The American Tradition in Church and State

by James E. Wood, Jr.

The American tradition of a free society in church and state, the non-establishment of religion and the free exercise of religion, represented on behalf of the founding fathers a bold experiment unparalleled in human history. The fact is that not until the twentieth century were the principles constitutionally and unequivocally enunciated anywhere else in the world. The uniqueness of America as a free society in church and state is of profound importance in understanding both its political and religious history.

Religious liberty, which significantly is the concern of the First Amendment in America’s Bill of Rights, was fundamental in the development of American civilization. And for Americans the principle of complete religious liberty, to quote from a famous case before the New York Supreme Court, “has always been regarded by the American people as the very heart of its national life.”[1] More than three-quarters of a century ago, David Dudley Field, one of America’s greatest jurists of the nineteenth century, declared that the separation of church and state in America was the “greatest achievement ever made in the cause of human progress.” “If we had nothing else to boast of,” Field wrote, “we could lay claim with justice that first among the nations we of this country made it an article of organic law that the relations between man and his Maker were a private concern, into which other men have no right to intrude.”[2] Indeed, the American tradition of the free society in church and state is, as Leo Pfeffer has expressed it, “America’s contribution to civilization.”[3] Peter Drucker has written that “the relationship between religion, the state, and society, is perhaps the most fundamental—certainly it is the most distinctive—feature of American political as well as American religious life.”[4]

I

The First Amendment to the Constitution of the United States, “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof,” is historically rooted in a distinct doctrine of the church and a particular view of the state. It is derived from: (1) the concept of the free or secular state in which the church, independent of the state and political control, is thus to be dependent upon God for its authority and the accomplishment of its mission; and (2) the principle of voluntarism in religion, which affirms that the church must depend upon the voluntary responses of men. In judicial language, as reiterated in recent years by the U.S. Supreme Court, the First Amendment means the separation of church and state, namely that the state may not use religious means for the accomplishment of secular ends and that the church may not use secular means for the accomplishment of religious ends.

The theological basis of the First Amendment rests upon the sovereignty of God, man in the image of God, and the human problem of sin. The concept of a free church and a free society, even today actualized in only a limited number of nation states, is clearly one of the major achievements of the modern world and a distinct contribution of the United States. Not until the inauguration of the “livelie experiment” of Rhode Island was religious liberty through church-state separation actually realized. Both the sovereignty of God and the sinful nature of man precluded the realization, as well as even the notion, of a Christian state and a state church. It was Roger Williams who found the basis for the secular state, as well as the free church, within the context of his theological thought. The state can never assume the role of God who alone is Lord of conscience. Therefore, Williams wrote, “No civil state or country can be truly called Christian.”[5]

More than a century later, Isaac Backus, a leading clergyman in the whole movement for separation of church and state in the United States, maintained that to be Christian all direct connections between church and state must be broken. Backus wrote, “God has appointed two different kinds of government in the world which are different in their nature and ought never to be confounded together; one of which is called civil, the other ecclesiastical government.”[6] For a commonwealth to be truly Christian, it must restrict its authority and rule to the secular, i.e. to the world and temporal affairs. “Now who can hear Christ declare that his kingdom is NOT OF THIS WORLD, and yet believe that this blending of the church and state together can be pleasing to him?”[7] Religious matters are to be separated from the jurisdiction of the state not because they are beneath the interests of the state, but, quite to the contrary, because they are too high and holy and thus are beyond the competence of the state. For “the free exercise of private judgment,” Backus wrote, “and the unalienable rights of conscience are of too high a rank and dignity to be submitted to the decrees of council, or the imperfect laws of fallible legislators.”[8]

“No-establishment of religion” means a secular state, a limited state in which the people have excluded the authority and jurisdiction of the state from religious affairs. The First Amendment provides a clear example of this: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” The disability here is explicitly on the state, not on religion. The totalitarian state, which is an unlimited state, grants a qualified freedom of religion, but specifically restricts the activities and programs of the church and its clergy. The secular state does not restrict religion per se, but, on the contrary, excludes the state’s jurisdiction from religious affairs. The disability is on the state, not on religion.

