Separation of Church and State

Separation of Church and State by Phillip Hamburger

Please read the rest of the review at Medium.

The “Separation of Church and State” is both a legal doctrine and an American piety. It functions as a kind of shorthand expression for the proper role of religion in society. For Americans there seems to be an inchoate fear that at any time religion could jump out of its proper sphere and turn Americans into fanatics. The fear is always the fear of the unknown – the other guy's religion, which is strange and cultish, whereas one's own is restrained, stable, and homely.

For some, the American piety of “separation of church and state” merges with religious pieties. This is the way that God – a proper, High Church Protestant God – set things up. I have in mind President George H.W. Bush's thoughts in a most dire situation:

When he was once asked what he had thought about as a young pilot floating in the Sea of Japan after being shot down during World War II, he answered, “Mom and Dad, about our country, about God ... and about the separation of church and state,” according to columnist Terry Mattingly. It sounded as though he was shoving every religious phrase he could think of into a single sentence.

It seems like an odd moment to be thinking about a legal doctrine. It would have been no stranger than if he had claimed to have been thinking of the separation of power or the supremacy clause, but on the principle that “there are no atheists in the foxhole,” the young Bush was feeling the need for religious support in his vicissitude, which required a worshipful attitude to the Creator, such as knowing the proper role that a citizen of a democracy should take in serving God, which, in turn, means knowing what things to offer God and what things to offer Caesar.

Or it could be that for Protestants, separation of church and state meant a proper American form of religion, which necessarily meant “not Catholic,” who by the 1940s were still feared as a foreign element who might still be looking to force their alien religion on Americans. I am not saying that Bush was intentionally anti-Catholic, but anti-Catholicism has been perennially in the air, up to and including 2020 when Senator Dianne Feinstein told Judge Amy Coney Barett that “the dogma lives loudly in you.”

And with that speculation, we should turn to Separation of Church and State by Phillip Hamburger. Hamburger is a legal scholar/legal historian specializing in the First Amendment. In “Separation of Church and State” (“SOCAS”), Hamburger surveys the history of religious liberty. He describes the evolution of the concept of separation from something ascribed to unhinged radicals to mainstream constitutional law as a result of recurrent American fears about the Catholic Other. Ultimately, we get a lesson in the law of unintended consequences.

Hamburger describes the idea of the separation of church and state as existing apart from the idea of religious liberty. Religious liberty meant the freedom to practice one's religion without penalty. This was a nebulous concept that probably entailed not being required to subsidize someone else's religion, which was what was generally understood by the idea of the “Establishment of Religion.” According to Hamburger, separation of church and state (“separationism” is the term I will use to save time) was an accusation hurled by one group against another. In the colonial era, no one advocated separationism; rather, they would accuse other churches of seeking separationism. Separation of church and state was understood to mean either or both (a) ending all government support for religion and/or (b) ending the role that religion played in exercising moral control over the state.

Early America disputed the issue of whether clergymen could serve as elected representatives. The grounds given for or against this position included a concern that clergymen might find themselves sullied by secular activities and/or that clergymen should keep themselves busy with their religious activities, and/or implicit anti-Catholicism. Hamburger notes:

Notwithstanding that this constitutional exclusion purported to be sympathetic toward the clergy, some exclusion clauses clearly attempted to elicit anti-Catholic support. For example, in 1777 the earlier, New York version of the provision quoted above specified that “no priest of any denomination whatsoever” should be eligible for office. This anti-Catholic Catholic wording came from the document's primary drafter, John Jay, whose preamble to the Constitution's religious freedom clause pointedly declared that “we are required, by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind.”” Yet most Americans hesitated to endorse this intemperate anti-Catholicism, and even when in 1796 the drafters of the Tennessee Constitution copied the anti-Catholic allusions in New York's exclusion provision, they did not adopt New York's diatribe about the “bigotry and ambition of weak and wicked priests.”7

Philip HAMBURGER. Separation of Church and State (Kindle Locations 842-847). Kindle Edition.

