THE SEPARATION OF CHURCH AND STATE IS DEAD

Behind the religious takeover of the public square looms the demise of liberal values, democracy, and the rise of fascism.

Note to my readers: After a restful vacation in the wilds of Newfoundland, I plan to resume publishing my essays on a regular basis. I want to sincerely thank you for your continuing interest, and look forward to your comments. JC

It was not a surprise, but a cataclysmic decision nonetheless. For the first time in American history, with the overturning of Roe v. Wade, the Supreme Court has rescinded a fundamental right. In the domain of liberty, we are going backward.

I want to bring attention to another recent Supreme Court decision. A few days earlier, the Court issued a ruling that further empowered religion in the public square and expanded its turf. Since the state of Maine subsidizes private schools, it must now financially support religious private schools as well. According to an article in The New York Times, the schools that are about to receive such government support expect their teachers “to integrate biblical principles with their teaching in every subject,” and teachers and students “to spread the word of Christianity.” The schools in question can also bar students based on gender orientation and restrict the hiring of teachers to born-again Christians.

Compared to the rescission of Roe, preoccupation with the Court's rendering of a decision on religion may appear to be “fiddling while Rome burns.” But I think otherwise. Let's recall that the expansion of religion's turf, (and here I functionally mean evangelical Protestantism and Roman Catholicism) and the destruction of abortion rights are primarily fueled by politicized religious movements on the ground. The continuing encroachment of religion (of a very conservative kind) together with limiting the rights of women, as well as the criminal maneuvers revealed by the January 6th committee, are conjoined to reflect a very dark onslaught by reactionary forces, both judicial and popular. They are efforts by a right-wing judiciary in the name of “originalism,” together with reactionary movements, of which the Christian Right is a primary agent, to dismantle the mainstays of democracy vested in the federal government and return political power to the states.

I want to focus on the religion issue, because it is, again, reflective of wider trends that find their champions in the Republican Party.

The separation of church and state is one of America's truly great gifts to itself and the world, but it is almost gone. The consequences are clear: In our religiously diverse land taxpayers are coerced under penalty of law to pay for the promotion of religious beliefs they do not hold and violate their conscience. For years, this would have been seen as a direct assault on the Establishment Clause of the First Amendment. But no longer. For at least the past four decades the wall of separation between church and state is being dismantled brick by brick.

In a time when the entire edifice of American democracy is teetering on the precipice of destruction, raising concern on church-state matters may strike us almost beside the point, or an archaic issue no longer worthy of our attention. Perhaps raising it in our times feels like fighting a cause that is over and effectively lost. Decades ago, it was an issue that was front and center but now has moved to the periphery. Indeed, as noted, we have other battles to wage of monstrous proportions.

The line separating church from state is primarily determined by judicial decisions, yet it is no secret that the judiciary, though in principle guided by its own precedents and strictures, is attuned and responsive to political and popular trends. In this sense, the encroachment of religion on the public square, as noted, is in line with the conservative and reactionary movements on the ground that characterize this dangerous moment. While at first glance peripheral, the Court's recent decision is illustrative of the dark proto-fascist assaults on the liberal democratic culture that lies at the foundation of American freedom.

Historically, there have been numerous examples of the oppression wrought by the unholy marriage of religion with the state. The reality that religion holds the allegiance, often deep-seated, of masses of the population makes its political power all the more pervasive. One thinks of Franco's Spain, and Argentina during the “dirty war” of the 1970s, with fascist governments girded by the support of the Catholic Church and its ecclesiastical leadership. In the current moment, one need look no further than Putin's Russia, which receives the support of the Russian Orthodox Church. It augments Putin's assault on the liberalism identified with the West, oppresses gay rights, and its leader, Patriarch Kirill, has blessed the unspeakably cruel war waged against Ukraine.

