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.
==========================================================================
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.