes more and more dangerous for religion to unite with authority” since “the time approaches when power is going to pass from hand to hand.” Therefore, “if the Americans, who change their head of state every four years, who every two years make a choice of new legislators and replace provincial administrators each year…had not placed their religion somewhere outside of that, what could it hold onto in the ebb and flow of human opinions? In the midst of the parties’ struggle, where would the respect be that is due it? What would become of its immortality when everything around it was perishing?”
Tocqueville might have overstated the instability of democratic government. But he was as concerned about the fate of religion as of liberty in democracy. He thought both were necessary to keep each other alive. And he saw them both threatened by entanglements between church and state that could be manipulated by politicians temporarily in power.
He concludes with plaudits for the healthy condition of both religion and liberty in America. ”In America,” he sums up, “religion is perhaps less powerful than it has been in certain times and among certain peoples, but its influence is more lasting. It is reduced to its own strength, which no one can take away from it; it acts in one sphere only, but covers the whole of it and dominates it without effort.” As a result, “religion, which among Americans never mixes directly in the government of society, should therefore be considered as the first of their political institutions; for if it does not give them the taste for freedom, it singularly facilitates their use of it.”
In the facts he observed and in the conclusions he drew, Tocqueville provides as compelling a testament to the historic separation of church and state in America, for the good of both, as one could find. But then why, we might ask, did conservatives decide that the separation of church and state is an evil modern myth perpetrated largely by fallacious court rulings over the last half century or so? History tells this story, too.
Conservatives might wave away Tocqueville’s unequivocal reports and emphatic conclusions on the separation of church and state in America by arguing that religion nevertheless held a more central place in American life when Tocqueville traveled the country in 1830 than it does now. In many respects they would be right. Some of Tocqueville’s own observations attest to that. The 1830s were a simpler time when God was still routinely invoked in public life, Christianity was pervasive, and secular public schools did not exist (although Sunday mail service, initiated with the U.S. Post Office in 1810, continued in spite of religious objections, thanks to powerful legislators like Kentucky senator, future vice president, and devout Baptist Richard M. Johnson, who was determined to keep church and state separate; Sunday mail service later dwindled as unnecessary and ended officially in 1912). But the next hundred years would bring social and cultural changes that religionists would not like. And activists would try to redress those changes.
These religious activists were responding in part to the progressively secularist bent of state public schools. Before the advent of these schools in the mid-nineteenth century as an educational expression of American democracy, virtually all schooling was sectarian, and the Bible was the standard instructional text. The rise of state public schools funded by taxes thrust the education of the young and the relation of church and state into an unprecedented secular context. And this raised inevitable conflicts over the traditional religious content of schooling. To defuse these conflicts, the states permitted nonsectarian Bible readings and prayers (albeit Protestant, not Catholic, as Noah Feldman explains in his thoughtful book on church-state issues in America, Divided By God) in schools to instill moral guidance. But by the end of the nineteenth century only one state, Massachusetts, required Bible reading or prayer in the schools, and several state courts had banned such practices for violating their state constitutions.
This secular trend, bolstered by Darwinism, was bound to breed discontent among people who regarded the schools as extensions of churches for teaching Christian morality. Manifesting this discontent, a few states began in the twentieth century formally mandating or facilitating public school prayers, Bible readings, religious instruction, the teaching of “creationism” as science, posting the Ten Commandments, and so forth. These actions led to legal challenges under the Establishment Clause and to the court rulings that conservatives revile as secularist extremism. Before this time, the Supreme Court had only occasionally addressed religion cases, and these pertained only to the Free Exercise Clause. Clearly, the official promotion of religion by the states in the twentieth century raised judicial issues focusing on the Establishment Clause as never before.
Justice William Brennan remarked this development in his long concurring majority opinion in Abington v. Schempf . The decision in this case of 1963 banned official Bible reading and recitation of The Lord’s Prayer, inaugurated in 1913 and codified in 1949, from a Pennsylvania school district. “What is noteworthy about the panoply of state and local regulations” installing religious activities in public schools, such as had prompted this and similar cases, he wrote, “is the relative recency of the statutory codification of practices which have ancient roots….”
