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Church and State: A Humanist View
by Vern L. Bullough
The following article is from Free
Inquiry magazine, Volume 16, Number 2.
There have been two conflicting traditions in the United States about the relationship
between church and state. The first is exemplified by the holiday of Thanksgiving, which
emphasizes the religious foundation of the United States. The Pilgrim fathers set out in
the New World not only to worship as they wanted but to establish God's kingdom. They had
the truth and all others were wrong; church and state were one. The second tradition comes
from the time of the writing of the American Constitution, when our deistic, freethinking
Founding Fathers (no mothers) embodied in the Constitution the principle of separation of
church and state.
The conflict between the two traditions should be obvious, and it was neatly finessed
by our Constitution makers by more or less ignoring what states did. Although technically
the last established religion was eliminated in 1833 in Massachusetts, the lack of an
established religion did not mean real separation of church and state. States later
admitted to the union had to adopt statutes about religious freedom, but, since most
Americans nominally came from a European Christian background, religious observances
played an important role in American history. One current example is the delivering of a
prayer that opens up Congress, a practice that Free Inquiry's editor, Paul
Kurtz, attempted to stop by a lawsuit, which he lost.
I was never more struck by the contradictions in our concepts of separation of church
and state than when I lived in so-called emancipated New York State. I appeared several
times in court in New York as an expert witness, and each time I was required to swear an
oath on the Bible to tell the truth so help me God. I objected to the attorneys for whom I
was testifying but they asked me not to call attention to the issue since it could
negatively affect their client. I complied. In the university at which I taught in New
York, the commencement ceremonies were opened and closed with prayers, although there was
a real effort by the clergy doing the invocation and benediction to keep their remarks
general and platitudinous. Most secular schools in the United States have Christmas and
Easter breaks, although the Easter break is somewhat less common than it was a few years
ago. The most secular school I attended was the University of Chicago, at one time a
Baptist school, which ignored religious holidays of all kinds but did have its quarter
session usually end about December 22.
These practices emphasize the assumption of the churches accepting the separation of
church and state that the United States was essentially a Christian nation; non-Christians
would be tolerated providing that they did not cause too much trouble. In a sense I myself
have been a coward. I tried to get the American Civil Liberties Union in New York to
challenge court oath-taking practices, but it was not interested since for many people the
oaths had become meaningless. I did not want to expend the effort myself.
The general pervasiveness of Christian assumptions about morality and family was
reinforced by the so-called Mormon cases, the first of which Reynolds v. United States,
which reached the Supreme Court in 1878 and established monogamy as the norm, ruling that
it was the basis of Western (read mainstream Christian) societal life. In a sense, this
was a double-edged decision because the Justices, in their effort to outlaw the Mormon
practice, in effect asserted that marriage could be regulated by law, guaranteeing the
states the right to issue licenses and to control marriage independent of the church.
Another one of the Mormon decisions marked the most far-reaching secular claims of
government. The case of the Church of Jesus Christ of Latter Day Saints v. United States
(1890) upheld the constitutionality of a law adopted by Congress in 1887 that annulled the
charter of the Mormon church and declared all the property forfeited except a small
portion used exclusively for worship. In a sense, however, this case represented not so
much a conflict between church and state, but a statement of the dominant religions in
United States against the feared Mormons.
The way I interpret the decision is that the Court was able to assert the supremacy of
state over church because it was basically concerned with what Mormonism was doing to good
Christian belief, and in this it had the almost unanimous support of all the other
churches in the United States. In fact, as late as United States v. MacIntosh (1931), the
Court went so far as to declare that Americans were a Christian people. The actual case
dealt with a conscientious objector who had applied for citizenship and been denied. He
appealed, and the Court decided that, unless Congress ruled otherwise, obedience to the
laws of the land was required since such laws were not inconsistent with the will of God,
i.e., as interpreted by mainstream Christian thinkers. The real turning point, I think, in
pushing a humanist agenda in terms of separation of church and state, came in the 1930s in
several cases involving the Jehovah's Witnesses. Lovell v. Griffin (1938); Schneider v.
Irvington, N.J. (1939); and Cantwell v. Connecticut (1940) dealt with the right of
Jehovah's Witnesses to distribute literature. The decisions not only emphasized that the
state should not interfere in such distribution to protect freedom of religion, but
emphasized the right of free speech as well. In a sense, these decisions marked a reversal
of the trend established by the previous cases involving Mormonism. Perhaps the most
important of the Jehovah's Witnesses decisions was the Minersville School District v.
Gobitis (1940), which said that a school district could not force Witness children to
salute the flag.
Although the Witnesses lost some of the many cases they took to court, they mostly won.
