In March 1801 the newly elected vice-president of the United States, Aaron Burr, was criticized for his neglect of religion. A close political associate warned Burr, who was the grandson of the great theologian Jonathan Edwards, that if he wanted to continue to have a successful political career, he had better think of the Presbyterian vote. “Had you not better go to church?” he suggested.
Despite America’s presumed separation of church and state, the situation hasn’t changed much in the past two centuries. Americans who want a successful career in politics had better be believers or at least have the capacity to make believe they are believers. Religion is still very much alive in America and very much involved in its politics. Indeed, ever since the emergence of the Moral Majority in the 1970s, religion seems to have taken on a special potency in political campaigns. Not only have Americans had two born-again Christians as recent presidents, but the former Baptist pastor Mike Huckabee did surprisingly well in his primary campaign. And interjections by religious figures like the Reverend Jeremiah Wright Jr. and his black liberation theology always have the capacity to influence political campaigns in startling ways.
The liberal humanist assumption that American society, like that of Europe, would become progressively secular was always something of a delusion. Although several antireligious books recently made the best-seller lists—Sam Harris’s The End of Faith, Richard Dawkins’s The God Delusion, and Christopher Hitchens’s God Is Not Great: How Religion Poisons Everything—these secularist outbursts seemed unduly angry and suggest an underlying apprehension of religion’s continuing strength among large numbers of ordinary folk. Religious struggles in the United States used to be among the different denominations of Christianity. But since at least the 1960s if not the 1920s, the struggle has more and more become one between religious belief and a growing secularism in American culture.
Sorting this struggle out over the past several decades has largely fallen to the courts, which in turn has led to ever more books (two of which are here reviewed) on what the Founders of the country believed and what they meant when they wrote the First Amendment’s statement about religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Stephen Mansfield, a former evangelical pastor and author of several works on religious faith, contends that the Supreme Court over the past several generations has gone terribly wrong in its interpretation of what he calls the “ten tortured words” of the opening clause of the First Amendment. He has no quarrel with the idea of preventing an established church in America: that prohibition, he says, was “a miracle of history.” But preventing an official national church is one thing; discouraging the public practice of religion in general is quite another. And that, he writes, is what has happened over the past sixty years.
Mansfield, in his very biased and polemical book, dates the change in constitutional interpretation of the place of religion in American society to the Court’s 1947 majority decision in Everson v. Board of Education, which was the first judicial invocation of Thomas Jefferson’s image of “a wall of separation between church and state.” That interpretation of the First Amendment, he says, “was a disaster.” It “dismantled the wise configuration of the American fathers and erected instead a confusing and nearly unenforceable mishmash of prohibitions.” Not only did that judicial ruling break from history and “from the plain sense of the ten noble words,” but, writes Mansfield, it created “a prohibition that applied not only to the federal government but to the states as well.”
The case was a seemingly insignificant one. In 1941 the New Jersey legislature passed a law giving local school districts the authority to make rules and contracts for transporting students to and from school. In accord with this statute, the township of Ewing, New Jersey, authorized reimbursement to parents for money they spent sending their children to public or Catholic parochial schools on regular buses operated by the public transportation system. A citizen of Ewing named Arch Everson objected and carried his suit to the Supreme Court. Everson contended that using tax money to support the Catholic Church violated the United States Constitution. The majority opinion of Everson, which was written by Justice Hugo Black, set forth what Mansfield calls a “new” and “radical” interpretation of the establishment clause of the First Amendment. In his opinion Justice Black said that the clause meant “at least this”:
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion…. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion…. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.” …That wall must be kept high and impregnable. We could not approve the slightest breach.
Yet after making this sweeping pronouncement of a wall of separation, Black and the Court paradoxically went on to uphold the township’s program on the grounds that it did not involve aid to church-related schools after all, but was in fact a public safety measure designed to protect students. Nevertheless, according to Mansfield, the damage was done. Everson became “the single case upon which the role of religion in American public life turns.”
Mansfield contends that Everson was bad law, based on flawed history and inconsistent reasoning, and was written by a justice, Hugo Black, who was “one of the most troubling justices in the Court’s history.” Black was a former member of the Ku Klux Klan and the author of the majority opinion in Korematsu v. United States (1944), the notorious decision that justified the sending of over one hundred thousand American citizens of Japanese descent to detention centers during World War II. Like other commentators, Mansfield questions the effect that longstanding feelings of guilt may have had on Black’s judicial career and particularly his decision in Everson.