On the other hand, generalized attacks on the clergy were avoided. There was also pushback on clergy exclusion:

In 1783, in Virginia and what would become Kentucky, Thomas Jefferson hoped that a new constitution would exclude “Ministers of the Gospel” from the General Assembly. His discriminatory proposal, however, elicited skepticism from James Madison: Does not the exclusion of Ministers of the Gospel as such violate a fundamental mental principle of liberty by punishing a religious profession with the privation of a civil right? Does it not violate another article of the plan itself which exempts religion from the cognizance of Civil power? Does it not violate justice by at once taking away a right and prohibiting a compensation for it? And does it not in fine violate impartiality by shutting ting the dour against the Minister of one religion and leaving it open for those of every other?” This inequality had no justification in the anti-establishment principles shared by Jefferson and Madison, and Jefferson is not known to have defended it.

Philip HAMBURGER. Separation of Church and State (Kindle Locations 849-854). Kindle Edition.

There was no generalized hostility to clergy as such. The arguments for excluding clergy from serving as elected representatives was never presented on the basis of a blanket anti-clericalism or on the grounds of separation of church and state:

Thus Americans barred clergymen from civil office for many reasons, including an odd combination of Calvinism, anti-Catholicism, theories of taxation and representation, solicitude for the clergy, and suspicion of the clergy. Strikingly, however, Americans did not exclude the clergy on grounds of separation.

Philip HAMBURGER. Separation of Church and State (Kindle Locations 859-861). Kindle Edition.

The gist of the point that Hamburger makes in the first section of his book is that no one advocated Separationism at or prior to the framing of the American Constitution or the Bill of Rights. As such, the First Amendment should not be read as incorporating Separationism as the intent of the Framers.

So, where did our adherence to the incantation of “Separation of Church and State” come from?

It should not be a surprise to 21st Century Americans that the doctrine was ginned up for political purposes, specifically by Thomas Jefferson and his supporters after the Election of 1800. During the 1800 election campaign, Jefferson had been attacked by Federalist-sympathizing pastors for being an atheist. Jefferson's Federalists pushed back by arguing, inter alia, that “religion should be kept out of politics.” In other words, it was an example of “your religion is threatening and goes too far.”

In the course of this counter-response after the election, and in anticipation of the next campaign, Thomas Jefferson floated a trial balloon in a letter to the Danbury Baptist Association (1802). At the time, in New England, Baptists were sympathetic to Jefferson's anti-Federalist positions because they had to certify that they were members of a religious minority in order to avoid paying taxes to support the Congregationalism religious majority. When the Association wrote to Jefferson, he used it to promote his anti-Federalist project, particularly in Connecticut, which was under the control of Federalist-leaning Established clergy.

Jefferson famously deployed the metaphor of the “wall of separation”:

Believing with you that religion is a matter which lies solely between Man Fr his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. [Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

Philip HAMBURGER. Separation of Church and State (Kindle Locations 1603-1607). Kindle Edition.

Given how often the “wall” metaphor is repeated today, moderns might be surprised that Jefferson's letter was ignored by contemporaries and the Danbury Baptists distanced themselves from Jefferson's extreme position:

If Jefferson had high hopes that his letter would promptly sow useful truths and principles, he must have been disappointed, for his epistle was not widely published or even noticed. In one respect this is not altogether surprising, for his phrase about the separation of church and state probably seemed to reiterate the Republicans' anticlerical rhetoric. Yet there was another reason the letter eluded the public's attention. Jefferson miscalculated dissenting and especially Baptist opinion.

Philip HAMBURGER. Separation of Church and State (Kindle Locations 1614-1616). Kindle Edition.

And:

Indeed, as William G. McLoughlin points out, whereas the 1801 minutes of the Danbury Association recorded its decision to write to Jefferson, the 1802 minutes remained silent about his response.” This was in sharp contrast to the practice of other Baptist associations. Later in Jefferson's presidency, when several Baptist associations that regularly published their minutes wrote to the great man, they consistently recorded the resulting correspondence and published it with their proceedings.39 The Danbury Association, however, acted as if its correspondence had never taken place.

Philip HAMBURGER. Separation of Church and State (Kindle Locations 1633-1636). Kindle Edition.

The Baptists made clear that they were advocating for the “rights of conscience against laws that made Christianity an object of civil government.” The Baptists were looking for exemptions where appropriate, not for a wall that would prevent the consideration of such exemptions.

So, again, the modern notion that “separation of church and state was baked into the First Amendment is a fable.

What then brought us to where we are?

Catholics.

