By James M. Dunn
Visiting Professor of Christianity and Public Policy
Wake Forest University
Americans must be suffering First Amendment whiplash. On June 26, 2002, the
Ninth Circuit Federal Appeals Court’s decision said that separation
of church and state means much more than case law, history, or common sense
had ever suggested. On June 27, 2002, the United States Supreme Court made
separation of church and state mean much less than case law, history, or common
sense had ever suggested.
Not saying “under God” in the Pledge of Allegiance was actually
a stretch from the ceremonialism that has been so commonly tolerated throughout
the nation’s history. The Ninth Circuit ruled out this nod to appropriate
civil religion.
The Supreme Court’s approving vouchers for private and parochial schools
also made history in church-state law. The American people, in dozens of state
referenda, have consistently rejected public expenditures for private and
parochial schools. Courts and common, everyday folk resist paying for religious/sectarian
education with tax dollars. Many state constitutions explicitly prohibit state
support for religious schools.
The wall of separation between church and state seems to be under assault
by the Supreme Court. Justice Robert H. Jackson, we need you. You were not
wobbly about church-state separation. Justice Jackson said in Everson v. Board
of Education (1948): “The effect of the religious freedom amendment
was to take every form of propaganda of religion out of the realm of things
which could directly or indirectly be made public business.
Jackson understood the centrality of the First Amendment and the role of the
separation of the institutions of government from the institutions of religion
to protect religious freedom. He generalized: “If there is any fixed
star in our constitutional constellation, it is that not official, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion,
or other matters of opinion or force citizens to confess by word or act their
faith therein. If there are any circumstances which permit an exception, they
not now occur to us.”
Religious freedom is the most personal, most precious, most basic, most seminal,
most clearly biblical, most universal, most endangered, and most fundamental
freedom of all the freedoms one might have. All other liberties and liberations
claimed by thinking believers come from this basic freedom. Every distinction
that separates human beings from dumb thinks, automatons and puppets, is rooted
in the religious freedom that is the gift of God.
Thomas Jefferson, no orthodox Christian, understood this and expressed it
powerfully: “The God who gave us life gave us liberty at the same time.”
It is relevant to point to Jefferson because he and others in this crowd tried,
for the first time in history, to write into the documents of governance safeguards
for that profound freedom. Religious liberty, as we in this country know it,
is not rooted in some primitive social contract, nor in enlightenment theory,
as important as that is, nor in primal democratic processes, nor in popular
religion, nor in some biblical proof-text, but in the very person and being
of God whom all humankind, in some wonderful and mysterious way, replicates,
echoes, spins off, responds to, and answers to. We can do no other than admit
that all worth, value, dignity, and yes, even our very humanity are derived
from our being made in God’s image. We must take value from that creaturely
nature; our hardware demands it; our built-in receivers can only pick up those
frequencies.
So, the American experiment in religious freedom has a high, but not unrealistic,
view of human beings. James Madison, one of the most influential founders,
was in touch with the frailties, limitations, and sinfulness, if you will,
of all mortals. He studied with John Witherspoon at what would become Princeton
College, and there he got a heavy dose of Calvinism, including an appreciation
of the need for checks and balances, fences, and limitations. The separation
of church and state was born of this period, this philosophy, this political
and practical recognition of the need for a hedge, a guard rail, a means to
protect the freedom of religion that had been abused, violated and ignored
in the Europe of that day.
Yet, today there are those who do not understand this greatest contribution
of the United States to the science of government. Some still act as if the
separation of church and state does not exist.
Pat Robertson calls it a “myth.” Others make odd claims for the
principle that would deny the religious nature of all people. Still others
act as if the principle were designed only to protect freedom of worship.
Separation of church and state does not require separation of God from Government,
separation of religion from politics, or separation of Christians (or those
of any other religion) from their citizenship. But the separation of church
and state is no myth. Church and state have different purposes, different
constituencies, different sources of funding, and different methods of gaining
their goals. It is their distinctive methods of operation that so often causes
confusion.
One must simply examine the many violations of the spirit of church-state
separation to see how easy it is to get in real trouble. When anyone’s
religious liberty is denied, everyone’s religious liberty is endangered.