Since 1947 the Supreme Court, in a series of ever more confusing decisions, has struggled to fill in Jefferson’s “wall of separation.” It has labored to define what is permissible and what is impermissible in what has become an increasingly capricious relationship between church and state. Far from being a wall, declared Chief Justice Warren Burger in Lemon v. Kurtzman (1971), the line of separation has become “a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”
The Ten Commandments can be displayed in some public places, but not in others. School prayers are impermissible if sponsored by local or state administrations, but perhaps not if they are sponsored by the students. Legislatures can open their sessions with prayers, but public school football players may not open games with them. Observing religious holidays in the public schools is impermissible, but excusing students from attending school on their religious holidays is permissible. In this perplexing atmosphere teachers inside the public schools have become so uncertain about what is permissible and what is not that they often avoid even talking about religion at all. In this post-Everson climate, Mansfield complains, religion has had difficulty being a full participant in the public square.
Mansfield has other objections to the Everson decision, the most important being Black’s categorical statement that the First Amendment applied to the states as well as to Congress. At the outset, of course, this was not the case. Although all the states in 1776 affirmed the Enlightenment belief in religious freedom, most of them continued to promote Christianity, or Protestant Christianity, in one way or another; and until the second and third decades of the nineteenth century two of them—Connecticut and Massachusetts—even continued to use tax revenues to maintain their established Congregational churches. Throughout the nineteenth century and into the early part of the twentieth, the First Amendment, indeed, the entire Bill of Rights, had no applicability to the states.
This is no longer true. Even though the First Amendment reads that “Congress shall make no law respecting an establishment of religion,” the Court since 1925 has contended that the Fourteenth Amendment incorporates or absorbs the First Amendment and some other amendments of the Bill of Rights and thus applies their guarantees and restrictions to the states as well to Congress. In Gitlow v. People of the State of New York in 1925, writes Mansfield, the Court, without any citation to precedent, simply declared that
we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.
In several subsequent decisions the Court began restricting the states by using a piecemeal “incorporation” of most of the amendments in the Bill of Rights and applying them to the states. A century earlier the Marshall Court had explicitly stated that the Bill of Rights did not apply to the states. But this was changed by the adoption of the Fourteenth Amendment in 1868, and especially the second sentence of Section 1 of that amendment, which begins: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Mansfield contends that there is little or no evidence that the adopters of the Fourteenth Amendment ever intended to incorporate the establishment clause of the First Amendment and apply it against the states. Most scholars and jurists would not agree with Mansfield’s contention: there is considerable evidence that Congress did intend, in the words of the distinguished Yale legal scholar Akhil Reed Amar, “nothing less than a transformation of the original Bill of Rights.”
It is true that incorporating the establishment clause, which originated as a limitation on the federal government in favor of the rights of the states, is awkward. Applying the clause against the states’ right to establish a church is to eliminate the very right the clause was designed to protect: Congress could not interfere with the states’ religious establishments. (For the same reason the Tenth Amendment, which reserves to the states or the people all powers not delegated to the United States or prohibited to the states by the Constitution, cannot easily be incorporated to be used against the states.)
But Professor Amar has an intelligent answer to that awkwardness. Amar, who has written one of the most authoritative accounts of the doctrine of incorporation in his book The Bill of Rights: Creation and Reconstruction (1998), says that even if the establishment clause were not incorporated,
principles of religious liberty and equality could be vindicated via the free-exercise clause (whose text, history, and logic make it a paradigmatic case for incorporation) and the equal-protection clause (which frowns on state laws that unjustifiably single out some folks for special privileges and relegate others to second-class status).
Despite some doubts about and criticism of incorporating the religious clauses of the First Amendment, by 1947 incorporation appeared to have become settled enough in constitutional law for Justice Black merely to assert it. This doctrine of incorporation, which many educated people do not seem to be as familiar with as they ought to be, may have been simply a product of twentieth-century judicial interpretation, but it is now so firmly established in constitutional jurisprudence (except perhaps in that of Justice Clarence Thomas) that there is little or no likelihood of its ever being expunged or reversed.
But Mansfield’s quarrel is not simply with the courts and what he considers their freewheeling interpretations of the law; he is also concerned with the way in which church–state issues get to the courts. He argues that the organizations leading the fight to keep the wall of separation between church and state as high and impregnable as possible, especially the American Civil Liberties Union, enjoy unfair advantages that tilt the law in their favor. One is the law that permits “fee shifting.” This practice grew out of the civil rights legislation of the 1960s. Courts began taking account of the fact that individuals whose civil rights were violated often did not have the funds to sue on their own and therefore began awarding legal fees to those individuals—a practice authorized by Congress in 1976.
