STEPHEN L. CARTER
The Separation of Church and State
Stephen l. carter (b. 1954) is William Nelson Cromwell Professor of Law at Yale Law School, specializing in constitutional law and contracts. He also maintains a deep concern for issues of law and religion. Carter wrote a regular column for Christianity Today, a magazine of general interest to Christians and others. He is himself a member of a communion that is reputed to be the oldest predominantly black Episcopal church in the nation. As such, he has a personal stake in issues in which law and religion intersect. He is also a very prominent intellectual, with strong and measured opinions on major controversies in American life. His books treat specialized legal issues as well as general issues of morality and behavior. In addition, he has received attention as the author of the best-selling novel The Emperor of Ocean Park (2000).
Carter graduated from Stanford University and took his law degree from Yale University. After Yale, he clerked with a Washington, D.C., appeals court judge for a year, then clerked for Justice Thurgood Marshall of the U.S. Supreme Court. He later went into practice in Washington for a short time and then proceeded to a professorship at Yale Law School.
A book that catapulted Carter into the public’s attention was Reflections of an Affirmative Action Baby (1991), in which he analyzed the complexities of affirmative action as well as its helpful and damaging results for young black people. He spoke out on the issue because he felt that even though black Americans might be stigmatized by affirmative action, they needed to support it.
His specialized books on law, The Confirmation Mess: Cleaning Up the Federal Appointments Process (1994) and The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty (1998), have been widely praised for their clarity and seriousness. They maintain a concern for the larger issues of government processes as they affect all citizens. In 1998 Carter also published Civility: Manners, Morals, and the Etiquette of Democracy, a strongly personal view of the need to struggle against the encroaching rudeness that threatens the civility of our society.
The book The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993), from which the following selection comes, is a powerfully argued examination of religion and politics. Addressing the emergence of religion and religious issues in modern politics, especially during election years, this book makes an effort to clarify the state’s obligations to citizens of various religious persuasions. What makes the book remarkable is that it is written by an expert in constitutional law who is also a practicing Christian with strong religious views. Balancing the responsibilities of religion and law is one of the book’s primary goals.
Carter has further explored the subject of religion in politics in God’s Name in Vain: The Wrongs and Rights of Religion in Politics (2000), which expands on the ideas of separation of church and state presented in the selection that follows. His latest book is The Impeachment of Abraham Lincoln (2012).
Carter is a prominent lawyer teaching at a prominent law school. Therefore, it is natural that he should use logical principles in maintaining his positions. Moreover, he makes reference to legal precedents much in the manner of a lawyer or judge considering the merits of a case. He also establishes early on the position that is the bedrock of his argument. To begin with, he addresses the First Amendment and points out that of its five clauses, the relation of religion to government comes first and may, therefore, be considered first in importance. The complete text of the First Amendment is 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.
Carter refers to the first of these clauses, “Congress shall make no law respecting an establishment of religion,” as the “Establishment Clause”; the second, “prohibiting the free exercise thereof,” as the “Free Exercise Clause.” These are the bases of all arguments that proceed from the Bill of Rights in the Constitution. In essence, Carter’s argument constitutes an analysis of that text. As a way of calling attention to his text as such, he establishes what he calls “The Separation Metaphor,” which alerts us to the need to interpret the Constitution carefully, almost as if it were a literary document.
Prior to this discussion, his opening two paragraphs establish that the Constitution was designed to protect religion from the state, not the state from religion. Given that premise, much that has exercised politicians in recent decisions may seem less clear, less certain, and less desirable than it might otherwise appear to be.
After establishing basic principles, Carter uses the device of the anecdotal example in paragraph 4, in which he recounts the story of a minister whose drug rehabilitation program succeeded where others failed. The reason for the success was, the minister said, the effect of prayer. Despite the overwhelming success (as told to Carter) of this program, the minister could not secure state or federal funds to continue his work. Carter then examines the rationale behind the decision to withhold funds from the minister’s drug-treatment program.
