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The Real Victims of a Church-State Merger
Be Careful What You Wish For

by Alan M. Dershowitz

The following article is from Free Inquiry magazine, Volume 20, Number 4.

The "wall" has long been a useful and poetic metaphor. It separates neighbors as well as great nations. It protects and defends, but it also rejects and offends. The wall of separation between church and state, a metaphor attributed to Thomas Jefferson, is in danger of crumbling in the nation that first built it. There are multiple ironies in this danger. Unlike the broken wall which separated East and West Germany, the wall between church and state in America is not broken. Originally designed to protect the church against the secularizing intrusions of the state, our wall is working extremely well. Churches, synagogues, and mosques are thriving in this land of separation. Religious attendance is higher than in any Western democracy with an established church. Belief in God is widespread throughout the land. Yet the right to disbelieve or to be skeptical is accepted-at least in theory. 

The successful status of American religion is to be contrasted with the sorry state of religion throughout most of Europe. When my family and I travel to Europe, we love to visit the old churches-not for prayer, but for artistic appreciation. Our favorite time to observe a church is on Sunday morning, when it is being used as intended. In recent years, we have seen fewer and fewer parishioners in churches throughout England, France, Italy, Germany, and Spain-except, of course, on special occasions. It is no coincidence, in my view, that organized religion is thriving in America and dying in much of Europe. The separation of church and state is good for religion. When church and state merge, the natural antagonism that citizens feel toward their government carries over to the church. Moreover, when the state tries to enforce religious practices, enmity is generated. Witness Israel, a country that I visit frequently. Because the mechanisms of the state are employed in support of Orthodox Judaism, a sharp division has developed between the Orthodox community and the vast majority of secular Jews. Many secular Jews feel strongly that their freedoms have been impinged on, not only by Orthodox Judaism, but by the state as well. Today there is more anti-Orthodox feeling in Israel than in any other part of the world.

For these reasons, I believe that, if the wall of separation were to crumble in America, the ultimate losers would be the churches, the synagogues, and the mosques. To be sure, organized religion would benefit initially from the support- financial, political, and ideological-of the state. Many religious leaders who are currently strapped for cash see the wall of separation as a barrier to filling their coffers. But in the long run, organized religion would suffer greatly from state involvement in their affairs. The state, by paying the organist, would call the hymn. This would be a tragedy both for religious and secular Americans. Religion, if it remains independent of the state, can serve as a useful check and balance on the excesses of government. For example, during the 1920s, eugenics became the rage among scientists, academics, and intellectuals. Thirty states enacted forcible sterilization laws that resulted in 50,000 people being surgically sterilized. In 1927, the United States Supreme Court upheld these laws in a decision by the great Justice Oliver Wendell Holmes, who wrote: "It is better for all the world, if instead of waiting to execute offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind." The only dissenting opinion came from a religious Catholic. Churches fought hard against sterilization laws. In this instance, religion was right: government and science were wrong.

In countries where the state controls religion, it is far more difficult for churches to serve as checks upon the excesses of the state. Were the wall of separation to come crumbling down, disbelievers and skeptics would also suffer greatly-at least at the outset. I doubt we would have crusades, inquisitions, or pogroms-as in centuries past. But there would be discrimination. Indeed, even today, there is discrimination in practice despite its prohibition under the Constitution (see my article, "Taking Disbelief Out of the Closet," Free Inquiry, Summer 1999). But in the long run, the number of openly skeptical Americans would increase. Church membership would drop. 

Would this be good for America? Would this be good for secular humanists? Since none of us is a prophet, it is impossible to know with certainty what an America, without a wall of separation, would look like. It would almost certainly become a different place than the one we now inhabit, which is still the envy of the world. We are a prudent and cautious people. As such, we should not take the risks of breaking an edifice that has served us so well for so long.

Alan M. Dershowitz is Felix Frankfurter Professor of Law at Harvard University.  His latest book is The Genesis of Justice (Warner).

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