200 Years of Misunderstanding Religious Freedom
200 YEARS OF MISUNDERSTANDING RELIGIOUS FREEDOM
By Rev. Robert A. McLaughlin
As we celebrate the 200th anniversary of the Bill of Rights, it might be good for us to listen once more to those astounding 16 words of the First Amendment:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Now, did you hear the word "separation" anywhere in there? I didn't. Did you hear anything at all about a "wall" between the state and the church? You will not find that either. Working at a major, state-related university, one whose administration is composed mostly of lawyers, I hear those terms thrown around with abandon almost on a daily basis. Having worked in the media for the last 25 years, I see and hear those terms used consistently.
However, you will not find those terms anywhere in the Constitution of the United States, nor in any amendments to the Constitution, nor in the Declaration of Independence. No law of the land includes those words.
In McCollom v. Board of Education in 1948, Justice Reed of the Supreme Court warned his associates that "a rule of law should not be drawn from a figure of speech." Sadly, the Court did not heed his admonition, and much of the deliberations of the Court since then have centered on this figure of speech, instead of on the words and intentions of the founding fathers.
The "wall of separation between church and state" metaphor was coined by Thomas Jefferson 11 years after the Bill of Rights was passed. He coined it not in law, but in a letter to Baptist clergymen in Danbury, CT, in 1802, as a reason why he was uncomfortable declaring a national day of thanksgiving and prayer, which the Baptist ministers had requested him to do. Washington and Madison had no trouble requesting Americans to pray. Nor did Reagan, Nixon, Carter, or Bush have any hesitation to offer public thanks to God, or invoke his blessings on the country or its endeavors. Jefferson did, and he coined this phrase as a way of expressing his personal hesitation to the Baptist ministers.
Mark DeWolfe Howe, in his fascinating 1965 book entitled The Garden and the Wilderness: Religion and Government in American Constitutional History, offers us another source for the "wall" imagery -- from the writings of Roger Williams, the English-born clergyman who founded the the Rhode Island colony in the 17th century. In a piece called "Mr. Cotton's Letter Lately Printed, Examined and Answered," Howe found the following metaphor:
The faithful labors of many witnesses of Jesus Christ, extant to the world, abundantly proving that the church of the Jews under the Old Testament is the type, and the church of the Christians under the New Testament in the antitype, were both separate from the world; and when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broken down the wall itself, removed the candlestick, and made His garden a wilderness, as at this day. And that therefore if He will ever please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world; and that all that shall be saved out of the world are to be transplanted out of the wilderness of the world, and added unto His church or garden. --Perry Miller: Roger Williams: His Contribution to the American Tradition 89, 98, (1953).
While both Jefferson and Williams use this "wall of separation" imagery, they do not have a common understanding or vision in mind -- in fact they are diametrically opposed to one another in intent.
Jefferson, the son the European Enlightenment, and Father of the American Enlightenment, was imbued with all of the anticlerical suppositions of rationalism, and saw that proverbial "wall of separation" as a necessity to keep the clergy out of politics. He perceived that "wall" as protecting public and private interests from ecclesiastical depredations and excursions, as had traditionally been experienced in Europe before the Enlightenment, and such as were the cause of many of the colonists fleeing Europe to settle in our new land. Thus the Jeffersonian wall is constructed for political reasons fostered by anticlericalism and rationalism, while Jefferson freely admitted to the importance of religion in America, and even funded Catholic nuns in the Louisiana territory during his presidency. He saw the wall as one-way -- keep the clergy out of government. He saw no problem with government being creative partners with religion in bettering American life.
Williams, on the other hand, perceived the proverbial wall as keeping the government and world out of the church. It was also a one-way wall, but had the opposite purpose from Jefferson's wall. While Jefferson's wall was politically motivated, Williams' wall was evangelically or theologically motivated. Many of the founding fathers who voted on the first amendment establishment clause actually shared this theological or evangelical understanding of the wall, not Jefferson's rationalist, political understanding that the Justices of the Supreme Court favor today. They wanted to keep the government out of religious matters, not the church out of matters politic.
Notice again the wording of the amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
The amendment only limits Congress, or the Federal Government -- not the state governments. From 1606 until 1776, Massachusetts and New Haven, CT were theocracies, with compulsory attendance at religious services every Sunday by every citizen. Most of the New England states actually had an established religion, Congregationalism, well into the 19th Century. Most of the Middle Atlantic states and all of the Southern states had the Church of England as the established religion, long after the First Amendment was ratified. Delaware in its earliest days, had the Swedish Lutheran Church as the established church. The First Amendment made no attempt to crush these established religions within the states. It merely forbade Congress to do so. The First Amendment did not limit the states power to hinder religious practice, either -- it only limited the Federal Government. There was a time when it was illegal to be a Catholic or attend a Catholic Mass anywhere in the union except Pennsylvania. Baptists also were banned from most of the states, and Jews certainly were not welcomed or accommodated by the states, and for another hundred years would be banned from political office by many state constitutions that demanded belief in the Christian religion and New Testament of their elected officials.
There are really four periods of development in the jurisprudence that has produced millions of pages of legal interpretation of that originally pithy 16 word amendment.
