Why ‘Separation’ Is Not the Key to Church-State Relations
by Michael W. McConnell
Michael W. McConnell is assistant professor of law and the University of Chicago Law School and a frequent litigator in Supreme Court cases involving church and state. This article appeared in the Christian Century, January 18, 1989, p. 43. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found athttp://www.christiancentury.org
Ask most educated Americans what the Constitution has to say about religion and they will respond: it requires a "separation between church and state." Never mind that these words appear nowhere in the Constitution, nor even in the First Amendment ("Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof") , nor in the debates over its framing, nor in the documents that were its source and inspiration. The guiding metaphor, the "wall of separation between church and state," first appeared in a letter written by Thomas Jefferson 14 years after the First Amendment was drafted. Now it has overshadowed the actual language of the First Amendment.
Metaphors are not necessarily bad things, and this one captures an important element of religious freedom. If the institutions of religion and government were merged, the result would surely be, in the Supreme Court’s words, "to destroy government and to degrade religion." Neither the government controlled by a church nor a church controlled by the government will be what a government or a church ought to be.
In recent church-state controversies, however, the ideal of separation has come in conflict with the wider and more important ideal of religious freedom. A few examples, taken from recent Supreme Court cases, illustrate this point.
When Congress decided in 1965 to fund special remedial educational programs for needy youngsters, it recognized that many inner-city children attend private religious schools, either out of religious convictions or because such schools are the only affordable alternative to deficient public schools. Wanting to reach all eligible children, Congress required that remedial programs for those attending private schools be "comparable" in quality to public school programs. It turned out that the least expensive and most effective way to accomplish this was to send remedial teachers onto the premises of private schools. Experience from representative cities like New York, St. Louis, and Grand Rapids, Michigan, showed that transporting the children to other sites would consume up to one-third of the program’s budget. On top of that it would expose the children to greater safety hazards, it would tend to make the participants more conspicuous and thus brand them as inferior, and it would cause the children to lose more classroom time.
For 19 years the program operated on this basis in cities like New York without a single complaint that the remedial teachers had stepped over the line into religious matters. An extensive factual record, developed in the lower court, confirmed this situation.
In 1985 the Supreme Court ordered the program to stop. Allowing public remedial teachers to go onto the premise of parochial schools, it said, was an "excessive entanglement between church and state." The court opined (contrary to all the evidence) that the "pervasively sectarian" atmosphere of the parochial schools might cause remedial teachers, either "subtly or overtly," to begin to "indoctrinate the students in particular religious tenets at public expense." The most striking feature of this opinion is its almost mystical fear of religious influence. Few believers would be so bold as to claim that the mere atmosphere of their institutions is so spiritually charged that professionally trained secular teachers start to preach the gospel as part of remedial English and math.
Separationists cheered the decision. The precious wall of separation between church and state was rebuilt higher and more solid than ever.
For the needy children and their families -- not to mention for the legislation’s social objectives -- the ruling was a disaster. The schools were forced to adopt substitute programs that were at once more costly and less effective. By one official estimate, 5,000 fewer needy children could be served in New York City alone because of the money spent transporting them to ether locations.
This case also demonstrates how separation can conflict with religious freedom. Poor parents, no less than rich, have the constitutional right to educate their children in their religious faith. This is a right most prized by members of minority faiths who fear that the public schools will undermine their religious identity -- and by families like the Roman Catholic and Orthodox Jewish ones that were the largest participants in the program in New York City. If the government were to fine a parent $10 for sending his or her child to a religious school, everyone would recognize this as an unconstitutional penalty on the exercise of religious freedom. The parents in the remedial program case were fined far more than $10. The court denied them access to a program that might improve their child’s future lot in life. Parents were put to a cruel choice: either give up their plans for a religious education or forfeit their child’s right to the kind of remedial education program Congress provides for all other children. When the First Amendment is interpreted to penalize religious choice in this way, there is a problem with the interpretation.
At public high schools across the country, students are permitted to form clubs and organizations, to speak and distribute leaflets or petitions, and to exercise free-speech rights not dissimilar to those we all have under the First Amendment. Sometimes their speech is rude or offensive; sometimes they support causes, like gay rights or the legalization of marijuana, that many in the community do not approve of. But so long as they do not disrupt the disciplines of the school, and their speech is strictly student-initiated and non-curricular, their rights are scrupulously protected.
