finding the line
Finding the line
Rebuilding the wall of separation
By George A. Ricker
There is probably no more contentious subject in American politics today than the relationship between federal, state and local government agencies and religionsquestions focused on the wall of separation between church and state. The arguments range from whether there should be such a separation at all to how high, how wide and how thick such a wall should be. Jeffersons metaphorical wall, which was mentioned in a letter to the Danbury Baptists in 1802, has probably never been more controversial than it is today.
Partly, the controversy is due to the historical ignorance of many Americans, but its also the result of intentional dishonesty by those who wish to promote their own political or religious agendas and have no hesitation about making truth the first casualty in their respective campaigns. Unfortunately, the confusion that exists in the minds of the citizenry is mirrored in the minds of many justices on the Supreme Court, who have been unable to find clarity in either the text or the intent of the authors of the Constitution and the Bill of Rights.
This is true despite language in some Supreme Court opinions that eloquently defines both the nature of the relationship between governments and religions and the danger inherent in blurring the lines between the two. Of these opinions, perhaps none speaks more pointedly than that of Justice Robert Jackson, writing for the majority in West Virginia State Board of Education v Barnette, a case which involved mandatory recitation of the Pledge of Allegiance by public school students and reversed a decision upholding such recitations the court had rendered just three years earlier. Although Jackson based his opinion on freedom of speech, the language speaks eloquently to the religion clauses of the First Amendment also.
Jackson wrote, If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. (West Virginia State Board of Education v Barnette at 642)
The purpose of this essay is not to discuss, once again, the constitutional basis of the separation between governments and religions. Those who want to review the relevant material may want to look at Chapter Seven: Fundamental Errors in my book Godless in America: conversations with an atheist. Two other books that I recommend for those who want to do more extensive research are Religious Expression and the American Constitution by Franklyn S. Haiman and The Godless Constitution: A Moral Defense of the Secular State by Isaac Kramnick and R. Laurence Moore.
My intent here is to attempt to answer three basic questions about the appropriate relationship between governments and religions in a constitutional democracy such as ours. My answers will be grounded not on what the founders may have thought, said or written about this issue but on what seems to be required to protect the fundamental rights of all of us. The questions to be answered are: 1. What is the fundamental nature of the relationship between our government and its citizens? 2. What protections are necessary to preserve our basic rights as citizens in a free society? 3. Why is separation between government and religions a necessary ingredient of those protections? I will begin with a few brief comments about the historical relationship between governments and religions. This will be followed by a consideration of each of the questions in turn and some concluding remarks about application of the principle developed thereby.
A symbiotic relationship
For most of recorded human history religions and governments have been willing bedfellows, each serving the interests of the other. With the emergence of city-states, states and empires, religious organizations formed as integral parts of the centers of power or were assimilated by them within given societies. In many advanced civilizations the rulers of the temporal state also were seen as the agents of divine power and sometimes were treated as gods themselves. Organized religions grew as part of the institutional hierarchy of organized states.
Religions took upon themselves two key roles in most societies. They became the repositories of moral authority, and they conducted the rites and rituals deemed necessary to the state and its social institutions. A third role, less obvious but equally critical, was the support religions gave to those who ruled a given society. Religions had great utility in the control of the masses by the elites who ruled them. The three great monotheistic religions that emerged in the Middle East and would come to dominate Western Europe and the AmericasJudaism, Christianity and Islambegan in close association with states.
Judaism was the official religion of Israel. Indeed, if the appropriate biblical passages are believed, it might be more accurate to say that Israel was the official state of Judaism. In any case the two were intertwined in a symbiotic relationship that continued until the destruction of the state and the diaspora of the Jews. Christianity, which began as a sect within Judaism but enjoyed its greatest success once it had been transported into and transformed by the gentile societies of the Mediterranean, would ultimately become the official state religion of the Roman Empire, and its spread throughout the known world was made possible thereby. When the physical empire failed the Holy Roman Empire continued the dominance of Catholicismat that time synonymous with Christianitythroughout the emerging nations of Western Europe, which would, in their turn, take it to the Americas. Meanwhile Islam emerged as the official religion of most states in the Middle East. Many muslim states were seen chiefly as vehicles for spreading Islam.
