Church and State: A Humanist View
by Vern L. Bullough
The following article is from Free Inquiry magazine, Volume 16, Number 2.
There have been two conflicting traditions in the United States about the relationship between church and state. The first is exemplified by the holiday of Thanksgiving, which emphasizes the religious foundation of the United States. The Pilgrim fathers set out in the New World not only to worship as they wanted but to establish God's kingdom. They had the truth and all others were wrong; church and state were one. The second tradition comes from the time of the writing of the American Constitution, when our deistic, freethinking Founding Fathers (no mothers) embodied in the Constitution the principle of separation of church and state.
The conflict between the two traditions should be obvious, and it was neatly finessed by our Constitution makers by more or less ignoring what states did. Although technically the last established religion was eliminated in 1833 in Massachusetts, the lack of an established religion did not mean real separation of church and state. States later admitted to the union had to adopt statutes about religious freedom, but, since most Americans nominally came from a European Christian background, religious observances played an important role in American history. One current example is the delivering of a prayer that opens up Congress, a practice that Free Inquiry's editor, Paul Kurtz, attempted to stop by a lawsuit, which he lost.
I was never more struck by the contradictions in our concepts of separation of church and state than when I lived in so-called emancipated New York State. I appeared several times in court in New York as an expert witness, and each time I was required to swear an oath on the Bible to tell the truth so help me God. I objected to the attorneys for whom I was testifying but they asked me not to call attention to the issue since it could negatively affect their client. I complied. In the university at which I taught in New York, the commencement ceremonies were opened and closed with prayers, although there was a real effort by the clergy doing the invocation and benediction to keep their remarks general and platitudinous. Most secular schools in the United States have Christmas and Easter breaks, although the Easter break is somewhat less common than it was a few years ago. The most secular school I attended was the University of Chicago, at one time a Baptist school, which ignored religious holidays of all kinds but did have its quarter session usually end about December 22.
These practices emphasize the assumption of the churches accepting the separation of church and state that the United States was essentially a Christian nation; non-Christians would be tolerated providing that they did not cause too much trouble. In a sense I myself have been a coward. I tried to get the American Civil Liberties Union in New York to challenge court oath-taking practices, but it was not interested since for many people the oaths had become meaningless. I did not want to expend the effort myself.
The general pervasiveness of Christian assumptions about morality and family was reinforced by the so-called Mormon cases, the first of which Reynolds v. United States, which reached the Supreme Court in 1878 and established monogamy as the norm, ruling that it was the basis of Western (read mainstream Christian) societal life. In a sense, this was a double-edged decision because the Justices, in their effort to outlaw the Mormon practice, in effect asserted that marriage could be regulated by law, guaranteeing the states the right to issue licenses and to control marriage independent of the church.
Another one of the Mormon decisions marked the most far-reaching secular claims of government. The case of the Church of Jesus Christ of Latter Day Saints v. United States (1890) upheld the constitutionality of a law adopted by Congress in 1887 that annulled the charter of the Mormon church and declared all the property forfeited except a small portion used exclusively for worship. In a sense, however, this case represented not so much a conflict between church and state, but a statement of the dominant religions in United States against the feared Mormons.
The way I interpret the decision is that the Court was able to assert the supremacy of state over church because it was basically concerned with what Mormonism was doing to good Christian belief, and in this it had the almost unanimous support of all the other churches in the United States. In fact, as late as United States v. MacIntosh (1931), the Court went so far as to declare that Americans were a Christian people. The actual case dealt with a conscientious objector who had applied for citizenship and been denied. He appealed, and the Court decided that, unless Congress ruled otherwise, obedience to the laws of the land was required since such laws were not inconsistent with the will of God, i.e., as interpreted by mainstream Christian thinkers. The real turning point, I think, in pushing a humanist agenda in terms of separation of church and state, came in the 1930s in several cases involving the Jehovah's Witnesses. Lovell v. Griffin (1938); Schneider v. Irvington, N.J. (1939); and Cantwell v. Connecticut (1940) dealt with the right of Jehovah's Witnesses to distribute literature. The decisions not only emphasized that the state should not interfere in such distribution to protect freedom of religion, but emphasized the right of free speech as well. In a sense, these decisions marked a reversal of the trend established by the previous cases involving Mormonism. Perhaps the most important of the Jehovah's Witnesses decisions was the Minersville School District v. Gobitis (1940), which said that a school district could not force Witness children to salute the flag.
