J. Brent Walker – “Church and State in the USA: Promises and Challenges”

This thought-provoking address was given by J. Brent Walker of the Baptist Joint Committee for Religious Liberty at the Congress on Religious Liberty in Buenos Aires, Argentina on April 28, 2008.  It was originally posted on the BJC website (bjcpa.org) and is reposted here in its entirety with permission.

Good morning! I appreciate the kind invitation of Raul Scialabba to participate in this Congress on religious liberty. I am truly honored and delighted to be here in Buenos Aires. I bring greetings from the U. S. and the Baptist Joint Committee for Religious Liberty. The BJC is a seventy year old group supported by fifteen different Baptist bodies and working on matters concerning religious liberty and the separation of church and state. Established to provide a united witness for Baptists in Washington D.C., the BJC works to defend and extend the religious liberty of all. History has taught us that if anyone’s religious liberty is denied, everyone’s religious liberty is endangered.

I. Introduction

Informing our understanding of the proper relationship between the church and the state is a conviction that religious liberty is a gift from God, not the result of any “toleration” on the part of government. It has to do with our being created in the image of God, and the ability that God gives us to respond as free and competent moral agents. This is why we Baptists treasure voluntary religion and “soul freedom” – a God-infused liberty of conscience – that Roger Williams, a 17th Century Baptist champion of freedom, and many other Baptists since then have fought for and sometimes died for.

Even though our religious liberty is a gift from God-not the result of an act of grudging concession by the state-in the U.S. we have chosen to tailor our political institutions to protect that God-given religious liberty. We do this mainly through the first two provisions of the First Amendment in the U.S. Constitution. The first sixteen words of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses require government to be neutral towards religion-neither helping nor hurting religion, but turning it loose to allow people of faith to practice their religion-or not– as they see fit, not as government wants them to.

Both of these provisions ensure religious liberty; both require an institutional and functional separation of church and state. Full religious liberty is a goal; church-state separation is the political means of accomplishing that goal. Simply stated, separation of church and state is good for both.

The wise architects of the U.S. Constitution had learned the lessons of history. They knew from experience that, as soon as government meddles in religion – for or against- or takes sides in religion – favoring one over another – someone’s religious liberty is at least threatened and persecution sometimes ensues. If nothing else, government control of religion – even in the hands of a benevolent government – often winds up watering religion down.

The U.S. Constitution is a secular document. It never mentions Christianity and religion is mentioned only once in Article VI and then to ban religious tests for public office. And, with the adoption of the First Amendment’s religion clauses, our founders made it clear that one’s status in the civil community would not depend on a willingness to embrace any religious confession.

II. Establishment Clause

There are two basic views about the meaning and interpretation of the Establishment Clause. The first is a broad view, or “no-aid view.” It understands the language “no establishment” to prevent governmental endorsement of and aid to religion in general, not just a ban on denominational discrimination or outright coercion. Proponents of this view point out that the nation’s founders considered and rejected three proposed amendments that would have expressly allowed the government to prefer or advance religion generally, as long as it did not favor one religion over another. For example, the Senate in 1789 rejected a proposal that provided, “Congress shall make no law establishing one religious sect or society in preference to another.” Instead, the founders settled upon much broader language that banned laws even “respecting an establishment of religion.”

Others take a narrow view of the Establishment Clause, sometimes called “non-preferentialism.” They understand the intent of the framers and the language of the First Amendment only to prevent government from preferring one religion over another, establishing a single national church or coercing religious choices. They would allow government to aid religion generally if done evenhandedly. Proponents of this view often point to the actions of the nation’s founders that showed little interest in keeping government from promoting religion, at least a generic Protestantism.

Generally speaking, the broad view of the Establishment Clause has been majority view for most of the past sixty years. Justice Hugo Black, writing in Everson v. Board of Education (1947), articulated its parameters when he said:

The �establishment of religion clause’ of the First Amendment means at least this: Neither the 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. In the words of Jefferson the clause against the establishment of religion by law was intended to erect a “wall of separation between church and state.” (Everson v. Board, 330 U.S. 1, 15-16, 1947)

Over the ensuing decades, culminating in a Supreme Court decision called Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court fashioned a three-part test for deciding the constitutionality of government action challenged under the Establishment Clause. In order to be upheld, the law or governmental action must (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religions, and (3) not foster excessive entanglement between church and state. Over the past several years the test has been criticized as encouraging hostility to religion and has been modified by the Court at least in the area of challenges to governmental funding of religion.

Those who have a narrow, non-preferential understanding of the Establishment Clause usually favor what is called a “coercion test.” This test posits that,

government may not coerce anyone to support or participate in any religion or its exercise; and it may not…give direct benefits to religion in such a degree that it in fact establishes a [state] religion or religious faith, or tends to do so. (County of Allegheny v. ACLU, 492 U.S. 573, 659 (1989) Kennedy, J., concurring in part.)