They forced the courts and civil authorities to be more secular in their interpretation of
the law. The Court held that religion was important and should be protected even when it
does not conform to standard Christian interpretations. This to my mind was at the heart
of the decision of the Court in United States v. Ballard (1944). Guy Ballard and members
of his family had founded a religion, the "I am" movement based on Ballard's
beliefs that he had talked and shaken hands with Jesus as well as St. Germain, George
Washington, and others. He had been sued for perpetuating a fraud to collect money, but
the Court held that such matters were not within their jurisdiction. This was because the
test of religion under the Constitution was belief, and religious belief was
constitutionally protected. If fraud was involved it had to be separated from religious
belief and teachings.
Although the Jehovah Witnesses and the Ballard case were extending religion further
afield than the mainstream Christianity of earlier decisions, the clear aim of the Court
seemed to be to preserve religion, even if it meant broadening it to include
non-Christians or very troublesome ones. Conscientious objectors soon benefitted from this
interpretation when the Court in essence revised its 1931 decisions and said in Girouard
v. United States (1946) that refusal to bear arms was not necessarily grounds for denial
of citizenship since religiously motivated pacificism came under the freedom of religion
clause.
The first major humanist case to reach the courts was McCollum v. Board of Education
(1948). The courts held that the use of tax-supported property for religious instruction
and the close cooperation between school authorities and religious councils in promoting
religious education was unconstitutional. It emphasized, following an earlier decision,
Everson v. Board of Education (1947), that, although the state might be allowed to provide
students bus transportation to parochial schools and supply traffic guards, this was done
to protect children and not to support religion. It held, as was emphasized in the
McCollum case, that church and the state can best work to achieve their lofty aims if each
is left free from the other. Going somewhat further was Burstyn v. Wilson (1952),
resulting from the attempt of New York to ban the film The Miracle on the grounds that it
was "sacrilegious." The Court ruled that people have a right to be sacrilegious
if they wanted to. Still the United States was permeated with religious laws. Until well
into the 1960s, many states and jurisdictions, including Pennsylvania and Ohio, had
sabbath-closing laws for commercial businesses, both of which I learned about through
living on the Ohio-Pennsylvania border. In Ohio, this permitted Jewish-run enterprises to
open on Sunday, providing they closed from sundown on Friday to sundown on Saturday. In
Pennsylvania, restaurants, except in hotels, had to be closed on Sundays. Even baseball
games had to end at a certain time on Sunday in order to allow people to attend evening
church services. Gradually these laws were removed, and as they were non-believers began
agitating more forcefully for their own rights. Still, it is impossible to buy beer on
Sunday in New York before noon and impossible to buy hard liquor all day.
It takes dedication to fight the establishment. Another humanist case was Torcaso v.
Watkins (1961). Roy Torcaso, an active humanist, had been denied his commission as a
notary public because he would not swear that he believed in the existence of God. He won.
As school boards and other jurisdictions lost in one area or another, they tried to recoup
their losses by redefining and extending in another. New York, for example, tried to
dictate a non-sectarian school prayer in order to conform with a state law requiring the
use of prayer when sectarian prayer was not permitted. This attempt was declared
unconstitutional in Engel v. Vitale in 1962. Other jurisdictions required the reading of
Bible verses. In one decision, Murray v. Curlett, a sometime humanist but more active
atheist, Madalyn Murray O'Hair, was involved. The Court held that religious exercises that
are prescribed as part of the curricular activities of students who are required by law to
attend school are a violation of the Constitution, and this included school prayer. One of
the organizations (besides the ACLU) struggling with this issue was Americans United for
the Separation of Church and State. At various times I was a dues-paying member of the
latter. This group had been started in 1949 by Baptists, and essentially grew out of
concern with what was deemed the aggressive policies of the Roman Catholic church in the
United States. In fact, it was originally called Protestants and Other Americans United
for the Separation of Church and State. The group held that there was a distinctive
Christian basis for religious toleration. In a sense many of the Protestants tended to
ignore the fact that they controlled the public schools (one of the reasons Catholics had
established parochial schools) or that many of the basic institutions of our society were
overlaid with Protestant interpretations. Although Americans United has changed over the
years, pushed away to some extent from its Protestant bias by the formation of Americans
for Religious Liberty by Ed Doerr, current president of the American Humanist Association,
the ambiguity of its original commitment is emphasized by the changing stand of the
Southern Baptists, once the bulwark of church-state separation.
The change, in my opinion, was due to the shift in the United States from small-town to
urban-centered life. In rural southern America, where the Southern Baptists had been
dominant, there was a sort of unconscious Christian underpinning for almost all aspects of
life. Prayer in schools, for example, was natural, since it was assumed that everyone
agreed although they might be Methodists, Baptists, Presbyterians, Lutherans, or
Episcopalians. The village atheists and even the humanists could be tolerated in the small
town, but mostly such people were regarded as harmless eccentrics. Many of those who had
previously looked upon separation of church and state as a general version of Christian
toleration and denial of any established church saw a new danger in secularism, i.e., the
state is vigorously neutral when it comes to religion, and they interpreted the new
situation as "godless atheism."
