The Church-State Debate: A Secularist Establishment Anyone?

Since Catholics these days seem not too sure of what is good for Catholics (or indeed who “Catholics” really are), my heart leapt when I glanced at the subhead of Mr. Menendez’s article, which promised to say why something or other would be “good” for Catholics. The full title further excited my interest: the thing “good” for Catholics would be the strict separation of church and state. The author’s job description, however, gave me pause: here was good old Protestants and Other Americans United For Separation of Church and State, an anti-Catholic lobby founded by Scottish Rite Masons (Southern Jurisdiction) in 1947, about to tell the nation what was good for Catholics. I recalled at once pronouncements from the past, by the kindliest of segregationists, on what was good for negroes, as there also came to mind Jimmy Durante’s rumored retort to an enemy who had posed as his friend: “Don’t do me no favors!”

Today POAU is called AU—Americans United (for separation of church and state). But although the name is new, AU, as its literature so painfully shows, is but the old POAU (which indeed was in substance identical to the American Protective Association of the 1890s and before that the Know-Nothings—whose title aptly applies to the whole sad historic parade of anti-Romish paranoids). But am I not unfair in seeming to assume that Mr. Menendez is one of the old wolf pack of bigots who made up POAU’s leadership? Reading his quietly stated article, very decent in manner, may we not assume that the organization which he heads has in fact changed and caught onto American ideals of fair play? I cannot but agree that Mr. Menendez’s tone is irenic and that, to quite an extent, his article is unexceptionable. Unhappily, its true substance belies its conciliatory form. Let me try to explain.

A close reading of Mr. Menendez’s article should unravel an implicit accusation which resides in the familiar question, “Have you stopped beating your wife?” Mr. Menendez’s message comes exactly to that: Would it not be good for Catholics if their Church would stop trying to engineer a union of Roman Church and American state? Since, shorn of all tinsel, that is the real message of a longtime spokesman for Americans United, I fear I am right in my conclusion that Americans United’s face-lifting has not altered their essential PO AU mentality. Whatever their face, they still have Catholics on the brain.

Regardless of AU’s motivations, does Mr. Menendez’s thesis that strict separation of church and state is good for Catholics make sense? The answer depends on what is meant by “separation of church and state.” We should point out, to start with, that AU and all secularists agree that the term is broadened today to mean “separation of religion and state.” The Supreme Court, in decisions highly approved by AU, has repeatedly emphasized this. But in their public statements, proponents of religion-state separation apply their principle with considerable flexibility. They find the principle violated by Reverend Robertson’s and Reverend Falwell’s interventions in politics but not those of the Reverends Jackson or Coffin. They attack Catholic bishops for flouting the principle through pubic pro-life advocacy, but (sensing no contradiction of the principle whatever) confirm pro-abortion divines in the tatters’ insistence that the killings be allowed to continue. The proponents of an absolutist religion-state separation have, however, exhibited their most notable dishonesty in the legal positions they have taken, or failed to take, in the courts.

Since the mid-1940s they have been highly successful in litigations which have brought about the total secularization of public education and the almost total invalidating of legislation financially promotive of the freedom of parents to choose religious schools for their children. Their arguments (adopted by the Supreme Court in these cases) have been based on the contention that the authors of the Constitution had intended the establishment clause of the First Amendment to create a “wall of separation” between state and religion which must be maintained “high and impregnable.”

The “dishonesty” of which I have spoken above is twofold: first, in the fact that the “wall of separation” has no historical roots; second, because in America today there exists an almost universally established, publicly funded union of religion and the state—one to which AU has not the slightest objection. To consider each:

The Founding Fathers did not intend or imagine a separation of religion and society such as the Supreme Court has now created. Scholars such as Robert L. Cord, in his Separation of Church and State: Historical Fact and Current Fiction, and Judge John T. Noonan, Jr., in The Believer and the Powers That Are, amply demonstrate that the American constitutional tradition was one which recognized, and pervasively supported, a robust Protestant Christianity. That official recognition and support (in some state constitutions, in various forms of subsidizing, and in practices in the public schools) constituted the “establishment” of religion in precisely the sense that AU, the ACLU, and the American Jewish Congress have used the term in their efforts, from the 1940s forward, to render the public square naked of religion. Indeed, those cases are themselves proof that a Protestant religious establishment, and not a separation of religion and state, was the 150-year-old American tradition up till then. Had not, for example, Protestant prayer in the public schools been already established, there would have been no need for litigation by these groups, in the 1960s, to disestablish it.

