HNN May 5, 2014
The Supreme Court has ruled, 5-4, that Greece, New York, can open its town meetings with a prayer, even though nearly all the prayers have contained distinctively Christian language. No doubt advocates and critics of the opinion are scouring American history, looking for proof that their view is correct.
If they look with an unjaundiced eye, they’ll quickly discover one basic principle: Whatever position you hold on this issue, you can find some support in our nation’s history. So history alone cannot resolve the ongoing debate. But it can help inform the debate.
To understand that history we have to begin in the European Middle Ages, when the Roman Catholic Church held sway over the religious life of almost all western Europeans. Politically each area was usually ruled by a single a monarch. Since “Church” and “state” were both monolithic institutions, it made sense to talk about “church-state relations” quite literally.
In principle, both sides usually agreed that the state ruled over the affairs of this world and the church ruled over the affairs of the soul as it headed toward the next world. In practice, though, each side often tried to extend its power over the other.
When the Protestant reformation came along in the 16th century, it refuted the Catholic church’s claim to control other-worldly affairs. But it did not challenge the basic idea that each area should have one secular ruler and one established church, and the two should live side by side, each respecting the other’s domain. So tensions between church and state inevitably continued.
Since nearly all the early European colonists in what would become the United States were Protestants, they brought that Protestant view with them. Different denominations had majorities in the various colonies, and each had its own model of church-state relations.
But nearly everyone assumed that it could make sense for a colony to have one established church, which would have special privileges from and influence upon the colony. Most of the colonies did, in fact, have established churches.
By the early 1700s, though, the colonies were filling up with immigrants from different places who held different religious views. So the established churches everywhere had to tolerate dissent from the official religion, to a greater or lesser degree. At the same time, the colonies were experimenting with all sorts of different political structures.
Thus “church” and “state” were no longer monolithic entities as they had been in medieval times. Gradually, the term “church” became a code word for religion in general, including the many different religious beliefs and practices held by different groups and individuals. And the term “state” became a code word for the many various political structures — town, city, county, colonial legislature, royal council, etc.
Things got more complicated in the 18th century as people found their identity based less in fixed social institutions and more in open-ended individual conscience. The Enlightenment philosophers taught that religion was a matter of private belief and individual relationship with God. They also taught that every individual was free to choose their own political views and that the state should base its policies on the will of the majority.
A large Christian revival movement called the Great Awakening reinforced the idea that religion is a matter of inner experience and personal relationship with God more than membership in a church. So the Enlightenment and the Awakening combined to promote individualism and the notion of religion as a private matter.
By the time of the American Revolution, then, there was a complex triangular structure, with private individuals, political institutions (“state”), and religious institutions (“church”) all interacting. So the term “church-state relations” meant, more than ever, an endlessly complex set of changing relations among all the different forms of religious and political life.
But there was a growing belief in the colonies that the private individual had highest priority, that the main role of the state was to protect the individual’s rights, including the right to decide on one’s own religion.
The colonists who joined the Revolution against England all agreed on one thing: the English political system was a tyranny, and the Church of England was part of that tyranny. So there was growing fear of the very idea of an established church.
It was only natural, then, that the new United States would want to protect its citizens from an established church. So the first words of the Bill of Rights said that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
But there was no clear agreement then, as there is none now, about exactly what those words mean.
Some see the two clauses making two opposites points. “No law respecting establishment of religion” makes it illegal to force people to practice a religion; “no law prohibiting free exercise” makes it illegal to stop people from practicing religion. The “no establishment” clause protects the people and the government from religion. The “free exercise” clause protects religion from the government and the will of the majority.
But some say that both clauses actually make the same point: They both protect individuals from the federal government. The government cannot impose a religious institution on any individual, nor can the government restrict any individual’s religious life. In fact some religious institutions supported the 1st amendment when it was ratified and refused to take any support from the government because they feared such support would entitle the government to impose controls upon them.
The debate about the meaning of the 1st amendment and the intentions of the founders still rages on because they did not bequeath to us any single consistent view on church and state. They all claimed to be Christian. But they had many different ideas of what it meant to be Christian. Each individual could hold what we might see as contradictory views and practices.
To take one important example: Thomas Jefferson created the image of a “wall of separation between church and state” and wrote powerfully about the need to protect the religious freedom of every individual. Yet in the Declaration of Independence he based the entire political philosophy of the new nation on the idea that all men are endowed by their Creator with certain unalienable rights. Without God, Jefferson’s whole political philosophy makes no sense. Jefferson was also devoted to the teachings of Jesus, but only as he understood them; he even created his own version of the Gospels. Jefferson also supported, on occasion, legislation to create public prayer days and to punish people who broke Sabbath laws.
If we cannot expect logical consistency even from Thomas Jefferson, we certainly can’t expect it from the founding fathers as a group.
The 1st amendment was the product of political compromise among the founders. So perhaps it is best to see it as the beginning of a conversation or debate about the relation of political and religious life. Perhaps many of the founders knew that all they could agree on was the need to continue the debate.
