Our Unequal Separation of Church and State

Freedom of faith should go beyond personal belief.

We draw a sharp line between the religious and the secular in the modern United States. There may be a complicated relationship between them, but it seems we cannot allow overlap. The two are mutually defining concepts: what is secular is everything in society that is not religious, and what is religious is all that’s not secular. This is usually a useful legal concept. We use it to separate the religious beliefs and practices of the individual as untrespassable, guarded by an inalienable divine right to believe what one will regardless of the laws and whims of the secular state—guarded even by the First Amendment, the writings of the Founding Fathers, and a slew of Supreme Court cases. 

It is also worth reflecting on the origin and interpretation of this right to “free exercise of religion.” In a response to the Dansbury Baptist Association after his election to the presidency, Thomas Jefferson famously interpreted the First Amendment’s religion clause as “a wall of separation between Church & State.” This phrase, alongside similar words from James Madison, has justified a number of Supreme Court decisions—from banning the religious practice of polygamous marriages (Reynolds v. United States) to banning school-sponsored prayer at public institutions (Engel v. Vitale). This separation also codifies into law the secular nature of the government—it is not-religious and it even consciously separates itself from close association with religion.

We have, then, a distinction between the religious and the secular, each taking up where the other left off. The state sits squarely on the side of the secular, behind a “wall of separation.” The Dansbury Baptists encouraged this separation for the sake of their protection from the state, but that same wall of separation has been used to keep prayer out of public schools and otherwise prohibit the state from sponsoring or being sponsored by religion. All of this tells us something of the secular, something of the state. But what does “religious” mean in this context? 

The Dansbury Baptists speak of religion as “at all times and places a matter between God and individuals” and express their concern that any man should ever suffer “on account of his religious opinions.” Jefferson agrees with them in his reply, writing that “religion is a matter that lies solely between Man and his God” and that the “legitimate powers of government reach actions only, and not opinions.” This attitude paints an individual, personal picture of religion that might work for the Dansbury Baptists but not many others.

For many, even within Christianity, religion is inherently communal rather than individual. The beliefs of Catholics—including many of their political views—often take root in explicit communal statements. The individuals are only Catholic inasmuch as they adhere to these communal views. It is not a matter between God and individuals, but between God and the Church. Similarly, Judaism rarely takes form as a state of belief between the individual and God. As we see most clearly in stories from Jewish texts, the faith is largely a matter of the actions of a people and the response of their God. Likewise, Islam holds value in language and place–things shared by a people, not just beliefs held by an individual. The image of religion handed down to us by Jefferson appears not so much as a general expression of religion, but of a particular form of American Protestantism. 

Yet this breaks down further when we consider religion in practice. The IRS regulates what sort of organizations are deemed “religious” in the eyes of the state, as well as which actions such organizations can take to keep their tax-exempt status as religious entities. Religious organizations are explicitly prohibited from “directly or indirectly participating in” political action that would favor or oppose one candidate or group of candidates over another. This is political action, and as such, is under the purview of the secular—not the religious. 

But why would any particular religion relinquish political action to the secular? My own church holds strong views on a variety of topics. We must oppose abortion, racism, and a number of other issues, and we must actively support policies that give preferential treatment to the poor, protect the environment, and support the traditional family structure, to name a few. In America we advocate as individual Catholics, yet historically, the Church has played an active role in public institutions and political action. We are a church of action as well as belief. But, as Jefferson helpfully put it, “the legitimate powers of the government reach actions,” and there must be a wall of separation between the government and the church—so there must be a wall of separation between actions and the church. 

In similar fashion we see the Supreme Court rigorously define what counts as religious actions we are entitled to take. From ritual drug use (Employment Division, Department of Human Resources of Oregon v. Smith) to cake baking (Masterpiece Cakeshop v. Colorado Civil Rights Commission), the Supreme Court decides what counts as religious and what begins to encroach on the secular–which is to say the political. Whether or not they rule in favor of individuals to pursue what they take to be specifically religious actions (and so protected by the First Amendment), it is still the state—rather than the church—which ultimately defines what counts as religious. 

The American doctrine of religious liberty and separation of church and state began as a good attempt to mark out the boundaries of the secular and the religious and allow each to flourish on its own. Yet it seems to me that this is, at best, an unequal yoking. Much ground that at other times in history and in other places was under the domain of the religious has since been claimed by the state. There may be a wall of separation between the church and the state, but it is the latter that holds the building permit and wields the power to change its boundaries.

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