When Church-State Conflicts Aren't

Here is a review in a national publication of a book about religion in American public life. The title of the review is “Church-State Conflict Revived.” But that is not what the book is about, as the review itself makes quite clear. The book is about, inter alia, the perduring force of religion in American life, and how the great majority of Americans draw their values from religious sources. So where did the editors get the idea that the book is about church-state conflict? The answer is that the editors are suffering from a category mistake that is amazingly widespread in the way Americans think about religion and public life.

Jefferson's phrase about the wall of separation between church and state is indelibly imprinted on the American consciousness. Almost as indelibly imprinted is the category mistake that construes the separation of church and state to mean the separation of religion from public life. There are actually several mistakes involved here. The first is to assume that “state” means “public life,” resulting in an equation between government and society. This thoughtless assumption, pressed far enough, is of course the precise formula for totalitarianism, first advanced by Mussolini: “Nothing against the state, nothing outside the state, all within the state.”

A second mistake is to equate “church” and “religion.” To be sure, serious religion typically assumes communal and institutional forms—in, for example, church, synagogue, or mosque. But religion (from religare) refers to binding or compelling beliefs. It refers to the “meaning systems” by which people try to make sense of the world and their place in it. In this respect it is true to say that everybody, or at least everybody who tries to understand reality in a coherent fashion, has “got religion.” The First Amendment protection of “the free exercise of religion” is not reducible to, but certainly includes, what we ordinarily call freedom of conscience.

Jefferson, Madison, and the other founders were adamant that the government had no business messing around with people's beliefs, and most especially with their sense of obligation to the Ultimate, however conceived. The government's business is to protect, not prohibit, the free exercise of such beliefs. To be sure, no rights are absolute. The person who sincerely believes that he is morally obligated to steal his neighbor's wallet and give the money to the poor will be prohibited. There is a “compelling state interest” in preventing theft. In this case we have what might be called a belief-state conflict, not a church-state conflict. If that person banded together with others of like mind and organized, say, the Church of Robin Hood, the free exercise of their shared belief might be termed a church-state conflict. But such an instance is fanciful, and far removed from what are mistakenly called church-state conflicts today.

It might be useful to make a distinction between state-church conflicts and church-state conflicts. That is to say, there are instances in which the state does violate the separation of church and state. This happens when the several branches of government, whether through regulation or legislation, interfere with the free exercise of religion, individually and corporately. For instance, there is an ongoing battle over efforts by state governments, under pressure from the public school establishment, to impose onerous regulations on church-sponsored schools. Similarly, the federal government uses the leverage of grant programs to force quota systems and other schemes on church employers. These might be called state-church conflicts, since the conflict is initiated by the state. Our concern here, however, is with real or alleged church-state conflicts.

The church—and here we include all religious organizations under “church”—transmits and inculcates certain teachings about right and wrong. That is not necessarily the most important thing the church does, but it is not unimportant. The overwhelming majority of Americans (i.e., well above 80 percent) say that their moral beliefs are derived from religious sources. To the extent that they have integrated those beliefs into their lives, they act upon them in both their private and public behavior.

As fully enfranchised citizens within a democratic polity, they advocate or oppose specific policies on the basis of what they believe to be right or wrong (meaning fair or unfair, just or unjust, etc.). That the sources of their beliefs are called “religious” is neither here nor there. The state has no business inquiring, indeed is prohibited from inquiring, into the sources of the beliefs on which citizens act in the public arena. If a person's beliefs are “religious” in nature, and if those beliefs lead him or her to oppose an existing public policy, this is in no way an instance of church-state conflict.

It is, rather, an instance of a citizen recommending to his fellow citizens that a policy is bad and should be changed. Such a citizen has the task of democratically persuading other citizens that he is right. With those who share his belief system, he might use arguments such as “The Bible says so” or “It is the will of God.” He quickly discovers, however, that on most (almost all) policy specifics even believers are not agreed about what the Bible says or what is the will of God. He will therefore, if he is to be effective, use more “public” arguments. In a democratic polity and a pluralistic society, successful arguments are arguments that appeal to a variety of reasons for doing the thing desired. Practical coalitions are almost always premised upon not inquiring too closely into the sundry sources of belief that bring the members of the coalition together.

Politics, as Aristotle reminds us, is a species of ethics. Every political decision of consequence reflects a moral judgment. In response to the oft-heard claim that “You can't legislate morality,” it needs repeatedly to be said that, in fact, you can't legislate anything except morality. Legislation is always based on somebody's morality. That is to say, it is based on somebody's notion of what is right or wrong, just or unjust, fair or unfair—all of which are moral categories. The claim that we cannot legislate morality is verbal sleight of hand designed to exclude from the democratic process those citizens who frankly acknowledge that their motivation is moral in nature. If, in addition, they acknowledge that their moral judgment is religiously grounded, another exclusionary trick is in store. They are then told that their advocacy “violates the separation of church and state.”