In the middle Nineteenth Century, Catholics began arriving in America in droves sufficient to have an effect on American politics. Catholicism was the ancient enemy to Anglo-Saxon Protestants. American identity had been forged in colonial times by being sandwiched between threatening Catholic powers – French Canada to the north and Spanish Florida to the south. Expecting Americans to set that aside was asking a bit much.

I thought I had a good knowledge of anti-Catholic history, but Hamburger made me realize how cyclical and enduring anti-Catholicism has been in American history. It seems like every thirty years or so, anti-Catholic attitudes spike to become actively political. In the 1840s and 1850s, the anti-Catholic Know-Nothings threatened to become the opposition to the Democrats. Robert William Fogel in “Without Consent or Contract,” points out that during this period northern opposition could coalesce around opposition to the Slave Power or the Vatican Power. Initially, the latter looked like it would win as the Know Nothings took control of several state governments and had 70 members in Congress. The Kansas-Nebraska Act changed the dynamic of the competition by fomenting open war in Kansas and dividing the country along clear sectional lines. It was a near-run thing that could have gone the other way.

The Civil War and Reconstruction put anti-Catholicism as a political issue on ice until the 1870s when the issue became politically potent again. During that time, President Ulysses S. Grant stumped for a constitutional amendment for separation of church and state and Senator Blaine obtained passage of the Blaine Amendment that forbade payment of tax money to parochial schools. Hamburger writes:

President Grant in December 1875 had appealed to Liberal and nativist sentiment by proposing constitutional amendments in favor of separation. It was Blaine's amendment, however, ever, proposed on the floor of the House a week later, that seemed likely to succeed and that most Liberals feared. Hoping for the Republican presidential nomination, Blaine rewrote the First Amendment to apply it to the states and to specify a single logical consequence of separation-the one most popular with anti-Catholic voters: “No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support port of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided vided between religious sects or denominations. “28

Philip HAMBURGER. Separation of Church and State (Kindle Locations 2847-2852). Kindle Edition.

These measures were aimed at Catholics:

The Liberals regretted this “non-committal” Blaine amendment because cause it conformed to the Protestant or nativist conception of separation. Although it provided that no public lands or public funds devoted to school purposes shall “ever be under the control of any religious sect” or “be divided between religious sects or denominations,” it thereby would “still leave the Protestant sects undisturbed in their present collective mastery over the public school system.”29 In other words, it was an anti-Catholic measure that still permitted a generalized Protestantism in public schools as long as this was not the Protestantism of any one sect. Liberals, therefore, felt that it “ought not to be adopted, unless so amended as to prevent any sect or number of sects from exercising control over the public schools.””) Fearful that the Blaine amendment was “a compromise between the ecclesiastical and the secular theories of government,” and that it would “not have the effect of secularizing the public schools, but [would] leave undisturbed the chief evil to be reformed,” the Liberals proposed their new, 1876 amendment as “an eminently timely measure to bring forward now.”“

Philip HAMBURGER. Separation of Church and State (Kindle Locations 2853-2859). Kindle Edition.

Hamburger concludes that it was during this period that the “wall of separation” and Separationism became acceptable metaphors in America. Of course, separation was in the third person, i.e., “their religion was to be separated.” It was not intended to mean “our religion.”

Anti-Catholicism erupted again during the immediate post-World War I years as the Ku Klux Klan was revived and went national. People know but don't appreciate how important anti-Catholicism and separation of church and state were to the new KKK. Separationism was hard-wired into the creed of the new KKK:

Separation became a crucial tenet of the Klan. When recruiting members, the Klan sometimes distributed cards listing “It]he separation of church and state” as one of the organization's principles.”-‘ Bearing this out, Klan pamphlets declared that “[t]he fathers” and “the founders of our republic” had “wisely provided for the absolute divorce of Church and State.”” Both in the South and the North, members even recited in their “Klansman's Creed”: “I believe in the eternal Separation of Church and State.”“

Philip HAMBURGER. Separation of Church and State (Kindle Locations 3858-3860). Kindle Edition.

Anti-Catholicism was popular. Oregon passed anti-parochial school legislation, which was struck down in Pierce v. Society of Sisters (1925). Anti-Catholic publications, such as the Menace regaled a million readers with cliché anti-Catholic horror stories and promoted “separation of church and state:”

The rest is continued at Medium.