(RNS) — A columnist can only hope that his weekly efforts are not a one-way dole of wisdom but actually a conversation with readers. My column arguing that the Constitution does in fact separate church and state has restored my faith that someone is out there.
In the latest round of responses, Notre Dame law and political science professor Rick Garnett tweeted that the Constitution “distinguishes religious and political authority, mainly for the purpose of protecting the former from the latter.”
Was protecting religious from political authority really the framers’ main purpose?
I asked Garnett to provide some evidence for his claim, and he referred me to “Religious Freedom, Church-State Separation, and the Ministerial Exception,” an article he co-authored a dozen years ago with the three colleagues with whom he’d submitted an amicus brief in Hosanna-Tabor v. EEOC.
In that case, decided in 2012, the Supreme Court unanimously ruled that federal discrimination laws do not apply to religious organizations’ selection of religious leaders, thus establishing the so-called “ministerial exception” as a matter of constitutional right under the First Amendment’s religion clauses.
Arguing on behalf of the exception, Garnett and company (including the senior counsel of the Christian Legal Society’s Center for Law and Religious Freedom) give the concept of church-state separation as powerful an endorsement as you’re likely to find anywhere, tracing it back to Archbishop of Canterbury Thomas Becket, whose insistence on the right of clerics not to be tried in civil court led to his being assassinated on the orders of King Henry II in 1170.
“For nearly a thousand years, the tradition of Western constitutionalism — the project of protecting political freedom by marking boundaries to the power of government — has been strengthened by the principled commitment to religious liberty and church–state separation,” they wrote.
The catch is that, in the minds of these conservative legal scholar-advocates, church-state separation is all about protecting the church from the state; the other way around not so much. When we get to the early American republic, the authors focus on a few examples where founding fathers — notably Madison and Jefferson — say explicitly that the federal government is barred from intervening in ecclesiastical affairs.
But those statements hardly prove that constitutional separation was “mainly” intended to protect religious authority. If it had been, you’d expect those representing religious authority to have warmly embraced it. They didn’t.
Consider Connecticut’s Oliver Ellsworth, who not only helped write the Constitution but sat on the conference committee that hammered out the Bill of Rights. After serving briefly as chief justice of the United States and then as ambassador to France, he returned home and in 1802 headed the state government committee created to respond to those pesky Baptists who were demanding the end of Connecticut’s Congregationalist establishment.
Just as you don’t get to withhold your taxes from useful institutions like public schools and courts of law, so, wrote Ellsworth, “on the same principle of general utility, in the opinion of the committee, the legislature may aid the maintenance of that religion whose benign influence on morals is universally acknowledged.”
Sixteen years later Connecticut did get rid of its establishment, but that was anything but welcomed by the Congregationalists. “It was as dark a day as ever I saw,” wrote the state’s foremost religious authority, the Rev. Lyman Beecher, in his autobiography. “The injury done to the cause of Christ, as we then supposed, was irreparable.”
In due course Beecher came to consider disestablishment “the best thing that ever happened to the State of Connecticut.” By cutting the churches off from dependence on state support, it “threw them wholly on their own resources and on God.” Amidst the Second Great Awakening, those resources proved more than plentiful.
But that was the wisdom of hindsight. At the time, Beecher and company considered those promoting the separation of church and state in his state to be doing the devil’s work. For their part, the separationists wanted to stop the state’s favoritism toward Congregationalism — in a word, to keep the state from acting on behalf of religious authority.
Or, as we might say, to protect the state from religion.
