Whatever else it achieves, the presidential campaign of 2000 will be remembered as the time in American politics when the wall separating church and state began to collapse. George W. Bush set the tone by raising the likelihood of his candidacy after a prayer breakfast and later declaring that his favorite political philosopher was "Christ, because He changed my heart." Not to be outdone, Al Gore boasted that he decided important questions using the religious shorthand "'W.W.J.D.'- for a saying,'' he explained, "that's popular now in my faith, 'What would Jesus do?'"
Bush and Gore have enthusiastically endorsed a provision of the 1996 welfare-reform bill called charitable choice, which allows faith-based organizations to administer welfare programs with public funds, as long as there are secular alternatives.
It's not just the candidates who are eroding the wall between religion and public life; the courts, by and large, are giving their blessing. If and when the justices finally agree to resolve the constitutionality of vouchers, they will do so against a backdrop of decisions that have been chipping away at the wall between church and state over the past decade. The next president, through the justices he appoints if openings arise, will decide just how much of a wall is left standing.
One thing is clear: the era of strict separation is over. For a surprisingly brief period, from the early 1970s to the late 1980s, strict separationism commanded the support of a majority of Supreme Court justices. During the separationist era even after-school prayer disappeared from public schools, as did crèches from city hall Christmas displays unless they were accompanied by plastic animals. Religious conservatives complained that the courts had banished religion from American public life and were enforcing a rigidly secular ideology that prohibited the faithful from expressing their beliefs except behind closed doors. But thanks to a paradigm shift in the courts that religious conservatives have been slow to acknowledge, traditional defenders of church-state separation are increasingly on the defensive, legally and politically.
The Supreme Court is on the verge of replacing the principle of strict separation with a very different constitutional principle that demands equal treatment for religion.
How the wall went up and why it came down is in large measure the story of the relationship between Protestants and Catholics in America. The most important political factor in the rise and fall of church-state separationism is the realignment of Southern Protestants, who used to oppose state aid to religious education but now support it. For most of this century, Southern Democrats from conservative and evangelical churches with a strong tradition of walling themselves off from the state feared the effects of government aid to parochial schools. But by the 1980s and 1990s White Southerners were Republican rather than Democratic, and in the wake of Supreme Court decisions banning school prayer and legalizing abortion they felt more alarmed by what they perceived as creeping secularism than by the threat that public funds might lead to the growth of the Catholic Church. "The historic conflict was Protestant-Catholic, and although evangelicals were the last to get the word, that conflict is pretty much dead," says Douglas Laycock of the University of Texas Law School. "The alignment today is the religiously intense against the secular, and with respect to that fight, evangelicals and conservative Catholics are now on the same side.''
In the 1980s and 1990s, the political, religious, and legal forces that had briefly converged to produce the wall of separation began to collapse. The most important political development was the privatization of the public sector, as liberals and conservatives lost confidence in the ability of government to provide welfare and education services in the inner cities. After 12 years of Ronald Reagan and George Bush, the post office had been largely privatized, and during the Clinton administration the FedEx-ification of the welfare state soon followed suit.
In the wake of a collapse in confidence in the public sphere, many of the groups that had been the stalwarts of church-state separationism began to abandon their position. Consumers of education and welfare services in the inner cities--most notably African-Americans--grew tired of being told to wait for improvement that never came. In Indianapolis half the proposals to administer welfare services came from Black churches, even though only a quarter of the churches in Indianapolis are Black. At the same time, African-Americans became enthusiastic supporters of school vouchers, which can be used to pay for parochial or secular private schools.
Once it became clear that vouchers would not benefit the Catholic Church at the expense of all denominations, the liberal and evangelical Protestant establishments set aside their traditional rivalries and began to start their own schools.
During this period there was also a realignment among Jews. In the 1970s and 1980s, Jewish policy intellectuals like Irving Kristol and his son, William, began to talk and write about religion in instrumental terms, arguing that faith was good for society, regardless of precisely which religion you chose to embrace.
Just as political and intellectual support for strict church-state separation was collapsing, its legal underpinnings were collapsing as well. The revolution was driven by ideas from the legal academy, as liberal and conservative law professors began to agree in the 1980s and 1990s that equal treatment for religion might be a more appropriate model than church-state separation for protecting religious liberty.
