Tag Archives: Separation of Church and State

Wolterstorff’s “The Mighty and the Almighty”: What is Political Theology?

For an upcoming conference, I am reading Nicholas Wolterstorff’s excellent and The Mighty and the Almightyeminently readable book, The Mighty and the Almighty: An Essay in Political Theology. In some future posts, I will get into his argument concerning the dual authority of the church and the state, as well as some important counterpoints to his view (he takes Augustine to be one such counterpoint, and this will also allow me to resume my Augustinian posting).

For this first post, though, I thought to explain a little bit about the subject itself. Political theology may be misinterpreted by those who are imbued with the spirit of post-20th-century American constitutionalism to be tantamount to ecclesiastical or clerical rule (or, perhaps, rule by theologians). But it is actually an account of the relationship of divine and human authority in matters of politics and governance. As Wolterstorff puts it: “[A]t the core of traditional political theology was the question of how God’s authority is related to the authority of the state.” (2) Political theology treats the question, for example, of how a person or a people can reconcile these different authorities and demands in their own lives. And it is Wolterstorff’s aim to articulate a distinctly Christian political theology in the book.

Even so, putting the problem of political theology in this fashion may sound unusual to modern ears. Even if God’s authority was once a political problem, have we not gotten past all of that? Mark Lilla, whom Wolterstorff cites early in the book, recently explained in his intellectual history of the subject that the God of political theology is actually a “stillborn God”–a God that ought not enter into the political calculations of modernity. Though I wonder whether Wolterstorff is exactly right that Lilla was offering a requiem for political theology (more like an admonition to be mindful of the dangerous endurance of political theology), Wolterstorff presents two cogent reasons for the salience of political theology today.

First, believers in God have reason to attend to political theology because the relationship of God’s law to the civil law is a perennial problem for them. And, indeed, there is a long Christian tradition stretching for more than 1000 years (from roughly 500 to 1600) that offered a compelling answer to the problem of political theology–what Wolterstorff calls the “two rules doctrine,” which he contests (more on this in future posts).

Second, political theology is not dead; rather, says Wolterstorff, it has been “flying under the radar.” (3) Wolterstorff’s primary focus here is on some of the writing of Augustine, Calvin, and John Howard Yoder (a twentieth century Christian ethicist), but I might put the point more broadly. Many accounts of political thought have buried within them a collection of assumptions–often not explicitly laid out–of the relationship between the state’s power and other powers (perhaps greater powers) that lie outside the state. Attending directly to the ways in which a political system conceives of the authority and power of different realms (including its own) helps to excavate and shine a light on its deepest commitments.

Prtichard, “Religion in Public: Locke’s Political Theology”

Here’s an interesting new book, Religion in Public: Locke’s Political Theology Religion in Public(Stanford University Press 2013) by Elizabeth A. Pritchard (Department of Religion, Bowdoin) that considers and challenges the view that John Locke sought to privatize religion and instead argues that Locke’s political theology aimed to secularize religion and make it public. John Locke’s views about religion and toleration, of course, are important as intellectual sources for the religion clauses of the US Constitution. The abstract follows.

John Locke’s theory of toleration is generally seen as advocating the privatization of religion. This interpretation has become conventional wisdom: secularization is widely understood as entailing the privatization of religion, and the separation of religion from power. This book turns that conventional wisdom on its head and argues that Locke secularizes religion, that is, makes it worldly, public, and political. In the name of diverse citizenship, Locke reconstructs religion as persuasion, speech, and fashion. He insists on a consensus that human rights are sacred insofar as humans are the creatures, and thus, the property of God. Drawing on a range of sources beyond Locke’s own writings, Pritchard portrays the secular not as religion’s separation from power, but rather as its affiliation with subtler, and sometimes insidious, forms of power. As a result, she captures the range of anxieties and conflicts attending religion’s secularization: denunciations of promiscuous bodies freed from patriarchal religious and political formations, correlations between secular religion and colonialist education and conversion efforts, and more recently, condemnations of the coercive and injurious force of unrestricted religious speech.

Radical Puritanism and Religious Vitality

In a previous post, I argued that there was no necessary connection between a policy of stringent church-state separation and the strength or vitality of religious life within the state. There have been many societies that enjoyed a flourishing religious life well before anybody got it into his head to talk about separation. And there are several modern societies that practice strict separation and whose religious life is seemingly moribund. Any correlation between separation and religious vitality, I argued, is situational and incidental. The strength of religious life within a society depends, I said, on other factors.