Unless the students want to talk about religion.
Court after court has held that "while students have First Amendment rights to political speech in public schools," First Amendment considerations "limit their right to air religious doctrines." "Students’ free speech and associational rights . . . are severely circumscribed by the Establishment Clause in the public school setting." Loosely translated, this means that the First Amendment does not protect, but restricts, free speech in public schools if it is religious in nature.
This requires public officials to engage in continuous, discriminating, intrusive censorship of student expression. Students have the right to air extremist political "doctrine," secular philosophical "doctrine," even, presumably, the "doctrine" that God is dead and that religion is the opiate of the people. This is elementary free speech. But -- as one court recently held -- if a student hands another student a piece of paper stating that "if any man is in Christ he is a new creature," that act violates the principle of separation of church and state.
The Department of Agriculture’s Forest Service owns large tracts of wilderness in California held sacred by certain Native American tribes. Their members have come from time immemorial to worship in the solitude of these places. But now the Forest Service proposes to build a logging road through the area, a step that, as the district court noted, "would virtually destroy the Indians’ ability to practice, their religion."
The words of the First Amendment would seem to apply: Congress shall make no law "prohibiting the free exercise [of religion]." But the metaphor of separation so dominates our legal thought that one instead turns to the question: how does the government avoid "entanglement" with religion? The government cannot own or maintain a church. Can it own or preserve an outdoor worship area? Should the government be permitted to promote the religious interests of a religious group by subordinating the secular interests of other citizens in access to logging areas? The Native Americans in this case were asking the Forest Service to become deeply entangled with religion by adapting its policies to their religious beliefs. Once again separationism stood in conflict with religious freedom. Sad to say, once again separationism won and religious freedom lost.
Even some who call themselves "separationists" agree that some or all of these decisions are unfortunate, recognizing that the theory of separation must be leavened with concern for religious freedom as well. Unfortunately, the theory in its most rigid form (call it "strict separation") has tended to impede development of more attractive interpretations of the First Amendment. The result in the courts has been a doctrinal muddle. The courts frequently stop short of insisting on strict separation, but they have failed to offer a principled or predictable alternative.
How have these results come to pass?
The Supreme Court, in a famous decision in 1971 (Lemon v. Kurtzman) , announced a three-part test for an unconstitutional establishment of religion. Government action violates the Constitution if it: (1) has no "secular purpose"; (2) has a "primary effect" that "advances religion"; or (3) entails an "excessive entanglement between church and state." While the first two tests might be interpreted to require neutrality toward religion, the "entanglement" test is pure separationism. Whether neutral or not, government action is unconstitutional if the spheres of religion and government are involved with each other. The public sphere must be strictly secular.
This test has had two unfortunate results. First, it has put religious freedom and diversity on a collision course with the welfare-regulatory state. If the public sphere, must be secular, then an expanding public sphere implies a shrinking sphere for religion and religious diversity. In the early days of the Republic, Jefferson could peak with some accuracy of a "wall of separation between church and state" because the limited sphere of government so rarely intersected the sphere of religion. The best protection for religion was to leave it alone. Since then, and especially in the 20th century, the scope of governmental activity has broadened to encompass areas, like education and social welfare; which in Jefferson’s day were private and mostly religious. These areas of overlap between a socially involved religious sector and a socially involved state tend to be the areas of church-state conflict today.
Social welfare activities typically involve interaction between government funding agencies and a variety of private service providers, both religious and nonreligious. Private groups can often deliver assistance to the needy more quickly, cheaply and humanely than can government bureaucracies, with greater sensitivity to the diverse interests, backgrounds and beliefs of the client population. Emergency shelters and feeding programs, for example, rely heavily on church and synagogue facilities and religious volunteers; the government supplies all or a part of the operating costs of food, blankets and the like. The same is true for international disaster relief, orphanages, family planning, refugee settlement, adoption services and hospitals. In all these areas and more, religious and other private organizations perform a large part of the services, and federal, state and local governments provide a large part of the funding.