Otherwise government is free to aid religion.

Establishment Clause cases tend to fall into one of two general areas. First, concerns are raised when government expresses an opinion on or takes sides in matters of religion. It has to do with attempts by government to promote or endorse religion in words or symbols. These cases involve, for example, government displays of the Ten Commandments and other religious symbols and state-sponsored religious exercises in the public schools.

The second general category of Establishment Clause cases has to do with what government does with public funds. These cases involve claims that government establishes religion by subsidizing pervasively religious organizations or religious activities. Examples include attempts to fund parochial schools and churches’ social service ministries.

III. Free Exercise Clause

The second religion clause – the Free Exercise Clause – is intended to prevent government from burdening or inhibiting the exercise of religion.

People disagree on how this clause should be interpreted and applied as well. Those who have a broad understanding contend that governmental exemptions based on religion are often permitted and sometimes required to remove burdens from the exercise of religion. This view says that robust religious liberty involves not just the right not to be discriminated against, but sometimes requires an exemption from facially neutral, general applicable laws.

So, for example, a Seventh Day Adventist could not be required to work on her Sabbath or risk losing unemployment compensation. Likewise, members of the Amish community would be entitled to an exemption from the compulsory education law that requires school attendance through age 16 when the Amish, for religious reasons, object to formal education through that age. This view of the Free Exercise Clause says that government may not impose a substantial burden on the exercise of religion without showing a compelling state interest – an interest of the highest order – and then it must do so in the least restrictive way. This broad view of the Free Exercise Clause was the majority view of the Supreme Court from the 1940’s through 1990.

Others take a narrow view of the Free Exercise Clause. They say that religiously-based exemptions from laws of general application, while in some cases permitted, are never constitutionally required. This view declares that the government need not demonstrate a compelling interest in order to justify burdening religious exercise; it simply must treat religion as it treats secular counterparts and not discriminate against religion. Of course, this view offers scant protection for the exercise of religion as a matter of right. But this narrow understanding of free exercise has become the majority view of the United States Supreme Court.

In Employment Division vs. Smith, 494 U.S. 872 (1990), the Court ruled that members of a Native American Church were not entitled to an exemption from the anti-drug laws to allow them to ingest peyote – a banned substance – as a sacrament in worship. As long as anti-drug laws are even-handedly enforced, government would not have to demonstrate a compelling interest to justify a denial of a religiously-based accommodation.

IV. Challenges

Having given this general overview of the interpretation of the First Amendment’s religion clauses, I now want to talk about two challenges to religious liberty in the U.S.

As I have said, both of these clauses in the First Amendment ensure religious liberty, but in different ways. The Establishment Clause keeps government from indirectly hurting your religion by helping somebody else’s religion and Free Exercise keeps government from harming your religion directly. Even though these provisions are complementary, sometimes-when taken to their logical conclusion-they rub up against the other clause.

This tension between the two clauses is good. If one assiduously enforces the Establishment Clause and forgets about free exercise, an environment of hostility to religion can result. However, if one concentrates only on the Free Exercise Clause and forgets about no establishment, the logical outcome can be a theocracy or something close to it. In either case, religious liberty would be diminished.

In short, it is important that we understand that government should accommodate religion, without advancing it; protect religion, without privileging it; sometimes lift burdens on the exercise of religion without extending religion an impermissible benefit.

Although U.S. constitutional law has come up with elaborate typologies to help us sort through this dilemma (mandatory, permissible and impermissible exemptions), I like to employ a common sense exercise. Every time we say “no” to government activity to uphold the Establishment Clause, we should find a way to say “yes” to its Free Exercise counterpart. This allows us always to try to find a “win-win” solution.

For example, if we disallow teacher-led prayer in the public schools or devotional Bible reading in the classroom, we should also permit voluntary student prayer, student-initiated Bible clubs, and teaching about religion at appropriate places in the curriculum. If we ban government subsidies for religion and religious institutions, we should favor tax exemption and permit government to fund separate religiously affiliated social service agencies that minister without religious discrimination. If we forbid government-sponsored displays of the Ten Commandments, we should permit private citizens to do so even in public places. Again, every Establishment Clause “no” should be teamed up with a Free Exercise “yes”.

The second challenge that confronts us in the U.S. has to do with how we uphold our commitment to the separation of church and state without diminishing the relevance of religion to public life. This is a particularly apt topic this year because of our quadrennial presidential elections.

The separation of church and state does not require segregation of religion from politics or strip the public square of religious discourse. Religious people have an equal right to vend their views in the marketplace of ideas and (with some limits) to convert their religious ethics into public policy by organizing, speaking out, voting, and running for and serving in office.

People of faith need not limit their piety to the church house or to acts of private devotion, nor do they have to concede the public square to others. They should be involved, and seek to transform culture in part through the political process.

Religion can be a positive force in politics-both running for office and in governing – in at least two ways.