But suppose someone were to say: ‘No, that’s not correct. Religious strength does depend on strict separation. In today’s day and age, a strong religious life means exactly that the state is completely separated from religion. A person is most free to affirm true religious commitment just inasmuch as the state and religion are totally separate. In the modern world, the strength of a nation’s religious life depends upon that individual freedom.”

In fact, I think something like this view grounds the frequently-heard claims about the religious vitality that must arise in a strictly separated state. In my previous post, I noticed the puritanical and evangelical conception of religion that the view presupposes. I’ve been reading around in this volume on the Establishment Clause edited by T. Jeremy Gunn and John Witte, Jr., and David Little’s essay, “Roger Williams and the Puritan Background of the Establishment Clause,” offers further confirmation. Professor Little writes that it was the issue of establishment that most sharply divided Roger Williams from other New England Puritans. Disestablishment was thus in some sense the problem of an intramural dispute among puritan factions–the most radical of which was represented by Williams. Little and many others have recognized the mixture of religious and pragmatic arguments for strict separation.

It is the religious arguments that interest me here. Little writes:

Along with references to experience and reason, Williams adds extensive appeals to Christian scripture, doctrine, and history. . . . The decisive transgression took place

when Constantine broke the bounds of this his own and God’s edict, and [drew] the sword of civil power in suppressing other consciences for the [sake of] establishing the Christian [church]. [T]hen began the great mystery of the churches’ sleep, [by which] the gardens of Christ’s churches turned into the wilderness of National Religion, and the world (under Constantine’s dominion) into the most unchristian Christendom….There never was any National Religion good in this world but one [namely, ancient Israel], and since the desolation of that nation, there shall never be any National Religion good again.

No Establishment of Religion, 111-12 (quoting Williams, The Bloody Tenent Yet More Bloody). Little goes on to dispute Mark DeWolfe Howe’s claim that Williams was interested solely in the corruption of religion; Little believes that Williams was concerned about mutual corruption of church and state. But in either case, a theological argument against establishment of this kind can readily be inflated to serve the ends of strict separationism. And so it has been in the generations that followed, as arguments from mutual corruption have become ever more salient in the interpretation of the Establishment Clause, and have been held to require more and more separation.

Back to the initial issue though–the connection between separationism and religious vitality. The objection to my initial post, it seems to me, is a good one, but with one important proviso. Religious vitality does increase as religion and the state become more separate, provided that one adopts the radical puritan theology that Williams espoused. If one does not adopt that theology, then one is left with prudential arguments for strict separationism as conducive of religious vitality. Those prudential arguments, I believe, are entirely circumstantial and accidental; it simply is not the case, as a pragmatic matter, that strict separationism inevitably results in a strong religious life.

A committed policy of strict separationism that is not qualified by the accidents of circumstance and historical contingency depends for its support on the sort of radical puritanism in matters of religious vitality so ably articulated by Roger Williams. Might the need to adopt such theological premises occasion its own Establishment Clause problems? Something for a future post.

On the Claim that Separation Strengthens Religion

George Will has a long essay in National Affairs on religion and the American SeparationRepublic. It’s interesting in parts: as a self-professed “None,” Will reflects on the importance (but also the non-necessity) of religion as a support for American public and political life. Here’s a fragment:

[E]ven the founders who were unbelievers considered it a civic duty — a public service — to be observant unbelievers. For example, two days after Jefferson wrote his famous letter endorsing a “wall of separation” between church and state, he attended, as he and other government officials often would, church services held in the chamber of the House of Representatives. Services were also held in the Treasury building.

Jefferson and other founders made statesmanlike accommodation of the public’s strong preference, which then as now was for religion to enjoy ample space in the public square. They understood that Christianity, particularly in its post-Reformation ferments, fostered attitudes and aptitudes associated with, and useful to, popular government. Protestantism’s emphasis on the individual’s direct, unmediated relationship with God and the primacy of individual conscience and choice subverted conventions of hierarchical societies in which deference was expected from the many toward the few.

Beyond that, however, the American founding owed much more to John Locke than to Jesus. The founders created a distinctly modern regime, one respectful of pre-existing rights — rights that exist before government and so are natural in that they are not creations of the regime that exists to secure them. In 1786, the year before the Constitutional Convention, in the preamble to the Virginia Statute for Religious Freedom, Jefferson proclaimed: “[O]ur civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.”