But soon, claims Mansfield, organizations like the ACLU began using this authorization to have their legal fees paid by taxpayers when they won a suit that upheld their version of the establishment clause. As a consequence, says Mansfield, “financially strapped school districts and local governments simply cannot endure the penalties the courts impose for fighting to preserve religious rights.” When the ACLU in 2004 threatened a suit challenging the County of Los Angeles for having a tiny cross on its nearly half-century-old seal honoring the county’s diverse history, the county changed the seal without a fight. Apparently it decided it could not pay the ACLU’s legal fees if it lost the suit. Mansfield does not mention that this law benefits not just liberal organizations like the ACLU but also conservative organizations like the American Center for Law and Justice (ACLJ), which since its formation in 1990 has brought many cases on behalf of Christian and right-wing causes.
Another law that Mansfield objects to involves the provision that withdraws tax-free status from any foundation or other organization that attempts to influence legislation or dabble in politics. Although Senator Lyndon Johnson in 1954 inserted the provision into the IRS code simply to prevent tax-exempt institutions from campaigning against him in Texas with no thought of its being used against religious organizations, it has become, Mansfield says, a major weapon of intimidation used against religious organizations that might consider weighing in on political issues. Mansfield contends that the unwillingness of many religious groups to speak out on matters of politics deprives the country of the ethical and philosophical vision that religion can provide; and to clinch his point he quotes Martin Luther King Jr., who declared that the church must be “the conscience of the state” and its “guide and critic.”
Mansfield’s biggest objection to the Everson ruling and its legacy is the way in which the courts have misrepresented our history. The Court’s attempt in Everson and in subsequent cases to reconcile its findings with the intention of the Founders, says Mansfield, is inevitably doomed. “When we delve into the founding era of America,” he writes, “we are visiting a foreign country of faith that is far removed from our own.” Thomas Jefferson’s declaration of a wall of separation was unrepresentative of the views of most of the Founders and was written “some fourteen years after the First Amendment became law,” an amendment, says Mansfield, that was drafted by the “convention.”
Of course, there is much more to jurisprudence and judicial interpretation than the intentions of the Founders, but if one is going to appeal to those intentions, one had better have one’s history straight. Although Mansfield claims to be a historian, his history is not very strong: Jefferson’s “separation of church and state” statement was made a bit more than a decade, not fourteen years, after the Bill of Rights was adopted, and Congress, not the Constitutional Convention, drafted the First Amendment. His book has other such errors of history, which makes him a poor spokesman for his cause.
Since Mansfield’s investigation of the opinions of Jefferson and the other Founders on religious matters is thin and sometimes unreliable, it might make more sense to turn to the full-sized account of the Founding and religion by Forrest Church in his book So Help Me God. Church’s is a very different kind of book from Mansfield’s. Not only is it more than twice as long, but its tone and purpose are different from Mansfield’s. Church, who has been minister of the Unitarian All Souls Church in Manhattan for nearly thirty years, is not at all argumentative. Indeed, instead of taking sides in our present-day cultural war over religion, he has sought to write a reasonably detached, objective, and sometimes ironic history of what he calls “the first great culture war in American political history.” This war, he says, took place between the inauguration of George Washington as president in 1789 and the beginning of James Monroe’s presidency at the end of the second decade of the nineteenth century.
By revealing the complicated nature of the history of the first five administrations, Church hopes to act as a mediator in our present cultural war or at least to soften some of its rancor. “Competing claims by today’s secular humanists on the left and Christian activists on the right that the US government was erected on a secular or Christian foundation are, in a sense,” he writes, “both correct.” Although this ambivalent conclusion may not be entirely satisfying to either the secularists or the believers, Church has certainly written an illuminating and entertaining work of history, and the best account of the first five presidents and their relation to religion that we have. But Church’s spirited and colloquially written narrative goes well beyond any narrow discussion of issues of church and religion. Because Church defines religion broadly, viewing “moral and religious values as basically interchangeable,” he inevitably brings many seemingly secular subjects into his story, making it all the more interesting.