Historically, the idea of separation between religions and governments is relatively modern. While there may be glimmers of it in various cultures, it received its strongest and clearest formulation with the founding of the United States of America. The Constitution of the United States of America and the Bill of Rights (the first ten adopted amendments to the Constitution) placed limitations on what the federal government might do and, thus, protected the rights of individual citizens from encroachment by that agency. With the adoption of the Fourteenth Amendment following the Civil War, the restrictions would ultimately be extended to state and local governments as well.
A minority of one
And it is here we must begin our examination. What defines the relationship of the citizen to government? In our constitutionally based democratic republic, there is one bedrock principle, articulated by Jefferson in the Declaration of Independence and affirmed throughout our legal and judicial system to the present day. The principle is that of equality. Each and every citizen stands as an equal to all other citizens before the government and deserves equal consideration from all agencies of government, whether they be national, state or local.
The history of our nation has been, in large part, the story of the extension of equal rights to citizens who were left out at the beginning. Former slaves, women, members of minority groups: all have benefited from the expansion of the concept of individual rights. Today our society is made better by contributions from all its citizens, even those who once were regarded as second-class or even non citizens. Although bias and prejudice die lingering deaths, our objective is the creation of a society in which all citizens stand as equals and none may be penalized because of race, gender, ethnic heritage, sexual preference, religion or its lack.
In a democratic republic, the ultimate authority is the consent of the governed. Republican government is representative government. In a democratic republic those representatives are chosen by the people, the governed. One of the reasons for a Bill of Rights is to protect the individual rights of each of us from being overrun by the rest of us.
The tyranny of the majority can be a very real danger to the rights of all of us if there are no checks in place. And nowhere is that tyranny more of a threat than in the effort to enforce conformity in matters of opinion. When any government agency dons the mantle of orthodoxy, it adopts the pose of favoring a particular class or group of citizens over other citizens.
Yet such action subverts the rights of individuals and undermines the principle of equality for each citizen. Only when the state maintains strict neutrality in such matters can the rights of every citizen be protected. And only when the rights of every citizen are protected from such encroachments, can democratic institutions prosper.
We are not talking about egalitarianism here. In any human society there are inequities in talent, social position and luck. But whatever those inequities may be, the legal status of each citizen should be equal to all others. Our government may not prefer one class of citizens over another class of citizens or express opinions about the relative merit of our opinions. Government imposed orthodoxy in matters of conscience cannot be permitted in a free society, not if that society wishes to remain free.
If we are to retain a free democratic republic, then it is incumbent upon the citizenry to recognize each of its members as a minority of one whose fundamental constitutional rights must receive the highest level of protection from encroachment by any mob or by the state.
Protecting our rights
How, then, can we defend that minority of one? How can we best ensure that each of us will have that status for which we all contend? We have civil and criminal statutes to protect us from encroachments by other individuals or groups of individuals. But how do we protect our rights as citizens of a democratic republic against encroachments by the state or against the potential tyranny of the majority?
Certainly, the Constitution and the Bill of Rights are critical elements in the fight to protect our liberties. They limit the role of government and, in theory, protect each of us from having his or her rights taken away or otherwise infringed by government agencies. The Supreme Courts role as interpreter of constitutional principles also is critical in the protection of those rights.
But constitutions can be amended, and courts can be packed with political lackeys. Ultimately, the only real protection for individual rights rests with us, we the people, as the agency that confers legitimacy on government action. The consent of the governed must mean the consent of equals. Our individual status as equal citizens is the essential ingredient for a free democratic republic. When the state begins to express a preference for one class of citizens over another, it is up to the citizenry to rein it in. We may do so through our elected representatives. We may do so through political protest and agitation. We may do so through all the avenues open to us as members of a free society. Indeed, we must do so if we are to remain such.