Arguably the modern world was born out of the French Revolution, in support of equality and the “rights of man” in its unmaking of the unholy marriage of the aristocracy and the Church. Earlier, Thomas Hobbes, in his magisterial “The Leviathan,” was the first to create the forerunner of the democratic state, explicating that the power of the state does not come from God above but from the people below. His effort was to divorce the source of governmental authority from its theological grounding. Hobbes was a philosophical materialist who aptly named the final, lengthy chapter of his treatise “The Kingdom of Darkness.” That kingdom was the realm of religion. Fearing chaos on the ground more than government tyranny, Hobbes wanted religion to be placed under the authority of the sovereign.

Hobbes, and slightly later, his fellow Englishman, John Locke, forged the premises of the modern state out of the wars of religion that were drenching the soil of Europe with the blood of countless Protestants and Catholics.

It was Locke, unlike Hobbes, a devout Protestant, who nevertheless observed that when society wedded the power of the state with the absolute power and dictates of God, a wicked force was created that was so powerful that no earthly force could contain it. Locke's solution was ingenious. To undermine that destructive force, Locke called for the privatization of religion. In short, he wrote that a person's religious beliefs were exclusively a relationship between a citizen and his Creator. It was not the state's role to usurp or control an individual's religious beliefs. Locke safeguarded the integrity of religious conscience in proclaiming that the powers of church and state should remain separate.

The American experiment, in great measure, was born out of the realization of the destructive power of religion when conjoined with the power of the state. For this reason, the founders ensured that our government was to be a secular one. Though religious conservatives and fundamentalists glibly claim that our Constitution is a divine document, its authors made certain that reference to God is nowhere to be found in the text. Its alleged divine origin is wishful thinking, a product of extreme right-wing propaganda, both political and religious.

While the First Amendment protects freedom of religion, its Establishment Clause prohibits government support of religion. Maintaining the separation of the church from the state has been a major boon to religion, which has enabled religion to flourish in America as it does in no other Western society. It is therefore an irony that the conservative religious forces seek increased government support of religion (read their religion), which can only instill a public backlash against religion. This is indeed occurring as increased numbers of people are leaving the churches. But as history has shown, the merger of religion and the state augurs an environment of oppression, and the submerging of values that make for a tolerant, cosmopolitan, liberal, and humane society.

It was not always this way. The Supreme Court, for the most part, did not review church-state cases until the 1940s. When it did, it interpreted the Establishment Clause to prohibit any government support of religion, thus minimizing entanglement between the two. This separation ensured religious freedom while respecting the reality that America is a religiously pluralistic society that also includes non-believers.

The classic interpretation of separation can be found in the Everson v. Board of Education case of 1947, written by Justice Hugo Black, perhaps the greatest protector of separation – and therefore religious freedom – in the history of the Supreme Court. It is instructive to cite the most compelling paragraph from his decision:

“The establishment of religion clause of the First Amendment means at least this: Neither a 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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' [...] The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”

To be personal, it is this interpretation that I grew up on and was a mainstay of much of my activism in previous decades. But it is this doctrine that has been summarily destroyed and replaced by a competing doctrine referred to as “religious accommodationism.” Eschewing separation, and forswearing a national church for America, accommodationism invites government support of religion, including financial support. This judicial shift has been both responsive to the political fervor caused by the religious right and has given it judicial sanction. With it has come the increased encroachment of religion into the public square. Examples include the charitable choice initiative, the Hobby Lobby case, public money supporting religious schools, prayer in public places, and, yes, laws outlawing abortion – and much more. We should note that contrary to religious freedom, the smaller denominations will not be supported by the state, but the large, politically connected, and very conservative sects.

This move is a boon to religious power, conservative Catholics, fundamentalists and Christian dominionism, which seeks to make Christian doctrine the law of the land. We should not be naive. It is no accident that in the rescission of Roe v. Wade, six of the nine Supreme Court justices are Roman Catholics, most religiously very conservative.

While religion can mean many things, in American public and political life it has become identified with dark and illiberal forces that promote contempt for tolerance and diversity, that are explicitly homophobic and hostile to the full humanity of women.

Judicial decisions regarding the place of religion in relation to the state are much more than they appear. Behind them looms the demise of democracy and the rumblings of fascism.