Separation of Church and State?

By Richard Garnett

For three days in January of 1077 the German emperor Henry IV stood barefoot in the snow, making penance outside the castle of Canossa.  While few today know of this episode, or the dramatic showdown between royal and papal authority which preceded it, those three days in the Tuscan cold could be as important to the development of western constitutionalism as the later events at Philadelphia.

In the early Middle Ages, kings and princes exercised great influence over Church affairs.  One prominent point of such influence was control over the selection and investiture (that is, the installation) of bishops.  Pope Gregory VII attempted to push back on this, issuing in 1075 his Dictatus Papae (“The Dictates of the Pope”), a ringing and harsh condemnation of the practice.  Henry and his bishops were initially unmoved.  He responded in 1076, stating, “I, Henry, king by the grace of God, do say unto you, together with all of our bishops: Go down, go down, to be damned throughout the ages.”

But then, the pope excommunicated emperor, and in a chastening defeat the German monarch accepted penance rather than persist in conflict.  However, the stunning papal victory of the penance at Canossa was hardly the end of the struggle; indeed, the Wars of Investiture soon broke out, with Gregory ultimately dying in exile.  The Concordat of Worms, in 1122, calmed things for a time, and represented a kind of compromise; it was a compromise, though, out of which emerged “Western political science – and especially the first modern Western theories of the state and secular law[.]”1  What was at stake at Canossa, then – as at the Cathedral in Canterbury a century later, when the “meddlesome priest” St. Thomas Becket was murdered by another ambitious King Henry – was the “principle that royal jurisdiction was not unlimited . . . and that it was not for the secular authority alone to decide where its boundaries should be fixed.”  In other words, …The ideals of limited government and constitutionalism in a very real sense owe their genesis to Gregory’s stand at Canossa.

Towards Positive Secularism

A key dimension of religious freedom is the freedom of the Church, as a community and as an institution, to govern itself, a freedom that has been hardwon through centuries of interactions, both cooperative and conflictual, with civil authorities.  It thus follows that there is a distinction between Church and state.  “Fundamental to Christianity is the distinction between what belongs to Caesar and what belongs to God (cf. Mt 22:21), in other words, the distinction between Church and State, or, as the Second Vatican Council puts it, the autonomy of the temporal sphere. The State may not impose religion, yet it must guarantee religious freedom and harmony between the followers of different religions. For her part, the Church, as the social expression of Christian faith, has a proper independence and is structured on the basis of her faith as a community which the State must recognize. The two spheres are distinct, yet always interrelated” (Deus caritas est, 28).  Pope Benedict XVI has described this Catholic conception of the relationship of Church and state as  “positive secularism.”  But in understanding exactly why such a prominent religious figure would promote secularism, it is important to understand what Benedict XVI did- and did not- mean by the term.

The Constitution of the United States is a helpful starting point in understanding modern religious liberty.  The relevant text of the First Amendment itself- “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”- only goes so far in delineating the boundaries of religious liberty.  Such a lack of resolution from the text of the Constitution itself contributes to ongoing debate and differing views over the proper understanding of religious liberty and the interaction between Church and State.

There are, roughly speaking, three broad “models” for understanding religious liberty and the roles of Church and State.  The first model understands religious liberty within the Constitution to be a limited liberty, constricting religion to a wholly private sphere, with little or no role to play in public life.  This is the “freedom from” religion model, which takes the dimmest view of religion, considering it immature at best and a danger to the public good at worst.  The second model takes a more neutral view of religion, and is more willing to recognize the place of importance that religion holds for many individuals.  However, religious liberty in this model is just “liberty.”  Religion is not be singled out for either special hostilities or unique protections; the law is, to the greatest extent possible, neutral toward religion. 

These two previous approaches, however, fail to take into account the basic premise underlying the First Amendment: that religious freedom, in and of itself, matters.  “Religious freedom,” as President Clinton noted, “is literally our first freedom.”  His point was not the insignificant one that religious liberty appears first in the Bill of Rights.  It was instead a call to recognize that the freedom of religion was central to the American Founders’ vision for the American political community.  They understood that, unless our most sacred things are protected from the grubby goals – and also the commendable ones – of state functionaries, all our other freedoms – of the press, of speech, of conscience – are vulnerable.

Positive secularism, as Benedict XVI championed, therefore takes into account the idea of “freedom for” religion.  Freedom for religion goes beyond merely treating religion as a permissible private exercise.  The right to display of one’s religion in the public sphere is also protected.  Further still, the government both accommodates and facilitates religion (without preference for any particular creed) with respect to both religious individuals and religious institutions.  The model is “secular” in the sense that laws and policies are not supplied directly by religious authority; it is “positive”, though, in that the understanding of human flourishing that it is designed to promote includes the search for religious truth and the sanctity of religious conscience.

Positive secularism recognizes the legitimate role of the state.  Civil authority is an indispensable institution for human flourishing.  The state has the duty of building up the common good and ordering the life of a political community according to the natural law.  According to the Second Vatican Council’s “Pastoral Constitution on the Church and the World”:

The political community exists, consequently, for the sake of the common good, in which it finds its full justification and significance, and the source of its inherent legitimacy. … It is clear, therefore, that the political community and public authority are founded on human nature and hence belong to the order designed by God (Gaudium et spes, 74).

