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The Separation of Church and State and American Politics

Posted: 10/26/10 09:33 PM ET

Everyone is having a good laugh at Christine O'Donnell's expense. Supposedly, her professed disbelief that the Constitution contains a guarantee of the separation of church and state reveals a profound ignorance of the principles that our Constitution secures. The fact of the matter, though, is that O'Donnell is merely repeating what has become a standard mantra in many conservative circles, including religious and social conservatives now seeking to make common cause with the Tea Party.

In point of fact, the idea that a wall of separation must be maintained between religion and politics is not explicitly articulated in the First Amendment or anywhere else in the Constitution. What the First Amendment does contain, alongside the guarantee of the right to the free exercise of religion, is a prohibition on laws "respecting the establishment of religion." And while there is broad agreement that the prohibition on state "establishment" of religion implies some sort of separation between religion and politics, it has always been open to interpretation just what form of separation is required.

Liberals have long favored an expansive interpretation of the principle of separation, a position endorsed by the Supreme Court in 1947 in the case of Everson v. Board of Education, which held that, properly construed, the Establishment Clause of the Constitution erects a "wall of separation" between religion and state that "must be kept high and impregnable." Prior to that case, the idea of the wall of separation between church and state was not a part of Supreme Court doctrine. But once handed down, it quickly became gospel. Supporters of the Supreme Court's Establishment Clause doctrine disagreed about some of the details of that gospel, debating, for example, whether school districts could "loan" textbooks to parochial schools, or whether Christmas trees and menorahs could be displayed in public squares without offending the principle of separation between church and state. But no one who subscribed to the doctrine denied that a strong wall of separation needed to be maintained, both for the sake of protecting religion from state interference and in order to prevent religion from inappropriately penetrating our secular political institutions.

Not everyone subscribed to that liberal secular gospel, however -- especially the latter part. While most people of faith favored separation when it came to protecting the autonomy of religious institutions and their own private religious beliefs, many religious conservatives chafed at the relegation of religion to the private realm and the denial of religion's traditionally more public role. They particularly objected to a string of Supreme Court decisions banning school prayer and Bible reading in the nation's public schools and overturning time-release programs for religious instruction. These decisions galvanized religious conservatives of various denominations and played an instrumental role in bringing the religious right into being as a political movement. Over the last half century, this political movement, comprising a broad cross-denominational coalition of Evangelical Christians, conservative Catholics, and, increasingly, Orthodox Jews, has waged a campaign to overturn the liberal doctrine of strict separation between church and state and restore religion to the public schools and public square. According to this camp, there is no principle of separation between church and state in the Constitution, and the idea that there is is yet another liberal fallacy, an invention of liberal activist judges and the reviled Warren Court.

I don't know what was in Christine O'Donnell's head when she denied the existence of a constitutional guarantee of the principle of church-state separation, or when she seemed to register surprise that the First Amendment states that "Congress shall make no law respecting the establishment of religion" during her colloquy with her opponent, Chris Coons. ("That's in the First Amendment?") But it is reasonable to surmise that rather than being a case of ignorance, she was simply reflecting the long-held view of the religious right concerning the proper interpretation of the Establishment Clause.

If that interpretation rests on ignorance, it is less a matter of ignorance of the Constitution than of the fact that the separation between church and state is an ancient theological principle central to the religious traditions to which the religious right lays claim. On the other side of the fence, those who are seeking to defend the constitutional doctrine of church-state separation betray their own ignorance of the fact that the constitutional text is open to different interpretations and of the extent to which conservatives have successfully promoted their interpretive view. We may think that a bad interpretation. But rather than treat it with scorn, we had better become better acquainted with it, recognizing its historical, textual and philosophical roots. Only then will we be in a position to offer persuasive reasons for rejecting it.

We don't know what position the Court's newest Justices will take on these matters, since the subject of religion has been treated as a taboo in recent confirmation hearings. But there is good reason to think that they are sympathetic. As for conservatives on the Court of longer tenure, Justices Scalia and Thomas have already indicated their sympathy with the conservative campaign to dismantle the wall of separation. (Thomas has gone so far as to suggest that the Establishment Clause doesn't even apply to the states -- only to Congress.) So instead of reacting with shock and ridicule when a political candidate currying favor with the religious right expounds this position, and dismissing it as mere stupidity, we should be prepared to recognize it as an interpretive tradition of long standing and to oppose it with interpretive arguments rooted in both our secular constitutional tradition and the biblical faith traditions in which the idea of church-state separation first emerged.