Church and State

All enduring societies have arrangements for governing (a "state"), and all have arrangements for expressing ultimate things (a "church"). But both sets of arrangements are involved in the "good life"—the state in efforts to bring it about, the church in efforts to define and justify it. No political order will declare itself in search of what is bad, and no religious order leaves the good life unexamined; even the most ascetic, monastic religion, in ignoring this life to focus on the next, has consequences for the earthly world. As a result, all enduring societies have some arrangements for relating church and state.

For most of human history this relationship was not complicated, because in simple, small-scale societies the arrangements for governing and those for expressing ultimate things were identical. The political leader was also the religious leader, and society members probably did not differentiate their "politics" from their "religion." By the time large-scale societies came into existence, however, the two spheres were differentiated, and some conscious thought had to address the issue of the relationship between them.

One obvious solution, called caesaro-papism, was for the state to give one religion a monopoly, making all citizens be members of that church (or face persecution). The head of the church (the pope in medieval Europe, hence "papism") would legitimize the political leader (hence "caesaro") in exchange for the state's endorsement. This solution was imperfect, however, as evidenced by witch-hunts, heresy trials, and even disputes between kings and popes. It is no coincidence, therefore, that the time of the Protestant Reformation (sixteenth century) overlapped the time of emerging nation-states. While caesaro-papism did not disappear—even today in Europe, Great Britain and the Scandinavian countries maintain "established" churches—the presence of the ever more bureaucratized state and the ever more pluralistic religious population in every society have stimulated development of other ways to structure the relationship between church and state (Demerath, 1991).

When the United States of America was born, the founders and framers had no choice but to devise a church/state policy. Their solution, found in the First Amendment to the Constitution, reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." While much scholarly debate occurs over the meaning of these words and over the "real" intention of those who wrote, adopted, and/or ratified them, for all practical purposes their meaning is found in the succession of judicial decisions based on these religion clauses. Our understanding, at least of the past, is aided by the clean "order" to be found in that succession of cases, following two paths, one having to do with the "establishment of religion," the other with its "free exercise" (Flowers, 1994). Before we take those paths, however, five background generalizations must be stated:

1. The first American citizens were religiously concerned, even though only a minority were formally church members.
2. They, and especially their political leaders, believed that the good society required morally upright citizens and that religion led to morality.
3. It was common in the colonies (and continued in some of the first thirteen states) to use tax money to support the teaching of religion and morality, generally by paying a clergyman of the most favored Protestant denomination in each town to be a teacher.
4. It makes sense to suppose, therefore, that the First Amendment prohibition on laws "respecting an establishment" meant not only that Congress could not set up a national church but also that it must leave alone whatever "establishments" of religion existed in the several states.
5. Though evidence exists that some religious persecution occurred in the colonies, by the time of the Constitution, most Americans were in favor of free exercise of religion, and even where religious prejudice was found, it took the form of denying rights (e.g., to hold office if Roman Catholic or atheist) rather than active punishment.

Over the next two hundred years, many of the conditions implied in these five generalizations have changed in the direction of greater separation between church and state (Handy, 1991). Two huge causal forces can be seen to have operated. One is the enormous waves of immigration that began in the nineteenth century and continue today, bringing infinitely greater religious pluralism and therefore pressures to redefine what can be "freely exercised." The second force is the enormous growth of the bureaucratic state, especially since World War II, which, by intruding more and more into once private matters, increasingly exposes unconstitutional "establishments" of religion. Each force generated a path of change in the interpretation of the two religion clauses. We begin first down the path of free exercise (Hammond, 1998).

The constitutional guarantee of free exercise of religion was never understood as a license to do anything in the name of one's faith. Of course, human sacrifice at an altar is illegal, but so is failure to pay taxes even if one believes that that is what God demands. In effect, while laws could not be enacted that targeted religion, laws that are religiously neutral were to be obeyed by everyone, including those whose religious practices were thereby inconvenienced or compromised.

In 1879 the U.S. Supreme Court ruled that the practice of polygamy was unconstitutional (Reynolds v. United States). Reynolds had claimed that his Mormon religion required him to have more than one wife, and the Court responded that while he was free to believe in polygamy, he was not free to behave in accord with his belief.