Although the Witnesses lost some of the many cases they took to court, they mostly won. They forced the courts and civil authorities to be more secular in their interpretation of the law. The Court held that religion was important and should be protected even when it does not conform to standard Christian interpretations. This to my mind was at the heart of the decision of the Court in United States v. Ballard (1944). Guy Ballard and members of his family had founded a religion, the "I am" movement based on Ballard's beliefs that he had talked and shaken hands with Jesus as well as St. Germain, George Washington, and others. He had been sued for perpetuating a fraud to collect money, but the Court held that such matters were not within their jurisdiction. This was because the test of religion under the Constitution was belief, and religious belief was constitutionally protected. If fraud was involved it had to be separated from religious belief and teachings.
Although the Jehovah Witnesses and the Ballard case were extending religion further afield than the mainstream Christianity of earlier decisions, the clear aim of the Court seemed to be to preserve religion, even if it meant broadening it to include non-Christians or very troublesome ones. Conscientious objectors soon benefitted from this interpretation when the Court in essence revised its 1931 decisions and said in Girouard v. United States (1946) that refusal to bear arms was not necessarily grounds for denial of citizenship since religiously motivated pacificism came under the freedom of religion clause.
The first major humanist case to reach the courts was McCollum v. Board of Education (1948). The courts held that the use of tax-supported property for religious instruction and the close cooperation between school authorities and religious councils in promoting religious education was unconstitutional. It emphasized, following an earlier decision, Everson v. Board of Education (1947), that, although the state might be allowed to provide students bus transportation to parochial schools and supply traffic guards, this was done to protect children and not to support religion. It held, as was emphasized in the McCollum case, that church and the state can best work to achieve their lofty aims if each is left free from the other. Going somewhat further was Burstyn v. Wilson (1952), resulting from the attempt of New York to ban the film The Miracle on the grounds that it was "sacrilegious." The Court ruled that people have a right to be sacrilegious if they wanted to. Still the United States was permeated with religious laws. Until well into the 1960s, many states and jurisdictions, including Pennsylvania and Ohio, had sabbath-closing laws for commercial businesses, both of which I learned about through living on the Ohio-Pennsylvania border. In Ohio, this permitted Jewish-run enterprises to open on Sunday, providing they closed from sundown on Friday to sundown on Saturday. In Pennsylvania, restaurants, except in hotels, had to be closed on Sundays. Even baseball games had to end at a certain time on Sunday in order to allow people to attend evening church services. Gradually these laws were removed, and as they were non-believers began agitating more forcefully for their own rights. Still, it is impossible to buy beer on Sunday in New York before noon and impossible to buy hard liquor all day.
It takes dedication to fight the establishment. Another humanist case was Torcaso v. Watkins (1961). Roy Torcaso, an active humanist, had been denied his commission as a notary public because he would not swear that he believed in the existence of God. He won. As school boards and other jurisdictions lost in one area or another, they tried to recoup their losses by redefining and extending in another. New York, for example, tried to dictate a non-sectarian school prayer in order to conform with a state law requiring the use of prayer when sectarian prayer was not permitted. This attempt was declared unconstitutional in Engel v. Vitale in 1962. Other jurisdictions required the reading of Bible verses. In one decision, Murray v. Curlett, a sometime humanist but more active atheist, Madalyn Murray O'Hair, was involved. The Court held that religious exercises that are prescribed as part of the curricular activities of students who are required by law to attend school are a violation of the Constitution, and this included school prayer. One of the organizations (besides the ACLU) struggling with this issue was Americans United for the Separation of Church and State. At various times I was a dues-paying member of the latter. This group had been started in 1949 by Baptists, and essentially grew out of concern with what was deemed the aggressive policies of the Roman Catholic church in the United States. In fact, it was originally called Protestants and Other Americans United for the Separation of Church and State. The group held that there was a distinctive Christian basis for religious toleration. In a sense many of the Protestants tended to ignore the fact that they controlled the public schools (one of the reasons Catholics had established parochial schools) or that many of the basic institutions of our society were overlaid with Protestant interpretations. Although Americans United has changed over the years, pushed away to some extent from its Protestant bias by the formation of Americans for Religious Liberty by Ed Doerr, current president of the American Humanist Association, the ambiguity of its original commitment is emphasized by the changing stand of the Southern Baptists, once the bulwark of church-state separation.
The change, in my opinion, was due to the shift in the United States from small-town to urban-centered life. In rural southern America, where the Southern Baptists had been dominant, there was a sort of unconscious Christian underpinning for almost all aspects of life. Prayer in schools, for example, was natural, since it was assumed that everyone agreed although they might be Methodists, Baptists, Presbyterians, Lutherans, or Episcopalians. The village atheists and even the humanists could be tolerated in the small town, but mostly such people were regarded as harmless eccentrics. Many of those who had previously looked upon separation of church and state as a general version of Christian toleration and denial of any established church saw a new danger in secularism, i.e., the state is vigorously neutral when it comes to religion, and they interpreted the new situation as "godless atheism."
