The Rise and Fall of Church-State Separation and the Need to Reclaim It

Joseph Chuman

The separation of church and state is on its deathbed. The encroachment of religion into the public square over the past several decades is a threat to democratic norms and sensibilities. It is commensurate with the merger of religion and the state, and we should be very concerned. Among the darkest forces in human history has been the authoritarian juggernaut of religious nationalism. We see this emerging globally in nations such as Turkey, Hungary, India, Israel, Russia, and elsewhere in varying shades of intensity.

The rise of religious power on American soil undoes centuries of church-state separation as a bulwark of both religious freedom and democratic governance.

We live in an era of contentious reflection on America’s origins, and a weakening of national self-confidence. Most significantly, there is probing examination of the legacy of slavery and how its lasting impact has been baked into the American fabric. Likewise, there is an examination into the much vaunted self-regard of the United States as a land welcoming to immigrants. Current paroxysms of xenophobia have occasioned questioning whether, and to what extent, the positive gloss placed on that history is warranted.

A momentous existential question presents itself one that augurs the direction American society will take as we inexorably move forward. Does the promise of prevailing American ideals as expressed in our founding documents possess enough vitality to sustain credibility in a benign future and inspire recommitment to the creation of a more perfect union? Or, will cynicism work to hasten the progressive decline of America?

Regardless of assessments of America’s founding, one area in which cynicism is unwarranted is in its commitment to the separation of church and state. In my view, it has been a gift to American society and the world. Three realities have issued from it. First, separating the domains of religion and civil society has protected religious freedom while ensuring that government and its authority have not become a vehicle for the deployment of religious doctrine. Second, that freedom has ensured a religious “marketplace of ideas” resulting in religious flourishing on American soil. It has also inspired relative religious tolerance.

It is true that religious hatred and violence have not been foreign to American history. The Ku Klux Klan doubtlessly place Blacks at the pinnacle of their vitriol and violence. But next in their hierarchy of hate were Catholics and Jews. Indeed, the religious fault lines between Protestants and Catholics helped define American society from its beginnings until recent decades. The fear of “papist” conspiracies issuing from the Vatican was widespread in Protestant-dominant America. Xenophobic contempt of Catholics, primarily Irish and Italians, bled into nativist and anti-immigrant campaigns that often enlisted the government’s assistance. And I am old enough to recall John F. Kennedy’s bid for the presidency when he bent over backward time and again to proclaim that if elected to the White House his primary loyalty would be to the Constitution and not to the Pope in Rome.

Quotas placed on Jews limiting college admissions and restrictive covenants barring places of residence were commonplace. Today, I would argue that the authoritarianism issuing from Donald Trump and his supporters is in great measure fueled by the huge evangelical subculture. As will be discussed below, this political groundswell is enabled by the growing turf controlled by religion as it encroaches onto the public realm.

Yet with that said, while America has experienced a very great measure of racial violence, it has not experienced religiously-based violence to nearly a similar degree. This is especially the case when compared with Europe, India, the Muslim world, and elsewhere. This relative absence of violence, I conclude, results in great measure from the separation of religion from governmental authority and a defanging of religious power that issues from it.

Church and state separation had a long and painful birth. It is tragic to witness that after centuries of putting the tiger in the cage, we are rapidly releasing it again. Its gestational period was the European Wars of Religion, the century and a half when the soil of Europe was drenched with the blood of Catholic and Protestant combatants.

Since the emergence of the modern period, and its dethronement as the dominant force in society, religion has had to find its place alongside of, and often in competition with, other institutions and preoccupations that have held the loyalty and attention of women and men. Religion has found itself among many social and political actors jockeying for influence in society. In this jockeying, the place of religion as a political force has often been an uneasy one.

Relegating this essay to the West, the pivotal turning point was the 16th century when Protestantism emerged to challenge the hegemony of the Catholic Church in northern Europe, which until then held a virtual religious monopoly. With Protestantism came a rise in the recognition of the individual and in Protestantism’s commitment to the “priesthood of all believers,” enabled by the spread of ideas through the printing press, which was the internet of its age.

