Dean M. Kelley is director for religious liberty at the national Council of Churches in New York City.
This article appeared in the Christian Century, January 18, 1989, p. 48. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.
The separationist interpretation of the religion clauses of the First Amendment has shackled religious liberty and pluralism. This is challenged instead with "the ideals of neutrality and accommodation."
Separation between church and state is a phrase often used to summarize, perhaps to sloganize, the relationship between religion and government envisioned by the founders and decreed by them in the religion clause of the First Amendment. For some reason, this shorthand phrase seems to inspire intense antagonisms.
We are often told in portentous tones that these words do not occur in the First Amendment (or anywhere else in the Constitution) , that there has never been "absolute" separation of church and state (seemingly with the implication that therefore there shouldn’t be any such separation) , and that the concept has become outmoded with the demise of the quaint notion of limited government and the expansion of the activities of both governments and churches.
Of course, any, five-word formula is apt to have its shortcomings as a description of a complex constitutional construct, but it is curious that so much negative emotional baggage seems to have become attached to this one. If we reflect on a comparable concept, "separation of powers," we might recall that it, too, is not found in the Constitution, that there never has been "absolute" separation between the three branches of government, and that the expansion and complexity of modern government has not rendered it impractical or obsolete. There are occasional arguments over how the principle ought to apply in concrete, current situations -- as there ought to be -- but there is not much contention that the principle itself is outmoded or counterproductive, except from those who find frustrating any formal limitations on the omnipotence of government.
Why should not a similar principled but reasonable realism apply to separation between church and state? Like separation of powers’, it is a wise, though not magically sovereign, ideal that we should seek to understand and approximate as best as we can in the problematic situations that confront us, instead of deprecating or denigrating it. Rather than asking how close we can come to blurring the distinctions between religion and government without actually violating the First Amendment, we should ask how we can most fully differentiate the unique, important and very different functions of each so that each can be most fully itself rather than an imitation of, or interloper upon, the other.
The latter concern seems to be the thrust of Michael McConnell’s argument. He recognizes some important values underlying the religion clauses but seems to view with alarm the course the Supreme Court has followed recently in applying those clauses. He represents the court as haying succumbed to a doctrinaire enthusiasm for "strict separation" that is pressing toward complete secularization of American public life. There are such pressures in American society, but the court has not fallen captive to them, at least not since 1970, when Chief Justice Warren Burger spent many words rejecting the earlier hard-line -- though still not "absolute" -- separationist stance of the Earl Warren court. Said Burger, "We will not tolerate either governmentally established religion or governmental interference with religion. Short of these expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." "Benevolent neutrality" continues to be the goal of the court today. "Separation between church and state" has not retained much currency in the court’s opinion since 1970. Therefore, it is puzzling to contemplate in 1989 a warning against making separation the key to church-state relations. It has not been the key for nearly 20 years, though some people are still trying, rather unsuccessfully, to resuscitate it. Beating a dead horse might seem a harmless practice, if it did not divert attention from a charging one.
Hyperseparationism is often a symptom of the fear of imperialistic faith groups (supposedly) seeking to dominate society and government (as most faith groups would like to do -- in the sense of wanting their vision for all humankind to prevail) Prior to the 1960s the Roman Catholic Church may have aroused that anxiety; more recently Protestant fundamentalism has stirred it. Neither of these represents the real threat to optimum church-state relations, and both have served as distractions from the danger of the moment, which is not religious dominance -- or even "secularism" -- but statism. Lower court judges and the justices of the Supreme Court have "failed to offer a ‘principled or predictable alternative" to "strict separation" because they -- like the American people -- do not agree among themselves on the nature of the problem or how to resolve it. But in many recent cases they have tended to agree more readily on another thesis: that the free-exercise clause does not interpose protections of religious obligations and practices that it once did (from 1940 to 1981) , and that the establishment clause does not have the, force against government action that it once did (from 1948 to 1985)
Contrary to McConnell’s contention, establishment-clause claims have not fared well in the Supreme Court lately. In the past five years the court has upheld five such claims but has rejected six, one of them unanimously -- not exactly a landslide for "separation." The unanimous 1987 decision in Corporation of the Presiding Bishop v. Amos revised a lower court’s holding that Congress violated the establishment clause when it permitted churches to hire their own members in preference to others for nonreligious jobs, a form of religious discrimination prohibited for other private employers. The court stated:
A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden "effects" …it must be fair to say that the government itself has advanced religion through its own activities and influence.
That is a far cry from separation and an encouraging sign for free exercise. But it may have another meaning: the court did not say that the free-exercise clause required this accommodation but only that if Congress wished to provide it, it was permissible. So the decision may be more a sign of deference to Congress than of solicitude for religion. A similar explanation may apply to the court’s rejection of seven free-exercise claims since 1982, during which time it upheld only one.
