Church and State, Politics and Religion

    Kenneth Cauthen

    The question of religion and politics is not the same as the question of church and state. Failure to make this distinction results in confusion.

Church and State

    The problem of church and state has to do with institutions and the spheres of action that are appropriate for each. Here the concept of separation is valid. The government does not appoint bishops and pastors for the churches. Churches, meaning here all religious organizations, do not appoint presidents, governors, and judges. No religion can be favored over others or supported by taxes. The state has no role or authority in defining beliefs relating to God and worship. The free exercise of religion is to be guaranteed. The state is neutral between particular religions and permits citizens to believe or not believe in God and to engage or not engage in religious practices or belong to religious organizations according to the dictates of their conscience. There is no religious test for holding office.

    We are, in this sense, a secular nation. Nevertheless, complications exist that confound any simple notion of religious neutrality or pure secularism in the national life. Incarnate in our history is a kind of "civil religion" (Robert Bellah) that finds expression in our founding documents, our coins, speeches of presidents, the pledge of allegiance, and so on.  This "religion of the Republic" (Sidney Mead) cannot be defined precisely and has no official status, but it has been operative in the national life from the beginning. This "publick theology" (Benjamin Franklin) affirms the reality of God the Creator as the Author of certain human rights such as liberty and equality, gives a sacred dimension to national holidays such as the 4th of July, Memorial Day, and Thanksgiving, and defines a peculiar American duty and destiny under the providence of God. These beliefs are independent of any particular historic religion or denomination, although they echo the sacred writings of Jews and Christians. The presence of "civil religion" in our national life does not justify the claim of some that we are a "Christian nation." It is not grounds for promoting a "Christian" political agenda if this means using the state to promote religious practices in secular institutions, e. g., government-sponsored prayer  in public schools.  On the other side some secular purists are offended by even this minimal creed of “civil religion” and long for a common life utterly devoid of any reference to God. Recently, a California schoolgirl who defines herself as an atheist asserts that it is wrong to require her to recite the pledge of allegiance that contains the words "under God." The Supreme Court has been on both sides of this issue.  Enough complexities and ambiguities of this sort abound to frustrate any effort to find some single or simple doctrine defining the relations between church and state or between religion and politics. Our courts are kept busy trying to find workable compromises least offensive to the Constitution and most in harmony with its fundamental intent and directives. At the same time shifting currents of political and cultural convictions are reflected in the evolution of  judicial decisions.

    Thorny problems arise in two particular areas. The first involves trying to steer between avoiding an establishment of religion and permitting its free exercise. Prayer in public schools is among the most contentious. Clearly state-sponsored prayer is forbidden, but at what point does student-initiated, voluntary prayer in connection with school activities cross the line? Is it legitimate for parents to use school vouchers from a state or local government to send their children to a religious school? The government-sponsored use of religious symbols in public places poses another set of dilemmas.  Where is the dividing line between the religious and secular dimensions of certain Christmas symbols, for example, Christmas trees or a creche? In 1984 the Supreme Court upheld a city-authorized Christmas display involving a creche because it had mainly a secular purpose.  Critics noted that this approval was made possible only by robbing the symbol of its sacred meaning.

    A second range of problems arises when religious belief and practice conflict with  secular law. In 1878 the Supreme Court forbade the Mormon custom of polygamy because it is “an odious practice.” In 1990 the Supreme Court ruled that members of the Native American Church did not have the right to the sacramental use of peyote, an  illegal drug. Should an Orthodox Jew be allowed to wear a yarmulke while on duty in the military? The Court said no.  But at what point does state interest in outlawing reprehensible  practices or merely having secular law prevail take precedence over religious freedom to obey God? All these conflicts occur between two spheres of authority and activity that are in principle separate but in practice sometimes overlap.