Article VI of the Constitution stipulates that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Ever. Much of the careless talk about church-state conflicts is, in fact, an effort to impose a religious test upon the citizen-magistrates of this republic. In this view, any motivation or reason can be advanced in the public square except a religious motivation or reason. Turning the First Amendment on its head, it is proposed that any belief can be freely exercised except religious belief. Of course the Constitution does not forbid individual citizens to impose any test they wish with respect to their own behavior in elections or legislation.

No doubt some citizens refuse to vote for a candidate who is too overtly religious. Others, however inadvisedly, might vote only for Baptist candidates who affirm the infallibility of the Scriptures. In neither case is their reason for voting as they do any business of the government. No instances come to mind of the second group of citizens challenging the first group's right to vote as they do. There are far too many instances of the first group claiming that the second group is violating the separation of church and state.

Citizen is a value-neutral term, but citizens are not value-neutral. The Christian-as-citizen or the Jew-as-citizen has presumably been influenced in some significant way by Christianity or Judaism. Similarly, the Marxist-as-citizen, the Nihilist-as-citizen, the Kantian-as-citizen and the Libertarian-as-citizen have all drawn their beliefs from somewhere. Other citizens may have very definite views about those sources of belief, but to the government, meaning this constitutional order, those sources of belief are a matter of studied indifference.

Individual citizens, and citizens acting in concert, must make their arguments as best they can. Those who limit their appeal to others who draw on the same sources will have to calculate the political costs of doing so. But nobody challenges their right to make their appeal as they see fit—except when the sources involved are identified as religious. Then, as sure as night follows day, Jefferson's separationist maxim will be trotted out in order to impose an exclusionary religious test for participation in the public arena. People may publicly advocate on the basis of moral judgments that they have taken off Marx, Freud, or a current television series, but the ACLU forbid that they advocate on the basis of religious teaching. They are then said to be guilty of creating an unconstitutional church-state conflict. (Eastern, Native American, and other fashionably exotic and relatively uninfluential religions are exempted.)

The argument might be made that the situation is different when believers act corporately. When a specific church, for example, advocates or opposes policy X, it is said that we are faced with an instance of church-state conflict. There are all kinds of good reasons why churches, as churches, should not get involved in public policy specifics. Most of the good reasons have to do with the integrity of the church as a community that should transcend the inevitably divisive disagreements about specific policies. But even when a church, however imprudently, takes a position on policy X or Y, that does not constitute a church-state conflict.

If a church opposes a specific public policy, the conflict is with that policy, not with the state. Within this constitutional order, a church—like a labor union, professional guild, business association, and myriad other organized groups—is entirely free to contend for what it thinks is right. (IRS regulations related to tax exemption are another subject, and one not limited to churches.) Such contention is within the constitutional order, not outside it or against it. The alert reader may be thinking that, with the last sentence, we have slipped inadvertently into Mussolini's aforementioned formulation. Not so.

The crucial difference is that in our situation the state is not a particular leader, government, or administration. The state is the constitutional order. According to that order, the making of laws is accountable to “we the people,” and we the people may press our views in whatever non-coercive manner we choose. People may choose to enlist their churches in partisan and divisive conflicts over public policy. To do so is, in our judgment, almost always a big mistake. But a free society guarantees, among other things, the right to make mistakes, both personally and corporately.

The conclusion would seem to be inescapable. The democratic process assumes that citizens will have many reasons, including religious reasons, to be in conflict with specific policies. We have an authentic church-state conflict, however, only when a church or churches challenge or seek to replace the constitutional order itself. Perhaps there is a case of some church, somewhere on the fringes of American life, doing that. We are not aware of it. Which is to say, we are not aware of any church-state conflicts (as distinct from state-church conflicts) in American life today

The editors who titled the review “Church-State Conflict Revived” probably had something like this in mind: Religiously Motivated Citizens Oppose Public Policy That We Favor. (This is far from speculative, since the review dealt with opposition to abortion and the publication in question is emphatically in favor of current abortion policy.) In this instance and all too many others, talk about church-state conflict is a rhetorical device aimed at imposing a religious test upon the democratic process. It is aimed at intimidating, or even excluding from that process, citizens whose moral judgments are shaped by religious teaching. Such aims are in conflict with the state—the state being understood as the constitutional order of these United States.

Public office holders are required to take the oath, “I do solemnly swear that I will support and defend the Constitution of the United States.” While most citizens do not formally take the oath, they do so in spirit. We might well be astonished to hear it claimed that those who do so with a moral seriousness that is informed by religious training are somehow in conflict with the constitutional order that they intend to support and defend. And yet, if we examine it carefully, that is the claim implicitly advanced by those who use the rhetoric of church-state conflict in order to separate religion and public life.