More startling than the AU separationist misrepresentation of history is its obliviousness to the vast existing establishment of religion in the United States, viz., the establishment of secularism through funds extracted from the pockets of citizens of all faiths. Media exploitation of the recent case in Tennessee (Mozert v. Hawkins), wherein fundamentalist Christian parents complained of the imposition of “Secular Humanism” on their children in a public school, created an image, for national ridicule, of “religious fanatics” who attack an imaginary “Secular Humanism” in the public schools discoverable in The Diary of Anne Frank and The Wizard of Oz. While neither The Diary of Anne Frank nor The Wizard of Oz were what the Tennessee case was all about, the ridicule is useful in putting down parents who profoundly loathe, and fear the deliberate use of state power to impose what they regard as lethal secularist values.

It is settled in our constitutional law that Secular Humanism is a “religion” within the meaning of the religion clauses of the First Amendment. The Supreme Court so held in Torcaso v. Watkins (1961). Most Secular Humanists appear to like the idea that the preaching, practice, and advocacy of their religion are protected by the free exercise clause of the First Amendment. They bridle, however, at the idea that, if their religion is funded or sponsored by the state, it should be treated like all other religions—that is, that such aid or sponsorship should be considered barred by the First Amendment’s establishment clause. Americans United sees nothing wrong with this remarkable instance of union of religion and state. Doubtless, in this, AU is more moved by the secularists’ amazing claim that they aren’t promoting Secular Humanism in the public schools than by Americans United’s own vigilante animus impelling it to ferret out the tiniest suspected violation of separationism by people of traditional religious faiths.

The objecting parents, of course, are right. Plainly identifiable state-funded and state-enforced programs of secularist indoctrination, invasive of the personality of the child, of familial privacy, of sexual privacy, deliberately engineering the most destructive psychological results and supplanting traditional morality, are becoming universal in the public schools. The secularist view of the structuring of society and of the desired global order are being firmly implanted in the minds of millions of our children today. One has but to read Edward L. Ericson’s The Humanist Way, or the prolific writing of Paul Kurtz, in order to realize that the question is not whether Secular Humanism is a religion, but whether it is the one religion that is not subject to the limitations which AU, the ACLU, and others say the establishment clause commands. One Supreme Court Justice, Wiley Rutledge, in his dissent in the 1947 Everson decision by the Court, said it all, when he emphatically stated:

“Religion” appears only once in the Amendment. But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid “an establishment” and another, much broader, for securing “the free exercise thereof.” “Thereof” brings down “religion” with its entire and exact content, no more and no less, from the first and into the second guaranty, so that Congress and now the states are as broadly restricted concerning the one as they are regarding the other.

“Separation is separation—not something less!” Americans United is fond of repeating. It is my earnest suggestion to Mr. Menendez that he and his organization now swing their considerable talents and strong financial resources to tackling the only two problems on separation of religion and government which are significant in the United States of 1988: (1) litigating for the upholding of the establishment clause in the face of the challenge to its principle now dramatically posed by governmentally funded secularism; and (2) ardent labor in favor of significant “strict separation,” i.e., getting government off the back of religion in this country.

If, as the Williamsburg Charter (to which Mr. Menendez refers) makes clear, the aim of both the establishment and the free exercise clauses is to protect religious freedom, then the focus of us all must be on the ever more insistent threat to religious freedom which is posed by the intrusion of the power and prestige of government into larger and larger areas which should be deemed the preserve of the sacred. The fields of education, taxation, child care, labor relations, employment discrimination, and health care are the chief of these in which unwarranted intrusions are more and more seen. It is of course obvious that these areas are not always to be deemed areas exclusively of religious right. Catholics ought not be libertarians, believing that there is really no common good and that hence “we the people” have no right to legislate in any area which is common both to religion and society. Alas, legislation, and especially courts, are more and more accepting the notion that almost any regulation deemed merely in the “public interest” is to be upheld over religious objection.

Alas, too, spokesmen for both liberal and conservative organizations appear willing to let religious liberty be dismissed from its high position as the first liberty stated in the First Amendment. Growing within Catholic officialdom appears to be a naive enthusiasm for the view that exercise of governmental power should, in the name of social good, go largely unquestioned. As of this writing the “ABC” (Act for Better Child Care) bill appears unopposed by the Church except to the extent that the bill (at NEA’s insistence, it is said) expressly excludes religious institutions from participation in its financial benefits unless they will virtually secularize. But that exclusion is of but minor significance in the proposed legislation. The great point of the measure is to subject all day care (whether in religious agencies or otherwise) to virtually unlimited governmental regulation according to solely secular standards.

If Americans United is for strict separation of religion and government, the ABC bill affords them a splendid opportunity to show it by joining in the fight to oppose it. That kind of strict separation—the protecting of religion from governmental excess, coupled with a view of religious liberty whereby government may act affirmatively to enable people to enjoy that freedom—should be the object of urgent pursuit by all.

If Catholics care about the institutions of whose orthodox patrimony they should be faithful custodians, and if Catholics understand and desire religious liberty, they should know that this “strict separation” and this view of religious liberty are “good” indeed for Catholics.

William Bentley Ball

By

William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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