In those cases the court deferred to the judgment of the Air Force that the free-exercise claim of a Jewish officer who wore his yarmulke on duty could not be accommodated; it deferred to the judgment of correctional authorities that the free-exercise claim of a Black Muslim to attend Friday afternoon religious services could not be accommodated; it deferred to the judgment of the Department of Agriculture’s Forest Service that building a logging road through a national forest was necessary despite the damage to religious practices of Native American tribes in that area; it deferred to the Internal Revenue Service’s ruling that Bob Jones University was not entitled to tax exemption because of its religiously motivated rule against interracial dating and marriage on campus; it deferred to the judgment of the secretary of labor that a religious community must pay its members the minimum wage for work they performed in the group’s business although the members said they had religious objections to being paid for their work. The only free-exercise claim upheld was controlled by an earlier precedent from 1963.
I agree with what seems to be the implication of McConnell’s argument: that most, if not all, of these rejections of free-exercise claims were wrongly decided. But the court’s resistance to those claims was not, in my view, because of any mindless fealty to "separation between church and state" -- quite the contrary. The court has been whittling back on both free-exercise and establishment-clause claims in favor of wider amplitude for the exercise of the powers of government. And it has not whittled back nearly as far nor as fast as the Reagan administration urged, while representing itself as a great champion of religious liberty. As Douglas Laycock of the University of Texas Law School has observed:
[The Reagan administration] has been quite vocal in its minimalist view of the establishment clause. But . . . it [has taken] an equally minimalist view of the free-exercise clause. Its position . . . is not pro religion (or anti-religion) , but simply statist. The administration does not believe that minorities should have many rights that are judicially enforceable against majorities.
The Supreme Court has been moving (more slowly than the Reagan administration did) in the same direction. Some of its members seem to feel that individuals should not have many rights that are judicially enforceable against the government. Apparently, individuals, minorities and courts should get out of the way and let the government -- in its infinite wisdom -- govern. That view, of course, would put the courts on the side of the strong against the weak and nullify the whole purpose of the Bill of Rights, which is to protect individual rights against government powers. Nevertheless, in some cases -- and for various reasons -- the more statist members of the Supreme Court are sometimes able to convince other justices to obtain such outcomes as those deplored above. McConnell proposes "to replace ‘separation’ with the ideals of neutrality and accommodation." Those are good ideals, but so is separation. It does not need to be replaced, just reinterpreted. balancing it with free exercise -- as the Supreme Court seems to be trying to do when not drawn into a statist stance. Neither religion clause should be subordinated to the other; each protects an important aspect of religious liberty. Under the free-exercise clause every person is entitled to respect for her or his religious commitments, and their free exercise should not be burdened by governmental interference except to secure "compelling state interests" (such as protection of public health and safety, not just public welfare or order) that can be served in no less burdensome way. Under the establishment clause every person is also entitled to government that does not sponsor, support or inculcate one religion, religion in general or all religions collectively; that does not prefer one religion over another; that does not build up the real estate or the personnel of a religious institution or set up religious proprietaries not required to supply state-impaired religious access; and that does not compose, initiate or promulgate official prayers, rites or liturgies, or otherwise "play church."
My main area of disagreement with McConnell would be over the eligibility of church-related agencies for tax funds to perform ostensibly public services. This is admittedly a perplexing boundary area between the religious and the secular. When churches believe that their mission requires them to provide education, health care, social work, disaster relief, refugee resettlement, shelter for the homeless, food for the hungry, assistance to the aged, or whatever, they are often providing needed public services for which the public is willing, able and responsible to pay. Often the churches do so with skill, commitment and compassion that are of special worth to the public. Should they not be eligible for public funding available to nonreligious private agencies providing such services? Reasonably, they should, providing they do not become the only agencies providing such services. No people in need should have to go to or through a church agency to obtain public benefits to which they are entitled if they do not wish to do so -- particularly if those public benefits are’ shaped to conform to the sponsoring churches’ religious beliefs that are not shared by the recipients. (A case in point is that of a publicly supported, church-related hospital which is the only hospital in town and which refuses to permit certain medically accepted surgical procedures -- such as abortion or tubal ligation -- which are objectionable to the church but not to the patients of other faiths or no faith who depend upon that hospital for health care, and whose tax dollars support it.)
In accepting public funds for rendering public services, church-related agencies take on responsibilities to the public that reach beyond the church’s faith community. In serving the public they cannot impose faith criteria or faith requirements upon members of the public who have not voluntarily accepted them. Though churches are entitled, unlike other private employers, to hire with their own money their own members in preference to others, they are not entitled to do so with the public’s money. (That was the chief obstacle to enactment of the Act for Better Child Care in the past session of Congress.)
Similarly, if teachers employed by the public are assigned to teach on parochial school premises, they tend to come under the administrative aegis of the parochial rather than the public school (not that they teach religion, but that they otherwise function to some degree as adjunct faculty, increasing with tax funds the staffing resources of the parochial school -- a consideration apparently underlying two 1985 decisions but not well articulated by the Supreme Court)
On the other hand, much of the valued skill, commitment and compassion of such church-related agencies might be dissipated if they were to be completely "sanitized" of all religious influences or expression -- made to "act as if they were secular," as McConnell trenchantly but rather pejoratively puts it. They are made to act -- and should want to act -- as agents of the public fisc who cannot rightfully use the tax funds paid under duress of law by all the people -- of many faiths and no faith -- for the imposition of the religious beliefs or for the institutional advantage or aggrandizement of the sponsoring church.