The no-establishment of religion requires that the church be the church and the state be the state, even though admittedly their functions may frequently and inevitably overlap. As Anson Phelps Stokes expressed it, “It means that churches are equal in the sight of the State, and that no church has the advantages or the disadvantages of establishment.”[9] The secular state, as expressed in the free society, is neither Christian, nor Buddhist, nor religious, nor irreligious. To express it another way, the secular state seeks neither to promote nor to interfere with religion. Philip Schaff, America’s most distinguished church historian of the nineteenth century, expressed it pointedly when he wrote that the American Constitution “is neither hostile nor friendly to any religion; it is simply silent on the subject, as lying beyond the jurisdiction of the general government.”[10]

Unfortunately, there are those who have misrepresented the secular state as one whose ultimate commitment is to secularism. Consequently, many churchmen have come to regard the secular state as inimical to religion and as the source of irreverence, immorality, and intemperance. Meanwhile, the secularist also has misrepresented the secular state, as one scholar has observed, by converting “the secular from the neutral into the de facto opponent of religion… He has converted the secular into secularism.”[11]

Distinction must always be made between “secularization” (i.e. the secular) and “secularism.” The former has to do with freedom from church or ecclesiastical control, while the latter is a philosophy that excludes all forms of religious faith and worship. Secularism is practical atheism in that God and religion are ignored, and it provides nowhere for God to be God of men’s lives. Thus while defending the secular character of America’s public schools, the American Council on Education has rightly declared, “We reject secularism as a philosophy of life and we cannot agree that it has ever been accepted as such by the American people.”[12] While no doubt descriptive of the life style of many Americans, secularism is not a philosophy which, in principle, at least, is accepted as normative by the American people as a whole. As a matter of fact, the state committed to secularism is incompatible with the free society and certainty cannot be equated with the secular state. For example, the Communist state is avowedly committed to secularism, and hostility to religion is officially promulgated. Far from being uncommitted as the secular state, the Communist state is committed to secularism, and therefore is not a free society. Secularism has always been a rival to the historic forms of religious faith. What free men, free Americans, must perceive is that the concept of the secular state is not born out of hostility to religion, for hostility to religion is completely irreconcilable with the very nature of the secular state. Franklin H. Littell was quite right when he perceptively wrote in his Protestant interpretation of religion in American history: “The whole image of early America as a ‘Christian nation’ (i.e. Protestant controlled) is a lie which must be struck down…,”[13] Clearly from a constitutional point of view, America is a secular state, a free society, in which neither religion nor irreligion enjoys any official status.

The truth is that the secular state is one which the church should strongly welcome. As Gayraud S. Wilmore has so incisively written, the church “has nowhere to stand except with the secular. It refuses to make an idol of religion. It makes common cause with the authentically secular without being permanently wedded to it. It believes in the secular not only as an instrument of divine providence and judgment but also as a partner with the church in the work of reconciliation.”[14] Those who are wary of the concept of the secular state, as the condition of the no-establishment clause of the First Amendment, would do well to note that political absolutism and state deification have all too often accompanied the notion of the Christian state. Certainly history warns that the concept of the Christian state is as hazardous for true religion as for civil liberty. As the free church is incontrovertibly in conflict with the totalitarian church, so the free society is inevitably incompatible with the totalitarian state.

II

The First Amendment rests upon not only the notion and historical reality of a secular state but also a pluralistic society in which there is “the free exercise of religion.” As the separation of church and state is to be regarded as the guarantee of religious liberty, so the secular state is the legal basis of the pluralistic society. The issue of religious liberty, which inevitably involves liberty of conscience and thereby all civil liberties, is crucial to the understanding and maintenance of American democracy as a free society. Indeed the correlative of religious liberty is nothing less than the right of dissent, for as Charles Evans Hughes stated it, “When we lose the right to be different, we lose the right to be free.”[15] A pluralistic society is one in which minority rights are constitutionally guaranteed, and the free exercise of religion—freedom of religion and freedom from religion—is assured. While the theological basis of the secular state is the sovereignity of God, the theological basis of the pluralistic society is the sacredness of persons. Indeed, the conception of man as a child of God is the basis of democracy. As Thomas Jefferson expressed it, “All men are endowed by their Creator with certain unalienable rights.”