The Wars of Religion were extraordinarily violent and lasted for 130 years. In England, they involved the conflict over governance and sovereignty.

It was often assumed that the political realm on earth was a reflection of the divine realm characterized by its goodness and perfection. Some forward thinkers began to ask if such were the case, how did we make such a mess of things? Among them, the Englishman Thomas Hobbes, a modern Epicurean, was a critic of religion. Hobbes, in fact, may have been an atheist who held that religion was negative a force and a driver of violence.

Hobbes, in his magnum opus, the Leviathan, was the first thinker to propose the modern state, in which the government and the people would form a social contract. The people would pool their power and freedom and transfer them to the government in the person of the sovereign. The sovereign in return would provide security and protection, as well safeguard what Hobbes recognized as a natural right to life. Hobbes was an authoritarian and all power in the social contract was transferred to the sovereign, including the power to regulate religion. We would not want to live in Hobbes’ state, but his idea of the social contract included the radical notion that the power of government came not from God above but from the people below.

The power of government issuing from the people found a home in the U.S. Constitution, a totally godless document. Its opening words could well have read “we the children of our lord Jesus Christ band together to form a more perfect union.” Rather the founders began the Constitution with the phrase “We the People” Arguably, the ghost of Thomas Hobbes and his intellectual heirs were looking over the shoulders of the Constitution’s drafters.

The thinker much closer to our purposes was John Locke. Unlike Hobbes, Locke was a devout Protestant who was among the most important figures to influence the American founders. Locke, like Hobbes, fashioned a system of government based on a social contract between the people and their government. Unlike Hobbes, the heads of state in Locke’s government ruled provisionally and could hold their offices on the condition that they protected the natural rights of the people, recognized by Locke as the rights to life, liberty, and property.

But amid the horrors of religious warfare, (and admittedly wary of Catholic power) Locke had an approach to religion very different from Hobbes’s. It was both brilliant and radical. Locke recognized that when the power of the state is married to the power of religion, which conveys the absolute power of the Creator, the union thus formed by that marriage is so overwhelmingly potent that no force on earth can impede its authority.

Locke proposed a solution that was arguably ingenious. His approach was to privatize religion and thereby decouple it from its union with the state. Locke declared in his Letter on Toleration “The care of Souls cannot belong to the Civil Magistrate, because his Power consists only in outward force: But true and saving Religion consists in the inward persuasion of the Mind; without which nothing can be acceptable to God.” In other words, a person’s religious belief is a matter of his or her individual conscience and their private relation to God. In no way is it a matter of state concern.

Locke’s prevailing interest was to protect the freedom of religious conscience. As a devout Bible-based Protestant, he held that the Gospels validated such freedom. His preoccupation was in protecting the freedom of religion from the state more than corrupting the state through the infusion of religious doctrine. But Locke’s governing principle was that the realm of government, which regulates practical and secular affairs, is a domain totally separate from the religious sphere that is devoted exclusively to a person’s relation to his God and his personal salvation. It would be germane to cite Locke’s Letter:

“…the care of souls is not committed to the civil magistrate, any more than to other men. It is not committed unto him, I say, by God; because it appears not that God has ever given any such authority to one man over another as to compel anyone to his religion. Nor can any such power be vested in the magistrate by the consent of the people, because no man can so far abandon the care of his own salvation as blindly to leave to the choice of any other, whether prince or subject, to prescribe to him what faith or worship he shall embrace. For no man can if he would conform his faith to the dictates of another. All the life and power of true religion consist in the inward and full persuasion of the mind, and faith is not faith without believing. Whatever profession we make, to whatever outward worship we conform, if we are not fully satisfied in our own mind that the one is true and the other well pleasing unto God, such profession and such practice, far from being any furtherance, are indeed great obstacles to our salvation.”