Every member of a free society has an obligation to every other member to demand protection for those individual rights, and especially the rights of conscience. When we allow, with a wink and a nod, the state to advance the cause of a particular orthodoxy or to express a preference for one set of opinions over another, we have substantially removed that protection. And when we allow that protection to be removed for any individual, we endanger the liberty of all.
In a truly free society there can be no state-sanctioned orthodoxy on matters of opinion. If each individuals rights of conscience deserve the same status and the same protection as every other, then government agencies have no place in the debate and no right to take a position. Questions about religion, politics, patriotism, nationalism, etc. may be grist for the mill of public discourse, but they may not be the object of governmental regulation and they ought not be the subject of preferential treatment. When any agency of government expresses a preference for one over the other or attempts to legislate on behalf of any particular dogma, then it has exceeded its legitimate bounds.
In his Barnette opinion, Justice Jackson observes, Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. (Barnette at 641)
Jackson saw clearly that any attempt by the state to coerce uniformity of opinion on the part of the citizenry undermines the very foundation of a democracy. It follows that it is inimical to the independence and equality of all when a government agency endorses or implicitly supports any such opinion. In such circumstances, the only sure protection for the rights of all is for government to stand mute on such issues. Again, our system is based on the consent of the governed. That consent, in turn, is prohibited by our Constitution and Bill of Rights from interfering with the rights of conscience of any individual.
A necessary separation
But why is a wall of separation between government and religions necessary for the protection of the equal rights and equal standing of our citizenry?
The First Amendment begins with these words: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;
. At the time it was written, the amendment limited only the federal government, the Congress. Since the Congress passed the laws and controlled the purse strings of the government, a ban on congressional action effectively barred the federal government from taking any action respecting an establishment of religion. Later, with the passage of the Fourteenth Amendment, the limitations would be extended to apply to state and local governments through application of the due process clause of the later amendment.
The amendment accomplishes two complementary objectives. Through the free exercise clause it protects the rights of conscience of each of us from coercion by the state. We are free to follow our own thoughts and beliefs in such matters and, so long as those thoughts and beliefs do not lead us to actions that harm other people, our government may not interfere with that exercise of personal liberty. So the free exercise clause guarantees the freedom of religion. It also, inevitably, guarantees the freedom to exercise no religion.
But the First Amendment also promises freedom from religion. By prohibiting the Congress, the legislative body, from passing laws respecting an establishment of religion, the amendment also declares religions and religious expression to be off limits to the government. This does not, in any way, inhibit the ability of citizens or congregations to freely exercise their religions. It does, however, proscribe the government from any official establishment of religion.
The rights of conscience are uniquely individual rights. Each of us is free to think what we like in such matters and government has no part in that process. It may not tell us what to think or what not to think. But beyond that, government also has no religious rights of its own. Except for protecting the rights of conscience of each of us from encroachment from others, government has no role to play in the free exercise of religion and it has no right to facilitate any establishment of religion.
Here again, what is really at issue is the equality of each American citizen before the law and in the eyes of the government. When the state wraps itself in the trappings of a particular religion or in the trappings of religion in general, it is expressing a preference it has no right to express.
In a system such as ours, the government can have no religion. The only proper role for government to play is one of strict neutrality in such matters. Government should neither advance nor hinder the cause of religion. Just as it must not suppress any religion, so it ought not promote any religion. The government of a free society of equals must not show preference for one religion over another religion or for religion over non-religion.
This is true regardless of the religious opinions shared by the majority. The government of a free society of equal individuals has no more right to impose the majority opinion on the minority than it has to impose the minority opinion on the majority. It is, quite simply, wrong for government to adopt either stance. It may not be anti-religious. It also may not be pro-religious.