Though the founders disagreed on what it meant to be Christian, they all assumed that some version of what each one saw as the “basics” of Christianity was more or less necessary as a foundation of an orderly society. Most of them assumed that Christian values were the basis of political liberty.
Even those who were wary of Christian bias would probably have agreed with Justice Anthony Kennedy, who wrote the majority opinion in the recent Greece case:
“Prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define.”
So most of the founders saw no contradiction between the federal government guaranteeing freedom of religion and the states having established churches that could get special privileges from government, provide prayers for political occasions, and dictate the teaching of religion in schools
But by the late 18th century all the states had so much diversity that the power of established churches was rapidly fading. Massachusetts was the last state to end its established church, in 1833. By the 19th century, then, Americans did not merely believe in the right to dissent from the dominant church. They assumed that there would no longer be any dominant church.
Yet the 19th century was dominated by one religious view: evangelical Christianity. Evangelicals emphasized individual experience as the basis of religion. So religion became, more than ever, a matter of individual choice, which led to the creation of many new churches. But the evangelical fervor also strengthened the idea that all Christians share basic values in common, and that these were the core values of the American way of life — a view that would surface again in some 20th century Supreme Court decisions.
For evangelicals, the “wall of separation” meant that everyone was free to influence the government as much as possible according to their own version of Christian values, with the goal of making America the kingdom of God on earth. For some that meant causes we would consider liberal, like free public schools for all and the abolition of slavery. For some it meant causes that we would call conservative, like prohibition of alcohol and teaching the Bible in public schools. Many felt comfortable supporting all these reform movements.
From the 1840s on large waves of Catholic immigrants came to the U.S.. They learned to accept religious pluralism and reject the old Catholic tradition of one universal church for everyone. But they created their own schools, raising new questions about state support for religious education. These problems, like nearly all problems of church and state in the 19th century, were dealt with at the local and state levels.
After the Civil War, the 14th amendment made all states subject to rule by the federal constitution, opening the way for federal courts to apply the 1st amendment and rule on church-state issues. In 1879 the Supreme Court issued its first opinion directly dealing with church and state. It ruled that the government could forbid Mormons from practicing polygamy. The Court cited words written by Jefferson indicating that the wall of separation prevents the government only from controlling religious beliefs. But the government could forbid behaviors it deemed harmful to society.
However it was not until the 1940s that the Supreme Court began addressing the church-state question in earnest. By that time the federal government was playing a much larger role in the life of every American, while a slowly rising tide of secularism was undermining the notion of America as a Christian nation. For growing numbers of Americans, “the American way of life” meant a dedication to pluralism, diversity, and the fullest protection of individual rights. These factors combined to bring many issues related to religion before the Court.
In 1940 the Court took on the case of Jehovah’s Witnesses who argued they should be able to go door to door without a state license. The Court agreed, declaring for the first time that the 1st amendment’s “free exercise of religion” clause applied to local and state governments as well as the federal.
In the same year, though, a group of Jehovah’s Witnesses argued that their children should not be required to salute the flag in school because it violated their free exercise of religion. The Court ruled against them. Then two years later, in an almost identical case, it ruled that the Jehovah’s Witness children did not have to salute the flag.
Why the abrupt turnaround? There is some evidence that the Court was influenced by a wave of criticism of its first decision from scholars and newspapers, and also by dismay over a wave of anti-Jehovah’s Witness prejudice after the first ruling. This case reminds us that the Court is never making its decision in some abstract realm of pure legal rationality. It is always, to some extent, a barometer of the climate of public opinion.
In the Everson case of 1947 taxpayers argued that their town, which paid for children’s bus rides to public school, should not pay for Catholic children’s bus rides to Catholic school. Writing for the majority, Justice Hugo Black penned a famous, stirring defense of the wall of separation, arguing that the 1st amendment’s “no establishment of religion” clause applied to local and state as well as federal law. This became an accepted principle of later Court cases. Yet Black and the majority decided in favor of the Catholic children getting public money because it was going to them as individuals, not to the church.
This case, and the Court’s reversal in the Jehovah’s Witness cases, foreshadowed the history of church-state cases ever since then. There has been no consistent pattern, but rather what Justice Robert Jackson called a “winding, serpentine” wall of separation, full of all sorts of unpredictable twists and turns in the Court’s views.
Vagueness often prevails. In the Lemon case of 1971, the Court ruled that no law may “have the primary effect of either advancing or inhibiting religion” and left it for later Courts to figure out what that means. Now the Court has added another contorted brick to that wall, by a 5-4 margin, as has so often been true in recent church-state cases.
The Court still reflects the climate of public opinion, which remains divided and uncertain about the proper relation of religious life to the body politic and the lives of individuals, or what we have come to call “church and state.” So the debate initiated by the 1st amendment goes on — which may be just what the founders intended.