A brief examination of historical precedent follows in paragraphs 7 to 10, with more examples that demonstrate the difficulties faced in interpreting the First Amendment. In paragraph 10, Carter addresses the concept of metaphor, citing U.S. Supreme Court Justice Hugo Black’s famous statement that “[t]he First Amendment has erected a wall between church and state.” Black’s choice of metaphor was attacked by other lawyers; Carter emends it to suggest that the wall is acceptable as a metaphor, but it should “have a few doors in it.” His point is simply that one cannot be absolute in reference to the First Amendment.
Subsequent paragraphs deal with the “Lemon test,” a reference to a legal case, Lemon v. Kurtzman, in which the U.S. Supreme Court found that states could not fund religious schools even if they taught nonreligious subjects. But as Carter points out, even that legal precedent is interpreted in conflicting ways. In other words, there really is no established test of the Establishment Clause, so people must argue every case individually.
In paragraphs 14 and 15, Carter demonstrates how the U.S. Supreme Court has “missed the point” in a specific case. What he demonstrates in his analysis of the Court’s ruling is that there are inconsistencies that the Court did not seem to take into account. In these paragraphs he introduces the concept of the motivation of people who might be seen as challenging the First Amendment. A religiously motivated “nuclear arms freeze,” for example, might not get support from local or national government agencies because of the involvement of religion.
Carter raises an interesting point in the final paragraphs of the essay. The “fabric of our society” is a term the U.S. Supreme Court used to justify providing government funds for a Christmas display because the celebration of Christmas is part of the fabric of our society. Carter points out that this is an unreliable test because other things, such as more than two hundred years of slavery, were part of the fabric of our society as well but were deemed undesirable and indeed, as in the case of slavery, are illegal today.
In paragraph 23, following the evidence he has presented, Carter recapitulates the point that the Establishment Clause was designed to protect religion from the state, not the state from religion.
PREREADING QUESTIONS: WHAT TO READ FOR
The following prereading questions may help you anticipate key issues in your discussion of Stephen L. Carter’s “The Separation of Church and State.” Keeping them in mind during your first reading of the selection should help focus your attention.
What is the Establishment Clause?
Does the First Amendment protect religion from the state or the state from religion?
What constitutes a test of the Establishment Clause?
The Separation of Church and State
By now, many a patient reader will be ready with another objection: it is all very well to talk about allowing the religious to enter the public square to participate in political debate alongside everybody else. But what about the Constitution? What about the separation of church and state? Don’t we have long-standing constitutional and philosophical traditions that limit the influence of religious sectarianism on government policy?
The answer to the last question—as so often in the law—is “not exactly.” The courts do indeed enforce a separation of church and state, and it is backed by some very impressive legal philosophy, but one must be careful not to misunderstand what the doctrine and the First Amendment that is said to embody it were designed to do. Simply put, the metaphorical separation of church and state originated in an effort to protect religion from the state, not the state from religion. The religion clauses of the First Amendment were crafted to permit maximum freedom to the religious. In modern, religiously pluralistic America, where, as we have seen, the religions play vital roles as independent sources of meaning for their adherents, this means that the government should neither force people into sectarian religious observances, such as classroom prayer in public schools, nor favor some religions over others, as by erecting a crèche paid for with public funds, nor punish people for their religiosity without a very strong reason other than prejudice. It does not mean, however, that people whose motivations are religious are banned from trying to influence government, nor that the government is banned from listening to them. Understanding this distinction is the key to preserving the necessary separation of church and state without resorting to a philosophical rhetoric that treats religion as an inferior way for citizens to come to public judgment.
The Separation Metaphor
Religion is the first subject of the First Amendment. The amendment begins with the Establishment Clause (“Congress shall make no law respecting an establishment of religion…”) which is immediately followed by the Free Exercise Clause (“or prohibiting the free exercise thereof”). Although one might scarcely know it from the zeal with which the primacy of the other First Amendment freedoms (free press, free speech) is often asserted, those protections come after the clauses that were designed to secure religious liberty, which Thomas Jefferson called “the most inalienable and sacred of all human rights.” What this means in practice, however, is often quite complicated.