It should be noted, in this context, that this has nothing whatever to do with the religious rights of people serving in elected or appointed office. Citizens do not lose their religious rights because they have a position in the government. They also have every right to express their religious opinions as private citizens. However, they do not have the right to impose those opinions on others either in or out of government. A cabinet member who wants to begin the day with a moment of prayer has every right to do so. He or she does not, however, have the right to demand that subordinates participate.
Rebuilding the wall
All of this is why the Jeffersons wall of separation between government and religions is important. The rights of conscience of individual citizens remain unburdened so long as governments stay out of the picture, intervening only to protect those rights when other citizens, for whatever reason, attempt to interfere with their free exercise.
No one is prevented from practicing his or her religion, or, it must be added, no religion at all, because governments do not print religious mottoes and slogans on currency, web sites or the sides of buildings. No individuals rights are suppressed if public schools do not lead children in prayer or conduct a morning devotional. No religious denomination is disadvantaged if government does not dress itself in the trappings of religions or allow religious memorials on public buildings or in pubic parks. These things only become problematic and destructive of the rights of some when they are permitted, because such practices and symbolism suggests that there really is a preferred, established religion, and those who do not belong to that religion are less than those who do.
Consider something so innocuous as the phrase God bless America. Many politicians, including presidents, have taken to including the expression at the end of their speeches. No doubt for some it is an honest expression of their own feelings. Its also more than likely that for others, the words are used simply to pander to the religiosity of the majority. But regardless of the motivation for uttering the words, there can be no question that the person using them has the right to do so. Even though the utterance may be made at the end of a public speech or an official pronouncement, it is clearly the expression of individual sentiments and thus allowed under even the most restrictive interpretation of the doctrine of equal rights for all.
However, once those words are emblazoned on the side of a building or on a web site paid for with tax dollars, the situation changes dramatically. Now the memorial is an expression, not by an individual, but by a government agency. Now it is paid for by tax dollars and/or is part of a public edifice paid for by tax dollars.
Even so, you may ask why such practices should be disallowed. Consider what has happened. Now a government agencyand it may be local, state or federal, it really doesnt matteris declaring, at a minimum, that God exists. What God do you suppose that is? How can a government agency invoke a particular god named God? How can a government agency ask a god to bless anything? There must be a particular god involved here. This cant just be some generic god-idea, as has been suggested in some court cases. How can a government agency make a declaration that is tantamount to stating God existsa position that is, at the very least, arguable and on which American citizens can and do disagree? It must be remembered that those Americans who do worship a god of some sort do not all worship the same god. Americans worship many gods, and many Americans worship no gods at all.
These are facts that are indisputable. How then can a government agency, which has an obligation to treat all American citizens as equals before the law, express a preference for the God worshipped by some Americans? What business does a government agency have making any religious declarations at all?
The argument from tradition
One of the resorts of those who seek to defend such practices is to invoke tradition. These things are simply the recognition of the religiosity of the American people, they say, and thus cannot be considered religious establishments.
However, tradition is a weak argument on which to base such practices. In the first place, traditions which appear to contravene the fundamental principles of equal treatment upon which our society is founded are best discarded rather than sanctioned. Besides, many of the religious trappings which adorn our society today were not present at the founding of our constitutional democracy. In God We Trust did not appear on our coinage until the Civil War period. It did not appear on our paper money until the early 1950s. The phrase under God was not inserted into the Pledge of Allegiance until the early 1950s. At about the same time Congress declared there must be an annual National Day of Prayer. Most of the Ten Commandments monuments that have become sources of controversy were erected during that period as well.
So many of the religious trappings with which our government has been adorned have been added within the last half century or so. They are not traditional at all. Thus, even if the argument had merit, it has no place in the discussion of these things. Indeed a decent respect for the tradition of our Constitution ought to lead to their elimination, not their continuance.
Although the American people are, in the main, a religious people. We also are a people with many religions. Because of the lack of religious establishment and the protection of free expression, religious denominations have diversified to an unprecedented extent. Americans worship many gods and follow many religions. Millions of Americans worship no gods and follow no religions. The only way for our government to assure the equal standing and the equal treatment of all of its citizens is to maintain absolute neutrality on religious questions. The only way to keep government out of religion is to keep religions out of government.
