ESSAY

Separation of Church and State:

Historical Precedent and the Fallacy of Supreme Court Decisions

By Robert DePaolo

Abstract

This article discusses the purported intent and historical background behind the doctrine of separation of Church and State, particularly as pertains to the distinction between the use and display of religious symbols and faith-driven policy making.

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Despite the rigid, heavily parsed language that typifies legal writing, purports to guarantee accurate interpretation and preclude manipulation, all laws and constitutions have historical precedent. In other words, they are seldom if ever written in the abstract, or from a strictly moral vantage point. While the moral premises in any given society derive from laws and often develop their own impetus, laws are usually written to solve practical problems which can be economic, ethnic or even tribal in nature.

History makes the point. For example in Hammurabi’s time, laws became necessary because the Sumerian-Babylonian culture had developed a monetary system, as well as a large, ethnically and tribally diverse population. As the tribal, nomadic culture was being gradually replaced by urban culture, the natural mechanisms of trust that had previously prevailed in small group, familial social networks were being threatened. Thus laws on business transactions, criminal behavior and proportionate penalties for transgressions became necessary in order to regulate behavior in what could have otherwise turned into a rather treacherous urban environment.

Meanwhile around the time of Moses’ birth the Hebrew population in Egypt was exploding, and in the eyes of the Pharaoh Thutmose III this posed a threat. Since military success was a function of numbers, it was decided that males born to Hebrews should be exterminated to preclude a possible rebellion. In response to that the passion for tribal loyalty and ethnic survival among Hebrews became unimaginably fervent.

Moses’ role as “lawgiver” was, while primarily religious (many of the requirements in the Torah are designed to test the internal-moral resilience of the Hebrews rather than address social problems, also pragmatic. Moses arguably had a twofold task. On one hand he had to persuade fellow Hebrews accustomed to Egyptian mores and religions to worship a purer God who represented them and no other people. On the other hand he needed to preserve the ethnic loyalties and identity of his people in the face of imminent genocide. Thus the ironic combination of events beginning with Exodus 19;1-25 in which an exhausted, overwhelmed Moses receives the ten commandments even as his followers are paying homage to the golden calf in Exodus 32: 1 (a symbol of the Canaanite God Baal) is revealing both religiously and politically.

Similar group conflicting dynamics presented themselves in later times. In the aftermath of Solomon’s reign, separation of the two kingdoms of Israel and Judah produced political tension. Jeroboam, the ruler of Israel, felt considerable trepidation over the possibility that his own people would profess loyalty to the House of David in Judah, where the Temple was also housed. To prevent that possibility he espoused worship of the Golden Calf whom he decided was responsible for bringing the Hebrews out of Egypt. In each instance, tribal-ethnic integrity was a corollary to religious worship as a motivating factor.

With regard to the advent and evolution of The United States of America similar pragmatic concerns were at hand. In fact one might argue that like Moses’ quest, America had a twofold purpose in its quest for independence – both of which were based on historical precedent and extant social circumstances.

The immediate concern, voiced eloquently in Jefferson’s Declaration of Independence had to do with being refused the right of self-determination. Certainly taxation was a core element of protest, but being a realist Jefferson understood that taxation was a necessary evil in the maintenance of any society. In his Writ he was simply asking for the right to participate in the decision making process. Had the House of Lords and Commons included representatives from the colonies, who could have argued their case, cast their votes and lobbied for their constituents things might have turned out differently. Since the British did not accede to that request, “Tyranny” became the catchword of the time.

Another distant, but perhaps more salient reason for the American Revolution was protest against the doctrine of Divine Right. The founders did not have a problem with religion per se – although several of them (including Washington and Jefferson) espoused a doctrine known as Deism, which combined Christianity with the empirical zeitgeist that ran parallel to and often competed with religion for the hearts and mind of post-Enlightenment thinkers. Deism was an intriguing concept that ironically might render today’s hot-button topics on science vs. religion moot. It was a belief based on the idea of a creator, but one who let nature run its course in the aftermath. That included man, whom Jefferson and Washington believed has free will as part and parcel of God’s concession to nature.

In that context, if a Deist was asked the question so prevalent in modern times… Do you believe in God or the Theory of Natural Selection? he might say… both, based the assumption that evolution might be part of that concession as well.

Jefferson’s thinking on this is made clear in his Bill for Religious Freedom, composed in 1779. True to the hybrid (Baconian-Empirical/Religious) Deist doctrine he stated that, “The opinions of men depend not on will but follow involuntarily the evidence proposed to their mind, that Almighty God hath created the mind free and that civil incapacities, burdens and cruelty are a (man-made) departure from the plan of the Holy Author of our religion.”

The language in this bill is intriguing on many levels. First, Jefferson’s use of the phrase “our religion” might be construed as implying that Christianity was somehow the American religion. However that would be at odds with his other writings. Instead it proposes that God is a constant, and that man’s misuse of religious doctrine comprised the real threat to American society. It also suggests, interestingly enough, that the mind of men should be influence by new discoveries, by accruing empirical evidence and not be shut off from the process of discovery. Thus he seemed to be saying that science and faith could co-exist comfortably.

