The Pope, the Emperor,
and the First Amendment

Every year during the winter quarter my yearlong course in the history of Christianity reaches the eleventh-century Gregorian Reform and the Investiture Conflict.

Every year my students struggle to make sense of the positions of Emperor Henry IV and Pope Gregory VII. With great effort some of them recognize that, translated into contemporary terms, Henry’s position would imply state control of religion, at least in its externals and organization. A smaller number recognize that Gregory’s intent was to free ecclesiastical administration from royal control, and thus might be taken, again in contemporary terms, as a fight for the separation of church and state. Most students fall back on the easy, and satisfying, explanation that the conflict was merely a “power struggle” between aggressive autocrats, men who merely clothed their lust for power in religious language. For most of my unchurched Protestant students at the University of Oregon, Pope Gregory is the more offensive figure; they side with Henry. In short, the popular feeling is against freedom of religion, or at least of eleventh-century religion, from state control.

This outcome always gives me pause. I could chalk it up to Oregon’s old tradition of anti-Catholicism. This is, after all, the state where 1920s Klan-inspired laws originally directed against Catholic teaching sisters are still on the books and were recently used to fire a high school teacher who wore religious garb in class (she was a Sikh). But I suspect that the preponderance of students in colleges and universities elsewhere would also favor the emperor’s control of religion against its papally sponsored independence. Why? As I reflect on this, I am more and more convinced that students reject Gregory’s separation of church and state, certainly not because they believe in a state-run church, but because they no longer believe that there should or can be a “church” that could be freed from state control.

When the pope and emperor clashed back in 1075, both of them knew what a church was. It was a divinely ordained reality, composed of the body of Christians, with God-given authority to order the faith and practice of its members. The medieval question was simple: where does the emperor fit into the picture? Is he, as emperor, somehow the church’s director, the orderer of ecclesiastical administration? Or is he merely a Christian, subject to ecclesiastical, that is clerical, authority in matters of belief, practice, and church administration? One could resolve the problem by rejecting the very idea of legitimate secular authority altogether. Gregory VII, when justifying his policy to Bishop Hermann of Metz, came very close to denying all legitimacy to temporal government. But his later followers shied away from such a radical position. Even in the Middle Ages those who would abolish secular governments were very rare indeed. None of my students has ever questioned the legitimacy of civil government. Or, if some have, they have not done so in my presence.

Now religious government is a wholly different matter. For the vast majority, Christian or not, the individual is the highest religious authority. The individual alone has the right to determine his or her religious affiliation. This position is hardly surprising or shocking. Beyond this view, however, my students would probably deny that any member of their chosen denomination, or that denomination as a whole, had any right to determine belief or morals for its members. True, it is assumed that clergy or “theologians” have a kind of religious authority, but this is the same kind of authority that I have as a professor. I speak with authority because I happen to know more about the subject than the students do. At least in the case of those belonging to evangelical bodies, their ministers can give authoritative pronouncements on belief because they are assumed to have a better knowledge of the Bible.

Back in the 1140s the Canonist Gratian already understood there were two kinds of religious authority. One, based on knowledge, gave authority to explain what was already determined. The other, based on divinely appointed office, gave the right to determine new cases. The second is absolutely essential for the existence of a church as the medievals understood it. This is a very useful distinction, and an aside seems in order here to clarify what it means today.

When contemporary Catholic theologians, for example, want to claim for themselves a magisterium based on expertise along side of the magisterium of office granted to the pope and bishops, they are in today’s circumstances attempting a clever sleight of hand. Since, as I suggest, Americans generally reject the very idea of religious authority founded on office, these theologians are left as the sole actual authority in the American Catholic Church. The press, as the Charles Curran case has recently shown, willingly helps the theologians promote this project. Unfortunately for this new magisterium of expertise, Americans are also very, very skeptical of learning when it comes to religious matters. “Gimme that ol’ time religion, / It’s good enough for me . . . ”

So, although in practice my students’ local ministers often exercise enormous authority in defining dogma for their local congregations, this authority of expertise is based on the benefit of the doubt. The membership assumes that ministers “know” more than the average Christian, and so they have a right to exercise authority. This kind of authority can, in fact, make the minister more powerful than the pope—so long as he or she still has the benefit of the doubt. In short, religious authority can be claimed by anyone who has the interest, time, or ability to become an “expert,” or to cultivate the appearance thereof. This does not mean very much in practice. Even after much study, a given interpretation of the Bible, no matter how learned, or perhaps because it is learned, carries little weight for those who disagree with it.

