The civic catechisms of our day still celebrate
Thomas Jefferson’s experiment in religious freedom. Religion
must be “a concern purely between our God and our consciences,”
Jefferson wrote in 1802. Politics must be conducted with “a
wall of separation between church and state.” “Public
Religion” is a threat to civil society and must thus be discouraged.
“Political ministry” is a menace to political integrity
and must thus be outlawed.
These Jeffersonian maxims remain for many today the cardinal axioms
of a unique American logic of religious freedom to which every patriotic
citizen and church must yield. Every public school student learns
the virtues of keeping his Bible at home and her prayers in the
closet. Every church knows the tax law advantages of high cultural
conformity and low political temperature.
Religious privatization is the bargain we must strike to attain
religious freedom for all. A wall of separation is the barrier we
must build to contain religious bigotry for good. If only those
right-wing killjoys of our day would learn proper patriotism, instead
of pestering us with their Ten Command-ments and faith-based initiatives!
Separation of church and state was certainly part of American law
when many of today’s civic opinion-makers were in school.
In the landmark cases of Cantwell v. Connecticut (1940) and Everson
v. Board of Education (1947), the U.S. Supreme Court for the first
time used the First Amendment religion clauses to declare local
laws unconstitutional. The court also read Jefferson’s call
for “a wall of separation” into the First Amendment.
In more than 30 cases from 1947 to 1985, the court purged public
schools of their traditional religious teachings and cut religious
schools from their traditional state patronage. Armed with these
precedents, lower courts struck down many other traditional forms
and forums of church-state cooperation in the public square.
After 40 years of such cases, it is no surprise that Jefferson’s
metaphor of “a wall of separation between church and state”
became for many the source and summary of American religious freedom.
Indeed, many now think that Jefferson’s words are enshrined
in the First Amendment itself. It is often disconcerting for readers
to discover that the First Amendment is much more restrained and
ambiguous: “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof.”
“Metaphors in law are to be narrowly watched,” Justice
Benjamin Cardozo once warned, “for starting as devices to
liberate thought, they end often by enslaving it.” So it has
been with the metaphor of a wall of separation. This metaphor has
held popular imagination so firmly that many of us have not noticed
that separation of church and state is no longer the law of the
Over the past two decades, the Supreme Court has abandoned much
of its earlier separationism and reversed some of its harshest cases
on point. In a dozen cases, the court has upheld government policies
that support the public access and activities of religious groups—so
long as these groups are voluntarily convened, and so long as nonreligious
groups are treated the same way.
Hence, religious counselors could be funded as part of a broader
federal family counseling program. Religious student groups could
have equal access to public classrooms and state funds that were
available to non-religious student groups. Religious groups could
have the same access to public facilities, forums and funds that
were already opened to other civic groups. Religious schools were
just as entitled to participate in a state-sponsored school voucher
program as other private schools.
The Supreme Court has defended these holdings on wide-ranging constitutional
grounds, and it has not yet settled on a consistent new logic. One
common teaching of these recent cases, however, is that public religion
must be as free as private religion—not because the religious
groups in these cases are really nonreligious. Not because their
public activities are really nonsectarian. And not because their
public expressions are really part of the cultural mainstream.
To the contrary, these public groups and activities deserve to be
free, just because they are religious, just because they engage
in sectarian practices, and just because they sometimes take their
stands above, beyond and against the cultural mainstream. They provide
leaven and leverage for the polity to improve.
A second teaching of these cases is that the freedom of public religion
sometimes requires the support of the state. Today’s state
is not the distant, quiet sovereign of Jefferson’s day, from
which separation was both natural and easy. Today’s state
is an intensely active sovereign from which complete separation
Few religious bodies now can avoid contact with the modern welfare
state’s pervasive regulations of education, charity, welfare,
child care, health care, family, construction, zoning, workplace,
taxation and security. Both confrontation and cooperation with the
modern welfare state are almost inevitable for any religion.
When a state’s regulation imposes too heavy a burden on a
particular religion, the free exercise clause provides a pathway
to relief. When a state’s appropriation imparts too generous
a benefit to individual religions, the establishment clause provides
a pathway to dissent. But when a general government scheme provides
public religious groups and activities with the same benefits afforded
to all other eligible recipients, constitutional objections are
now rarely availing.
A third teaching of these cases is that freedom of public religion
also requires freedom from public religion. Govern-ment must strike
a balance between coercion and freedom. The state cannot coerce
citizens to participate in religious ceremonies and subsidies they
find odious. But the state cannot prevent citizens from participation
in public ceremonies and programs just because they are religious.
It is one thing to outlaw Christian prayers and broadcasted Bible
readings from the public school; after all, students are compelled
to be there. It is quite another thing to ban moments of silence
and private religious speech in these same public schools. It is
one thing to bar direct tax support for religious education, quite
another thing to bar tax deductions for parents who choose to educate
their children in religious schools.
A final teaching of these cases is that freedom of public religion
is no longer tantamount to establishment of a common religion. Government
support of a common civil religion might have been defensible in
earlier times of religious homogeneity. It is no longer defensible
in modern times of religious pluralism.
Today, our public religion must thus be a collection of particular
religions, not the combination of religious particulars. It must
be a process of open religious discourse, not a product of ecumenical
distillation. All religious voices, visions and values must be heard
and deliberated in the public square. All peaceable public religious
services and activities must be given a chance to come forth and
Some conservative Protestants and Catholics today have seized on
this new insight better than most. Their recent rise to prominence
in the public square and in the political process should not be
met with glib talk of censorship or reflexive incantation of Jefferson’s
mythical wall of separation.
The rise of the Christian right should be met with the equally strong
rise of the Christian left, of the Christian middle, and of sundry
Jewish, Muslim, Hindu, Buddhist and other religious groups who test
and contest its premises, prescriptions and policies. That is how
a healthy democracy works. The real challenge of the Christian right
is not to the integrity of American politics but to the apathy of
American religions. It is a challenge for peoples of all faiths,
and of no faiths, to take their place in the marketplace.