    One example of principles in tension will illustrate the subtleties and strains in a particularly instructive fashion. Should tax exemption be denied to schools that practice racial discrimination? Bob Jones University contested a ruling against it by the IRS on the basis of the Civil Rights Act of 1964. The University maintained that its policies were based on religious grounds and therefore should have constitutional protection.  In listening to the pros and cons, one notes that the defenders of Bob Jones argued from the freedom of religion side. "While we abhor what they stand for, nevertheless spiritual freedom is so precious that we defend it even when we are offended at the outcome.  Moreover, tomorrow society may decide it cannot tolerate dissident groups whose values are as far above the social consensus as racial bigots are below that line." The President of Bob Jones argued, "What we do is out of religious conviction, and it harms no one." The critics countered from the  reprehensible social practices point of view. "This society cannot  condone and underwrite racial discrimination." It is no wonder that religious and civic groups lined up on both sides. The President of Bob Jones University asked whether Jewish synagogues that segregate men and women are to be put under the ban or whether Catholic schools and churches that refuse to train and ordain women for the priesthood are to be denied tax exemption. After all, he argued, we do not exclude blacks from the college but only forbid interracial dating and marriage, and that applies to both races.  The strongest case for Bob Jones University and Catholic Churches is that the practices in question are both intragroup and voluntary. In Bob  Jones University  v. U. S. decided on May 24, 1983, the Supreme Court ruled that the IRS was correct in denying tax exemption. That conclusion makes me nervous, although I appreciate the ambiguity and complexity involved.

    The complicated relationship of religion to other human interest is illustrated in another sequence of events. In 1990 in  Employment Division v. Smith  the Supreme Court ruled that Native American religious use of peyote is not a constitutionally protected religious right. The principle stated by the Court was that freedom of religious expression did not take precedence over generally applicable laws. Over 60 religious organizations and civil liberties groups combined to form  the Coalition for the Free Exercise of Religion to fight a trend that was weakening religious liberty.

    In response to all the outrage expressed, Congress enacted the Religious Freedom Restoration Act (1993). It required governments to refrain from limiting religious freedom unless they have a compelling societal reason for doing so. Under this act a California state regulation requiring an employment loyalty oath was successfully challenged by a group of Jehovah's Witnesses. In Wisconsin, an Amish group successfully challenged a state regulation which  required them to mount bright orange safety triangles on their  buggies. Some cases were lost in the early 1990's before the RFRA was passed. In Rhode Island, Hmong families were unable to prevent autopsies being performed on their dead relatives. They believe that the procedure eliminates future life after death. In Maryland, a number of Catholic teaching hospitals had their accreditation canceled because they refused to perform abortions. Some complained that since RFRA had been enacted, a rise was evident in requests to obtain religious exemptions by organized hate groups and groups with a propensity for violence. The Aryan Nations group, a branch of the Christian Identity religion, was cited as one example.

    The downfall of this legislation started with a case that involved a Roman Catholic Church in Texas. The city of Boerne refused to issue a construction permit to allow the church to expand into a historical district. The church  sued, and the case made its way through the courts. Many unrelated cases had been initiated under the RFRA by prison inmates who charged that prison regulation of clothing, diet, and the like are violations of their religious beliefs. On June 25, 1997 in Boerne v. Flores the Supreme  Court  declared The Religious  Freedom Restoration Act unconstitutional. The majority opinion said that Congress had overstepped its legitimate authority when it enacted the legislation. The act set a "much higher hurdle" for government in regulating activities of religious groups than it did for private individuals and organizations.

