Church State Entanglement
by Mark Silk
Over the past year, current events and court decisions have shoved the
tectonic plates of religion and public life closer together.
September 11 reinvigorated American civil religion. The association of
God and country never fares so well as in wartime, or during a reasonable
facsimile of war. Long after the patriotic prayer services ended, billboards
proclaiming "United We Stand God Bless America" still dot the
As if to test the proposition, a three-judge panel of the Ninth Circuit
Court of Appeals decided that Congress unconstitutionally established
religion when it inserted "under God" in the Pledge of Allegiance
in 1954. From the halls of Congress and the thrones of punditry to the
coffee shops and water coolers of the land, an outraged nation raised its
voice in condemnation. Without skipping a beat, the panel put its ruling on
hold pending what was universally expected to be a reversal by a higher
For all the commotion, "under God" was small potatoes compared
to the U.S. Supreme Court’s decision to uphold the constitutionality of
Cleveland’s public school voucher program. In a rebuke to decades of First
Amendment law, the Court permitted private sectarian schools to be
underwritten with public money, provided the parents of eligible children
make that choice.
Will vouchers prevail, and if so where and how and under what conditions?
In its 1990 Smith decision, the Court stepped back from protecting
the free exercise of religion, leaving legislatures more latitude to
determine whether or not to provide religious exemptions from government
rules and regulations. Zelman, the voucher decision, does the
same for the Establishment Clause; voters and legislators are now much freer
to permit religious bodies to conduct the public’s business.
But as Douglas Laycock points out in these pages, there’s a lot of
rough terrain for voucher proponents to traverse before they reach their
Promised Land. Hints of the difficulty can be found in President Bush’s
initiative to make it easier for religious organizations to obtain
government funding for social services—Charitable Choice. While public
support for the idea is considerable, the legislation ground to a halt when
Democratic senators refused to allow "faith-based" providers to
practice job discrimination when federal funds are involved.
This was not merely a strategy of obstruction. Last year 78 percent of
respondents told the Pew Religion and Public Life Survey that religious
organizations which use public money to provide social services should not
be allowed to limit their hiring to those who share their religious beliefs.
The insistence of some evangelical Protestant activists that Charitable
Choice won’t work unless they can hire their own kind doesn’t, it seems,
wash with the public. Religious institutions can contract to serve the
public weal, but not in any way they like.
Even when public money is not at stake, Americans are prepared to demand
that religious institutions meet secular standards. Nowhere is this more
evident than in the current sexual abuse scandal in the Catholic Church.
Below, Dennis Hoover shows how in one legal arena after another,
legislators, district attorneys, and judges are doing away with the special
treatment the church has traditionally received de jure and de
To be sure, this is just the latest round in a very old contest. Nine
centuries ago, the archbishop of Canterbury, Thomas Becket, and King Henry
II went toe to toe over whose courts should deal with clergy accused of
crimes. For refusing to back off, Becket was assassinated in his cathedral
by the king’s agents. In the aftermath, Henry was forced to grant
first-time clerical offenders immunity from lay punishment.
In the year 2002, Vatican officials plainly think that the American
branch of the church is too subject to the policies and procedures of the
American legal system, and that view is doubtless shared by the hierarchy in
the United States. But the American Catholic laity feels otherwise, even as
it lays claim to the kind of authority within the church that the laity of
most other American religious bodies take for granted. What opponents once
called the Americanist heresy is back in force.
The democratization of religion is as much a hallmark of American
religious history as the separation of church and state. The difference this
time around is that it is the process of determining the extent of the
separation that is being democratized.
Under the Supreme Court’s nearly moribund "Lemon Test," a
government action is constitutional if it has a secular purpose, neither
promotes nor inhibits religion, and avoids "excessive
entanglement" with religion. For better or worse, religion and
government are becoming increasingly entangled—whether excessively so will
be up to the people to decide.