This belief-behavior distinction was the principle for deciding church-state cases for the next six decades. In 1940, however, a case came before the Supreme Court that altered the free-exercise path. It involved a Jehovah's Witness who was arrested for disturbing the peace when he played a phonograph recording castigating the Roman Catholic Church in a heavily Roman Catholic neighborhood. The Court overturned his conviction, and in so doing declared that persons who are religiously motivated in their behavior may have a right that other persons do not have (Cantwell v. Connecticut).

The Cantwell decision led inevitably to a recognition that some systematic method must be found for deciding between religious behaviors that had such protection and those that did not. The clearest expression of this method emerged in 1963 in Sherbert v. Verner. Mrs. Sherbert was a Seventh-Day Adventist whose employer wanted her to work a Saturday (her Sabbath) shift. When she refused she was fired and then applied for unemployment compensation, which was denied. Reading this case makes clear that the Supreme Court was addressing three questions that, together, came to be called the "Sherbert test." They are: (1) Does the regulation in question place a burden on the plaintiff, and if so, how heavy is it? (2) How important to the state is it to apply the regulation in every instance, and what would be the consequence of not doing so? (3) Are there alternative means the state might take to achieve the regulation's purpose without burdening the religious plaintiff?

Many cases of free exercise after Cantwell and before Sherbert had been decided, but with the Sherbert test, subsequent cases followed a routine procedure, the most important element of which is the requirement that the state demonstrate a "compelling interest" served in burdening someone's religion.

Just as Cantwell led to the need for something like a Sherbert test for deciding which religious behaviors are protected, so, at about the same time (1944), did United States v. Ballard force the Court to answer another question: What is religion? Guy Ballard and his family were arrested for mail fraud because they used the U.S. Post Office to announce their capacity to heal—for a fee—ailments that medical doctors had been unable to cure. In a lower court hearing the case, the judge instructed the jury to ignore the question of whether Ballard's beliefs were true but decide only whether Ballard sincerely believed them. The jury decided Ballard was sincere, and, on appeal, the U.S. Supreme Court heard the case and agreed. In effect the Court said the state has no business judging the theological merits of anyone's religion, no matter how bizarre. Religion now was to be defined not by its contents but by how conscientiously it is held.

The implications of this ruling became fully explicit in 1965 in United States v. Seeger, when the agnostic Seeger sued for conscientious objector status and won a unanimous decision. The Court declared that, though Seeger was not religious in the usual sense of that word, the state could ask if his beliefs occupied the same place in his life that orthodox beliefs occupy in the lives of "religious" people. The answer in his case, the Court said, was yes.

It is not a great stretch to see that the Supreme Court was concluding that even if Seeger did not articulate his conscience in religious language, he nonetheless had a conscience, and the conscience, the Court was seeing, is what the Constitution says may be freely exercised. But then came a bump in the free-exercise path.

In 1990 the Court heard a case in which two members of the Native American Church had been denied unemployment money because they lost their jobs for admitting their use of peyote in their church's ritual. The Court upheld that decision (Oregon Unemployment Division v. Smith). Remarkably, however, in his majority decision Justice Scalia declared that since the state had not classified peyote an illegal drug in order to target Native Americans, it therefore did not have to find a compelling reason for burdening these members of the Native American Church. In other words, the majority voided the Sherbert test and returned, in effect, to the pre-Cantwell, 1879 Reynolds standard.

The Smith decision upset many Americans, including a few justices on the Supreme Court. A movement in response to Smith led to Congress's passing the Religious Freedom Restoration Act (RFRA) in 1993, which, though worded slightly differently, said that the government must follow the rules of the Sherbert test if any religion is burdened. Many observers hoped the Supreme Court would find a church-state case in which it could undo its Smith decision, but instead, in the first opportunity it had (Boerne v. Flores, 1997), it reaffirmed the Smith reasoning and announced that RFRA was unconstitutional because Congress was usurping the authority of the judicial branch. Though the justices were unanimous in the second of these statements, several wanted to revisit the Smith case and/or reinstate the Sherbert test. At this time, the free-exercise situation is ambiguous in the extreme. We must await further decisions before knowing where the path will go.

