President John F. Kennedy, America’s first and so far only Catholic chief executive, issued a ringing endorsement of a highly controversial concept during his 1960 campaign when he affirmed, “I believe in an America where the separation of church and state is absolute.” But just a dozen years before, the U.S. Catholic bishops labeled the separation concept “a shibboleth of secularism.”
It is obvious that these two positions represent starkly different polarities. Which position is correct? Which is more attuned to the American Catholic tradition? Which is better for the American Catholic community, its prosperity and growth as a significant role player in a pluralist republic?
There is no doubt, to my mind at least, that the position best labeled “strict separation” between the institutions of church and state is the one most consonant with constitutional intent, pragmatic common sense, and the ideal of harmony between the varied religious communities that dot the American landscape. Indeed it is essential. Here’s why.
While there have been enough books written about the religious clauses of the First Amendment to fill a small library, the concept can be captured briefly. The founders, though the majority were clearly religious men, intended to erect a “wall of separation” between church and state in the newly established republic. A break from the long-established European model of established religion, with repression for minorities, was effected when the Bill of Rights was ratified in 1791.
Even before this, the inclusion of a ban on religious tests in Article 6 of the original Constitution of 1787 was a significant step toward a legally-guaranteed system of religious liberty. The overwhelming approval of Article 6 was also highly important. It represented a consensus of enlightened opinion. Remember that religious tests, which barred Catholic participation from public life, existed in every one of the thirteen colonies, even in once-Catholic Maryland. (Jews, Quakers, and other minorities were also verboten.)
The importance of Article 6 is often forgotten. Its passage made it possible for any American to seek public office on the federal level without reference to religious affiliation. The new nation would be enriched and strengthened by talented individuals who would formerly have been excluded from consideration. And while several states were recalcitrant in applying this principle on the state level, the overwhelming thrust of public opinion was favorable. It was not long before Catholics were serving in Congress, the state legislatures, and the governor’s offices of the new republic. Roger Brooke Taney became Chief Justice under Andrew Jackson. In some areas the struggle for acceptance took much longer, especially when the waves of anti-Catholicism began to wash over the political terrain. But at least there was no official or legal sanction for bigotry. Many of our noble Constitutional principles have taken a long time (too long) to become reality, but that does not diminish their magnanimity.
One other notable point about Article 6 that needs mentioning is an observation from Justice Joseph Story. Story was a fairly conservative legal scholar who penned some trenchant (and lengthy) commentaries on the Constitution a century and a half ago. About Article 6 he observed:
This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher object; to cut off for ever every pretense of an alliance between church and state in the national government. The framers of the Constitution were fully sensible of the dangers from this source, marked out in the history of other ages and countries; and not wholly unknown to our own. They knew that bigotry was unceasingly vigilant in its stratagems to secure to itself an exclusive ascendancy over the human mind, and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those who doubted its dogmas, or resisted its infallibility. The Catholic and the Protestant had alternately waged the most ferocious and unrelenting warfare on each other…. The history of the parent country, too, could not fail to instruct them in the uses and the abuses of religious tests. They there found the pains and penalties of non-conformity written in no equivocal language, and enforced with a stern and vindictive jealousy.
The First Amendment’s religion clauses, about which there was also a strong consensus at the Constitutional Convention, similarly advance separation of church and state as the best vehicle for achieving and preserving religious liberty. It is worth quoting because these sixteen words have probably caused more comment and intense debate than any other comparable text: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” It is true that this was initially intended to apply only to the federal government. States were generally left to regulate religious activities at the state level, though some Founders certainly intended the enlightened concept to apply at all levels. And in most states the separation doctrine triumphed. Indeed, after the Civil War, most of the newly-admitted western states adopted constitutions that were stricter and more explicit, particularly in prohibiting the expenditure of state funds for religious enterprises. The First Amendment’s religion clauses were applied to the states through the incorporation doctrine of the 14th Amendment in two cases during the 1940s, Cantwell v. Connecticut (1940) and Everson v. Board of Education (1947).
The U.S. Supreme Court has been called upon to resolve a host of contentious church-state issues in recent decades. Refining constitutional doctrine, the majority concluded in Everson:
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
In 1971 in the Lemon case the court established its famous “three-prong” test to determine the constitutionality of legislation under the Establishment Clause. To pass muster a state (1) must have a secular purpose, (2) must not “excessively entangle” church and state, and (3) must not advance or inhibit religion. This seems eminently sensible to me. The separation or “no establishment” ideal seeks to erect a framework of legal equality for all religions. In the same case the high court also reminded us of another truth: “Political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.”