    Renewed efforts by groups concerned with religious liberty led to the introduction of The Religious Liberty Protection Act of 1998. It called again for the restoration of the “compelling interest/least  restrictive means" test when deciding whether purportedly neutral state or local legislation would unduly burden religious expression. After much initial support the coalition behind this new move began to fracture. Many conservative religious groups continued to support it, but other organizations concerned with religious liberty and civil rights began to oppose it. Their fear was that it would have undermined many state and local civil rights laws. It would have created a new defense against claims related to disability, sexual orientation, familial,  marital, and pregnancy status, and possibly gender and religion. The contention was that the new measure had no provision  for reconciling conflicts between a defendant's contention that religious belief motivated his or her discriminatory act and a plaintiff's claim that state or local statutes provided protection against such discrimination – regardless of the defendant's motivation. So many  religious and civil rights groups withdrew support that the bill in effect died. Note how many groups of liberal theological and political persuasion felt caught between their commitment to religious freedom and their devotion to civil rights for persons subjected to religiously-motivated bigotry. For a substantial number the latter took priority in their minds over the former.

    A more focused piece of  legislation was then offered as The Religious Land Use and Institutionalized Persons Act. This bill was carved out of the RLPA. Its two purposes are 1. to eliminate restrictive municipal zoning regulations that prevent  churches and religious organizations from locating in certain areas and 2. to guarantee institutionalized persons freedom of religious expression. They would be  able to practice their religion as long as it did not disrupt the security, discipline, or order of their prisons or hospitals. It was embraced by both major political parties and by organizations spanning the ideological spectrum. Because it targets only the two issues specified, it was devoid of the constitutional and civil rights problems that plagued its predecessor. The measure passed both the Senate and the House on July 27, 2000, and became available for the President to sign.

    Is religion one of many activities that deserves protection so that other interests are equally important in the eyes of the law? Or does it deserve special consideration so that its claims outweigh all others? If the former, our ultimate loyalties and our relationship to God may be demeaned and set aside for lesser values. Yet religion may be the sponsor of what is bigoted, heinous, reprehensible, or even trivial. How can we protect religious liberty as a precious right and at the same time avoid  its misguided, destructive, immoral, and hateful manifestations? To put it differently, society has a set of laws and practices regarding justice, medical practice, morality, decency and many other things. When religious beliefs and practices are in conflict with what society has deemed necessary or important for the health and welfare of its citizens or to guard their civil rights, what trumps what? How serious a breach of religious freedom can be tolerated for the sake of making secular law applicable to everyone? How reprehensible must an act be to eliminate its practice in the name of freedom of religion? Should individuals be allowed to discriminate in the name of religion against blacks or homosexuals or unmarried persons of the opposite sex where their own property or private prerogatives are concerned while a public institution should not? How do we distinguish between private and public in these cases? How are we to weigh civil rights against freedom of religion? To shift the focus, is religious conviction merely an example of human subjective preference which we can change by another choice, or is it a transcendent objective demand that claims our allegiance in a compelling way so that we  have no choice but to be obedient to it? The Constitution specifically names freedom of religion as a protected right. How much weight does it therefore have in relation to conflicting claims? All of these questions are in the foreground or background of these current controversies.

    Let me touch briefly on a subject that is still with us.  It involves a proposal by President George W. Bush. The issue of government support for  faith-based  human services is  full of complications, dangers, ambiguities, and subtleties.  The beauty of religiously-oriented social ministries is the potential for dealing with people as whole selves, i. e., giving them food for the soul as well as for the body. But this very unity poses the problem of how it is Constitutionally permissible for the government to enable the providing of secular bread without funding sectarian religion. If, on the other hand, the delivery of goods and services to the needy is totally divorced  from the religious dimension, in what meaningful sense is it any longer faith-based, apart from merely being sponsored by a religious group? Why shouldn’t the government fund a church soup kitchen if all that is dispensed is soup? Because, we say, what the church would spend on soup can now be spent on  the church bus. But maybe they would just serve more soup. Maybe the soup itself is a  witness to the faith behind it, but if it is, is that not a sponsorship of religion? Would the government discriminate against some religious groups? But that is a matter of administrative practice not of Constitutional principle. What is a religious group? What  does faith-based mean? Can we think our way through this thicket without falling into confusion?