While giving lip service to church-state separation, they put the issues in terms of
preserving traditional morality, reinvigorating the family, and of overcoming secularism,
which is seen as having no morality and implied the "removal of government" from
our lives. In a sense, this is turning the clock back. Although Jerry Falwell's Moral
Majority has come and gone, it has been replaced by other groups emphasizing the need to
return to God: Pat Robertson and his Christian Coalition; Gary Bauer and the Family
Research Council; James Dobson's Focus on the Family; Beverly LaHaye's Concerned Women for
America; Louis Sheldon's Traditional Values Coalition; Phyllis Schlafly's Eagle Forum; the
National Right to Life Committee; and a host of others. These groups have become more
doctrinaire, as shown by the heresy trials and seminary takeovers among the Southern
Baptists and the Missouri Synod Lutherans. They are trying to resurrect the Puritan
version of God's kingdom in the New World. Theirs is a vision of America that has always
existed and in fact only began to be challenged effectively in the last part of this
century.
Although they couch much of their campaign in Christian moral terms, i.e. school
prayer, the voucher system, attacks on reproductive rights, and what have you, basically
their attack is on secularism, which they read as humanism, and on multiculturalism, which
they view as un-Christian. The spectrum of Christian America having not only synagogues
but mosques, Buddhist and Hindu temples, is anathema to their beliefs.
Although the United States is the most religious country in terms of numbers of
believers and churchgoers among the major nations of the world (due I think primarily to
our continued effort to retain a separation of church and state), the militants will not
rest because things have not turned out as they believed they would, with the
establishment of a new kingdom of God in the United States. The issue is further
complicated because the militant Christians have captured a significant section of the
Republican Party, in part because they have an agenda, while the opposition, the majority,
is in disarray, because we ourselves have not adjusted to the changes brought about by the
collapse of the Soviet Union and the redefinition of the enemy. The Soviet Union
represented godless atheism, state control, lack of freedom, and many other things, some
of which had merit, but others were inimical to humanism. Its collapse, however, has given
strength to those who saw the world in black-and-white terms, godless atheism versus
Christian belief. In the battle between church and state, the secularists have been
winning. No wonder the Christian right is fearful and so politicized.
In the long run, I think the Christian right will be defeated, but only if humanists
remain vigilant and build new coalitions. I hope that humanists do not become identified
with one particular party, as the Christian right has been, since on many issues we
humanists disagree. But I think we need to unite to preserve our vision of the United
States as expressed by James Madison, Thomas Jefferson, and others. In the long run it has
been more viable. Theocracy, entrenched as it may be in American thought, is not based on
a real understanding of human nature, whether it be Calvin's Geneva, Plymouth's Pilgrims,
Massachusetts' Puritans, Mormonism's United Order, or any other number of such attempts
including, in my estimation, the secular utopia to which many communists subscribed and
which for a time they thought the Soviet Union was on the way to achieving. The initial
group in all these cases might well have been believers, but as new generations come
along, conditions changed, belief declined, and it became necessary either to maintain it
by forced conformity, adopt compromises, or, as has happened in the past, abandon the
movement all together, as happened in the Soviet Union.
Humanists at least have reality on their side. It might seem somewhat outlandish to
equate the Religious Right with the founders of the Soviet Union, but their endpoint is
very much the same, the utopian kingdom of God or man, and to the believer any means is
justified to bring this closer. In the present context of the United States it means a
full-scale assault on separation of church and state and on secular humanism. From their
viewpoint, we are the enemy.
References
- Burstyn v. Wilson, 343 U.S. 495 (1952).
- Cantwell v. Connecticut, 310 U.S. 296 (1940).
- Church of Jesus Christ of Latter Day Saints v. United States, 136 U.S. (1890).
- Girouard v. United States, 328 U.S. 61 (1946).
- Lovell v. Griffin, 303 U.S. 444 (1938).
- McCollum v. Board of Education, 333 U.S. 203 (1948).
- Everson v. Board of Education, 330 U.S. 1 (1947).
- Minersville School District v. Gobitis, 310 U.S. 586 (1940).
- Reynolds v. United States, 98 U.S. 145 (1878).
- Schneider v. Irvington, N.J., 308 U.S. 147 (1939).
- Torcaso v. Watkins, 367 U.S. 488 (1961).
- United States v. Ballard, 322 U.S. 78 (1944).
- United States v. Mcintosh, 283 U.S. 605 (1931).
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