Consider an example: at a dinner party in New York City a few years ago, I met a Christian minister who told me about a drug-rehabilitation program that he runs in the inner city. His claim—I cannot document it—was that his program had a success rate much higher than other programs. The secret, he insisted, was prayer. It was not just that he and his staff prayed for the drug abusers they were trying to help, he told me, although they naturally did that. But the reason for the program’s success, he proclaimed, was that he and his staff taught those who came to them for assistance to pray as well; in other words, they converted their charges, if not to Christianity, then at least to religiosity. But this program, he went on with something close to bitterness, could receive no state funding, because of its religious nature.
Well, all right. To decide that the program should not receive any funds, despite the success of its approach, might seem to be a straightforward application of the doctrine holding that the Constitution sets up a wall of separation between church and state. After all, the program is frankly religious: it uses prayer, and even teaches prayer to its clients. What could be more threatening to the separation of church and state than to provide a government subsidy for it? The Supreme Court has said many times that the government may neither “advance” religion nor engage in an “excessive entanglement” with it. On its face, a program of drug-rehabilitation therapy that relies on teaching people to pray would seem to do both.
It is doubtless frustrating to believe deeply that one has a call from God to do what one does, and then to discover that the secular society often will not support that work, no matter how important it is to the individual. Yet that frustration is itself a sign of the robustness of religious pluralism in America. For the most significant aspect of the separation of church and state is not, as some seem to think, the shielding of the secular world from too strong a religious influence; the principal task of the separation of church and state is to secure religious liberty.
The separation of church and state is one of the great gifts that American political philosophy has presented to the world, and if it has few emulators, that is the world’s loss. Culled from the writings of Roger Williams1 and Thomas Jefferson, the concept of a “wall of separation” finds its constitutional moorings in the First Amendment’s firm statement that the “Congress shall make no law respecting an establishment of religion.” Although it begins with the word “Congress,” the Establishment Clause for decades has been quite sensibly interpreted by the Supreme Court as applying to states as well as to the federal government.
For most of American history, the principal purpose of the Establishment Clause has been understood as the protection of the religious world against the secular government. A century ago, Philip Schaff2 of Union Seminary in New York celebrated the clause as “the Magna Carta of religious freedom,” representing as it did “the first example in history of a government deliberately depriving itself of all legislative control over religion.” Note the wording: not religious control over government—government control over religion. Certainly this voluntary surrender of control is an indispensable separation if the religions are to serve as the independent intermediary institutions that Tocqueville3 envisioned.
Over the years, the Supreme Court has handed down any number of controversial decisions under the Establishment Clause, many of them landmarks of our democratic culture. The best known are the cases in which the Justices struck down the recital of organized prayer in the public school classrooms, decisions that for three decades have ranked (in surveys) as among the most unpopular in our history. But the decisions were plainly right, for if the state is able either to prescribe a prayer to begin the school day or to select a holy book from which a prayer must be taken, it is exercising control over the religious aspects of the life of its people—precisely what the religion clauses were written to forbid. But although the separation of church and state is essential to the success of a vibrant, pluralistic democracy, the doctrine does not entail all that is done in its name. I have already mentioned the school district in Colorado that thought it the better part of valor to forbid a teacher to add books on Christianity to a classroom library that already included works on other religions. The town of Hamden, Connecticut, where I live, briefly ruled that a church group could not rent an empty school house for Sunday services. (Cooler heads in the end prevailed.) These rulings were both defended as required by the separation of church and state; so is the intermittent litigation to strike the legend IN GOD WE TRUST from America’s coins or the phrase “under God” from the Pledge of Allegiance, an effort, if successful, that would wipe away even the civil religion. In short, it is not hard to understand the frequent complaints that the secular world acts as though the constitutional command is that the nation and its people must keep religion under wraps.
Proponents of the hostility thesis believe that the Supreme Court bears a heavy burden of responsibility for what they see as the disfavored position of religion in America. Justice Hugo Black,4 in Everson v. Board of Education (1947), often is said to have started the ball rolling when he wrote these words: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” A year later, Justice Stanley Reed5 warned that “a rule of law should not be drawn from a figure of speech.” One critic wrote years later that Black had simply penned a few “lines of fiction.” The critics are not quite right, but they are not quite wrong, either. There is nothing wrong with the metaphor of a wall of separation. The trouble is that in order to make the Founders’ vision compatible with the structure and needs of modern society, the wall has to have a few doors in it.