And since religious practice is a crucial dimension of human flourishing, a well-ordered state does not merely allow for religion; it positively seeks to foster the conditions in which religious practice can thrive:

The religious acts whereby men, in private and in public and out of a sense of personal conviction, direct their lives to God transcend by their very nature the order of terrestrial and temporal affairs. Government therefore ought indeed to take account of the religious life of the citizenry and show it favor, since the function of government is to make provision for the common welfare. However, it would clearly transgress the limits set to its power, were it to presume to command or inhibit acts that are religious (Dignitatis humanae, 3).

The Church is also indispensable.  The Church orders the community to its final end, namely, God.  The Church and state should cooperate with each other, but at the same time, they should not interfere with each other’s distinctive purposes.  Catholic teaching does not require only one way for the Church and state to relate to one another.

In a properly functioning society, the natural law should inform the public life of the nation.  And, at a bare minimum, the Church must be free to engage her mission of preaching and demonstrating the gospel of the Incarnate Lord.  The state cannot impede her preaching the gospel, and it cannot encroach upon her sacramental life.

Supporting the honest search for truth for each human person does not interfere with the teaching and practice of the Catholic Church nor does such an emphasis present a threat to a legitimately established government.  The Church supports the right of individuals and communities to seek the true God.   And the Catholic Church is an ally of good government.  When government threatens truth and love, the Church reminds governmental authorities to respect the common good.

A Concrete Issue

Analyzing a real-world religious liberty issue might help illustrate, in a more concrete sense, the ways in which Church and State interact with and affect each other.  Consider the issue of religious education in the United States, particularly with regard to concerns surrounding the funding of religious schools.  Catholics have long advocated for access to public funding for our schools.  Many Americans assume that public funding may not be used to pay for religious education, citing our tradition of separation of Church and state.  In other words, they rely on an understanding of religious freedom as “freedom from” or “freedom of” rather than “freedom for.”  Take a moment to appreciate, though, everything that education stands for.  Education at its core is the indivisible process of acquiring beliefs, premises, and dispositions that are our windows on the world, that mediate and filter our experience of it, and that govern our evaluation and judgment of it. Education is what attaches us to those goods and ends that attract, almost gravitationally, our decisions and actions.  Education is the process and craft of soul-making; it is as much about transmitting values and loyalties to students as it is about outfitting them with useful data and skill sets.

To realize that education goes so far beyond the imparting of information and skills is to begin to appreciate why the debates over the role of religious institutions in education often become so contentious.  It also becomes far easier to see why the meaningful ability to pursue a religious education, for oneself or for one’s children, would seem a crucial component of any attractive account of religious freedom.  A full account of religious freedom in education, however, goes beyond merely being legally permitted to attend a religious school.  “Freedom for” religion takes into account not only the mere legal permissibility of attending a religious school, but also the considerations which make such attendance practically possible.

Frequently at issue here is whether or not school choice programs, which redirect public education funds to the student’s chosen private school, should include religious schools among their recipients.  The Supreme Court has held that the government’s funding of religious schools in such a context does not violate the First Amendment’s prohibition on the establishment of religion.  Nevertheless, many states have, as parts of their own constitutions, “Blaine Amendments” which function to more severely restrict the flow of public funds to religious schools than does the US Constitution.

These Blaine Amendments were primarily the products of widespread concern about the political and cultural effects of what were thought to be the teachings and ambitions of the Roman Catholic Church, of liberal anti-clericalism more generally, and also of a less considered, virulent hostility toward the Church. Catholic schools developed against the backdrop of strong nativist movements that had grown since the arrival of Catholic immigrants from Ireland and Germany in the 1830’s.  The Know-Nothing party may be the most infamous example of this strain of anti-Catholicism.  Priests were attacked, and churches were burned.  It was in this context that Senator James G. Blaine of Maine worked to amend the U.S. Constitution in 1875 to ensure that no public aid be provided to “sectarian” schools, which everyone understood to mean Catholic schools.  The amendment passed in the House but failed in the Senate.  However, some states adopted these “no-aid” provisions, and many states were required to include them in their state constitutions as a condition for their admission into the Union.  Today, 37 states have Blaine Amendments in their constitutions.

The provisions are, on one level, inseparable from their anti-Catholic origins.  In another sense, however, the challenge they pose is a far more fundamental one.  The Blaine Amendments are also part of a long, continuing, and broader struggle over the process and content of education for the purpose of generating a certain kind of citizen and a certain kind of polity, an effort which transcends the debate over school choice.  In other words, they are, inherently, an endorsement of a restricted sphere for religious beliefs, obligations, and loyalties in the political community. 

One final consideration should be noted: up to this point, much of the focus of the discussion has been on the structural aspects of the religious liberty question and the roles of Church and State, especially with regard to the United States Constitution. It is worth emphasizing here, however, that these structural concerns which have been given such focus are hardly the only factors affecting religious liberty.  Judge Learned Hand warned “liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”  This is not to say that constitutions, laws, and courts do not have an influence on the hearts of people; they can, do, and should.  But liberties, including religious liberty, can meaningfully endure only so long as the people perceive them as good.  The people will elect those crafting laws which protect or constrict religious liberty.  The people will, in the long run, have the final say in the interpretation of the Constitution.  The preservation of religious liberty in the United States, then, depends in no small part upon men and women finding value in positive secularism, not only for religious believers and institutions, but for all those who enjoy liberty, religious or otherwise.  Religious liberty is, in and of itself, a final good, a crucial facet of human flourishing, which will take its hue from the interaction of Church and State.  But we all would do well to keep in mind that at stake in the interaction of Church and State today- as in the past at Canossa- is so much more than religious liberty. 

1 Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983), p. 11.

Richard Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law, Concurrent Professor of Political Science, and Director or Program on Church, State & Society at the University of Notre Dame.