To the strict separationist, these religious-governmental interactions are, at best, tolerable deviations from the separationist ideal. In principle, strict separatiomsts are committed to a long-term policy of secularizing government-supported social welfare activities. Already they have succeeded in imposing rigid restrictions on churches that participate in the federal government’s homeless shelter program. On the agenda for the next term of Congress is a proposal to channel assistance for day care only to secular day-care centers (or church-based centers that promise to act as if they were secular)
The result, of course, is less diversity in the mixed government-private philanthropic sector. Instead of having a variety of options, poor people dependent on government funding will be confined to a homogenously secular set of alternatives. Their range of choice will shrink; the overall level of pluralism and diversity in society will decline; the financial pressure of government subsidies will tempt religiously affiliated organizations to abandon their religious witness in order to serve more of the needy. Under conditions of the modern welfare-regulatory state, separationism is a powerful engine of secularization.
The second unfortunate consequence of the Lemon test is that it calls into question attempts to accommodate the religious needs of religious minorities. If the government takes affirmative action to facilitate the free exercise of religion, does this action have a "secular purpose"? Accommodating free-exercise rights necessarily "advances religion," and not infrequently will generate "entanglements with religion" as well. Thus, in recent years the Supreme Court has invalidated a Connecticut law (passed to replace the prior Sunday closing law) allowing workers to select their Sabbath day as their day off from work, struck down a Massachusetts statute allowing churches and schools to object to the issuance of liquor licenses in their near vicinity, and abolished an Alabama law allowing students in public schools a moment of silence.
None of these accommodations would induce or encourage anyone to adopt a religious practice against his or her will. Each of them seeks to protect’ the freedom to follow a religious practice in circumstances in which social or governmental action might threaten or inhibit it. But each runs afoul of the Supreme Court’s Lemon test.
Indeed, the separationist logic of the Lemon test has come into direct conflict with the free-exercise clause, which has been given poor second place in the Supreme Court’s First Amendment cases. Since 1972, the year after Lemon, the Supreme Court has rejected every claim by an individual to a free-exercise exemption, with the sole exception of claims for unemployment compensation, which are controlled by clear precedent dating back to 1963. Orthodox Jews have been expelled from the military for wearing yarmulkes; a religious community in which all members worked for the church and believed that acceptance of wages would be an affront to God has been forced to yield to the minimum wage; religious colleges have been denied tax exemptions for enforcing what they regard to be religiously compelled moral regulations; Amish farmers who refuse Social Security benefits have been forced to pay Social Security taxes; and Muslim prisoners have been denied the right to challenge prison regulations that conflict with their worship schedule.
Part of the explanation for these decisions is an exaggerated deference by conservative justices to assertions of governmental interests. But these justices would be in a minority if they were not joined by others who vote against free-exercise claims on separationist grounds. Justice John Paul Stevens, probably the most thoroughgoing separationist on the Supreme Court, has stated frankly that in his view, there is "virtually no room" for a free-exercise challenge to a facially neutral governmental practice. Free-exercise claims, he says, conflict with the "overriding interest in keeping the government.., out of the business of evaluating the relative merits of differing religious claims." Note the way in which the ideal of separation ("keeping the government out of the business") has come to overshadow even the free-exercise clause itself.
The results of these and other Supreme Court decisions call to mind the warning issued by Justice Arthur I Goldberg (no Moral Majoritarian, he) some 25 years ago in the School Prayer Cases. He commented that rigid 3 interpretations of the establishment clause can lead to
results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.
Given these results, why is separationism still the dominant position of many civil libertarians, including most Jewish and mainline Protestant leaders in the field of church-state thought? One reason, I suspect, is a reflexive hostility to fundamentalists and socially conservative Catholics whose religious way of life is most likely to come into conflict with the dominant strains of our liberal secular culture. To the extent that this is true, mainline religious leaders ought to reconsider their position. Fundamentalists and ether conservative religious groups deserve our sympathy and toleration (even if they sometimes are intolerant of the rights of others) They are often the victims of religious bigotry and bureaucratic indifference.
