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Alan Wolfe

Why Separation of Church and State Is Still a Good Idea

even if it may not be what the Founders had in mind

In 1947, the U. S. Supreme Court decided the case of Everson v. Board of Education and thereby officially enshrined into American constitutional law the principle of separation of church and state. New Jersey had passed a law providing state-subsidized busing to all students, those who attended parochial schools as well as those who attended public ones. In his opinion for the majority, Justice Black invoked the metaphor of a "wall" of separation (used once or twice in earlier Court decisions) that Thomas Jefferson had coined in his letter to the Danbury Baptists, written in 1802. All of our contemporary debates over separation—whether they involve crèches in public places or the recent effort by the Ninth Circuit Court to remove the words "under God" from the Pledge of Allegiance—trace themselves back to Everson.

Immediately after the Everson decision, The Washington Post editorialized that "the principle at issue is one of the most fundamental in the American concept of government—the separation of church and state." Philip Hamburger's book is dedicated to proving that just about every word in that editorial's sentence is incorrect.

Far from having roots in the American past, almost none of our early writers and politicians, Hamburger shows, accepted the notion of separation of church and state. When the term was used at all, it meant simply that politics and religion were different kinds of activities, not that the one should be kept entirely out of the other. Early theorists generally held that a good society required religion and its attendant morality, so that, when they used the term separation of church and state, they were not defending an ideal but launching an attack on those who denied such a self-evident truth. Nor did dissenting religions dissent from this consensus, for even if they believed in the principle, which not all of them did, they generally kept silent about it, given how unpopular the principle was.

To illustrate these points, Hamburger goes right to the heart of the matter—Jefferson's famous letter. It turns out that the Danbury Baptists were not all that happy with Jefferson's advice; they never published Jefferson's letter to them. Like other Baptists then (and to some degree now), their objections were to an establishment that, in linking itself to the political world, lost its purity of faith. Religion, as the Connecticut Baptists put it in 1803, should be "distinct" from the state because rights of conscience were given by God, not by men. This is not Jefferson's deism. It is rather an attempt to preserve religion's special mission against worldly corruption.

Separation of church and state, as Hamburger tells the story, did finally come to America during the 19th century. But it did not come as the triumph of reason; it was instead the product of Protestant nativism seeking to wage war against Catholicism. "Our sole object is to form a barrier high and eternal as the Andes, which shall forever separate the Church from the State," wrote the American Republican Party of New York in 1845.

In the very next paragraph of its declaration, however, the party went on to say that "we believe the Holy Bible, without sectarian note or comment, to be a most proper and necessary book, as well for our children as ourselves, and we are determined that they shall not be deprived of it, either in, or out of school." Implicit in this passage is that a wall should be established between government and sects rather than between government and faith. And Protestants, as they understood themselves, were not sectarian; they believed that they acted as individuals, not as corporate entities. Their entreaties about keeping government and religion distinct applied only to Catholics, not to themselves. Indeed some Protestant denominations like the Presbyterians, which had at earlier times been accused of authoritarianism, could turn around and charge Catholics with the same crime, thereby absolving themselves.

Only in the late 19th and early 20th century, according to Hamburger, can we begin to see the emergence of a secular ideal of separation of church and state. And even when it did come, the modern conception of separationism was not as enlightened as it claimed. For one thing, a surprising amount of anti-Catholicism persisted into the 20th century; Paul Blanshard's book American Freedom and Catholic Power, a liberal attack on the Church, appeared as late as 1948, the year after Everson. And liberals who urged separation between church and state had their own distinctive form of religious faith. They could be as censorious and intolerant as the most fanatical believers. They tried to substitute secular rituals for religious ones. They held fast to transcendental ideals of national purpose. "While hostile to Christianity and any other distinct religion," Hamburger writes, "the Liberals glowed with religious intensity."

All these strands came together in the Everson case. Arch Everson, who brought the suit, was a member of an organization, the Junior Order of United American Mechanics, that had its origins in 19th-century nativism; his lawyer, Albert McCay, had represented similar groups in earlier cases. More important, the author of the Court's majority decision, Hugo Black, had been a member of the Ku Klux Klan, the most notorious anti-Catholic organization in American history. Hence Black's invoking the ideal of separation of church and state serves to remind Hamburger of the more unsavory history of this particular doctrine. And it thus throws into question decisions by the Court since Everson that rely on the doctrine of separation of church and state to keep religion out of American public life.

Hamburger has written an extremely important book. His prodigious learning and ingenious interpretations overturn the conventional wisdom, forcing even the most passionate defenders of separationism to recognize how much of the story of religious liberty has taken on mythical dimensions. Still, the book is written more as legal brief than as a work of historical scholarship. Hamburger has a point of view to push, and he pushes so intently that he sometimes undermines his own case.

If Hugo Black were really trying to impose on the country views he once held as a nativist, surely he should have declared public support for Catholic busing unconstitutional. Yet he did the exact opposite in Everson; as judges often do, he announced a principle that he did not apply to the case at hand. Hamburger claims that Black nonetheless "understood what he was doing." In this interpretation, Black was trying to sneak into law a conception of separation even while appeasing Catholics by allowing them to think they won the specific case. But jurisprudence since Everson suggests that Black did not know what he was doing, as Hamburger himself seems to acknowledge by citing Black's contention that he had won only a Pyrrhic victory. The Supreme Court has waffled back and forth on the question of separationism ever since, never able to set firm guidelines. Black's real legacy is that he left everyone confused, not that he had a predetermined plan.