“Further, the magistrate ought not to forbid the preaching or professing of any speculative opinions in any Church because they have no manner of relation to the civil rights of the subjects. If a Roman Catholic believes that to be really the body of Christ which another man calls bread, he does no injury thereby to his neighbour. If a Jew does not believe the New Testament to be the Word of God, he does not thereby alter anything in men’s civil rights. If a heathen doubt of both Testaments, he is not therefore to be punished as a pernicious citizen. The power of the magistrate and the estates of the people may be equally secure whether any man believe these things or no. I readily grant that these opinions are false and absurd. But the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth and of every particular man’s goods and person. And so it ought to be.”¹

In so declaring, Locke was the major influence on the authors of our Constitution’s First Amendment’s religion clauses, which embody the separation of church and state.

But that separation had other sources that fed into it. The most pronounced was Roger Williams, a devout Puritan who preached in the Massachusetts Bay Colony. Williams was an extremely learned, self-confident, stubborn, and courageous man who believed that the Puritan government that demanded conformity in religious belief and practice was an outrage. Given human fallibility, it is ensured that the government could do nothing but corrupt the purity and truth of God’s word. Roger Williams was banished from Massachusetts, and with help of Native Americans, set up his own government in Rhode Island.

Williams ensured that the state would be totally free of religious control, not to protect the state from religion, but to protect the sanctity of religion and religious conscience from defilement by the state. Williams wanted his politics to be godless. Britain gave Rhode Island a charter allowing Williams to govern as he pleased, and his separation of the government from religion, and Rhode Island’s protection of religious conscience, made that colony the freest place in the Western world.

Williams wrote famously of the separation of the garden from the wilderness, clearly underscoring that the church was the garden and the world was the wildness, which, again, Williams held was a defiling and corrupting environment. Williams, unlike Jefferson and Madison, was not an Enlightenment figure, but his influence in creating a separation of church and state on American soil was profound, decades before the contributions of John Locke.

But it was Locke who had the greatest influence on America’s founding principles. Throughout history, the state was construed as a vehicle promoting divine intentions and godly virtues. In Locke’s view, the state and its laws served exclusively to organize secular society, sustain the peace, and protect the natural rights of its citizens. For Locke, the state has no religious mission or purpose. This separation of the state from religion and religious values reflected a major shift in the understanding of the role of government in directing human affairs prior to the modern period, and it left a deep influence on America’s founders. It is this separation that is being undone by contemporary conservatives in an effort to restore the pre-Enlightenment status quo.

The idea of separation took hold most cogently in the mind of Thomas Jefferson, who introduced a bill into the Virginia Assembly which became incorporated into the Virginia Bill of Rights. Jefferson considered it one of his greatest achievements. That document declared that “our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry.”²The Bill had its defenders, but it had detractors as well. It made Jefferson the enemy of many members of the clergy who railed against him as an “atheist,” and a “French infidel.” But the Virginia statute became famous in Europe, where it was lauded as proof that America represented the true realization of the Enlightenment and its liberal ideals.

The principle of the separation of church and state reached its high-water mark in the First Amendment of our Constitution of which James Madison, whose views on Lockean liberalism were similar to Jefferson’s, was the primary author. It famously lays down in 16 words that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It’s a ringing testament to the free mind and the unrestrained conscience. It protects government from religion while vouchsafing the freedom of individual religious belief.

Despite Jefferson’s and Madison’s status as the architects of the Constitution, their interpretations defending the separate spheres of government and religion were not universally affirmed. From its origins, separation has been the basis of an ongoing struggle between those who have sought to keep religion and government free of each other and those committed to the primacy of religion, and who see a place for the government’s support of religion and as a conveyor of religious purposes.