Religion and Politics

    The problem of religion and politics defines another set of issues. Church and state deals with the relationship of institutions that are structurally independent of each other. Religion and politics has to do with two spheres of activities in the life of the same persons. Citizens who belong to religious groups are also members of the secular society, and this dual association generates complications. Religious beliefs have moral and social implications, and it is appropriate for people of faith to express these through their activities as citizens in the political order. The fact that ethical convictions are rooted in religious faith does not disqualify them from the political realm. However, the question as to how they should be presented in the public sphere is  difficult, subtle, and controversial. Ethical beliefs and social policies based on religious faith  do not have secular validity merely because they are thought by their exponents to be  authorized by their particular belief system.  A majority of the electorate must be convinced in terms that appeal to them. Since the population is religiously diverse, and many profess no religion at all or prefer an explicit secular orientation, religiously-based moral and social convictions should be expressed in terms acceptable to the widest possible audience. Ideally, then, social policies should not be argued for on strictly religious grounds peculiar to a particular denomination or faith. Rather reasons should be stated in appropriate moral, social, and political terms that have a basis in fundamental national traditions and values. The appeal should be to something resident in American history and culture but not dependent for its validity on a specific religious creed, church, faith, or tradition.

    Suppose someone says, "If some of you Christians believe that abortion is wrong, fine. Don’t have an abortion. But don't try to impose your beliefs on the rest of us by passing laws forbidding it." Insight and confusion are tangled up in this statement. A few brief comments may be helpful in clarifying this issue in the context of the problem of religion and politics in general.

    1. All attempts to get laws passed are efforts to impose the beliefs of some on everybody. It is legitimate for any group of people to try to get a law passed if they believe it will promote the common good. In that sense, it is appropriate for Christians who are so inclined to get laws passed that make abortion illegal but  not  because abortion is judged to be morally wrong by the specific religious doctrines held by them. They should seek to ban abortion because it would be  wise and good to do so in terms of the values present in the moral and cultural traditions of the nation. Moral arguments in favor of a policy are legitimate, but in so far as is possible, it is better if they are based on an appeal to public reason not on the tenets of a specific religious faith or theology. By public reason is meant all the ways of discovering moral truth available to all citizens as inheritors of the general fund of principles, ends, and norms resident in American history, traditions, and culture. For example,  the moral argument in favor of legalizing abortions in the early stages of pregnancy depends on the distinction between a fetus and a fully actualized person. This distinction for purposes of the political debate involving citizens of many different religious and secular persuasions ideally ought not to rest on the authority of some specific religious text, institution, or authority as such. Rather the distinction between a potential and an actual person should be supported by general appeals to reason and common human experience available in principle to all thoughtful Americans. Individuals may personally accept the full personhood of the fetus on religious authority (the Bible, the church, the Pope, the creed of their faith, etc.) and vote accordingly. Ideally, however, they will seek to persuade their fellow-citizens – a majority of whom do not belong to their group – on the basis of more general principles and norms that reside in the culture as a whole. This sets the terms of the debate. It in no way predetermines the outcome.

    2. Every belief that citizens try to express politically is rooted in some philosophy or religion or some set of assumptions about society and its well-being. They do not come from out of nowhere. Religiously-based convictions about society and morality are as legitimate as those that spring from non-religious philosophies. Hence, Christians, Muslims, or Jews may seek to get laws passed that are rooted in their religious convictions. Such laws are appropriate as long as they have a secular purpose and do not constitute an establishment of religion. Whether these laws are wise or worthy of enactment must be judged by whether they promote the common good as judged by national values not by the fact that they are or are not rooted in the religious faith of those who support them. A religious foundation is neither required not forbidden. Neither secular humanism nor religious faith is privileged in this regard.

    3. Ideally and in principle, religious believers should not seek to get laws passed on religious grounds but because they express the values of the secular society. These norms and goals are defined by the founding documents and cultural traditions as they have come to be embedded in the common life. For example, if people of faith want to crusade for universal health coverage, e. g., they should argue for the policy not because the Bible or the Pope authorizes it or because God wills it but because it promotes "life, liberty, and the pursuit of happiness" and because Congress is constitutionally permitted to spend money to provide for the “general welfare.” Likewise, religious groups that seek to outlaw racial or gender discrimination should make their case on the claim that it would be good for society as a whole not on the fact that it is authorized by their religious faith.