While giving lip service to church-state separation, they put the issues in terms of preserving traditional morality, reinvigorating the family, and of overcoming secularism, which is seen as having no morality and implied the "removal of government" from our lives. In a sense, this is turning the clock back. Although Jerry Falwell's Moral Majority has come and gone, it has been replaced by other groups emphasizing the need to return to God: Pat Robertson and his Christian Coalition; Gary Bauer and the Family Research Council; James Dobson's Focus on the Family; Beverly LaHaye's Concerned Women for America; Louis Sheldon's Traditional Values Coalition; Phyllis Schlafly's Eagle Forum; the National Right to Life Committee; and a host of others. These groups have become more doctrinaire, as shown by the heresy trials and seminary takeovers among the Southern Baptists and the Missouri Synod Lutherans. They are trying to resurrect the Puritan version of God's kingdom in the New World. Theirs is a vision of America that has always existed and in fact only began to be challenged effectively in the last part of this century.
Although they couch much of their campaign in Christian moral terms, i.e. school prayer, the voucher system, attacks on reproductive rights, and what have you, basically their attack is on secularism, which they read as humanism, and on multiculturalism, which they view as un-Christian. The spectrum of Christian America having not only synagogues but mosques, Buddhist and Hindu temples, is anathema to their beliefs.
Although the United States is the most religious country in terms of numbers of believers and churchgoers among the major nations of the world (due I think primarily to our continued effort to retain a separation of church and state), the militants will not rest because things have not turned out as they believed they would, with the establishment of a new kingdom of God in the United States. The issue is further complicated because the militant Christians have captured a significant section of the Republican Party, in part because they have an agenda, while the opposition, the majority, is in disarray, because we ourselves have not adjusted to the changes brought about by the collapse of the Soviet Union and the redefinition of the enemy. The Soviet Union represented godless atheism, state control, lack of freedom, and many other things, some of which had merit, but others were inimical to humanism. Its collapse, however, has given strength to those who saw the world in black-and-white terms, godless atheism versus Christian belief. In the battle between church and state, the secularists have been winning. No wonder the Christian right is fearful and so politicized.
In the long run, I think the Christian right will be defeated, but only if humanists remain vigilant and build new coalitions. I hope that humanists do not become identified with one particular party, as the Christian right has been, since on many issues we humanists disagree. But I think we need to unite to preserve our vision of the United States as expressed by James Madison, Thomas Jefferson, and others. In the long run it has been more viable. Theocracy, entrenched as it may be in American thought, is not based on a real understanding of human nature, whether it be Calvin's Geneva, Plymouth's Pilgrims, Massachusetts' Puritans, Mormonism's United Order, or any other number of such attempts including, in my estimation, the secular utopia to which many communists subscribed and which for a time they thought the Soviet Union was on the way to achieving. The initial group in all these cases might well have been believers, but as new generations come along, conditions changed, belief declined, and it became necessary either to maintain it by forced conformity, adopt compromises, or, as has happened in the past, abandon the movement all together, as happened in the Soviet Union.
Humanists at least have reality on their side. It might seem somewhat outlandish to equate the Religious Right with the founders of the Soviet Union, but their endpoint is very much the same, the utopian kingdom of God or man, and to the believer any means is justified to bring this closer. In the present context of the United States it means a full-scale assault on separation of church and state and on secular humanism. From their viewpoint, we are the enemy.
- Burstyn v. Wilson, 343 U.S. 495 (1952).
- Cantwell v. Connecticut, 310 U.S. 296 (1940).
- Church of Jesus Christ of Latter Day Saints v. United States, 136 U.S. (1890).
- Girouard v. United States, 328 U.S. 61 (1946).
- Lovell v. Griffin, 303 U.S. 444 (1938).
- McCollum v. Board of Education, 333 U.S. 203 (1948).
- Everson v. Board of Education, 330 U.S. 1 (1947).
- Minersville School District v. Gobitis, 310 U.S. 586 (1940).
- Reynolds v. United States, 98 U.S. 145 (1878).
- Schneider v. Irvington, N.J., 308 U.S. 147 (1939).
- Torcaso v. Watkins, 367 U.S. 488 (1961).
- United States v. Ballard, 322 U.S. 78 (1944).
- United States v. Mcintosh, 283 U.S. 605 (1931).