There are two religion clauses, not one, and they are not self-executing. Like all other Constitutional principles, they require interpretation. Indeed, the non-establishment clause and free exercise clause, when applied, often conflict with each other, requiring, at times, that there must be some state accommodation with religion. A result is that the wall of separation between church and state is not a totally clear and straight line, but a wavering one, and takes on somewhat different contours when examined on a case-by-case basis.

Such cases are, of course, adjudicated by the courts, especially the U.S. Supreme Court. But it’s of interest that the Supreme Court did not begin to address church-state issues, with few exceptions, until as late as the 1940s, and frequently during the Warren Court, which was the most liberal in the Court’s history.

Perhaps the most basic decision on church-state relations was rendered by the Court in 1947 in the Everson v. Board of Education case. The case involved whether parents who send their children to parochial schools could be reimbursed for the cost of busing their children to religious schools.

The prevailing decision was written by Justice Hugo Black, arguably the greatest defender of separation in the Court’s history. In that decision, Black, nevertheless, ruled that the First Amendment allows for reimbursement on the grounds that such bussing is not a religious function. He made the analogy that tax money may be used to have police direct traffic in front of such schools to ensure the safety of children entering or leaving the building, and for fire departments that are committed to extinguishing fires when churches are ablaze. I cite the Everson case, because in it Hugo Black articulates, in sweeping terms, what I hold is the classic and correct understanding of the relation of church to state. Justice Black wrote,

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”³

After Everson came the Warren Court, as noted, the most liberal in the Court’s history. It included, in addition to Hugo Black, such giants as Thurgood Marshall, William O. Douglas, and William Brennan Jr., all of whom broadly upheld a staunch church-state position as defined by Black in the Everson case.

On a personal note, these were my judicial heroes. It marked the period when I was most active with the American Civil Liberties Union (ACLU), which included providing testimonies before the New Jersey senate judiciary committee on church-state relations, and occasionally testifying as a fact witness in court cases defending that position on behalf of the ACLU.

Through the years, the Court articulated the defense of church-state separation in subsequent cases. Another landmark was Lemon v. Kurtzman, decided in 1971.

The Lemon case challenged laws in Rhode Island and Pennsylvania that permitted tax-funded reimbursement to church-affiliated schools, covering expenses such as teacher salaries and the costs of textbooks and other instructional materials. The Court struck down those laws, arguing that they violated the Establishment Clause. In so doing, the majority laid down the “Lemon test” to determine whether the laws violated the Establishment Clause. The Lemon test served as the standard for 50 years until it was very recently explicitly struck down by Justice Neil Gorsuch.

The Lemon decision provided a three-prong test to determine whether a law was permissible under the Establishment Clause. Those conditions were the following:

“the government conduct (1) must have a secular purpose, (2) must have a principal or primary effect that does not advance or inhibit religion, and (3) cannot foster an excessive government entanglement with religion.”⁴

But Supreme Court rulings in the past 50 years since Lemon have changed. The baneful consequence is that the wall of separation, affirmed by Thomas Jefferson, James Madison, and other founders of our secular state, has badly eroded and arguably is near destruction.

In the realm of judicial doctrine, the wall of separation has been replaced by another doctrine, namely that of religious accommodationism. A definition of accommodationism was rendered by Joseph Lieberman when he was attorney general of Connecticut. In a speech given to the Rabbinical College of America, an ultra-Orthodox Yeshiva in Morristown, New Jersey, in 1987, Lieberman said the following:

“On a few occasions, when the Court has wanted to avoid the logical conclusion of the Lemon test, it has abandoned it and applied another test.

That one is called the rule of accommodation, and its advocates are known as accommodationists. Accommodationists believe that the Lemon test is too restrictive and, if applied arbitrarily, will strike down every governmental program which remotely involves religion because it can be argued that every such program benefits religion, to some extent and entangles government and religion even if it has a secular purpose. Accommodationists feel strongly that that is not the result the Constitution’s authors intended, nor is it what we should want today. Accommodationists believe that it is reasonable for government to accommodate I tself to religious observance and practice so long as no one religion is established as the official nation faith, and no individual’s right to exercise his own religion is limited in any way.”