In fact, religion is central to the American polity precisely because religion is not central to American politics. That is, religion plays a large role in nurturing the virtue that republican government presupposes because of the modernity of America. Our nation assigns to politics and public policy the secondary and subsidiary role of encouraging, or at least not stunting, the flourishing of the infrastructure of institutions that have the primary responsibility for nurturing the sociology of virtue. American religion therefore coexists comfortably with, but is not itself a component of, American government.

Religion’s independence of politics has been part of its strength. There is a fascinating paradox at work in our nation’s history: America, the first and most relentlessly modern nation, is — to the consternation of social scientists — also the most religious modern nation. One important reason for this is that we have disentangled religion from public institutions.

One hears this kind of “fascinating paradox” claim frequently, but what’s much more fascinating is that one hears it from both conservative and progressive quarters. For conservatives it reinforces the myth of special American religious vigor that Americans like to tell themselves is a vital source of their collective civic health. For progressives it represents a distinctively American and putatively “pro-religion” argument for keeping religion as far away from politics as possible. American exceptionalism may be out of favor in elite circles, but this particular strain of it dies hard.

The claim is that religion is so vibrant in America only because (or uniquely because) it is so pure, so separate from public institutions. It’s an argument that Madison made famous in his “Memorial and Remonstrance” and that Justice Souter has made in his religion clause jurisprudence (see his dissent in Zelman v. Simmons-Harris) and that now George Will makes. It reflects a distinctively evangelical ethic that one sees in full blossom in the writing of Roger Williams (as well as, before him, John Milton), for whom religion could never quite be pure enough–an ethic that hyper-emphasizes the unvarnished, utterly and uncomplicatedly sincere credos of what William James much later would call the gloomily intense “twice-born.”

Notice also the individualistic current on which the claim rides. It isn’t just that the state is “likely to get it wrong”; that is an argument for disestablishment (although one not available to secularists, since “it” is completely “wrong”). The deeper undercurrent of the separationist claim is that individuals, not entities, are the ones “likely to get it right”–that true-blue, healthfully zesty religiosity depends on a kind of inward exercise of discernment borne from fervent conviction that is always in peril of depurification by associational adulteration. It is a claim made primarily by those whose experience of “bad” religion was group religion– and traditional group religion at that. And the claim retains at least part of its power because of its still vital anti-clerical, anti-institutional foundations. (On Roger Williams’s views on this score, see Philip Hamburger’s extended discussion; the claim’s full-throated adoption by secular philosophers like Martha Nussbaum has seemed anachronistic to me, but it makes far more sense viewed from the perspective of an autonomous spiritual “seeker” peering through an anti-institutional lens. Andrew Koppelman has a long piece attempting to update it for modern times). Many have made the claim; surely many will continue to do so.

But is the claim true? In part, perhaps, but only with substantial qualifications of a kind that make it problematic. There is nothing inevitable (or “logical,” as George Will might put it) about religious strength that follows ineluctably from its complete separation from government. There is no iron law that says: the more we separate religion from government, the stronger religion must become. Such a claim would run headlong into many counterexamples, contemporary and ancient. The ancient examples make the claim appear patently absurd. One wants to ask: “Do you actually mean to tell me that no society which has not observed strict separation between church and state has had a flourishing religious life? So there was no flourishing religious life in any of countless pre-modern societies that existed before Milton or Locke or Roger Williams or whoever got busy?” And to take only one modern case, religion and the state have been strictly separated for some time in laic France and in other extremely secular European countries, and the strength of religious life in those countries is by all accounts much weaker than it was in prior historical periods when there was greater proximity and interpenetration of church and state.

I suppose one might argue that religious weakness in a country like France is the result of the long, noxious association of church and state that preceded separation, and that we just need some more time before a newly flourishing religiosity emerges. That seems highly dubious. Church and state have been separated in France for over a century (since 1905). How much longer is it supposed to take for this delicate flower to bloom in the desert? In fact, it seems much more likely that strict separation of church and state has either contributed to the weakening of religious life in a country like France or (even more plausibly) that it has occurred at a time when religiosity was weakening for reasons of its own–reasons unrelated to, or at least independent of, strict separationism.

If some notion of separation did in fact at one time contribute to a stronger collective religious life in the United States, the reason had little to do with any necessary connection in this respect, and more to do with the unique historical and cultural circumstances of the United States–circumstances in which the Puritan evangelicalism represented by Roger Williams’s particular style of fire-and-brimstone, garden-and-the-wilderness religiosity was much more powerful in the United States than it is today. Church-state separation may be a strategy that makes religion seem stronger, provided that one is beginning from the evangelical paradigm of the twice-born soul. But it is a different matter if religion is commonly perceived in wildly different terms and expected to perform entirely different functions.