Whatever balance may be struck in these areas of mixed secular and religious services funded by tax money, the mixture is inherently unstable and will tend to move in one direction or the other, usually toward increased responsiveness to broader interests than those of the sponsoring church (which is often called "secularization") -- a process seen in church-related colleges and hospitals even without tax funding, which merely makes it happen quicker and sometimes with the force of law. Since these "mixed" ventures may not always be the churches’ most direct or effective way of fulfilling their central function of explaining the ultimate meaning of life to their adherents -- and certainly not if muffled by the requirements of public fisc -- perhaps churches should be less eager to enter into what can at best be but a very unequal partnership with the public, and less tenacious in clinging to "mixed" institutions rather than letting them spin off to nonsectarian auspices.
For these reasons McConnell’s solicitude for the public funding of such mixed-service agencies of religious origin (and of inevitably attenuating religious affinity) may be to some degree misplaced. Whether church-related agencies can get all the public money they want with out having to conform to the constitutional requirements that properly go with it should hardly be the crucial litmus test of church-state relations or of the optimal application of the First Amendment’s religion clauses.
Michael W. McConnell replies:
But I think his response misses the point. When the ideal of separation accords with the ideals of neutrality and accommodation in any particular case, there is no problem. The case is easy. What is needed is a set of principles for deciding cases in which these ideals are in conflict. The Supreme Court has not provided any such set of principles, and the "test" it has handed down (which is binding on the lower courts that must decide most of the cases) is worse than useless.
Kelley suggests that the real problem is not the theoretical limitations of the court’s separationist model, but rather its "statism." There is something to this criticism. especially in free-exercise cases. I can agree with Kelley that the government is often wrong in these church-state cases, more often wrong than the Supreme Court is willing to admit. That does not. mean, however, that the government is always wrong.
Neither a "statist" nor an "antistatist" presumption will help, in deciding cases. Precisely the same question can arise in the guise of a challenge to government action as in support for government action. In the Pawtucket crèche case, the government erected a nativity scene and the plaintiffs challenged it. In the Scarsdale crèche case, the government refused to allow a nativity scene on public property, and the plaintiffs sued to compel it to do so. In the Forest Service case, Native Americans challenged the government’s refusal to protect their sacred lands from logging operations. One can as easily imagine the government deciding to protect the lands, and being sued by those who say the decision "favored" or "advanced" religion. In the remedial education case, New York City provided remedial teachers to parochial (as well as public) school students. This was challenged as an establishment of religion. In an earlier case, Missouri had refused to provide them, and parents of parochial school students sued.
The results in these cases should not turn on who is doing the suing. They require a substantive principle for interpreting the First Amendment. I have proposed one: the government must treat religious people and institutions the same way it treats comparable nonreligious people and institutions, unless special accommodation is needed to protect religious liberty from a facially neutral law that conflicts with religious obligations or forms of organization.
Kelley states that his "main area disagreement" with this proposal neutrality and accommodation has to do with the eligibility of church-related agencies, like church-based day-easy centers, for tax funds to perform public services. He concludes that church-related agencies should be eligible, "providing they do not become the only agencies providing such services." I agree with his conclusion, and with the proviso. Religious institutions must not be given a preferred place in publicly supported programs. It is enough that they be treated neutrally.
But Kelley would go a step further, requiring church-related agencies to hire staff from outside the faith and to refrain from inculcating religious doctrine. This he says is necessary in order to protect members of the public from "faith criteria or faith requirements" they have not "voluntarily accepted." Here I disagree. Kelley’s solution, which he shares in common with other moderate separationists, would constrict rather than protect voluntary religious choice.
Consider the day-care example. If the federal government gives some form of voucher, tax credit or reimbursement to low-income parents using day care, those parents will have many different options. In all probability, the majority of day-care centers will be secular; many others will be church-based but largely nonreligious; and a few will be overtly religious.
Under Kelley ‘s approach, parents would be free to choose secular or church-centered day care, but would be prohibited from using their benefits to purchase religious day care. If they choose a religious day-care center (one that hires staff within the faith or inculcates religion) , they will forfeit their right to the government benefits.
These parents are not "protected" from "faith criteria or faith requirements" they have not "voluntarily accepted." They are prevented from (or at least penalized for) voluntarily choosing the religious option. Secular choices are subsidized; religious choices are penalized. Nonsubsidized day-care centers will be placed at a disadvantage and may well be driven out of the market. This is not neutral. However well-meaning the intent, the effect is to discriminate against religious choices. The freedom of the individual to choose cannot be advanced by limiting the range of options.
Issues of public funding become more important as the government assumes a larger role in social welfare. The separationist model of church-state relations, even in its moderate form advocated by Kelley, leads ineluctably to a more secular, less diverse and pluralistic society. It is time to adopt a set of legal principles that recognizes and respects the religious diversity of the American people.