One of the widespread myths that has evolved in the development of democracy in the modern world is the belief that the essence of democracy is simply majority or party rule, rather than the free and open society which prizes the sanctity and worth of individuals. To the emerging nations of Africa and Asia, as well as nations of the West, evidence is mounting that democracy is identified with a classless society which in turn is maintained by a sovereignty of the people or masses. Dissenters and minority groups thereby experience disfranchisement and discrimination even in nations which proudly call themselves “democracies.” In actuality the term “democracy” has even been used in some instances to sanctify the disfranchisement of various minority groups.

For centuries the cruelest acts committed against man were done primarily in the name of religion. Slavery, persecutions, and holy wars were carried on under the banner of religion. Man has ever sought divine sanction for his behavior even when it meant to make holy that which was clearly unholy. Perhaps it is hardly less ironic today that the tendency of modern man is to justify his vilest and most inhuman acts in the name of democracy!

Furthermore, liberty for oneself is not easily extended to include liberty for others. History is replete with examples of men who have advocated liberty, but actually were opposed to according liberty to those with differing views. John Locke, for example, spoke eloquently of the right of individuals to life, liberty, the pursuit of happiness, and property, but denied full toleration to atheists or Roman Catholics in England. Liberty has often been advocated by groups for themselves, while denying liberty to others. The early Puritans of Massachusetts desired freedom for themselves, and Puritan leaders expressly condemned democracy, which Governor John Winthrop called “the meanest and worst of all forms of government.”[16]

Religious liberty as a universal principle has been most eloquently defended by religious minorities, and most vigorously assailed by religious majorities. The alleged “rights of majorities” easily become the basis of trampling upon the rights of minorities! This viewpoint was tersely expressed several years ago by a reviewer in summing up his judgment of a book on religion in the public schools. “This readable, scholarly study,” he wrote, “provides ample evidence that we all believe in separation of church and state—for the other fellow’s church!” Religious liberty, like civil or political liberty, is easily and fervently claimed for one’s own association or group, but is often not readily granted to others.

The real enemy to the pluralistic society in the modern world is the totalitarian state, in which the free exercise of religion, the basis of all civil liberties, is inevitably seriously abridged. That is to say, the crucial issue between the free society and the totalitarian state is always the question of civil liberties.

Prior to 1914, totalitarianism was primarily represented in the monarchial forms of government in Europe, e.g., the Kaisers of Germany and the Czars of Russia. From the time of the French Revolution, however, the sovereignty of the monarch was gradually replaced by a sovereignty of the people which subsequently, Emil Brunner observes, “conquered the Western world.”[17] State totalitarianism of the past was primarily state versus state, whereas modern state totalitarianism is directed primarily against the individual—i.e. the free exercise of his civil liberties. A new state absolutism has emerged: the totalitarian state built not upon the sovereignty of a monarch, but a sovereignty of the people; i.e., not monarchial rule, but majority or party rule.

Herein is justifiable cause for concern, even with the growth of democracy as a concept of government in the modern world.

For democracy itself, if understood to mean merely the rule or sovereignty of the people, is no guarantee against state absolutism or the totalitarian state. It must be recognized that totalitarianism, including totalitarian democracy, is the absolutizing of the political power wielded by the state. Totalitarianism is actualized, as Brunner says in Christianity and Civilization, thus: “If everyone is a functionary of the state, and if nobody can make his living independently of the state machinery, if there are not other than state schools, if the press, the cinema, the radio, are state controlled, free society is lost, opposition and public expression of independent opinion become impossible. Every deviation from the programme of the state becomes rebellion and sabotage.”[18]

To be sure, democracy is essentially self-government; nonetheless this does not preclude “the tyranny of the majority,” of which John Stuart Mill warned. The dictatorship of the majority may be no less totalitarian than the dictatorship of a party or a personality cult. In the free society, state absolutism is controlled by guarantees of civil liberties, which are, in effect, limitations on government and political authority. As propounded by John Locke in England and Jean Jacques Rousseau in France, civil liberties are the natural rights of mankind and thus are too sacred for a government to transgress upon or to disregard. Thomas Jefferson expressed the view that men are endowed with “inherent, inalienable and unchanging rights.” In the unlimited or totalitarian state there are no natural or inalienable rights of the individual. In our own cultural heritage, American civil rights guarantee freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the right “for a redress of grievances.” There is today, and justifiably so, special concern for “equal justice under the law”—the extension of these rights to prohibit discrimination in all matters pertaining to public institutions, public housing, the political right of franchise, and economic and employment practices.