In none of those instances can Jefferson be declared anti-religious, or as opposing the role of religion as an important stimulus on the affairs of state. His writing can be interpreted to mean that society must prevent men from inflicting cruelty and from using religion for personal gain; in other words, man’s worst motives (as opposed to religion in itself) must be kept out of the political process. (As an aside, he might be astonished to see how that has played out in recent times).

George Washington was perhaps more skeptical when it came to religion. As a Deist he too believed in the value of inquiry and discovery and like Jefferson had no fear of religion but much trepidation over flawed humannature. His statement, “The blessed religion revealed in the word of God will remain an eternal and awful monument to prove that the best institutions may be abused by human depravity.”

Deism offered a compromise to men raised in both a traditionally religious and newly emerging scientific social climate. Consequently both points of view were accepted, neither rejected. Indeed none of the founders felt religion had to conceptually, legally or behaviorally excluded from the affairs of state, as long as the state did not espouse one particular faith and exclude others as part of a mandate.

In fact to think otherwise might have seemed downright foolish to them, since Both English and American laws were derived from Biblical themes which were heavily reinforced throughout Europe due to the influence of Christianity. Indeed in the epoch preceding the Enlightenment and for a time thereafter, Europe was typically referred to as “Christendom.”

In short, the only way for there to be a true and complete conceptual, moral, societal and legal separation of church and state would have been to engage in a blind, morally vacuous re-start of human society.

In that context, the real argument against the alignment of politics and religion was that it had the potential to grant absolute power to rulers. As readers of the Bible the founders knew that the historical ramifications of this were profound. They understood that the fledgling, theocratic state of Israel had to be divided into rulers (in this case Saul) and prophets (most notably Samuel) to regulate the nation’s moral course. In effect the government was both distinct from yet also monitored by clerics – who served roughly the same purpose of a free press in modern times, though from a distinctly different vantage point and with vastly different motives.

In that context the founders probably understood that since the state could nor function without a moral foundation, and since that moral foundation had historically been provided by religion, the argument for complete separation of church and state would appear somewhat absurd.

The founders also knew that during the Middle Ages powerful kings and popes sought personal power, wealth and advantage. Like the monopolies that typified America’s entrepreneurial zeitgeist leading up to the Twentieth century, there was a collusion between the two – a kind of moral monopoly that did to Medieval Europe what Morgan and Rockefeller did to the free enterprise system in America that is, removed the arbiter or “critical voice” that could kept the process from becoming too much about men and too little about core values.

Jefferson had a somewhat narrow interpretation of Divine Right. He protested primarily against paying a tithe to the church by government mandate. His argument was that this did not differ much from the taxation without representation conundrum that fomented the revolution.

Others came to believe collusion between church and state prevented the church from providing the critical voice – bearing in mind that many good popes during the Middle Ages fought with kings over immoral practices with the intent of keeping human society orderly and altruistic. In that sense one could assume the Establishment Clause in the Constitution was based on functional concerns. In no sense did this mean excluding the church from having a presence in government – after all, the Pennsylvania Quakers played a significant role in the evolution of early American society, particularly over the issue of slavery.

Thus a glance at the history of church-state relations in America might suggest that the founders believed religion and the state could co-exist, just as science and faith could co-exist, as long as politicians and clerics did not collude to issue mandates and compel citizens to act in certain ways. It was not a question of…keeping faith to yourselves and prohibiting religious symbols in public places but a fear that policy making with the co-involvement of clerics and politicians would rid the people of the critical voice, making law and fear of divine retribution doubly powerful nails in the coffin of human freedom.

By that line of reasoning resolution to the current debate seems fairly obvious. As long as the state and church do not make policy together – as opposed to adhering to traditions or displaying symbols, nothing in the Constitution would or should preclude the symbolic representation of religious themes or figures in government buildings.

In some instances the US Supreme Court has disagreed with that idea - and arguably with the flow of history. Despite being jurists, which would seem to require adherence to laws rather than implications, they have decided on several occasions that symbols of faith pose a threat to the doctrine of separation of church and state. If placing a statue of the Virgin Mary in front of the Capital Building constituted a official policy decision or a mandate to worship Jesus Christ, they would be right. Obviously it does not. In fact all symbols and references to Christian, Judaic and Muslim ideas and symbols are by definition non-mandates. One is not forced to worship a particular God because of the placement of a statue or verse in some public place.

While some Court decisions have been in line with the notion that religious belief cannot be compelled, others seem to have created an uncomfortable blend between the words compelled and implied. The foundation of Court decisions was established to a large extent by the Lemon v Kurtzman ruling in 1980. In this case criteria were established that provided a litmus test for the Establishment clause in the Constitution. Those elements were; that A. any such practices must have purely secular purposes, B. Practice can’t advance or inhibit the practice of religion and C. that there can be no excess entailed in the entanglement between government and religion.