Yet, Supreme Court decisions would allow government to require all citizens
to pay taxes for the support of the religious education of a few. Some would
like to insist that our Ten Commandments be posted in public schools, paid
for with tax dollars supplied by all citizens, even Muslims, Hindus, Buddhists,
and those with no religion. Others would like to insist upon all public school
children hearing or engaging in some sort of “prayer” in their
classrooms, making them required participants or captive audiences doing religious
exercises whether they want to or not. Justice Scalia’s advocacy of
a “non-sectarian” prayer is amusing because a non-sectarian prayer
is no prayer at all.
Then, there are those controversial issues in which, without government intervention,
we believers manage to find ways to confuse the coercive power of the state
with that which we claim to be spiritual, Christocentric, God-fearing faith.
Some church leaders, lay and ordained, plunge their local church (or worse,
their denomination) into secular politics thereby secularizing the spiritual,
polarizing the congregation, politicizing the theological, and damaging the
witness of the church in the world. More commonly, some church people in most
denominations bring the nation’s flag into the worship center and permit
it either to overshadow the cross or to stand gathering dust until it becomes
part of the furniture. Most often, the use of the United State’s flag
in church falls into misuse by giving too much or too little attention.
Justice Jackson was profoundly dedicated to church-state separation. In West
Virginia Board of Education v. Barnette (1943), Jackson demonstrated the depth
of his understanding. The principles he espoused have been eclipsed by a rude
majoritarian statism. Hear is eloquent argument…
“The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the reach
of majorities and officials and to establish them as legal principles to be
applied by the courts. One’s right to life, liberty, and property, to
free speech, a free press, freedom of worship and assembly, and other fundamental
rights may not be submitted to vote; they depend on the outcome of no elections.”
If nothing else, the Bill of Rights is essentially counter-majoritarian. The
rule of law trumps the rule of majority sometimes.
“These principles [the Bill of Rights] grew in soil which also produced
a philosophy that the individual was the center of society, that his liberty
was attainable through mere absence of governmental restraints, and that government
should be entrusted with few controls and only the mildest supervision over
men’s affairs.”
He further insisted that it is none of the business of government to prescribe
correct thought. “Probably no deeper division of our people could proceed
from any provocation than from finding it necessary to choose what doctrine
and whose program public educational officials shall compel youth to unite
in embracing. Ultimate futility of such attempts to compel coherence is the
lesson of every such effort from the Roman drive to stamp out Christianity
as a disturber of its pagan unity, the Inquisition, as a means to religious
and dynastic unity, the Siberian exiles as a means to Russian unity, down
to the fast failing efforts of our present totalitarian enemies. Those who
began coercive elimination of dissent soon find themselves exterminating dissenters.
Compulsory unification of opinion achieves only the unanimity of the graveyard.”
Jackson’s comments on dissent are especially poignant this week as a
war chant mounts. Dissenters are despised.
“It seems trite but necessary to say that the First Amendment to our
Constitution was designed to avoid these ends by avoiding beginnings,”
Jackson mused. He demanded that dissenters have a right to be heard.
“We can have intellectual individualism and the rich cultural diversities
that we owe to exceptional minds only at the price of occasional eccentricity
and abnormal attitudes. When they are so harmless to others or to the State
as those we deal with here, the price is not too great. But freedom to differ
is not limited to things that do not matter much. That would be a mere shadow
of freedom. The test of its substance is the right to differ as to things
that touch the heart of the existing order.”
Jackson echoed the Milton classic, Areopagitica, celebrating the oneness of
all freedoms of conscience. His depth of character and intellect may have
been at times overshadowed by his popular, folksy egalitarianism. Jackson
was chosen class orator. He remained an orator with class.
Robert H. Jackson, born 110 years ago, saw himself primarily as a lawyer.
He reflected often on his practice in Jamestown. His notion that the Constitution
cherished human personality above all and that protecting human personality
was both a civic necessity and a spiritual duty would be welcomed today in
the offices he held: Attorney General and Associate Justice of the United
States Supreme Court. We need you now, Justice Jackson.