1) Colonial Period 1607-1776
As I mentioned, we had two theocracies and ten colonies with established religions. Pennsylvania alone granted total tolerance to all religions, although it did limit its public officials to theists.
2) Disestablishment Period 1776-1834
Examining the state constitutions written during this period give a much better insight into the meaning and intent of the writers of the First Amendment than can be found in the volumes of Supreme Court opinions written since then.
3) Period of Conflict 1834-1900
Vast waves of immigration brought thousands of Catholics to our shores, and the strong anti-Catholic prejudice of this former British colony raised its ugly head in the Nativist Movement (how bold can you get -- these Nativists were British colonists, not Native American!); and the Know-Nothing riots, and the Klu Klux Klan. This was also a period where the public school systems, still a Protestant school system for all practical purposes, were found to be offensively anti-Catholic by the swiftly growing numbers of Catholic immigrants, and so we see the birth and growth of the Catholic School System during the period. Not only was the King James Bible read in most schools daily, but Protestant prayer services were also compulsory in many schools. During this period, and down to our own day, we see repeated efforts to revive the Blaine amendment, which would forbid financial aid to religious schools -- an amendment which the American public has soundly rejected repeatedly since it was first introduced back in 1825.
4) Search for a Solution 1900-1991
Real progress did not happen until the Cantwell decision in 1940, which specified that the First Amendment guarantees freedom to believe, but not necessarily the freedom to act, if that action is against the common good of the community or nation. This is a good distinction which all religions have espoused for thousands of years. We all want sex and believe it is a good thing, but we are not free to act out that desire anywhere and anytime we please. Both moral imperatives and civil law have a lot to say about the where and when we act on that belief.
In 1947 the Supreme Court applied the Fourteenth Amendment to the First Amendment, and, for the first time, decided to apply the First Amendment limitations to the states, an idea that the founding fathers would abhor.
In 1952 in Zorach v. Clausen the Court said "The First Amendment...does not say that in every and all respects there shall be a separation of Church and state."
In 1984 in Lynch v. Donnelly the Court wrote "The metaphor (wall of separation) itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between Church and state."
In 1985 in Wallace v. Jaffree the Court ruled that "the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years."
So now we have come full circle. Here is the Supreme Court now espousing the same theory that I am presenting to you, and the same warning that Justice Reed wrote back in 1948. But having said that, they still hear cases that are ludicrously unrelated to intentions of the founding fathers, and still reverse themselves so often they seem to be running in circles as they mutilate the delicate framing of the First Amendment until its rulings would be totally unrecognizable to our founding fathers, and totally repugnant.
The basic error that Howe sees in the Court's capricious rulings derives not from its failure to give Williams' theological reading to the First Amendment, but from its pretension that the framers spoke in a wholly Jeffersonian dialect and that those who ratified it fully understood that style of speech. By building constitutional law upon history thus oversimplified, the Court has widened the gap between current social reality and current constitutional law.
Remember, now, that each and every session of the Supreme Court opens with this prayer: "God save the United States and this Honorable Court." The justices then sit down behind the bench, after thus praying, and then outlaw prayer in all public schools. This, while down the street in Washington, the House and the Senate both have salaried Episcopal Chaplains also praying before each session of Congress. It presents an interesting, but contradictory picture. All those who testify before the court are required to swear "so help me God," as they plead with the Court to ban God from our schools.
The current search for a solution has lead the Court to the concepts of "equality" and "neutrality." So far the rulings of the Court have not considered any religious tradition "equal" to secular humanism, which is, apparently, the established religion of the Supreme Court. It is a religion that has been mandated by the Court to be taught in all public schools. Only when the Justices begin to grasp the intention of the framers of the First Amendment will they begin to see that delicately balanced ideal of a creative partnership of Church and state as mutually required supports of a just society where all are truly free to seek life, liberty and the pursuit of happiness. When they truly become "neutral," then those 16 astounding words that have survived these 200 years will once again resound across our land as church bells joined the Liberty Bell in ringing in September of 1987 to celebrate the 200th anniversary of the Constitution itself.
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This article was originally a lecture researched, written and delivered by Father Bob to Common Cause of Delaware in Newark, DE, June 14, 1991 on a panel which also included a law professor, a journalist, and the ACLU President for Delaware.
It was published in the Temple Newman Times September 15, 1991 (Vol. 70 No.3); and subsequently in two national journals: Crossroads (September 1991, Vo. XXIII No. 1 out of Dayton University) and The Journal of the Catholic Campus Ministry Association (April 1992), and has been used in many university classrooms since.
Father Robert A. McLaughlin (71107,373) is a priest of the Archdiocese of Philadelphia. He holds a B.A. in Philosophy and a Master of Divinity Magna Cum Laude from the Philadelphia Theological Seminary of St. Charles Borromeo, Overbrook, and is currently a candidate for a Ph.D. in Communications in the School of Communications and Theatre of Temple University. He is in his twelfth year as Chaplain and Director of the Newman Center at Temple University and Archdiocesan Director of Campus Ministry for Philadelphia. He has been involved in numerous television specials on all three network affiliates in the Philadelphia market area. He has worked 30 years in radio, television, theatre and journalsim (written and broadcast). Uploaded to CRNET by the author.