One reason Black waffled, furthermore, was that he had changed his views considerably since the days he joined the Klan. There is much about Black not to like, even, if not especially, in his most liberal phase; he could be arrogant and brittle in his views. But it is extremely unfair of Hamburger to see the stain of Black's Klan membership behind his decisions as a judge. Black may indeed have had a lifelong suspicion of Catholics—Hamburger quotes an interesting observation by Black's son on that point—but Everson, because it in fact upheld the busing, can just as easily be interpreted as a way for Black to reach out to Catholics for his past sins, an estimable, rather than a despicable, thing to do.

Hamburger's one-sided interpretation of Black's role in Everson is characteristic of much of his book. Although he never comes right out and accuses advocates of separationism of hypocrisy, he consistently implies that they were insincere. At one point he notes that liberals were opportunistic; having long argued that America required a constitutional amendment to establish the principle of separationism, they turned around and began to argue that separation was an idea already inscribed in the constitution itself. And by showing that while liberals were hostile to religion, they clearly had religious longings of their own, Hamburger believes he's demonstrated once and for all that their strict arguments on behalf of separationism should not be taken at face value, since they had no inclination to separate government from their favored religious dispensations.

But neither of these points is convincing. The history of American jurisprudence is filled with examples of lawyers seeking to build the strongest possible cases for their clients or causes, dropping one argument and employing another if it promises a greater chance of success, even if it seems to contradict the first. Many of the groups whose history Hamburger recounts, and not just the separationists, were divided in their opinions or changed their minds, including the Baptists.

Nor is it hypocritical to argue for separation of church and state and at the same time to hold views that are semi-religious. If anything, the implied hypocrisy here is something we ought to welcome. At the end of the film version of Inherit the Wind, Spencer Tracy, who plays the Clarence Darrow figure, having attacked religion throughout the film, begins to speak in quasi-religious terms and is immediately attacked as a hypocrite by Gene Kelley, the H. L. Mencken figure. But it is Tracy who is the more sympathetic character. Surely we should want our anti-clericalists to have a touch of belief about them, especially when compared to the truly cynical.

Ultimately, Hamburger offers no credible reasons why anyone would genuinely believe in the separation of church and state in the first place. But there are good reasons to believe in the principle. Religion has been used to coerce members of minority faiths in this country. Opportunities for corruption are presented whenever government and religion work too closely together. In an era of religious diversity such as our own, the best way to avoid favoring one religion over another may be to treat them all in a hands-off manner.

Yet so intent is Hamburger on finding examples of bad faith, he tends to ignore many of the principled concerns of Jewish writers who worried about the integrity of their faith in a predominantly Christian America and of Catholic thinkers like John Courtney Murray, who worked strenuously to change the views of his church toward greater sympathy for the principle of church-state separation.

Jefferson's letter to the Danbury Baptists, Hamburger concludes, is little more than a "fig leaf." And once it is removed, we will no longer need to be in thrall to strict constructions of separationism. "In discussion of these and other issues," he writes, "separation ought not be assumed to have any special legitimacy as an early American and thus constitutional idea." In this, he is no doubt correct; his account of the history is convincing. But then he goes on to conclude that "precisely because of its history—both its lack of constitutional authority and its development in response to prejudice—the idea of separation should, at best, be viewed with suspicion." In this, by contrast, I believe he is wrong.

The Constitution, as Hamburger notes, is a living document. Because it is, many of our most cherished contemporary ideals had no special constitutional authority in the eighteenth century: freedom of speech as we currently understand it is one; racial equality is another. When we evaluate a contemporary constitutional principle, we need to ask two important questions. The first is whether there is a basis for the idea in early American life and in the Constitution. The second is whether it is a good idea. It is clear from Hamburger's own account that earlier generations of America believed in notions out of which our current conception of separation could rightly grow, such as the notion that politics and faith are distinct realms of life. Just because the idea was not endorsed in the 18th century the way it has been interpreted in the 20th does not make it alien to our history and traditions. Contemporary scholars may exaggerate the importance of Jefferson's 1802 letter, but the important question, which Hamburger never addresses, is why that letter became so important to our current conceptions.

Nothing in the history of a doctrine, furthermore, answers the question of whether the doctrine makes sense. Different people will have different answers to the question of whether separation is a good idea, which is only proper in a constitutional democracy. But Hamburger seems to want to cut that debate off, even charging that his ideological opponents—the strict separationists—treat those who disagree with them as "un-American." A debate will and should take place no matter how tortured the path of the doctrine's evolution.

Surprisingly, perhaps, given the thrust of his argument, Hamburger never says explicitly that he wants separation of church and state abandoned. Nor does he propose an alternative, other than to note that there are other possible paths besides pure union of church and state on the one hand and pure separation on the other. His book, therefore, for all its strengths, ends limply, cautioning us against the metaphor of the wall without addressing in concrete terms specific cases and how they might better be decided.

Until another doctrine comes along to replace Jefferson's metaphor, separation of church and state is here to stay. But even though it is unlikely to be thrown out any time soon, separationism will clearly be moderated, as evidenced by the June 2002 decision allowing school vouchers, a contemporary replay of the Everson case. That kind of slow transformation, and not Hamburger's sometimes more apocalyptic musings, is the appropriate approach to this extremely important issue.

Alan Wolfe is the director of the Boisi Center for Religion and American Public Life at Boston College. He is the author most recently of Moral Freedom: The Search for Virtue in a World of Choice (Norton).

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