Now the fact that no individual can possess genuine religious authority, that is, the power to determine norms of belief and practice for others, does not prevent a religious body as a whole from claiming such power. The autonomous Christian believers who make up the body could consent to the establishment of real norms and sanctions. But this is hardly a real possibility in contemporary society. Liberal Christian bodies are loath to impose any norms whatsoever on their members. Conservative bodies are usually so homogeneous in attitude that their norms or sanctions would act as a discipline only to those individuals who would not join such bodies anyway. When a body—for example, the Mormons (relatively frequently) or the American Catholic Church (rarely)—actually disciplines a member, it is held up to general ridicule and scorn. When, on rare occasions, a religious leader claims a God-given right to determine religious questions by virtue of office alone, we label him the leader of a cult. The old nativist canard revives: the pope is the leader of a cult.

What makes Gregory VII repellent to my students is his claim to possess the authority to define beliefs and norms and the power to discipline and punish delinquents. He violates their deeply held conviction that the individual is the only legitimate authority in religious matters. Henry is a hero, not because he claimed religious authority himself, but because he resisted another’s claim to it. For my students, there is one and only one “authority” above the individual: the state. It alone has the power to determine societal norms and to morally or physically coerce its citizens.

Since the state alone can establish norms, popular ethics follows its laws. When abortion was illegal, the majority felt it wrong; now that it is legal, the majority will feel it acceptable. Abortion rights activists intuitively know this, which explains the current hysterics over a possible reversal of Roe v. Wade. This reversal would almost certainly bring little real change in the accessibility of abortion since most people live in or near states where abortion on demand will remain legal. It would, however, send a message calling the existence of a “right to abortion” into question.

Yes, in America certainly, one has the right to object to the state’s actions. But the denial of supra-individual religious norms puts an odd spin on our political discourse. If an objection to state policy suggests even the remotest suspicion of inspiration by religious or moral “authority,” it is illegitimate. Note the rebuke hurled, with frequency, against the anti-abortion movement that its motivation is “religious.” Why should religious (as opposed to financial, sociological, psychological, scientific, or aesthetic) motivations render a political position illegitimate ipso facto? The reason is simple: since the individual is the only religious authority, he or she can only apply religious norms to one person, him or herself. Any suggestion that religious norms might apply to others is a tyranny, or worse, a psychological pathology. Thomas Hobbes was right; the state alone has power over individual lives, fortunes, and honor. There can be no “separation of church and state” because there is no church, only individuals. When speaking of religion, American society recognizes only the “separation of believer and state.”

Once this is recognized, the peculiar manner in which American society debates church-state issues becomes remarkably logical. The rhetoric of these debates recalls the church-state conflict of Gregory and Henry, but the similarity is deceptive. I would suggest that the contemporary rhetoric of “separation” really masks two other projects, neither of which involves a church at all. One forwards the abolition of supra-personal religious authority; it uses the language of privacy. The other enshrines the individual as the supreme arbiter in religion; it uses the language of freedom of expression. Both of these projects concern individual liberties, not the separation of church and state.