First, when candidates and government officials talk about their faith it helps us know who they are and examine what their moral core is like. We should have a free and fluid discussion, as I think we have had over the past 30 years since Jimmy Carter in a sense broke the silence on talking about faith in a campaign. But we must always keep in mind that Article VI of the Constitution bans religious tests for office. True, that provision addresses only legal disabilities based on religion and citizens can take religion into account when voting. But we should make every effort to live up to the spirit as well as the letter of Article VI. And, we must be tolerant of some candidates who, although they might have deep religious convictions, are not comfortable discussing them publicly. We should respect their right to keep their deepest religious convictions private and not quickly conclude they are irreligious just because they are not used to bearing their souls in public.

Second, it is important to inquire about how a candidate’s religious views will impact public policy and how one’s leadership style will be affected. There must always be this linkage. It is not at all helpful to have a theological discussion isolated from impact on policy and governance. For example, will religion merely motivate or entirely dominate a potential office holder’s decision-making? Does a candidate’s religious convictions ordain a particular policy position? What about choice of language? Will it involve narrow and sectarian or broader and more inclusive language? What about a conscious effort not to let one’s religious beliefs dictate policy? Will a candidate promise, for example, to bracket his or her convictions? We tend to see this a lot in connection with the abortion issue (John Kerry, Mario Cuomo), capital punishment (Virginia Governor Tim Kaine) and religion generally (President Kennedy, Governor Romney).

All of this said, I want to offer three words of caution to the notion that religion can be helpful. The first is theological. Any foray into politics with focused religious motivation should be tempered with a dose of humility. For good reason. Was it Blaisé Pascal who said that “men never do evil so completely and cheerfully as when they do it from religious conviction?” We need to understand that, however sure we think we are of our position, the other person at least has something to say and maybe in the final analysis is right. As James Dunn has said of the bombastic broadsides that we hear mainly from the religious right in recent years, “What they say is not totally false; it is falsely total.” It often lacks a note of self-evaluation, of tentativeness, of humility that one needs to bring to bear on a public policy message based squarely on one’s religious conviction. This goes for extremism on the religious left as well.

The second caveat is ethical in nature. It has to do with the use or abuse of “civil religion”-a blending of a generic Judeo-Christian piety with U. S. patriotism to the point that one can’t tell them apart. It should not surprise us that, in a country as religious as the U.S., references to God find their way into our civil ceremonies, mottos, slogans and public rituals. These include, “under God” in the Pledge of Allegiance, “In God we Trust” on coins and the ubiquitous “God Bless America” at the end of almost every speech of public officials. These acknowledgements of religious heritage generally have been tolerated by our courts. But, I bristle when it appears civil religion is being used to advance a political agenda. We must apply some ethical breaks here on the general idea that including religion in a campaign and in governance is (or can be) a plus. It’s dicey and dangerous to judge a politician’s sincerity and good faith. But we do it the same way we make other judgments about such matters: observing the demeanor of the speaker and seeking to determine if they walk the walk as well as talk the talk.

The third cautionary note is a constitutional one. The ultimate outcome of religiously motivated policy initiatives should always have a secular purpose and have the primary effect that does not advance religion. That is what U.S. Representative David Price means when he talks about “a coincidence of the religious precept with broader public values.” For example, former Chief Justice of the Alabama Supreme Court Roy Moore clearly crossed the line when he installed outside his court a two ton monolith bearing the Ten Commandments, as every court that looked at the case concluded. But at the same time Alabama Governor Bob Riley was seeking tax reform, explicitly citing his Christian beliefs and Jesus’ teachings about the poor for justification. Riley’s religious motivation, however, was proper because there were a number of non-religious arguments and secular justifications to support tax reform.

While it is permissible for religion to motivate a policy, it should not dominate it. Stated differently, Jon Meacham the editor of “Newsweek” has said religion is a thread in the tapestry of American life, not the tapestry itself. Religion should shape policy, but not strangle it. Moreover, if the only rationale for a policy position is an a priori religious assertion, it is hard for it to be debated and tested in the marketplace of ideas and on the political scene. There must be some secular rationale for public policy that is based on religious conviction. Otherwise, it runs risk of violating the First Amendment’s ban on the establishment of religion.

I do not shy away from talking about separation of church and state as some are wont to do these days. Properly understood, it does not ban, but actually makes possible, the full inclusion of religion in the public square. And with these three caveats, that is good for religion and good for politics.

V. Conclusion

Along with theological precepts and constitutional principles, good citizenship and common sense compel the same results. Another way to look at this is to think of the “golden rule.” Everyone appreciates the sheer reasonableness of the golden rule, people of faith and no faith alike. I would like to propose a golden rule of church-state relations: I must not ask government to promote my religion if I do not want government to promote someone else’s religion; I must not permit government to harm someone else’s religion if I do not want the government to harm my religion. Enlightened self-interest, common courtesy and fundamental fairness require no less. What could be more Christian than that?