So is the situation surrounding the establishment clause ambiguous, though for different reasons.

As noted earlier, several of the first thirteen states of the new union had established religions of a sort. These were seen as accommodations by the government to enable communities to educate children in an acceptable manner. In retrospect it can be shown that the government permitted all manner of accommodation, much of which was later found to be unconstitutional, or was voted out of existence, or simply ceased to exist. Such practices as opening government meetings with prayer, using only the Protestant version of the Bible in schools, prohibiting many activities on Sunday, and arrests for blasphemy are examples where the state was preferring one kind of religion over others, or preferring religion over irreligion. Little by little, these things—at one time unquestioned—were questioned, and the state found itself more and more separated from religion.

Many accommodations of religion still exist, and some Americans would restore practices that now are outlawed, such as allowing public schools to sponsor prayers. (Anyone in public school is free to pray now, subject only to restrictions of time, place, and manner. The political football called "prayer in the schools" is a deception; what its supporters really want is government endorsement of prayer, something the establishment clause seems clearly to prohibit.)

Since its founding, then, the country has shifted from more accommodation to less, and from less separation to more. As particular issues have arisen, the Supreme Court—much as it did with the Sherbert test of free-exercise issues—eventually developed a method for deciding establishment cases. It is called the "Lemon test," because it was formalized in the 1971 court case of Lemon v. Kurtzman. At issue was whether a government can pay some of the costs—for example, pay the salaries of teachers of secular subjects, or provide secular textbooks—of religiously operated schools. In deciding that governments may not provide such aid, the Court declared that a publicly funded program, to be constitutional, must meet three criteria: (1) Its purpose must be neither to advance nor to inhibit religion, (2) its primary effect must be neither to advance nor to inhibit religion, and (3) it must be free of "entangling alliances" between religion and government (e.g., it cannot require constant monitoring by the state to ensure that religion is being neither advanced nor inhibited).

Like the Sherbert test, the Lemon test is not automatically applicable. Justices do not always agree on what constitutes an "advance" or an "inhibition," or how much entanglement is too much. Justice O'Connor in several opinions has argued that the purpose and effect criteria should be changed to the question of whether the government's program appears to "endorse," by intention or effect, a religion.

The fact is that considerable disagreement exists both in the American public and in the courts regarding how much religion should exist in public places in a manner that connotes governmental approval of religion. To some, outlawing prayer by a local clergyman before a Friday night football game in a town where no known non-Protestants exist is simply idiotic. Such people are unable even to see the matter as an establishment issue because they see it as curtailing their free exercise. To others, a Roman Catholic hospital that receives government support should not be allowed to display images of the Virgin Mary in the hallways or on the grounds, for that puts the state in the position of fostering Catholicism.

The Lemon test thus is controversial, not—like the Sherbert test—over fundamental jurisprudential principles, but over the confusing, even contradictory, decisions the test has led to. Just as with free exercise, then, the establishment path's direction is hard to predict. In the long run, the order found along each path will be followed, but as long as controversy envelops the U.S. Supreme Court's various rulings in church-state cases, disorder may appear more the order of the day.

See alsoCivil Religion; Conscientious Objection; Freedom of Religion; Prayer in School; Religious Freedom Restoration Act; Religious Persecution.

Bibliography

Demerath, N. J., III. "Religious Capital and Capital Religions: Cross-Cultural and Non-Legal Factors in the Separation of Church and State." Daedalus 120 (1991): 21–40.

Flowers, Ronald B. That Godless Court. 1994.

Hammond, Phillip E. With Liberty for All. 1998.

Handy, Robert T. Undermined Establishment: ChurchState Relations in America, 1880 –1920. 1991.

Journal of Church and State Quarterly.

Miller, Robert T., and Ronald B. Flowers. TowardBenevolent Neutrality: Church, State, and the SupremeCourt.

Phillip E. Hammond