The shift in the legal culture is perhaps best represented by the career of Michael McConnell, one of the most influential advocates of equal treatment for religion. McConnell, who is 44, describes himself as "a theological conservative": he was reared as a Presbyterian and renewed his faith while clerking for Judge J. Skelly Wright and Justice William Brennan, two liberal titans of the Great Society. In 1997, after teaching for more than a decade at the University of Chicago Law School, he moved to the University of Utah, where he had more time to spend with his three children, whom McConnell and his wife taught at home for several years. "Many people think that it's possible to have an entirely secular education and any religious training can be on the side," says McConnell. "I don't believe that religion is something which is a separable aspect of life."
McConnell's first contribution to dismantling the wall of strict separationism came during his Supreme Court clerkship in 1981, when he helped persuade Justice Brennan to review Widmar v. Vincent. In 1972 the University of Missouri at Kansas City, which had long made its facilities available to a variety of student organizations, adopted a regulation forbidding the use of university property "for purposes of religious worship or religious teaching." When the university refused to let a student Bible-study group meet after classes, a federal district court upheld the exclusion.
McConnell recalls being outraged by the decision. "Once the courts had held that a public university had to allow politically subversive groups to meet, it seemed crazy, like lunacy, to say that a Bible-study group couldn't meet," he says. "That just seemed like the height of antireligious bigotry."
In the Widmar case the Supreme Court agreed, 8 to 1. When a public institution opens its facilities to private speakers, the court declared, the First Amendment requires it to treat religious and nonreligious groups equally. The decision proved to be the first chink in the wall of separationism.
"I think Widmar is a marvelous example of how an idea can be introduced and have enormous ramifications,'' McConnell says. ''I see much of the litigation over the establishment clause over the past 20 years as a dawning realization that Widmar was right and the separationist decisions of the 1970s are inconsistent with it.''
In 1995 McConnell had a chance to convince the current Supreme Court that the legal debate had shifted so significantly that strict separationism should be repudiated in favor of equal treatment for religion. He argued a case called Rosenberger v. Rector and Visitors of the University of Virginia, which involved a university rule that allowed all journals of student opinion except for those with a religious perspective to receive a subsidy from a student-activities fee. Lower courts had held that a university couldn't withhold funds from a gay student newspaper because it disapproved of its message, and McConnell argued that a religious newspaper was entitled to equal treatment.
The Supreme Court agreed with McConnell, by a vote of 5 to 4. Four justices--Chief Justice William Rehnquist, Justice Anthony Kennedy, Justice Antonin Scalia, and Justice Clarence Thomas-- announced that the First Amendment forbids public institutions to exclude religious groups from benefits that are offered to a broad class of participants. Four justices--David Souter, John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer--made a last-ditch defense of the separationist principle that the First Amendment prohibits direct government financing of religious activity, even if the funds are distributed as part of a neutral scheme. And Sandra Day O'Connor concurred with the majority but drew a series of small distinctions that preserved her ability to change her mind in a future case.
It's striking how closely the positions of some of the justices in the church-state cases correspond to their own religious and educational backgrounds. Three of the four most ardent proponents of equal treatment for religion (Antonin Scalia, Anthony Kennedy, and Clarence Thomas) are practicing Catholics, and two of them attended parochial schools. Scalia graduated at the top of his class from Xavier High School, a Jesuit academy in Manhattan, where he was, according to a classmate, a religious and political archconservative. Thomas, who returned to Catholicism after a period of worshiping at an Episcopal church in Virginia, attributes his success to the discipline imposed on him by the Irish Catholic nuns who taught him at a parochial school in Savannah in the late 1950s.
Indeed, the fact that you may not have noticed that there are now three Catholics on the court is itself a significant sign of a change in the relationship between religion and government. One test of a group's integration into American society, observes Walter Dellinger, is the point at which no one thinks the trait in question is a relevant consideration in a Supreme Court nomination. Within a single generation, Catholicism, like geographical origin, has simply become beside the point.
The school-prayer cases reveal several of the justices to be defenders not of religious equality but of religious supremacism. Just as the strict separationists believe in an entirely secular public sphere, cleansed even of private religious expression, the religious supremacists yearn for an openly religious public sphere, which includes state-sponsored displays of religious devotion.
During the 1980s, the religious supremacists tried in vain to persuade the Supreme Court to reconsider its refusal to permit prayer in schools and the posting of the Ten Commandments in classrooms. The Bush administration aligned itself with the religious supremacists in 1991 when it urged the Supreme Court to uphold a "nonsectarian" graduation prayer offered by a minister or a rabbi at the invitation of school officials. The court should permit "noncoercive, ceremonial acknowledgment of the heritage of a deeply religious people,'' urged Bush's solicitor general, Kenneth Starr. The Supreme Court rejected Starr's argument by a vote of 5 to 4. But the dissenting justices--Rehnquist, Thomas, Scalia, and White--made it clear that they would uphold nonsectarian school prayers and other state-sponsored religious expression as long as the state didn't discriminate among religions. For these justices, equal treatment for religion seems like a strategic compromise on the way to the more ambitious goal of an openly religious state.