More substantial is the fear that if separationism is abandoned, advocates of a "Christian nation" or some other version of religious, uniformity will come to the fore. At least we know that separationism will fend off the worst evils of church-state combination. If the "wall of separation" is lowered, we are told, our schools may be returned to the days of prayers prescribed by state legislatures; evolution may be banished from the classroom and replaced by "creation science"; and religious minorities may be at the mercy of intolerant majorities. Given the choice between separationism and its opposite, it is no wonder that most thoughtful people choose separationism. This is why we need a fresh approach to church-state thinking.
While separationism focuses on government involvement with religion, neutrality focuses instead on the effect of government action on individuals. Government action is "neutral" if it neither induces nor discourages religious belief or action -- in other words, if it offers neither incentive nor disincentive to practice a faith.
When the federal government provides the same remedial education to children whether they choose religious or secular education, it is being neutral. No parent will be induced to send a child to parochial school because of the program, since he or she can get the same program at public school. Separation, by contrast, is not neutral -- the child can obtain remedial help only by forgoing religious education. Separation thus introduces a powerful incentive to abandon a religious practice.
Similarly, when public schools treat all student speech the same way, they neither advance nor inhibit religion. They no more endorse religion when they allow the Fellowship of Christian Athletes to meet than they endorse a political candidate when they allow political clubs to meet. If there is any misunderstanding, school officials should take the opportunity to explain the fundamental principle of free speech in America: the government does not endorse every viewpoint it fails to suppress.
Far from endangering the major successes of the separationism movement, an understanding of the First Amendment based on neutrality and accommodation would provide a more persuasive underpinning for them. The real reason to be troubled by official spoken prayers in the public schools, for example, is not that they breach the "wall of separation" but that they encourage (and, given peer pressure, probably coerce) adoption of a bureaucratically dictated religious practice. Under the neutrality-accommodation approach, the Supreme Court’s school prayer decisions can be seen as protecting the independence and vitality of religious life (something most Americans support) rather than as succumbing to secularism (something most Americans oppose)
Some may be concerned that a policy of neutrality sometimes allows religious organizations to benefit from government programs, and thus from the expenditure of tax dollars. But this does not mean that religion is being favored by the state. If religious organizations -- be they homeless shelters, international aid agencies, day-care centers, colleges or hospitals -- are performing services the government wishes to support, there is no reason why they should not be eligible to participate on equal terms with non-religious organizations. A truly neutral government will direct its support according to neutral, secular criteria, neither favoring nor disfavoring organizations with a religious affiliation.
Accommodation is a special kind of neutrality. Sometimes a facially neutral governmental practice will affect some beliefs or institutions more severely than others. In order to ensure that the effect of government action is neutral toward religion, it is sometimes necessary for the government to tailor its programs to religious needs. Congress prohibits employment discrimination based on sex, for example, but quite properly exempts the Roman Catholic position on employing male priests. The government keeps its doors open on Jewish high holy days, but it grants leaves of absence to Jewish workers. Fortunately, despite some false starts and great confusion arising from the Lemon tests, the Supreme Court has recently recognized that religious accommodations can be permissible under the establishment clause.
Accommodations to religion should be upheld so long as they merely facilitate a religious choice freely made by the individual, do not invade the religious freedom of others, and do not discriminate among different religions. The government should not be permitted to create incentives for religious practice or belief (like giving favored status to religious organizations, as compared to other nonprofits) , to facilitate the religious practices of some at the expense of others (like offering vocal prayers in public schools) , or to accommodate one religion but not others with similar needs or problems (like limiting draft exemptions to members of traditional "peace churches") Within these guidelines, religious accommodations are fully in keeping with the First Amendment -- albeit in conflict with strict separation.
Some say that accommodations of religion are not neutral because they require special treatment of religion. This represents a deep misunderstanding of the purpose of the First Amendment. The Constitution requires neutrality toward religion; it does not require neutrality toward religious choice. On the contrary, the Constitution extends the highest protection to what the framers believed to be the inalienable right to exercise religion according to the dictates of individual conscience. Nor does the Constitution seek to create a secular public sphere. Religious pluralism and diversity -- not secularism -- are the animating principles of the First Amendment.
Separation between church and state is obviously a worthy goal, an important part of the American conception of religious freedom. Separation will frequently be the best means of preserving religious autonomy. But separation is not, and cannot be, the central guiding principle. Too often in recent years, separation has come into conflict with the more central principle of religious freedom. When it does, the metaphor must give way to the substance.