The most celebrated case pitting secularists against a fresh official intrusion of religion into the schools was, of course, the Scopes “monkey” trial of 1925. It followed from an anti-Darwinist Tennessee law enacted the same year, amidst a wave of religious fundamentalism, prohibiting the teaching in all public institutions of “anything that denies the story of Divine Creation as taught in the Bible” and teaches “instead that man has descended from lower animals.” As expected by the secularists who had persuaded Scopes to break the law so they could then challenge its constitutionality, Scopes was convicted. But the case did not achieve their anticipated success on appeal. The conviction got overturned on a technicality by a state court, and the law remained on the books until 1967. This was a year before the U.S. Supreme Court, in Epperson v. Arkansas found a similar law, enacted in 1928, to be unconstitutional.
The Epperson decision foreshadowed future judicial rulings against attempts to slip anti-Darwinist religious teachings into the classroom in the guise of “scientific creationism” and later “intelligent design.” In 2005 the transparency of this strategy provoked a Pennsylvania judge not only to throw out classroom instructions that deceptively presented “intelligent design” (ID) as science. In a lengthy, meticulously detailed, and widely reported decision, he excoriated the “activism of an ill-informed faction on a school board” and their allies for, in the previous year, revising with “breathtaking inanity” the “biology curriculum to advance religion” and then later trying to “disguise the real purpose behind the ID policy” (Kitzmiller v. Dover Area School Board). Here the hubris of religious activists in public schools ran afoul of even a Republican jurist. And he cautioned potential critics against branding him an “activist judge,” because his decision simply responded to the actions of a religious “faction” whose “imprudent and ultimately unconstitutional policy” obligated him to rule as he did “to preserve the separation of church and state mandated by the Establishment Clause of the First Amendment.”
Besides conflicts of religion with science, the courts have dealt with a stream of cases from the mid-twentieth century onwards occasioned by other recent official insertions of religion into the schools. For instance, the McCullom decision of 1948 removed from Illinois schools religious training begun in 1940; in Engel v. Vitale (1962) the Supreme Court negated a New York state edict issued shortly before requiring the reading in schools of an official prayer designed for this purpose by the state Regents; and in Stone v. Graham (1980) the Court ruled a Kentucky law of 1978 unconstitutional for requiring that the Ten Commandments be “displayed on a wall in each public elementary and secondary school classroom in the Commonwealth.” These are only three of the better known cases.
Outside the schools, the Supreme Court heard twin cases in 2005 involving later twentieth-century displays of the Ten Commandments on government property. In one of these cases, McCreary v. Kentucky, the majority disallowed displays that had gone up in Kentucky courthouses in 1999. But in the other, Van Orden v. Perry, the majority permitted such a display erected on the Texas State House grounds among other historical memorials in the 1960s (Justice Breyer switched his swing vote partly owing to the display’s relative longevity). These decisions, by the way, came not long after Alabama’s inflammatory Chief Justice Roy Moore lost his job for defying a federal court order to remove a two-and-a-half ton monument of the Ten Commandments that he had brazenly installed in his courthouse in 2001. Since then, Moore has anointed himself a martyr to the crusade against the separation of church and state, and has fueled his sympathizers’ righteous rage with a book characteristically entitled So Help Me God: The Ten Commandments, Judicial Tyranny, and the Battle for Religious Freedom.
Resistance to modern-day intrusions of religion into public life also motivated the ultimately fruitless legal battle to expunge the words “under God” from the Pledge of Allegiance. These words had made their way into the sixty-two-year-old document only in 1954 to signal America’s godly anti-communism (just as the phrase “In God We Trust,” fashioned during the Civil War to adorn certain coins and added to them all in 1938, became the official national motto in 1956 and first appeared on paper currency in 1957). There was no long-lived American tradition to defend here, only religious rhetoric of late vintage coined to serve very modern political purposes.
The list could go on. No wonder many liberal organizations today, including Americans United for the Separation of Church and State, Freedom from Religion Foundation, TheocracyWatch.org., and Religioustolerance.org, are toiling to fend off the mounting pressures from the right to marry church and state. Exemplifying these toils, Americans United for the Separation of Church and State led a successful fight to thwart Congressional funding for Bush’s “faith-based initiatives” to assist religious social programs. Then, after Bush implemented these activities anyway by executive order, the Freedom from Religion Foundation brought a suit against them as a violation of the First Amendment. But in June, 2007, the Supreme Court’s new conservative majority ruled that taxpayers have no legal right, or “standing,” to litigate against such presidential executive acts—Justice Scalia also blasted as “an inkblot on our jurisprudence” the precedent (Flast v. Cohen, 1968) that still allows taxpayers to contest Congressional spending specifically beneficial to religion.