Souring on Lemon
The embarrassing truth is that the Establishment Clause has no theory; that is, the Supreme Court has not really offered guidance on how to tell when the clause is violated. Since 1971, the Justices have relied on the “Lemon test,” so named because it was framed (quite awkwardly, one is compelled to add) in the Court’s 1971 decision in Lemon v. Kurtzman. The case is so often cited that legal scholars tend to forget what it involved: a state program to reimburse all private schools, including religious schools, for expenses of textbooks, materials, and, in part, salaries used to teach nonreligious subjects. The Court held the program unconstitutional and, in so doing, enunciated the Lemon test—a lemon indeed, for it has proved well nigh impossible to apply. In order to pass Establishment Clause muster, the Justices wrote, the statute in question must meet three criteria: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ’an excessive entanglement with religion.’”
Thus conceived, the clause exists less for the benefit of religious autonomy than for the benefit of secular politics; that is, to borrow from the test itself, the Establishment Clause was written to further “a secular legislative purpose,” trying to erect around the political process a wall almost impossible to take seriously. It is perhaps needless to add that Lemon left the critics in their glory. Did the legislation enacted at the behest of the religiously motivated civil rights movement have a secular purpose? If granting tax relief to parents whose children attend parochial schools advances religion by making the schools cheaper, does refusing to grant them inhibit religion by making the schools more expensive? If competing factions within the same church both seek control of the same church building, does judicial resolution represent an excessive entanglement?
When it promulgates complex multipart tests for constitutional violations, the Supreme Court is almost always luckless, but the Lemon test has been extraordinarily unhelpful to the lower courts. Indeed, the courts have reached results that are all over the map—sometimes quite literally, for one of the more interesting cases involved a rather bland “Motorists’ Prayer” to God for safety that North Carolina printed on its official state maps. A federal court, missing the significance of America’s civil religion, held the practice to be a violation of the Establishment Clause. Another federal court ruled that the clause prohibits religious groups from petitioning the Congress for special laws (available to all other groups) in order to secure copyrights when they are unable to meet the statutory criteria. The list goes on and on—but Lemon remains.
The Supreme Court itself has not fared much better than the lower courts in applying its test. The Lemon framework might not work too badly, could the courts but take the requirement of a “secular legislative purpose” to mean, as one scholar has proposed, any “political purpose”—that is, any goal the state legitimately is able to pursue. Recently, however, the courts have seemed to fumble this point, confusing the political purpose for which the statute is enacted with the religious sensibilities of legislators or their constituents.
A majority of the Supreme Court missed this point in Edwards v. Aguillard (1987), with the suggestion that a law requiring schools to teach scientific creationism is unconstitutional because most of its supporters were religiously motivated—a suggestion that would also render unconstitutional the religiously motivated teaching of evolution, or, for that matter, a religiously motivated nuclear arms freeze. A similar suggestion has been made by some pro-choice scholars who have argued that pro-life legislation violates the Establishment Clause because of the religious motivation of many supporters. For the religiously devout citizen, faith may be so intertwined with personality that it is impossible to tell when one is acting, or not acting, from religious motive—and this is certainly true for legislators, unless we dismiss as hypocritical cynics the entire Congress of the United States, where over 90 percent of the members say that they consult their religious beliefs before voting on important matters. Indeed, by some estimates, an absolute majority of the laws now on the books were motivated, at least in part, by religiously based moral judgments. That is why inquiring into why legislators have voted as they have, rather than what their legislation does, is almost always a mistake. “That values happen to be religious,” New York’s governor Mario Cuomo6 has warned, “does not deny them acceptability” as part of “the consensus view” needed to support public policy. The result in Edwards is probably correct, but not because of the Court’s discussion of what was in the minds of the supporters of the statute.
The idea that religious motivation renders a statute suspect was never anything but a tortured and unsatisfactory reading of the clause. As one scholar has put the matter, there is good reason to think that “what the religion clauses of the first amendment were designed to do was not to remove religious values from the arena of public debate, but to keep them there.” The Establishment Clause by its terms forbids the imposition of religious belief by the state, not statements of religious belief in the course of public dialogue. The distinction is one of more than semantic significance.
