01-05-2012 - Traces, n. 5

new world

The Separation of Man  from Himself
With election time drawing near, the pivotal issue of religious freedom has come to the fore. Where does our understanding of religious liberty come from as Americans? How can our government dare to threaten it? Expert Dr. PHILIP HAMBURGER helps Traces take a closer look at the history of the relationship between religion and government and its modern trends in the United States.

by Timothy Hermann

We Americans have a long history with religious liberty. Some would argue that our nation was founded on it. Even so, the permanent place of faith in the public arena has never been guaranteed. Since the time of Thomas Jefferson, America has paradoxically championed the “separation of church and state,” often in the very name of religious freedom. Public places like schools and government buildings, for example, are increasingly devoid of religious practice and symbolism in order to protect the beliefs of others and to maintain the state’s impartiality. How is it that our country has become hostile to the religious liberty it supposedly holds so dear? Is it even possible for man to separate his religious self from his public self? In search of answers, we spoke with Professor Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at the Columbia University School of Law, an expert in the field of religious freedom in America and author of the acclaimed Separation of Church and State. In this interview, he examines the genesis of the historical relationship between religious liberty and the power of the state, in history, shedding new light on the challenge of today: “Modernized society is fractured and, indeed, specialized, and the separation of church and state can be considered one of the range of separations or specializations that are typical of modernity.”
What determines our conception of religious liberty in the United States? Is it our culture or the law? Is one more influential than the other?
There is a lot of evidence to support each position. Over the years, religious liberty has been reconfigured by culture and even by religious prejudice. It is conventionally assumed that society becomes freer with time and that the law develops with society toward ever greater heights of freedom. That may be true sometimes, but it has not been entirely true for religious liberty. The “Establishment Clause,” for example, has been reinterpreted to include the separation of church and state and this has had profound effects on our religious liberty. Think about what the establishment clause says: “Congress shall make no law respecting an establishment of religion.” “Separation of church and state” is a very different phrase.

What is the difference?
Well, “establishment” is a vertical metaphor. It is about one thing elevating another–in this case, the government or state elevating religion or a church, so as to establish it. In contrast, separation of church and state is about keeping two things apart–in particular, church and state. In this sense, it could be considered a horizontal metaphor. In aiming to keep church and state apart, separation goes much further than the Establishment Clause. For example, whereas the Establishment Clause limits only government, separation also limits churches, suggesting that they may not legitimately influence government. This interpretation of the Establishment Clause has had profound effects, for it justifies government limits on churches, including their free speech. This is unfortunate for many reasons. Although many academics accept that society shapes law, and that the First Amendment protects religious freedom, academics have not sufficiently recognized how the interpretation of the First Amendment in terms of separation has threatened religious liberty.

How did you become interested in this topic?
I became interested in the topic while sitting on my back porch reading through a volume of 18th-century sermons. Every year on Election Day in most New England states, a clergyman was selected by the legislature to preach to the legislature. These lectures are almost always on a strange sort of ecclesiastical politics–on the need for the state to support the Congregationalist churches. While I was reading, I saw that some of these sermons spoke against separation of church and state, or separation of religion and politics, attributing it to religious dissenters, especially Baptists. Congregationalists argued that while dissenters claimed to be championing religious liberty, what they were really seeking was the separation of church and state or the separation of government from the foundations of morality. As it happens, dissenters almost never argued for separation. All of this was intriguing, for it suggested that separation was more of an establishment accusation than a dissenting demand. The standard story is that the separation of church and state was a demand made by people seeking religious liberty. Instead I found that it was an accusation designed to tarnish the image of those who sought religious liberty.

What was really going on?
In fact, Baptists were asking for equal rights. They wanted all religions to be treated equally under the law and to have access to the same privileges. Their concern was that of an establishment, of the state preferring one religion over another, not of separation. What became even more interesting was the 19th-century history of separation of church and state. This became a popular constitutional ideal beginning in the 1840s in response to Irish immigration. From the point of view of nativists, it seemed necessary to separate church from state, meaning the Catholic Church from the state. Later, secularists took up the idea of separation to oppose all ecclesiastical authority, not just that of the Catholic Church. In this way, theological prejudice led to the adoption of the notion of separation. It was part of a popular rejection of Catholic or other ecclesiastical claims.

What do you think is behind the contemporary push to separate religion from the public sphere and government? Is it the same as it was in the past? 
Underlying the demands for separation of church and state are deeper separations or divisions in our society. Modernized society is fractured and, indeed, specialized, and the separation of church and state can be considered one of the range of separations or specializations that are typical of modernity. For example, many individuals conduct themselves very differently in their professional life and in their home life, thereby creating a sort of separation of work and home. Similarly, doctors and engineers pursue their work without seeking religious answers to technical problems, and it therefore is not surprising that doctors and engineers of different religions tend to reach similar technical conclusions. Along the same lines, the separation of religion and politics can be understood as a sort of specialization. Of course, there can be great advantages to specialization, but also costs, which are evident in the separation of church and state. For example, although there often are good reasons for reaching political judgments without turning to religion, there have been times, such as during the civil rights movement, when religious belief has been the foundation of the best of American political life. It therefore is difficult to impose a clear-cut rule as to when politics should be directly informed by religion and when it should not. Although various degrees of specialization can be appealing, the specialization of religion and politics needs to be an individual choice, not a rigid constitutional dictate.

What is the main problem with the current conception of religious liberty and how would you like to see that change?
Separation of church and state allows the state to discriminate against people who adhere to ecclesiastical authority. Most significantly, it justifies the state in placing limits on the speech of churches and their ministers. People who support separation and state tend to assume they are supporting a secular, unbiased vision, but they are drawing on a heritage of anti-ecclesiastical prejudice. My hope is that when my readers become acquainted with the history and effect of the phrase “separation of church and state,” they will gradually abandon this metaphor. Our religious liberty consists of the free exercise of religion and disestablishment, not separation of church and state.

This position is very different from the position most people take for granted. Where does education of the common mentality come in?
There is always more to learn. One of the sad features of the scholarship on religious liberty is that it usually refers to the same events and popular documents, like the famous letter penned by Jefferson to the Danbury Baptist Association in 1802, which has become the most cited use of the phrase “separation of church and state.” They do not look at the vast variety of other questions and documents and events or at the fact that Jefferson used the phrase to condemn the speech of clergymen who opposed him.

In your opinion, what is the ideal relationship ­between an institutional church and those in power?
I am not sure there is any one ideal. It is up for discussion and all that I am arguing is that separation is a misinterpretation of the First Amendment.