Church has divided his narrative, which he sees as a “drama” that “at times threatens to become a tragedy,” into five acts, corresponding to each president’s tenure. During Washington’s presidency issues of religion were present from the beginning. Church even regards the question of how closely the United States government ought to have patterned itself on the ritual practices followed by governments in England as essentially a religious one. Washington’s inauguration has taken on some importance in our own time, when there has been considerable debate over whether or not he finished his oath of office by saying, “So help me God.” Church includes an appendix that suggests that Washington not only uttered those words but also bent and kissed the Bible, more or less in emulation of English coronations. That such a seemingly minor issue should be given such importance says something about current demands that we be guided by the views of the Founders on matters of religion.
Although some of the Founders, such as Samuel Adams, John Jay, Patrick Henry, Elias Boudinot, and Roger Sherman, were fairly devout Christians, most leading Founders were not deeply religious men and few of them had much of a spiritual life. Many of them shared the views of an enlightened speaker before the American Philosophical Society in 1793 who abhorred “that gloomy superstition disseminated by ignorant illiberal preachers” and looked forward to the day when “the phantom of darkness will be dispelled by the rays of science, and the bright charms of rising civilization.” It is not surprising therefore that the framers of the Constitution in 1787 omitted all references to God in the document (except for the date, “in the Year of our Lord,” 1787, in Article VII).
Church suggests that this omission had to be deliberate since other important documents of the period did recognize the importance of religion. The peace treaty with Great Britain in 1783, for example, opened with language familiar to British statesmen and to the devout Anglican ear of John Jay: “In the name of the holy and indivisible Trinity.” In 1789 some New England ministers expressed to President Washington their dismay over the fact that “some explicit acknowledgment of THE TRUE ONLY GOD, AND JESUS CHRIST whom he has sent,” had not been “inserted somewhere in the Magna Charta of our country.” Although Washington replied to the clergymen that “the path of true piety is so plain as to require but little political direction,” the President was much more sensitive to the significance of religion in the civic culture than his reply indicated. Indeed, in Church’s opinion Washington’s first inaugural address conveyed more religious feeling than any of the subsequent presidential inaugural addresses in American history, except for Lincoln’s second. Yet when he issued his several proclamations of thanksgiving, Washington carefully avoided any explicit Christian language, a scruple, says Church, that at the time did not pass unnoticed by American Jews.
With the outbreak of the French Revolution and the spread of its anti-Christian and atheistic message among Americans themselves, especially among the Democratic-Republican Party followers of Thomas Jefferson, the culture war heated up, and President John Adams found himself having to invoke religion more than ever in order to support social morality and his clerically backed Federalist Party. Adams was a proto-Unitarian, believing that the argument for Christ’s divinity was “an awful blasphemy” in this new enlightened age; but he was much more sympathetic to Christianity than Washington had been. Despite all his irreverent remarks about religion, says Church, in one of his many jarring colloquialisms, “Adams was a poster child for the very faith whose tenets he spurned.”
The real radical among the first presidents was Jefferson. He had a visceral dislike of the clergy and nothing but contempt for what he called the hocus pocus of traditional Christianity. Although Jefferson eventually came to look forward to the day when everyone in America would be a Unitarian, the Unitarian minister Forrest Church does not have much sympathy for him. Jefferson in his view was too sure of himself, too opinionated, and “he had a tendency to confuse himself with the savior.” He had none of the stoicism of Washington and none of the skepticism of Adams. “Jefferson,” writes Church, “was a dogmatist when it came to matters of faith—a fundamentalist of the left, inflexible in his fidelity to rational religion.”
This dogmatic opponent of traditional religion was the author of what Church calls “the single most influential presidential document in the history of American church–state relations”: Jefferson’s letter to the Danbury, Connecticut, Baptists in 1802 that invoked the image of “a wall of separation between church and state” to support the Baptists in their efforts to disestablish the Congregational Church of Connecticut. The secularists and unbelievers of the present have chosen the right Founder to be their champion, but, unfortunately for their cause, in his religious attitudes he is, as Mansfield rightly contends, the least representative of the group.
Jefferson’s successor to the presidency, James Madison, shared many of his views on church–state relations. But although Jefferson and Madison had similar goals, they acted from different motives. Jefferson supported religious freedom not only to protect the state from the church, but also to allow everyone to use reason in order to reach the same religious conclusion. He supported the Danbury Baptists, but he had no doubt that they, like all denominations, would eventually pass away and be replaced by a single rational religion, which he assumed would be something akin to Unitarianism. Madison, by contrast, did not seek to free people to find a single truth, but instead sought to protect the state from the church by encouraging competition among many different religious denominations so that no one sect could dominate the state.