Consider the call by Reinhold Niebuhr7 and others back in the 1920s for the “Christianization” of American industry. Their use of the word “Christianization” did not mean the imposition of ritual and doctrine; it meant, rather, the transformation of industry into a new form that would accord with a principle of respect for the human spirit that Niebuhr and the rest found lacking in industrial organizations of the day. Critics called it socialism, or perhaps communism. But whatever it was, religious faith was plainly at its heart.
Niebuhr struck a chord, not only with any number of left-leaning Protestants, but also with a good number of socialists, many of them Jews, and with other reformers of no religious persuasion. (A well-known support group was Atheists for Niebuhr.) Suppose the response had been greater, that public support had burgeoned; suppose that legislatures had begun enacting programs that matched the socialist spirit of Christianization. This reform legislation would be purely secular in operation and could certainly be justified in secular terms. But under an establishment clause that is read to equate acting out of religious motivation with imposing religious belief, the programs might be unconstitutional, because both those who proposed them and many of those who voted for them would have done so out of religious conviction.
That should be a deeply troubling result. A rule holding that the religious convictions of the proponents are enough to render a statute constitutionally suspect represents a sweeping rejection of the deepest beliefs of millions of Americans, who are being told, in effect, that their views do not matter. In a nation that prides itself on cherishing religious freedom, it would be something of a puzzle to conclude that the Establishment Clause means that a Communist or a Republican may try to have his or her world view reflected in the nation’s law, but a religionist cannot. Although some critics fear we are already at that point, the truth is that we have a good long way to go; but we are heading in the wrong direction in our jurisprudence, and if the courts continue to read Lemon as they have, the Establishment Clause might well end up not antiestablishment but antireligion.
Recognizing this danger, the Justices, and the scholars who support their Establishment Clause jurisprudence, have simply ignored the rules of Lemon v. Kurtzman when applying them might prove too disruptive. In particular, they have tried to tiptoe around many widely accepted practices that seem to run afoul of Lemon. But squaring Lemon’s rules with the accepted usages of the society’s civil religion often requires some fancy footwork. How, for example, does one justify the expenditure of government funds to provide armed forces chaplains, which looks like government sponsorship of religion? Answers one observer: “This is not so much ’setting up a church’ as providing access to churches already existing for those removed by government action from their normal communities.” Okay, but how to explain the use of public funds during the Christmas season to build and maintain a crèche, which celebrates the nativity of Jesus Christ? The Court itself tackled that one: “The display engenders a friendly community spirit of goodwill in keeping with the season” and any advancement of particular religions “is indirect, remote, and incidental.” Oh, really? Well, what about the offering of prayers at the opening of legislative sessions? The Justices had an answer for that one too: “In light of the unambiguous and unbroken history of more than two hundred years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.”
Part of the fabric of our society—it is easy to see why the Court is reluctant to hold that the fabric of society includes some threads of unconstitutionality, but it is difficult to imagine how that can be the right test. Racial segregation was once part of the fabric of our society; so was prohibiting the women’s vote, and corrupt patronage politics in the big cities. The idea, for example, that a crèche does not advance religion is ridiculous; the point of the crèche is to celebrate the birth of the Lord. So if the Court is willing to ignore Lemon and hold that government funds can pay for one, it is simply not doing its job. If the Justices dare not even follow their own rules, it may be time to find a new way to look at these problems. Yet the Supreme Court, although hinting around the edges, has not yet decided to make a full retreat.
Part of the problem is figuring out where the Justices can possibly retreat to. For even if the Court’s Lemon test is insupportable, it is far from clear what should be put in its place. On this point, not surprisingly, there is a considerable scholarly battle, in which it is healthiest to be a spectator. Michael McConnell8 has proposed a standard based on coercion of belief, which he has labeled the “lost element” of Establishment Clause jurisprudence. Douglas Laycock9 has shot back that this test would leave the Establishment Clause void of content. Justice Sandra Day O’Connor10 has proposed a test asking whether the government is endorsing religious belief or not. Mark Tushnet11 has answered that Christian judges in a Christian-dominated society are not in the best position to tell whether a message of endorsement is being sent. Steven D. Smith,12 distinguishing between religious individuals and their organizations, has suggested prohibiting only concerted action by state and religious institutions. Kathleen Sullivan13 has taken the opposite position, proposing to use the clause to guarantee a secular public order. And one could go on this way at some considerable length.