At any rate, the action of separation on religion’s strength in America was situational and circumstantial; it was hardly causal or inevitable; and it is hardly inevitable that a policy of more stringent separationism at this juncture in the country’s history and cultural circumstances will result in a more vibrant religious life. Countries with other backgrounds and other histories who look to the United States as a model in this respect may well be misled. The pre-existing evangelical bulwark made church-state separation look like a real shot in the arm for religion, not the other way round.

It is a distinctively lawyerly foible to believe that the weakening or strengthening of broad and entrenched cultural phenomena is caused, or even substantially affected, by a government policy or a court-imposed legal rule. This is not to say that legal policies do not have social effects; of course they do. But the degree of influence often is neither unidirectional nor especially significant. There are signs that traditional forms of religiosity are weakening in the United States: the rise of the “Nones” of which George Will counts himself a member is only one such sign. The gathering strength of the Nones is occurring when religion is as a general matter more “disentangled from public institutions” than at any point in the country’s history. Perhaps the Nones and other religio-cultural movements augur new forms of religiosity in America, forms that will eventually supplant the traditional varieties of religious experience. On these matters, see several posts by my colleague Mark, who is studying this issue. But however these changes may go, government policies relating to church and state are likely to have nothing more than an unpredictable and largely incidental effect on these developments.

Religion and the Yasukuni Shrine Controversy

At Via Meadia, Walter Russell Mead has been doing a great job covering the controversy surrounding visits last week by top Japanese officials to the Yasukuni Shrine in Tokyo. Yasukuni is a Shinto shrine; in Shinto belief, it houses the souls of millions of people who died in the service of the Japanese Empire, including during World War II. Among the millions commemorated are approximately 1000 convicted war criminals, including wartime Prime Minister Hideki Tojo.

Japan’s neighbors, China and Korea, perceive official visits to the shrine as an outrageous insult and a sign that Japan has not fully repudiated the imperialism of its past. (In response to last week’s visits, China sent a fleet of patrol ships into Japanese territorial waters.) The latest controversy erupted when top officials in Prime Minister Shinzo Abe’s cabinet, as well more than 150 parliamentarians, visited the shrine for the annual Shinto Spring Ceremony–the largest official delegation in decades. In response to Chinese and Korean complaints, Abe doubled down, declaring in a parliamentary debate, “It’s only natural to honor the spirits of those who gave their lives for the country. Our ministers will not cave in to any threats.” Abe doubtless feels buoyed by opinion polls showing that he has a 70% approval rating from the Japanese public.

Official participation in ceremonies at Yasukuni have been controversial inside Japan as well. The Japanese Constitution, adopted after the war, disestablished Shintoism and effected, in the words of the Japanese Supreme Court, the “separation of state and religion.” In fact, in 1997 the Supreme Court ruled that the government officials could not make financial contributions to Yasukuni for use in Shinto ceremonies. With respect to this month’s visits, the officials involved were careful to point out that they were participating only as private citizens, not government officials, but that explanation has not satisfied critics. “”It doesn’t matter how or in what role Japanese leaders visit the Yasukuni shrine,” a Chinese spokesman said. “We feel it is in essence a denial of Japan’s history of militarist invasion.” And Japanese legal scholar Keisuke Abe (no relation to the Prime Minister, I believe) argues in a symposium in the St. John’s Law Review that most Japanese wouldn’t recognize the distinction, either. “Whatever the purpose of” a visit to the shrine, he writes, “the general public is likely to consider it as the government giving special support to Shintoism, associated with ancestor worship.”

Hurst on Hosanna-Tabor and Separationism

Alan Hurst (BYU – J. Reuben Clark Law School) has posted Hosanna-Tabor and the Exaggerated Decline of Separationism. The abstract follows.

Scholars generally agree that the separation of church and state, as an approach to the Religion Clauses, has been in decline for decades. Yet the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran School v. EEOC is strongly and unanimously separationist, and none of scholars’ explanations for separationism’s decline adequately explain Hosanna-Tabor.