Madison certainly came closer than Jefferson to understanding the principal source of American religious freedom. The competing denominations in the decades following the American Revolution came to accept the neutralization of the state in matters of religion not because they believed in a wall of separation but because without neutralizing the government they feared one of their competitors might gain control of the state apparatus as it affected the church. The separation of church and state may have been a product of enlightened rationalism for Jefferson and Madison, but it was simply a matter of pragmatic calculation for most of the many Christian denominations.
All the first five presidents sensed that their enlightened views on religion were not yet those of most of the American people. They soon realized, if they hadn’t earlier, that they had better take Benjamin Franklin’s advice and not say anything publicly that disparaged traditional Christianity, not if they wanted to have any political success in America. “He that spits against the wind,” Franklin said, “spits in his own face.” They all came to appreciate the way the religious wind blew in America.
Washington had not much feeling for religion, but he never doubted that it was good for America’s civic life and that he had a public obligation to attend church. As president, Adams enthusiastically and publicly promoted Christian teachings that he suspected were false. After Jefferson became president, he ceased making any public comments about his radical religious views and in fact acted the part of a good churchgoer throughout his presidency. Although Madison was deeply opposed to governmental proclamations of a fast day, he felt pressured to issue four of them during his presidency, more than any other president has issued. James Monroe simply avoided saying anything disrespectful about religion. Instead, he presided blithely over a world that was being taken over by Christian evangelicals during the Second Great Awakening.
Indeed, even as the last of the state religious establishments fell away, religious faith in America grew and prospered without state support, as it still does today, much to the amazement of foreigners then and now. As American society became more democratic and ordinary people rose to prominence in the early nineteenth century, they brought their religious passions with them and transformed the culture. In this sense the enlightened Founders, such as Jefferson and Madison, lost what Church calls “the first great cultural war.”
But maybe that was not such a bad thing for the country. In the 1830s and 1840s religious leaders ignored the idea of a wall of separation and invaded the public square in full armor; they became deeply involved in civic activities that even some of today’s secularists might condone. Evangelical Christians mounted crusade after crusade against a host of evils, including removal of the Cherokee Indians, lotteries, excessive drinking, bad prison and orphanage conditions, and, most important, slavery. It is perhaps easy to forget that the most religiously enlightened of the Founders were lifelong slaveholders.
From the evidence of both these books, the history of the Founding does not offer a very clear message for those who would use the past to determine the present-day meaning of the Constitution in matters of church and state. Stephen Mansfield is at least right when he says that the late eighteenth century was a much more religious age than our own. It is obvious that the courts cannot be solely dependent on the history of the Founding if they are to maintain the modern wall of separation between church and state, a wall that our great religious diversity makes necessary. Although Forrest Church in his rationally inclined Unitarianism seems cheerfully optimistic about contemporary church–state relations, that can’t be said for Mansfield.
Mansfield ends his book with a jeremiad on the aimless state of present-day American culture and its “crises of faith”—crises in which we “yearn to believe yet doubt those who do.” Nevertheless, in the end he expresses some hope that faith is returning to America and that “the secularizing trend of recent decades is likely to dwindle if not die.” Religious faith must be growing in strength, he suggests; otherwise why would the faithless be expressing so much animosity against the faithful? That secular anger, which is “one of the cultural legacies of the Everson ruling,” seems to Mansfield to be out of all proportion to the nature of the threat religion poses for present-day America. What are the secularists so frightened of? There is no state church, he says, and no threat of one being created. The “minuscule nature” of the complaints on behalf of the establishment clause is, he claims, “an embarrassment”: a cross in a cemetery, two words in a pledge, a book on a teacher’s desk, the singing of Christmas carols, a moment of silence before a high school football game.
Mansfield seems unaware of how these minuscule things can cumulatively come to seem oppressive to those who do not share in their meaning. Moreover, he ignores completely other rights and issues threatened by religious majorities, such as the future of Roe v. Wade, the legalizing of homosexual relationships, and the teaching of evolution.
Still, it is evident that the world around us is changing rapidly, both demographically and religiously. The Anglo-Protestant culture that held sway in America’s public life as late as 1900 has pretty much dissipated over the course of the twentieth century, and it is never going to be brought back to our very different and diverse society. What will take its place is impossible to say. Through the first three quarters or so of the twentieth century few secular humanists foresaw the influential rise of evangelical faiths such as those espoused by President Bush and Mike Huckabee. What will be the religious convictions of generations growing up in an era of increasing Latin American immigration and proliferating science and technology? Since no one can predict with any assurance the religious future in America, it is important that the First Amendment maintain all of its historic authority.
May 1, 2008