The next president may have the chance to appoint one or more justices who could make a majority for the pro-prayer camp. And like his father, George W. Bush has allied himself with the religious supremacists. He signed a brief urging the Supreme Court to overturn the decision by the federal appeals court in Texas that prohibited the student-led prayer at the football game. In Texas school officials effectively sponsored the prayer by asking the students to vote for or against it. The federal appeals court in Texas also made matters worse by requiring the school officials to review a proposed graduation prayer in advance to make sure that it was "nonproselytizing and nonsectarian," which means that it contains no reference to Jesus Christ. As Douglas Laycock of the University of Texas puts it, the lower court "created the worst of both worlds: the prayer is imposed on people who object and the state is censoring the content of the prayer.''
Within the next decade it's not hard to imagine a largely privatized public sphere, in which education and welfare services are contracted out to religious organizations on a wide scale. Would the renewed commingling of church and state be good or bad? And for whom?
There is a long theological tradition in America, dating to the seventeenth century, which holds that the purpose of the wall of separation is to protect the church against the worldly corruptions of the state, rather than to protect the state against the religious overreaching of the church. As churches become more deeply involved in administering public education and welfare programs, they might find themselves under new and troubling forms of scrutiny. And as religion is understood in increasingly instrumentalist terms by politicians and intellectuals, there may be a certain blindness to religion's wilder, more mystical and irrational aspects. Governor Bush may think of churches as the kind of organizations that are good at running well-disciplined grade schools, but in Texas, religion is also David Koresh, the leader of the Branch Davidians.
The erosion of the wall between church and state could turn some, but not all, religious organizations into quasi-social-service providers with multimillion-dollar budgets, armies of lawyers and accountants--and the risks of corruption and patronage that inevitably accompany large government grants. Moreover, the monitoring necessary to ensure that these funds are used for secular purposes could alter the character of the churches themselves.
The quality of political debate may change, too, as the wall of separation tumbles. When Al Gore goes before a convention of black Baptists to declare himself "a child of the kingdom and a person of strong faith," and when George W. Bush stands in a Houston church reflecting on his decision "to recommit my life to Jesus," they are not inviting follow-up questions from Buddhists or Hindus. Part of the broader triumph of identity politics, the explosion of God talk represents an abandonment of the liberal faith that, before entering the public square, all citizens should set aside the aspects of their identities that are not susceptible to debate.
Americans have always been deeply religious and deeply suspicious of state-imposed uniformity. In an era when religious identity now competes with race, sex, and ethnicity as a central aspect of how Americans define themselves, it seems like discrimination--the only unforgivable sin in a multicultural age--to forbid people to express their religious beliefs in an increasingly fractured public sphere. Strict separationism, during its brief reign, made the mistake of trying to forbid not only religious expression by the state, but also religious expression by citizens on public property.
The new vision of equal treatment for religion might be seen as a return to a more normal vision of separationism, which insists that religious activity should be initiated and controlled by individuals rather than by the state. "This is not a radical new intrusion of religion into public life," Brinkley says. "It's a loosening of rather recent boundaries that in the minds of many people might themselves be seen as a radical innovation."
[This article, first appeared in the New York Times Sunday Magazine, January 30 of this year. Even in abridged form, it gives a very telling and comprehensive explanation for the recent changes in church-state relations. Liberty magazine has long supported the separationist approach as best holding to the intention of the Constitutional Framers and the continued religious liberties of all people--regardless of their faith. Even so, we must deplore the cynical attempts by many antireligionists to use constitutional separation as an excuse to expunge religion from public life. This the Founders would surely have blanched at. And this is somewhat responsible for the changed attitude that Jeffrey Rosen describes; the beginning of an era when religion may be directly advanced by public policy. That we see as fraught with even greater peril, best illustrated by any cursory reading of history back in the era when religion held direct political power. Freedom of worship and conscience were early casualties in those days. We are sharing this article because it clearly describes the change. We do not share the author's easy acceptance of the new paradigm. This is a time for great caution, not jubilation. --Lincoln E. Steed, editor]
Jeffrey Rosen is legal affairs editor of The New Republic and teaches law at George Washington University. His book, The Unwanted Gaze: The Destruction of Privacy in America, has just been published.
Copyright © 2000 The New York Times Company. This abridged version of the original article was used by permission.
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