The wording of that standard is vague and arguably out of line with the founder’s intent. For instance the phrase “having secular purpose” is, in light of the evolution of western society, meaningless. Does that mean morals can’t be taught in school? For example if teachers put a set of rules on the blackboard stating that…Students must not hit one another, must show respect for other’s property, must abstain from telling lies about fellow students – all of which derivative of the Old Testament – does that serve a secular or religious purpose? To the extent that each rule is inherent in the Ten Commandments, the ruling seems oblique at best.

The Lee v Weisman appeal in 1992 seems even more troubling in light of the founders’ beliefs and intent. In that case the Court decided against allowing a non-denominational prayer to be recited at a school graduation. In that situation no one was compelled either to recite the prayer, or to adhere to any religious beliefs implied in the wording of the prayer. Beyond even that in its scope and implications was the case of Allegheny County v The American Civil Liberties Union in 1989 in which the Court held that the county was somehow compelling religious adherence by placing a Nativity Scene in a public building.

In the Allegheny decision the Court equated coercion with mere display, in what appears to have been a specious argument. Once again it would seem if there is no intent to coerce worship – referring to forced enactment of actual behavior, then the ruling should have gone the other way. Providing material offensive to non-believers is not a violation of their rights, nor does it compel them in any way to worship in a particular faith. Moreover, one could argue that if the state’s (and the Constitution’s) intent is to promote free speech and accommodate varying viewpoints, then a legal problem arises from this. To wit: by insisting, as per Kurtzman, that all belief systems presented in public places be secular doesn’t that make atheism the state’s de facto “singular philosophy?”

One could only hope that eventually the Court will adopt a newer standard than Lemon/Kurtzman in which the simple distinction between compulsory religious practices enacted through political policy is expressly prohibited while voluntary, non-coercive practices and displays are allowed for any and all faiths.

There is, and has always been a precedent that could perhaps trump the Lemon Kurtzman standard. It is the deterministic standard. Though this term is used more by scientists than legislators or jurists it is based on the idea that laws are written and enforced to address the tangible, foreseeable effect of one person’s behavior on that of another. That underlies the common law precept Duty of Due Care (which has been the fulcrum of western society for hundreds of years). It is rooted in the desire of English and American jurists to make law as fair and empirical as possible and it is designed according to a simple cause and effect paradigm. As an example; a person might suffer injury, but unless the legal system can establish a causal relationship between the actions of a defendant and injury to the plaintiff it cannot hold the former accountable. Nor can one be prosecuted for thinking about murdering someone. At some point an overt-causal act must take place, either in the form of some communication or in the execution of a plan or behavior. As long as choice prevails, that standard cannot be said to exist.

While common law and Constitutional law are separate entities they are owing to the same juridical fundamentals, which include determinism. That means coercion and choice cannot both be in play at the same time and when one exists, the other cannot – thus no compulsory process, thus no need for the state to preclude voluntary, non-coercive worship of a God in any locale.

In vivo (or “real life”) scenarios reinforce the argument. One can look at a religious symbol, listen to a prayer, decide whether to ignore or adhere to it, then walk away. With no subsequent repercussions, there is no cause-effect relationship. If a person fails to shovel his driveway, knows the newspaper boy comes to his home each morning, and if the latter falls and injures himself, then the man is liable. His negligence can be said to have caused the boy’s injury. Conversely, if it is summer time and the driveway is clear, and if the newspaper boy decides to ride his skateboard on the driveway, then slips and falls, it is not the responsibility of the homeowner at that point. He did not cause the injury, the boy’s recklessness did. One could justifiably ask why this is not the standard used in constitutional law, particularly with regard to the Supreme Court’s decisions on the issue of church and state.

Perhaps the greater problem with the Court’s secular decisions is removal of the “critical voice” from the equation. Obviously people who do not believe in God can protest against public policy. We don’t need clerics to do that. Yet when so-called atheists protest against inhuman practices, war, cruelty etc. they are unavoidably invoking doctrines and practices derived from religious beliefs. Take that foundation away and over time a morally vacuous society could emerge with rudderless people unable to decide what to advocate for and protest against. And for those who say man can be moral without religion (as even Washington and Jefferson suggested) that argument is hard to support. In point of fact, there has never been a human society without religion, thus no model by which to determine how man would act as a true moral tabula rasa. I suppose the ultimate question is whether people in modern times really want to test those waters.

NOTES AND REFERENCES

(reference to Pharaoh’s murdering of Hebrew males). Exodus 19: 1-25

Reference to the conflict between Israel and Judah during Jeroboam’s reign Kings: 1: 12: 26

Reference to Aaron’s building of a Golden Calf during Moses’ absence while on Mt. Sinai) Exodus 32:1

Note: On Nomadic to Agricultural Society in the Middle East. The pattern was predictable and pertains in modern times. First since agriculture was permanent, people had to remain in settlements to cultivate and irrigate the land. As a result more homes had to be built. Then more people were able to live in urban settlements and did so. In response to that came strict divisions of labor, with more jobs and responsibilities being created by food and industrial demands. As a byproduct, more political and economic organization was required and with that came a rigid class system and great disparities in wealth and rights. That in turn exacerbated social conflict, requiring more laws and a closer interaction between law and religion.