The Non-Neutrality of the Secular State

As the bishops make clear in their statement on religious liberty “Our First, Most Cherished Liberty,” the HHS mandate declaring that Catholic institutions must provide contraception and abortifacients in their insurance coverage is only one of a number of attacks by the secular state against the Church.

Why the attacks? Surely the state would declare that it is merely following the dictates of the First Amendment’s Establishment Clause, which demands, so the Supreme Court tells us, that the federal government “erect a wall of separation between church and State.” Ushering religion out of the public square so that one sect doesn’t set up shop to the exclusion of others and thereby commandeer the government to do its bidding—well, that’s the government’s ordained job. Freedom of religion for everyone demands that no religion gain privileged access, and so all must be kept on the other side of the wall of separation. So we’re told.

The bishops do not agree. In “Our First, Most Cherished Liberty,” they quote from another important document, “In Defense of Religious Freedom,” a statement of Evangelicals and Catholics Together. ECT asserts that the First Amendment’s decree that “Congress shall make no law respecting an establishment of religion” does not “demand a naked public square, shorn of religiously informed moral conviction. The ‘separation of church and state’ is intended to protect freedom for religious conviction; it is not intended to promote religion’s exile from public life.”

I beg to differ, or perhaps, I beg at least to clarify. The historical and constitutional waters are too muddied to make such a clean and clear assertion. It is correct, I think, to assert that the First Amendment’s declaration that “Congress shall make no law respecting an establishment of religion” does not “demand a naked public square.” But if we scratch beyond the surface we find that the “separation of church and state” is in fact “intended to promote religion’s exile from public life.”

To begin to sort things out, we need to point out what should be obvious but has often been obscured: the First Amendment says nothing at all about erecting a wall of separation between the church and the state. The full text of the Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The notion of a “wall of separation” comes not from the First Amendment or the Constitution itself, but from a Supreme Court decision Everson v. Board of Education (1947), wherein Justice Hugo Black, writing the majority opinion, declared, “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.’” Black used Jefferson’s words, and the authority of Jefferson as founder, to advance a particular interpretation of the First Amendment’s so-called Establishment Clause, the snippet of the First Amendment that runs, “Congress shall make no law respecting an establishment of religion…”  

Black’s bringing in Jefferson as the key to interpreting the First Amendment is precisely what muddied the waters. Before Everson, Jefferson’s words were almost entirely missing from our judicial understanding of the First Amendment (appearing only in Reynolds v. United States, 1878). But all that changed with the Everson decision. As Daniel Dreisbach, a historian of American law has noted, since Everson “the Jeffersonian metaphor has eclipsed and supplanted [the] constitutional text in the minds of many jurists, scholars, and the American public.” The result is that Jefferson’s “architectural metaphor” of a wall of separation between church and state “has achieved virtual canonical status and become more familiar to the American people than the actual text of the First Amendment.”

Jefferson’s view of the First Amendment has thereby become authoritative—sealed by a series of subsequent Supreme Court cases, and backed by the full power of the federal government. That is a problem because Jefferson did intend to promote religion’s exile from public life.

Jefferson was an intellectual child of the Enlightenment, and so inherited the Enlightenment view that revealed religion was essentially irrational. For historical progress to be made, revealed religion must be left behind. The Enlightenment did demand a “naked public square” if by that we mean one from which revealed religion has been exiled. 

I am not making the case that Jefferson was an atheist. We have every reason to believe he accepted Deism, the established religion of the 18th century Enlightenment. But Deism, a natural religion, was historically defined against Christianity, a revealed religion.

With the Deists, Jefferson accepted Jesus as a great moral teacher. As Jefferson revealed in a private letter to Benjamin Rush, he believed that Jesus himself never claimed he was divine, but only wanted to purify the “Deism” of the Jews (meaning that the Jews held “the belief of one only God”). Trinitarianism was a mistake.

How did that “mistake” occur? The difficulty with Jesus was that, like Socrates, he didn’t write anything, and that meant, so Jefferson maintained, that “the committing to writing [of] his life & doctrines fell on the most unlettered & ignorant men; who wrote, too, from memory, & not till long after the transactions had passed.” These ignorant and unlettered men were, of course, Matthew, Mark, Luke, and John; Jesus’s divinity was their invention.

This assumption that the Bible was not really the revealed Word of God, but the words of “unlettered & ignorant men,” had direct implications for political life. While the Bible may contain some helpful moral fragments uttered by Christ, the problem is that the whole New Testament is taken to be divinely revealed, and so it can only supply an irrational foundation for religion. That defective foundation is the cause of so many squabbling religious sects—there simply is no unified doctrine that can be gotten from the ruminations of “unlettered & ignorant men.” The defective foundation of biblically-based Christianity can therefore yield only confusion, and that is the very reason the government should erect a wall of separation between church and state.

Jefferson was not above using the fears of one sect at the prospect of the establishment of another sect to advance a public square cleared of biblically-based religion (such as in his famous “Letter to the Danbury Baptists,” from which the even more famous phrase about  “building a wall of separation between Church & State” comes). But we would misunderstand Jefferson’s ultimate motives, and the ultimate effect of his words, if we didn’t take into account his rejection of the Bible as revealed.

Now it would be too much to blame Jefferson alone for the increasingly naked public square. There are other factors which make things even more complex.

Justice Black (once a member of the Ku Klux Klan) was more animated by his anti-Catholic sentiments. While he decided for Catholic parochial schools in the judicial particulars of Everson, he laid the general foundation for excluding Catholics from getting any federal support by imposing Jefferson’s “wall of separation” upon the Establishment Clause.

But Black’s motives were immediately subsumed by a more radical, secular agenda. How this occurred historically is a long, important story. Suffice it to say that by the time of Everson Jefferson’s Deism was replaced by Radical Enlightenment secularism among the American intelligentsia. Jefferson’s words therefore carried far more radical freight than he (and perhaps even Justice Black) originally intended.

Jefferson may have denied Christ’s divinity, but in affirming Jesus as a great moral teacher, he thereby affirmed Christian morality in the public square, buttressed by a vague civic Deist religiosity. Justice Black wanted to exclude Catholics from public power, but himself seems to have been a kind of liberal Protestant. But secular atheism wanted God out completely. To progress, humanity had to shed all religion, and embrace an entirely secular, materialist worldview, which included a quite different, purely materialist, secular view of morality.

The main vehicle of progress for secularism was the state, needless to say, the secular state. The state replaced the church as the “body” that carried humanity forward, and since religion is the greatest obstruction to progress, the state must completely remove religion from any access to public presence and power, and impose an entirely this-worldly materialist, secular viewpoint.

So it was that a radicalized, secularized version of the Jeffersonian notion of erecting a wall of separation between the church and state became so important at mid-20th century, and further, why a whole string of secularizing court cases immediately followed Everson, each successively ensuring religion’s ultimate exile from public life through a secular interpretation of the Establishment Clause. The secular state is, in fact, created by the removal of religion from the public realm; that is, it is the very act of separation and erecting a wall is what makes the secular state secular. The negative view of religion defines the positive goal of the secular state. The “separation of church and state” is in fact “intended to promote religion’s exile from public life.”