The Real Problems with the "Separation" of Church and State

The liberals in America are upset with Barack Obama.

On Tuesday, the Democratic nominee announced a plan to expand faith-based government-funded charities. The New York Times reports:

Senator Barack Obama said Tuesday that if elected president he would expand the delivery of social services through churches and other religious organizations, vowing to achieve a goal he said President Bush had fallen short on during his two terms.
“The challenges we face today — from saving our planet to ending poverty — are simply too big for government to solve alone,” Mr. Obama said outside a community center here. “We need an all-hands-on-deck approach.”
Some Democrats have previously backed similar efforts, but Mr. Bush’s version, a centerpiece of his first-term agenda, has been a lightning rod for criticism from those concerned about the separation of church and state and those who argued that Mr. Bush had used it to further a conservative political agenda.
In embracing the same general approach as Mr. Bush, Mr. Obama ran the political risk of alienating those of his supporters who would prefer that government keep its distance from religion.

Obama went on to say,
“I know there are some who bristle at the notion that faith has no place in the public square. But the fact is, leaders in both parties have recognized the value of a partnership between the White House and faith-based groups.”

Keith Olbermann, the liberal flip-side of his rival conservative Bill O’Reilly, started his show on Tuesday saying,

“It is one of the most insidious aspects of the Reagan and Bush presidencies. What was never attempted before, a smudging of the line between church and state with the current president Bush turned faith-based initiatives, becoming a part of the government, making America to some small degree, even a tiny fraction of 1 percent part theocracy.
In our fifth story on the Countdown: Seeing political opportunity and seeing some way of incorporating the faith without the intolerance, Senator Barack Obama today, is trying to offer the compassion without the conservativism, and deliver unto himself some votes.”

We need a little bit of a constitutional lesson here, I think. I am not a constitutional scholar, so maybe I’m getting some of this wrong (that’s why I have you, dear blog commenter, to help me). Here are some things I think we need to understand about the relationship between church and state in the USA.

The First Amendment of the American Constitution brilliantly clarified the relation between church and state. Here’s how it reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The first clause deals with the establishment of religion. It says that, at a federal level at least, there should not be an established church, like the one the founders experienced in mother England. It also implies that no special preferences should be given to any one religious body.

This was genius; it directly dealt with what had caused so many problems in other nations. It not only declared that church and state are two different institutions, but it also declared how the state is to relate to religious bodies. The state would treat all churches equally.

Notice, the First Amendment does not say that the government cannot aid or cooperate with religious bodies. The government cannot stop aiding and cooperating with the institutions in its territory – it doesn’t matter if you’re a club, church, school, business, or whatever, the government will come to your aid if you have a fire or a burglary. When a hurricane hits, the government will cooperate with local religious and civil institutions to help the needy. The laws of the land apply to everyone in the land, no matter if you are a 'secular' institution or if you are a 'religious' institution. The Constitution simply says that the government cannot elevate one religious body above the others. And as our country became more diverse in its religious tapestry, it became obvious that this right extends beyond Christian churches to also include other religious bodies – Jews, Muslims, Buddhists, and any other religion.

The First Amendment was an ingenious way to articulate the relationship between church and state. But we could not leave well enough alone. In the 1947 case Everson v. Board of Education, Supreme Court Justice Hugo Black used Thomas Jefferson’s extra-constitutional statement (“the separation of church and state” in an 1802 letter to the Danbury Baptist Association) to muddy the waters. Black also stated that the First Amendment meant that the government could not “pass laws which aid one religion… (or) aid all religions” (emphasis added). This changed everything; the government could not “aid” any religious group, no matter how evenhanded or nondiscriminatory such aid might be.

Paul Marshall, in his must-read book, God and the Constitution: Christianity and American Politics, suggests that this shift in the interpretation of the First Amendment has led to five dangerous trends:

1. Black’s use of the term ‘separation’ did not forward the issue of church-state relations, it actually set it back. “The First Amendment was meant to give a solution to the problem of the relation of the distinct institutions…not merely to state the problem once again. Black’s formulation lost the answer provided by the First Amendment and left the problem open-ended.”
2. This led to further muddying of the water. In Lemon v. Kurtzman (1971), the court stated that one of the tests as to whether something violated the First Amendment is if it entailed an “excessive entanglement” between government and religion. “This was strange indeed. Churches and religions operate within state boundaries and under state laws. They are always deeply entangled: if they were not entangled we would never have had to argue for millennia about respective boundaries…As the First Amendment itself shows, by saying how they should be related, the question is not whether church and state will be ‘entangled’ but how they will be.”
3. “The notion that the state cannot ‘aid’ religion leads to further conundrums…as Michael McConnell has pointed out, ‘The Court has held that religious colleges may receive general purpose government grants, but religious high schools may not; that government may subsidize bus transportation to religious schools but not bus rides for their students on field trips; that government may pay for books but not maps or film projectors; that it may reimburse schools for the cost of state-mandated standardized test but not state-mandated safety maintenance; and that it may pay for diagnostic, but not therapeutic, services to children in religious schools’”
4. Since the modern state has become so encompassing in the lives of Americans, “this invariably means that religion must give way to governmental concern in every aspect of life. When the state gets in, religion is supposed to get out.”
5. The Court has not recognized that religion is not simply about private acts of worship, but about a way of life, a world view that shapes everything for the believer. The court’s restrictions on religion are usually applied only to traditional religious groups. The court has not seen that what is really at stake is an ideological battle, and that secularism and libertarianism are just as “religious’ as any traditional religious view. “The ultimate result is a tendency that the government cannot support ‘religion,’ but can support what it describes, for no clear reason, as ‘secular’ causes… Consequently, in disputes between traditional religion and modern secular ideology, the massive power of the U.S. government was placed in the service of the ideology.”

I write all this not to say that I favor “theocracy.” The point is that Olbermann and the like get all hot and bothered by what they fear to be theocratic ideas. Nobody, including most evangelicals, wants a theocracy. What we want is to have a proper relationship between church and state. In the past couple of decades, the Court has moved away from this strict separation idea, starting with the landmark case, Widmar v. Vincent, (1981), where a Bible study group was allowed to meet at a university since it allowed the same conditions to other groups. Congress passed the Equal Access Protection Act (1984) to ensure religious groups equal access to public school facilities. The court, in Good News Bible Club v. Millford, (2001), allowed a Christian youth group to meet after hours at school since the school allowed other groups to meet then.

The language of “separation” does not get us very far, it only creates new tensions. What we need is to get back to the Constitution, which stresses equality before the law for all religious groups, and does not artificially pretend that the government and religion do not interface.