So it is not just the constitutional basis of our freedom to practice our rights of conscience that must be recognized. It is also the status of each American citizen as the equal of every other that should be seen as the basis of our rights. A government of equals simply cannot be in the business of establishing preferences for one set of religious opinions over others. A government of equals has no business making religions or religious opinions its business. A government of equals has no charter to endorse religious opinions and no right to express them.
In our system of government, federal, state and local government agencies derive their authority from the consent of the governed, not from any sort of deity. Regardless of the religiosity of the American people, regardless of the role religions play in our society, our government was established as a secular institution. Only a government that is secular and neutral can protect the rights of conscience of all the people.
Those who continually lobby to tear down the wall of separation between our government and religions ignore the truth that the wall protects their religious freedom just as surely as it protects the rights of conscience of members of minority denominations and nonbelievers. One of the reasons religions have flourished in the United States has been the existence of that wall. Its destruction will threaten everyones religious freedom.
The clear message of history, including colonial history in our own nation, is that the marriage of governments and religions always has disastrous consequences for the freedom of individuals. Only by keeping our government free of religions can we ensure the rights of conscience of all Americans.
That does not mean we must remove all references to a deity from historical documents, such as the Declaration of Independence or the Articles of Confederation. It does not mean we must sandblast historical monuments to scrub them clean of any allusions to a deity.
It does mean we should begin to remove religious mottoes from our coinage and paper money. It does mean we should remove the phrase under God from the Pledge of Allegiance, where it never should have been inserted in the first place. It does mean we should end the practice of government organized national days of prayer. Churches are perfectly capable of arranging such observances without the official imprimatur of our government, and government officials have no business calling American citizens to prayer. Leave such practices to the clergy and those who want to listen to them. It does mean our government buildings, government web sites and public parks should not bear religious mottoes or display religious monuments. It does mean government bodies should end the practice of hiring chaplains and holding official prayer services. Let individual legislators seek whatever religious guidance they think they need from whatever deity they worship, but let that be a matter of personal conviction not public display.
These are just a few of many ways in which government agencies appear to sanction religious establishment and ignore the constitutional prohibitions against them. Some of the practices are, in themselves, relatively innocuous. However, they serve a sinister purpose. When objections are made to more serious infractions, those who favor the marriage of church and state always cite those innocuous practices as evidence that the Founding Fathers really didnt mean what they said. Thus, customs that never should have been allowed are used to bootstrap more egregious violations of the wall of separation and those who object to such offenses are labeled as being anti-religious because they do not want their government adorned in the trappings of any religion.
Religions should stand or fall on their own merit. They should not require governments to prop them up or to sanction them. Those who truly value the religious rights of all Americans should demand nothing more and nothing less than a complete separation between government and religions.
The rights of conscience of all Americans, the religious and the nonreligious alike, can only be secured when the wall of separation between government and religions is kept high, wide and strong. Every breach in that wall weakens those rights. It is not hostility toward religion that drives the campaign to repair and rebuild that wall from the erosion inflicted by dishonest religionists and feckless politicians. It is the desire to protect the rights of each of us that makes it necessary.
Government in the United States of America is a secular institution created to preserve and protect the equal rights of all Americans. That is our governments primary role. It can only carry out that role when it treats each of us as equals. Our government has no right to dress itself in the trappings of any religion or to endorse any religious ideas or practices.
We the people are the ultimate authority in this democracy. That means usyou and meregardless of our religious opinions or the lack of them. No gods and no religions can have any role in a government intended to serve the interests of each of us in the name of all of us.
© 2007 by George A. Ricker
* West Virginia State Board of Education v. Barnette (No. 591) 47 F.Supp. 251, affirmed.
Cornell University Law School, Legal Information Institute, Supreme Court Collection available on the web at http://www.law.cornell.edu/supct/index.html