How does the current debate on church and state localize religious authority in the individual? The First Amendment, when it protects “the free exercise” of religion, does not function as a guarantee of liberty to a church or churches; rather it functions as a gloss on the guarantee of freedom of speech, or as we now suitably say, “expression.” (Mary Ann Glendon made a similar point in her recent article “Religion and the Court” in the March 1992 issue of First Things.) Students want to use a classroom for prayer, a group wants to put a nativity scene or menorah in a public park, somebody wants to distribute Bibles, or restore or abolish prayers in the schools. Not a single one of these involves any religious entity above the individual, even when they sometimes concern a collection of individuals. These cases are really about freedom of speech or expression. Take the group of students praying after school or during recess. Courts have generally permitted this. The logic is simple: people, it is generally agreed, have a right to express themselves however they wish, so long as it does not hurt others (like crying “fire” in a crowded theater) or cost other people money (like state funding of politically motivated art).

The nativity/menorah debate is not so simple. It hurts no one and (let us assume) it costs others nothing, since no tax money is used for it. One group of individuals is exercising freedom of expression, but another has the feeling that this expression has rendered a religious observance or symbol somehow normative for others because it appears on public property. The objectors are right: you see the religious object in the park whether you want to or not. That it is in a public park implies to the viewer that it is somehow normative for someone besides the individual who installed it. The current charade (pretend the display is not religious by including an image of Santa Claus) does not work. We all know who the Baby Jesus is. And I, for one, find the apparent public sponsorship of the consumerism implicit in Santa Claus more offensive than the display of religious symbols.

The nativity-scene debates naturally invoke the First Amendment guarantee that the state will make no establishment of religion. Taken literally, this clause outlaws the establishment of a “state-church” (be it Christian or otherwise), but in practice the issues debated have little or nothing to do with establishment and much to do with privacy.

Take the recent debates over whether practitioners of Amerindian religions can use an illegal drug, peyote, or whether certain immigrants from the Caribbean, the Rastafarians, can smoke marijuana. This seldom shapes up as a church-state issue. Rather the question is whether the state should enforce its laws against the use of certain drugs on those who want to use them in their personal lives, that is, in religious rituals. Like most other debates about the enforcement or non-enforcement of drug laws, the debates usually come back to whether private activities of individual citizens that harm no other citizens should be subject to public sanctions. In that sense, the debate starts to look much like one over privacy as well as freedom of expression.

Privacy, however, may serve as a code word for delegitimizing any proposal founded on religious “authority.” A good example was the 1965 Supreme Court decision in Griswold v. Connecticut, where the court threw out that state’s law against contraceptives. This law looked suspiciously like an imposition of “religious” norms, thus it was illegitimate. Religious norms can only be imposed by an individual on him or herself, otherwise the “privacy” of others is violated. The same logic holds in much of the popular argumentation for Griswold’s offspring, Roe v. Wade. We should remember that the word “privacy” does not appear in the First Amendment provision prohibiting “establishment of religion,” nor anywhere else in the Constitution, for that matter. But the court got the common perception of what “religious freedom” means just about right.

The interconnectedness between privacy and the right of expression comes out beautifully in the often-proposed compromise on school prayer to which I alluded earlier, “the moment of silence.” The “moment of silence” allows the religiously inclined to express themselves; the “moment of silence” protects the privacy (that is, the religious self-determination) of those who are not so inclined. The individualistic right to impose religious norms on oneself and the prohibition of even implying that these hold for others are in precarious balance here. But notice: church-state relations have nothing to do with any of this.

It is no wonder that my students have trouble understanding the Investiture Conflict. Henry was dead set against that separation of church and state that we all purport to defend. But Gregory was obviously opposed to the rights of freedom of expression and privacy that for Americans trump every other norm. Understood in those terms, my students’ choice is the only one possible. In our world there is no supra-personal church authority to be subordinated to the state anyway. Thus, we can safely side with Henry. Pope Gregory’s alternative is too dangerous, as it might imply the existence of a church separate from the state. And such a free and separate church might actually be able to tell me how to think and act.

Augustine Thompson, O.P., is Assistant Professor of Religious Studies at the University of Oregon and author of Revival Preachers and Politics in Thirteenth-Century Italy, to be published by Oxford University Press in November.