Constitutional provisions all too rarely, alas, have easily discernible meanings, and there are elements of truth in all these readings of the Establishment Clause. Yet what is most vital, in coming to a sensible understanding of the clause, is to avoid the ahistorical conclusion that its principal purpose is to protect the secular from the religious, an approach that, perhaps inevitably, carries us down the road toward a new establishment, the establishment of religion as a hobby, trivial and unimportant for serious people, not to be mentioned in serious discourse. And nothing could be further from the constitutional, historical, or philosophical truth.
QUESTIONS FOR CRITICAL READING
Why is the separation of church and state described as “metaphorical”?
Does the fact that religion comes first in the First Amendment imply that it is first in importance?
Why was the Christian minister unable to secure public funds to support his project?
Why does Carter describe the separation of church and state as “one of the great gifts that American political philosophy has presented to the world” (para. 7)?
Who struck down the recitation of prayers in public schools? Why?
What is the significance of the problems involved in the “Lemon test”?
What problems are raised by the Supreme Court’s ruling in Edwards v. Aguillard?
How have jurists justified the support of army chaplains with public funds?
What is the meaning of the term “part of the fabric of our society” (para. 20), as used by the Supreme Court?
SUGGESTIONS FOR CRITICAL WRITING
In paragraph 7, Carter implies the Constitution does not make it clear whether the Establishment Clause should be administered by the federal government or by individual state governments. Which do you think should be the case? How might different states interpret the Establishment Clause? Why do you think there would be a difference among states at all on this account? How do you suppose Plymouth Colony, which existed 150 years before the Constitution, would have interpreted the Establishment Clause?
Take a position on the introduction of prayer in the public schools. Argue a case that either defends or attacks it. Consider Carter’s concerns for the “Lemon test” and consider the ways in which the Supreme Court has interpreted cases in the light of what it calls the “fabric of our society.”
Why, in a nation whose citizens are preponderantly religious, should there be any question at all about the support of Christmas displays on public land or Bible reading in public schools? In a democracy, shouldn’t the will of the majority rule? Why should people whose beliefs differ from those of the majority have their views taken into consideration? Take a position on this issue and argue it carefully.
Should private religious schools receive support from local and state governments in the teaching of nonreligious subjects? Should public school students who wish to study in private religious schools receive the same financial support they would get in the public schools? If it cost $7,500 a year to educate a student in a public school, would it be desirable to give that student, say, $5,000 toward his or her private-school tuition? Why or why not? Consider the way in which Carter argues his case and try to emulate his methods of analysis.
CONNECTIONS How would Thomas Jefferson (p. 259 in the print book) have reacted to our current refusal to permit prayer and Bible reading in public schools? Examine the Declaration of Independence (p. 259 in the print book) and “The Separation of Church and State” carefully to see if you can interpret Jefferson in terms of Carter.
CONNECTIONS Read Henry David Thoreau’s “Civil Disobedience” (p. 301 in the print book). If Thoreau were a student in public school today, how would he react to the prohibition of prayer? Where would Thoreau stand on the issue of separation of church and state? Would his views have been similar to Thomas Jefferson’s? To Carter’s? Explain.
SEEING CONNECTIONS Carter’s argument is based on the principles laid down by the writers of the Constitution of the United States. Examine Howard Chandler Christy’s Scene at the Signing of the Constitution of the United States. Research the term Deism as it relates to the founders and founding of the United States. Some of the prominent signers of the Constitution—like Benjamin Franklin, Thomas Jefferson (p. 259), and James Madison (p. 109)—were Deists, and their views shaped the concept of separation of church and state. How might the views of Deists conflict with Carter’s argument in favor of the protection of religion? Do you think Madison was more worried about the influence of religion on the state or the influence of the state on religion?