As has been often noted, civil liberties in the United States are both substantive, as in the case of freedom of the press, and procedural as in the assurance of “a redress of grievances.” It is significant that each of the state constitutions has from the outset sought to affirm guarantees of civil liberties. The first ten amendments to the United States Constitution represent the American Bill of Rights. Following the Civil War, the Thirteenth (1865) and the Fourteenth (1868) Amendments, both guarantees of civil rights, were ratified. While the first ten amendments limited the power of the federal government, the

Fourteenth Amendment restricted any state from the abridgment of civil liberties. The Fourteenth Amendment reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Thus the Fourteenth Amendment, building upon the civil liberties of the first ten amendments, guarantees “equal protection of the laws” for all people and prohibits the circumvention of these liberties by the states.

Civil liberties have no real meaning apart from individual and minority rights, which can be guaranteed only in the free society. The totalitarian state allows and demands consent only, while the free society guarantees and requires the right of dissent as well as the voluntary consent of the governed. In this regard, it is necessary to realize that minority rights are necessary not only to sustain the principle of freedom, but also to maintain a democratic form of government. Without guaranteed civil liberties there could be actually no democratic rule, even of the majority. At the same time the freedom of the majority must never be allowed to destroy the freedom of the minority, without whom a society cannot remain free. “The worth of a State” wrote John Stuart Mill, “… is the worth of the individuals composing it … a State which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes—will find that with small men no great things can really be accomplished.”[19]

As recognized by the courts, both state and federal, constitutional limitations exist for the protection of minorities not majorities, who are generally regarded as able to protect themselves. Even democracy needs to be limited and this limitation of the sovereignty of the people is primarily maintained through the courts. Former Justice Felix Frankfurter expressed it this way: “Judicial review is a deliberate check upon democracy through an organ of government not subject to popular control.”[20] Liberty, whether civil or religious, is freedom from the tyranny or the control of the state, the guaranteed right of dissent, and the freedom to obey one’s own conscience in so far as it does not infringe upon the rights of others or threaten the stability of the social order. In religious matters, freedom of religious belief is absolute, although religious practice is subject to the basic laws of the state.

The foregoing discussion of the free exercise of religion is particularly germane to the problem of church and state today.

Certainly the totalitarian state is always a serious threat to the church and the cause of religion. However, an altogether new phenomenon has emerged in the modern totalitarian states which have sworn hostility toward all religion. As indicated earlier, this situation is further compounded by a state absolutism which denies the right of dissent and at the same time demands supreme allegiance in all areas of life.

In addition, religious liberty historically has been integrally related to majority and minority group relations. Toleration in religion has never come easy among the major faiths of mankind. Religious majorities find it most difficult to grant full freedom to religious dissenters or minorities. Pluralism, although descriptive constitutionally and sociologically of American culture, is not by any means an accepted fact among all religious groups in the United States. Inherent in the present tensions between church and state in the United States today is the avowed purpose and felt-need of many to commit this nation to the faith of the “majority” and the “founding fathers.” Actually, there is no religious majority in this country, and no reasonably uniform religious faith of the founding fathers is discernable from history. Certainly many of the founding fathers’ religious beliefs would not meet the theological requirements of Christianity. Meanwhile, there are those who continue to maintain, as in the present controversy surrounding religion in the public schools, that the constitutional guarantees of religious freedom really apply only to Christianity, and that disestablishment in the United States means only non-preferential treatment of the various Christian denominations and sects. This is to misunderstand the nature of the free society, which requires a state to be uncommitted in matters of faith and religion, and at the same time is, in effect, a denial of the principle of religious liberty. Non-preferential treatment of religion can never be equated with the principle of religious liberty. Generally behind such thinking is the presupposition that majority might should prevail over minority right—that a tyranny of the majority is historically and constitutionally justified. To suggest, for example, that in the question of religion in the public schools, as in all other church-state matters, religious exercises should be permitted because we are predominantly a religious people is to ignore both the nature of our free society as a secular state and the rights of minorities who do not share my commitment to the Judeo-Christian faith. In recent years voices have been heard expressing the danger of the “tyranny of the minority” and the extreme danger of individual rights being carried too far. To be sure, there is such a danger in the free society, but the point is that a tyranny of the majority is no less in conflict with the free society than a tyranny of the minority. What is more, the former nearly always tends to be the greater danger in a democratic state. Tyranny is tyranny, whether of the majority or the minority, and tyranny is the grave of freedom.