Liberal critics can therefore legitimately argue that much of what the religious right regards as a venerable American tradition of government promoting religion in schools and public life is not venerable at all. It is instead the fruit of labors in the twentieth and twenty-first centuries by religious activists to officially and legally ensconce religion in public schools and public life in ways not seen before.
To be sure, the advocates of closer bonds between church and state today (apart from the unapologetic theocrats) insist that they aim not to “establish” religion. They seek only to rectify secular excesses and restore what they consider the genuine American tradition by permitting more religion in schools and public life and thus more legitimate “free exercise” of religion. Such things as prayer in public schools, displays of the Ten Commandments on government property, and laws against abortion and homosexuality do not, they argue, constitute the “establishment” of religion but rather the “free exercise” of it, whether these practices are venerable or new.
This returns us to the tension between the religion clauses of the First Amendment. Reasonable people can disagree over where we should draw the line between the “free exercise” of religion and its “establishment.” When the Supreme Court has occasion to rule on this subject, the justices have their own judicial “tests” for deciding—albeit these tend to be quite unalike for conservatives and liberals, and Justice Scalia characteristically scorns the liberal tests as unprincipled subjectivity. But it is historically wrong to deny that insuring a decisive separation of church and state mattered deeply to the founders, as well as to many of their contemporary religionists, notwithstanding the reverence they all shared for a Divine Being, and that this separation, in principle, went beyond merely prohibiting a single state church. It is equally inaccurate to deny that this separation has run through the American tradition as a guiding principle, even if people have disagreed over what it entails—and even if, notwithstanding conservative complaints about the expanding separation of church and state, government has come to spend more tax money on religious or quasi-religious causes, as Noah Feldman emphasizes, than the founders would likely have allowed. And with America now being at once the most culturally pluralistic and most manifestly religious country in the developed world, how can anyone, as former Justice O’Connor asked, honestly say that this principle has not served religion in America well to this very day?
Thomas Jefferson, James Madison, Isaac Backus, and Alexis de Tocqueville were surely right. When religion becomes entwined with political power, it might gain some secular authority but it loses much spiritual authority. For it then breeds in its followers political assertiveness, moral arrogance, and Pharisaic observances, while arousing enemies who attack its secular power and even its very existence. We are seeing some of these unhappy effects in America today, just as we are seeing the ill-effects of religion’s political power in many Islamic nations.
That said, we neither respect history nor serve the debate on church and state today to see an “establishment of religion” in every symbol and semblance of religion in public life. We should not over-interpret these things, and we should carefully weigh the costs as well as the benefits of trying to eliminate them. Let us be reasonable and honest on both sides.
In the end, we might well take some of Tocqueville’s observations and ideas as a guide to thinking about the proper relation of church and state. Let us remember above all that Tocqueville saw the clergy choose “to distance themselves from power voluntarily and take a sort of professional pride in remaining strangers to it.” To remain a stranger to power. This could be a wise motto for churches and religious leaders to follow, mindful of Tocqueville’s conclusion that “in America religion is perhaps less powerful than it has been in certain times and among certain peoples, but its influence is more lasting.”
As Tocqueville recognized, confirming principles of America’s founders and many of their contemporaries, the true home of religion is the church, the family, and the human heart, where it thrives through its “free exercise.” Religion does not need, and can be impaired by, political power and prominence in public life. By the same token, the true home of democratic liberties is politics and the public life. And these liberties can indeed be impaired by anyone who would use politics and the public life for religious purposes. In this light, we should use restraint in promoting religion and its symbols in politics and the public arena. Both religion and democracy have more to gain by limiting the public role of religion for the sake of liberty than by limiting the public role of liberty for the sake of religion.
American democracy has gained much from religious liberty, and religion has gained much from American democracy. We owe this to the separation of church and state as a historic principle. Let us help both democracy and religion continue to flourish by insuring that religion remains a stranger to power.
* I quote from the sections of Democracy in America (translated by Harvey C. Mansfield and Delba Winthrop) headed “On the Principal Causes that make Religion Powerful in America” and “Indirect Influence that Religious Beliefs Exert on Political Society in the United States.”