I argue that previous scholarship fails to explain Hosanna-Tabor because it has been insufficiently attentive to what “separationism” means and the ways in which separationist approaches to the Religion Clauses can differ from each other. It has therefore failed to appreciate the ways in which the Supreme Court’s separationist principles have evolved rather than being repudiated, in particular the Court’s increased willingness to see free private choice as an adequate buffer between church and state and the Court’s increasingly narrow understanding of what counts as religion for separationist purposes.

These evolving aspects of the Court’s approach to separationism help make sense of Hosanna-Tabor, in which free private choice was not an issue and the church’s interests at stake were clearly part of the religious sphere. Further, they lead to a few predictions about the future of separationism and recommendations for pro-separationist scholars and activists.

Acevedo on Secularism in the Indian Context

Deepa Das Acevedo (Ph.D. Student, U. of Chicago) has posted Secularism in the Indian Context. The abstract follows.

Indian constitutional framers sought to tie their new state to ideas of modernity and liberalism by creating a government that would ensure citizens’ rights while also creating the conditions for democratic citizenship. Balancing these two goals has been particularly challenging with regard to religion, as exemplified by the emergence of a peculiarly Indian understanding of secularism which requires the non-establishment of religion but not the separation of religion and state. Supporters argue that this brand of secularism is best suited to the particular social and historical circumstances of independent India. This article suggests that the desire to separate religion and state is integral to any understanding of secularism and that, consequently, the Indian state neither is nor was meant to be secular. However, Indian secularists correctly identify the Indian state’s distinctive approach to religion-state relations as appropriate to the Indian context and in keeping with India’s constitutional goals.

How the Supreme Court Found the Wall

Many Americans know that the Supreme Court has stated that the Framers intended the Establishment Clause “to erect ‘a wall of separation between Church and State.’” A smaller number know that the Court was quoting a letter from President Thomas Jefferson to Baptists in Danbury, Connecticut–a bit of bad history, since Jefferson’s  idiosyncratic views did not fairly reflect the consensus on church-state relations at the time of the Framing. A still smaller number know that the metaphor of the wall goes back even further, to Roger Williams, who adapted it from the Book of Isaiah.

But hardly anyone knows the very interesting story that historian and sometime CLR Forum guest Don Drakeman (Church, State, and Original Intent) tells in a recent paper. In “Why Do We Think the American Framers Wanted to Separate Church and State?,” delivered at Oxford’s Rothmere American Institute last month, Don explains that Chief Justice Morrison Waite (above) first used the metaphor in Reynolds v United States (1878), a case involving a ban on polygamy. According to Drakeman, Waite came upon the metaphor more or less by accident. Waite happened to live next door to the eminent American historian George Bancroft, for whom Jefferson was a hero. Waite consulted Bancroft about the case, and Bancroft advised that, if Waite wanted to know the Framers’ views on establishment, he should consult Jefferson:

The Chief Justice then went to the library and skimmed through the index to Jefferson’s collected works. There, he discovered an 1802 letter, in which Jefferson said that the First Amendment built a “wall of separation between church and state.” This statement had been buried for nearly 80 years until Chief Justice Waite unearthed it and cemented it into the foundations of church-state jurisprudence. Bancroft, by the way, got a thank-you note, but no visible credit for creating the Jeffersonian First Amendment.

So much for good originalism. Indeed, so much for ex parte communications about a pending lawsuit! But there it is. Don’s essay is a delight. Check it out here.

Shiffrin, “The Religious Left and Church-State Relations”

This August, Princeton University Press will publish a paperback edition of The Religious Left and Church-State Relations by Steven H. Shiffrin (Cornell Law School). The cloth edition was published in 2009. The publisher’s description follows and  a book review by the Center’s own Assistant Director Marc O. DeGirolami can be found here.

In The Religious Left and Church-State Relations, noted constitutional law scholar Steven Shiffrin argues that the religious left, not the secular left, is best equipped to lead the battle against the religious right on questions of church and state in America today. Explaining that the chosen rhetoric of secular liberals is poorly equipped to argue against religious conservatives, Shiffrin shows that all progressives, religious and secular, must appeal to broader values promoting religious liberty. He demonstrates that the separation of church and state serves to protect religions from political manipulation while tight connections between church and state compromise the integrity of religious institutions.

Continue reading

For Wisconsinites (and other Church-Staters)

I’ll be on Wisconsin Public Radio’s “At Issue With Ben Merens” from 5-6 pm eastern time, talking about the separation of church and state in the public school context as well as the 7th Circuit’s Doe v. Elmbrook School District decision discussed below.

UPDATE: The interview can be downloaded here.