III

Happily, there has been increasingly, though erratic, recognition accorded the principle of religious liberty in the modern world, which has accompanied the growth of the free church and the free society. While there is overwhelming evidence to indicate that religious liberty is far from being a reality in much of today’s world, and perhaps nowhere fully realized, yet the principle of religious liberty has increasingly become one of those axiomatic commitments that is almost universally recognized. Article 18 of the Universal Declaration of Human Rights of the United Nations has given expression to the wide acceptance of the principle of religious liberty. It reads: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others, and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”[21]

The goal of the First Amendment is a free church and a free society. It is not an end in itself, but rather represents a constitutional means of assuring both the freedom of the church and the freedom of the state, and the independence of both. To many, the separation principle embodied in the First Amendment remains a negative and sterile concept, to be likened more to the image of a Berlin Wall than to the democratic society, which, it is said, must recognize the rights of religious majorities and the honored national traditions rooted in religious symbolism. But to understand the American tradition of church and state in historical perspective is to discern the concern for religious liberty through the free church and the free society. Writing more than a century ago, Alexis de Tocqueville observed the unity of the free church, the free society, and the separation of church and state.

On my arrival in the United States the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more I perceived the great political consequences resulting from this new state of things. In France I had almost always seen the spirit of religion and the spirit of freedom marching in opposite directions. But in America I found they were intimately united and that they reigned in common over the same country. My desire to discover the causes of this phenomenon increased from day to day. In order to satisfy it I questioned the members of all the different sects; I sought especially the society of the clergy, who are the depositories of the different creeds and are especially interested in their duration. As a member of the Roman Catholic Church, I was more particularly brought into contact with several of its priests, with whom I became intimately acquainted. To each of these men I expressed my astonishment and explained my doubts. I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state.[22]

Like all phrases applied to dynamic principles in history, the phrase “separation of church and state” is not entirely satisfying. The phrase has meant, and does mean, far more than the sum total of its parts. While, to be sure, religious liberty is not something which the state can confer upon the church, but which ultimately can only be exercised by the church, the goal of the separation principle, as enunciated in the First Amendment, must be nothing less than the constitutional guarantee of full religious liberty, both freedom of religion and freedom from religion. Church-state separation provides for the mutual independence of both the church and the state, in which the state is free of control by the church and the church is free of control by the state. Church-state separation has not meant, at least historically, the separation of religion and politics nor the separation of the church and politics. It does not mean the separation of religion and the state. It does mean the separation of the direct and official function of the church from the direct and official function of state. There can be little question, from an historical point of view, but that religious liberty finds its truest expression where the state is not legally dependent upon the church in the exercise of its authority, and the church is not dependent upon the state for its sanction and support.

To suggest that the goal of church-state separation may be achieved simply so long as no one church enjoys special privileges and all denominations are treated impartially, is to fail to understand both the meaning and the significance of the secular state and the pluralistic society, and perhaps more importantly, the dependence of the church for its membership and support on a purely voluntary basis. Mere equality among the various religious communities in a given state is best described as Jurisdictionalism, and should not be referred to as church-state separation.