    4. In practical terms, however, if believers feel that distinguishing between the religious basis and the political implications of their faith is an intolerable splitting of a unitary set of beliefs, then let them act accordingly. If  people actually convince other voters to support legislation because the Bible, the Pope, Buddhist teachings, the Koran, or church doctrine mandates it, not much can be done about it except to make an effort to persuade them that there is a better way. We cannot determine or control the reasons why people vote or support the policies they do or prevent them from convincing others to do the same. In the voting booth citizens are a law unto themselves. They can vote for whatever or whoever they want for any reason that motivates them. It is pointless to demand purity of principle on this matter. Voters act out of prejudice, self-interest, racial identity, ignorance, and for all sorts of other good and bad reasons, including their religious beliefs, philosophical commitments, and a devotion to justice based on American principles. Let us be realists about the matter.  Democracy is an untidy, often messy,  matter. The people can do what they want restrained only by Constitutional mandates. But it is better when acting politically in the public arena for believers to translate  religiously-based beliefs into the traditions, language, and values of the secular order. This is called for as a matter of principle. It is advisable pragmatically as well, since the tying of policy or voting explicitly to the tenets of a particular religion, denomination, or sect may repel  large number of voters and hinder rather than further the cause.

    5.  Hence,  a two-sided critique is required.  Against those who explicitly base political policies on the beliefs of a particular religion, we must insist that our government does not rest on principles peculiar to one subgroup. In this sense, we are a secular state. Hence, the political and ethical implications of faith should be framed in terms of the values embodied in our national history and traditions. Against some secular zealots, we must insist that religious people have as much right to express the social and ethical consequences of their faith in political terms as they have to express their non-religious or atheist philosophies. The problem is that many religious people and secularists simply identify their outlook with "the American way" and are unable or unwilling to distinguish between an underlying orientation (religious faith or secular philosophy) and its social and political manifestations. Once again the presence of "civil religion" in our history complicates the notion of an absolutely secular state. Even so, the "religion of the Republic" gives little specific ethical guidance beyond support of broadly-defined principles of justice, liberty, individual rights, equality, and the like. These ideals are so general and abstract that they can usually be invoked by parties on every side of issues when it comes to the specifics of social policy. In this connection, let us recognize that the American tradition is subject to revision in the light of experience and deeper insight. This occurred in the abolition of slavery, the granting of full citizenship to women, and the outlawing of segregation. All of these progressive moves could call upon something  fundamental in the national creed  that led to positive change. Novel possibilities can be introduced by constitutional amendment and cultural transformation.

    6. Churches must determine on the basis of their polity and doctrine whether it is legitimate or wise for a church official, congregation, or denominational body to endorse a particular policy or candidate. Hazards abound in doing so. It may bind religious faith injudiciously to a particular or controversial political program, and it may run the risk of splitting the congregation or the denomination. The state, however, must determine whether partisan political activities engaged in officially by religious institutions jeopardize their tax exemption or the income tax deduction for gifts to them, since it then becomes a matter of church and state.

    Working out the relations between church and state and between religion and politics requires all the wisdom we can summon. But it will help if we remember that they are not the same. In both cases, we should be prepared to deal with complexities, ambiguities, and overlapping realms in which practical discernment must find workable principles to guide us that are as compatible with fundamental Constitutional imperatives as human reason can devise. Those who look for absolutely clear prescriptions requiring no delicate balancing acts or imprecise lines of demarcation between what is permissible and what is not are doomed to perpetual frustration. Or they may be tempted to resort to desperate efforts to find simplicity and purity of doctrine by suppressing legitimate but complicating elements in the total ensemble of historical principles and practices that govern the nation.