An underlying assumption that strengthens the separationist resolve is the belief that church-state separation preserves interreligious harmony and civil peace. There is a good deal of historical evidence to buttress this contention. This is a pragmatic argument, an argument of prudential judgment, that should be particularly meaningful to Catholics. Father John Courtney Murray dealt with this and related themes in his remarkable 1960 book, We Hold These Truths. More recently, New York Governor Mario Cuomo resurrected this concept in an important address at the University of Notre Dame in 1984.
Make no mistake about it. More religious groups have found a safe and secure home in the United States than in any other nation on earth. It is because of separation that this is true. Separation has also contributed to the voluntary character which is a hallmark of all religious traditions that have competed and thrived here.
Does this have any particular relevance for Catholics? I submit that it does. The new republic’s tiny, struggling and often persecuted Catholic community vigorously supported the American Revolution and the Constitutional settlement following the break with England. The first bishop, John Carroll, and his contemporaries sang the praises of this new nation’s religious policies.
Bishop John England, first bishop of the Carolinas, had this to say, “There never was a union of church and state which did not bring serious evils to religion…. The Founder of our faith did not unite the church and state…. Without writing harshly of thousands of good and better men who differ from me in opinion, I am convinced that a total separation from the temporal government is the most natural and safest state for the church.”
A century later Cardinal James Gibbons, perhaps the most distinguished prelate in U.S. Catholicism’s history, told the literate readers of the North American Review: “American Catholics rejoice in our separation of Church and State, and I can conceive no combination of circumstances likely to arise which would make a union desirable to either Church or State. We know the blessings of our arrangement; it gives us liberty and binds together priests and people in a union better than Church and State.” New York’s governor Alfred E. Smith echoed this view during his bigotry-sabotaged presidential bid in 1928.
I am not unmindful of the existence of other views, which favored “accommodation” or “cooperation” or beneficial partnership between church and state, within U.S. Catholicism and in the larger society. I am aware that these convictions have grown stronger during the past decade. But I would suggest that these adherents are misguided voices of despair and confusion, often ignorant of our nation’s history, and confused about its future. Whether they wish to admit it or not, they have implicitly admitted that religion cannot stand on its own but must seek help from the never-to-be-entirely-trusted strong arm of government.
Furthermore, those Catholics who favor accommodation are often profoundly ignorant of the American Catholic heritage. I will never forget the uproar and outrage which greeted the Supreme Court’s decisions in 1962 and 1963 which ruled unconstitutional the practice of mandatory prayer and Bible reading in the nation’s public schools. (Actually only half of the nation’s schools were affected, since most school districts in the Midwest and far west never required daily devotional exercises. Eastern and southern states were primarily affected.) Cardinal Spellman called it a dark day for America, and even the Jesuits’ usually liberal journal America called it “black Monday” and bordered their next issue in funereal black.
How short are memories. It was Catholics who were the primary victims of public school intolerance throughout the nineteenth and well into the twentieth century. State supreme courts in Maine and Massachusetts even ruled that Catholic pupils could be physically punished or disciplined if they refused to say the Protestant version of the Lord’s Prayer or to read the King James Version of the Bible. A virtual war had erupted over this issue in Philadelphia in 1844 and in Cincinnati in the 1870s. Courts in Ohio and Wisconsin struck down school prayer in the 1880s largely because of Catholic appeals for justice. It was Catholic parents in Scott County, Illinois who won a victory over mandatory school prayer in the Illinois Supreme Court in 1910. (Ironically, Ronald Reagan, born a year later, waxed eloquent over his fond “memories” of school prayer when he tried unsuccessfully in 1984 to induce Congress to overrule the high court and “restore” prayer.) Catholics joined Jews and humanists to win a similar victory in Louisiana in the 1920s.
Anyone who grew up in the deep South and attended the schools there, as I did in the 1940s and ’50s, will appreciate what the Supreme Court accomplished in 1962-63. There was no pretense of objectivity or fairness toward religious minorities in the public schools of those states. Daily prayers, Bible readings, devotional exercises, assemblies, and baccalaureate services were exclusively Protestant and evangelical. People of other faith traditions, even those whose ancestors had lived in the South and affirmed its traditions for centuries, were completely ignored.
Many unresolved questions remain, particularly in the symbolic realm of civil religion and in the nettlesome thickets of public school religion. Polls show considerable confusion among the citizens about church-state issues today. The recent Williamsburg Charter Foundation survey found most Americans strongly in favor of separation in principle, but uncertain about how it should be applied in specific circumstances.
For Catholics the choice ought to be clear. As the largest and most pivotal religious community in America, and the one which has overcome the most prejudice, Catholics should affirm a constitutional principle that has served us well.