The principle of the separation of church and state, to the degree it serves as a guarantee for religious liberty, involves the following basic freedoms:

1. Freedom of conscience in matters of belief and worship.
2. Freedom of the church, and its institutions, from state control and/or support.
3. Freedom from privilege or discrimination among the different churches, or different religious communities.
4. Freedom from civil disability for reasons of religion or irreligion.
5. Freedom from involuntary support of religion—either by an act of worship or monetary contribution.
6. Freedom of association in which all religious organizations are recognized as private and voluntary associations.
7. Freedom of propagation of religion so long as it does not contravene the just civil laws of the state or threaten public health and order.

The real basis of the free church idea is that which asks only for the right to be free in order to be the church. Separation of the church from the state is necessary not only that the church be free, but that more important, it may be pure! Just as the goal of the separation of church and state is a free church, so the goal of the separation principle is a free society. The rationale of church-state separation has been, and remains, to help assure both the free church and the free society. It is toward this free society in church and state that the First Amendment needs to be applied, and it is in this context it needs to be understood.

Notes

1. Miami Military Institute v. Leff, 129 Misc. 481, 220 N.Y.S. 799, 810.
2. David Dudley Field, “American Progress,” Jurisprudence (New York: Martin B. Brown, 1893), p. 6.
3. Cf. Leo Pfeffer, “Freedom and Separation: America’s Contribution to Civilization,” Journal of Church and State 2 (November 1960): 100–111.
4. Quoted in William Lee Miller, “Religion and the American Way of Life,” Religion and the Free Society (New York: The Fund for the Republic, 1958) p. 18.
5. Roger Williams, The Bloody Tenent, of Persecution for cause of Conscience, discussed, in A Conference between Truth and Peace (1644).
6. Isaac Backus, A History of New England with Particular Reference to the Denomination of Christians Called Baptists (Newton, Mass.: Backus Historical Society, 1871), II, 2–3.
7. Cf. William G. McLoughlin, ed., Isaac Backus on Church, State, and Calvinism: Pamphlets, 1754.-1789 (Cambridge, Mass.: Harvard University Press, 1968), p. 318.
8. Alvah Hovey, A Memoir of the Life and Times of the Reverend Isaac Backus (Boston: Gauld and Lincoln, 1858), pp. 205–206.
9. Anson Phelps Stokes, Church and State in the United States, 3 vols. (New York: Harper and Brothers, 1950), 1:47.
10. Philip Schaff, Church and State in the United States, or the American Idea of Religious Liberty and Its Practical Effects with Official Documents (New York: Charles Scribner’s Sons, 1888), p. 15. This volume was commissioned by the American Historical Association for commemoration of the one-hundredth anniversary of the ratification of the Constitution. It remained for a long period of time the standard work on the subject.
11. Arthur Cohen, “The Problem of Pluralism,” Religion and the Free Society (New York: The Fund for the Republic, 1958), pp. 37–38.
12. American Council on Education Studies: Reports of Committees and Conferences, xi, No. 26 (Washington, D.C., April 1947), pp. 49f.
13. Franklin H. Littell, From State Church to Pluralism: A Protestant Interpretation of Religion in American History (Garden City, New York: Doubleday and Co., 1962), p. xx.
14. Gayraud S. Wilmore, The Secular Relevance of the Church (Philadelphia: Westminster, 1962), pp. 24–25.
15. Quoted in Stokes, Church and State in the United States, 2:462.
16. John Winthrop, The History of New England from 1630 to 1649 (1853); quoted in Ernest Barker, Church State and Society Essays (London: Methuen & Co., 1930), p. 121.
17. Emil Brunner, Christianity and Civilization, 2 vols. (London: Nisbet and Co., Ltd., 1949), 2:119.
18. Ibid., p. 120.
19. John Stuart Mill, On Liberty (1859) (New York: The Bobbs-Merrill Co., 1956), pp. 140–141.
20. Cf. Clyde E. Jacobs, Justice Frankfurter and Civil Liberties (Berkeley: University of California Press, 1961), pp. 210–217.
21. Cf. James E. Wood, Jr., “Religious Liberty in Ecumenical and International Perspective,” Journal of Church and State 10 (Autumn 1968) : 421–436.
22. Alexis de Tocqueville, Democracy in America, 2 vols. (New York: A. A. Knopf, 1945), 1:308.