Lieberman’s analysis turned out to be a vast understatement. With the emergence of accommodationist doctrine, the floodgates have opened and religion, and ominously religion of a very conservative kind, is aggressively taking over the public square and is increasingly making itself an arm of the state. With that seismic shift, the powerful religions, the ones with the greatest political influence, despite Lieberman’s anodyne pronouncement do indeed violate the religious conscience of others. In light of religious accommodation between church and state, they have succeeded in taking away the basic rights of vast swaths of Americans in furtherance of their religio-political agendas.

And we have much more to fear as this religious juggernaut has commandeered the Supreme Court as its potent ally. The most salient case in point was the recent Dobbs decision that rescinded Roe v. Wade, and by doing so has greatly destroyed the right to bodily autonomy and privacy of half the American female population, those living in states with restrictive abortion laws.

We should not be deceived. It was not technical jurisprudential concern with the implications of “liberty” in the due process clause of the 14th Amendment that swayed the Justices. Rather, it was what appears evident to the layperson: The determinative factor was religious bias on behalf of the Justices primarily four conservative Catholic Justices, who upheld the majority vote overturning Roe. In that regard, Linda Greenhouse, the former longstanding Supreme Court reporter for the New York Times, wrote:

“…it was the court’s unacknowledged embrace of religious doctrine that has turned American women into desperate refugees fleeing their home states in pursuit of reproductive health care that a month ago was theirs by right.”⁵

In another recent case I will introduce below, Neil Gorsuch stated that “this Court long ago abandoned Lemon. In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings.”⁶ Justice Clarence Thomas has used the same language to reinforce the standard of “historical practices and understandings.” We need to ponder and be deeply concerned about the application of such a principle and its very wide interpretations in the minds and decisions of conservatives, ultra-conservatives, and reactionaries. It is an example of so-called originalist thinking. But it is selective originalism. Those concerned with origins and “historical understandings”should turn to James Madison, the primary author of the Constitution, who was of the firm conviction that “religion and Government will both exist in greater purity the less they are mixed together.”

We have much to fear as to what is coming next. Roe v. Wade was based on protecting a woman’s right to privacy. That right was grounded on the precedent of the earlier decision, Griswald v. Connecticut. In 1965, Griswald encoded the Constitutional right to purchase and use contraceptives. A politically powerful swath of Christian evangelicals, and their allies in the Catholic hierarchy, oppose birth control. After Dobbs, Clarence Thomas implied that he is an ally of those seeking to challenge Griswald. In the march to impose Christian values on the rest of us, in this extreme climate, we shouldn’t be surprised that Griswald will find itself on the Court’s docket in due time.

Despite claims of floating above the political fray, the judiciary is unmistakably responsive to political movements on the ground. The advance of religion into the public domain is a prime example.

The major political shift, which has funneled upward to influence decisions on religion rendered by the Supreme Court, occurred in the late 1970s when evangelical Protestants re-entered the political arena after 50 years of quiescence, that is, since the Scopes trial of 1925. In a recent interview with Professor Randall Balmer of Barnard College, one of the premier historians of evangelical Christianity and the Christian Right, I noted that the repoliticization of evangelicals under the leadership of Jerry Falwell and his Moral Majority has moved the American political landscape far to the Right. Balmer concurred, noting that in his view it was the most consequentially political phenomenon of the past half-century. Christian Right activists continue to assert their influence in all sectors of society from the White House to local school boards.

Having attained its political high-water mark in the George W. Bush administration, the Christian Right has become immensely powerful and had held many members of Congress in its pocket. President Bush was arguably considered by evangelicals to be the leader of the Christian Right. And though their influence may be slightly less salient since the Bush presidency, evangelicals, who comprise approximately 25 percent of the American population, exert tremendous political power. They are the mainstay of Donald Trump’s political supporters.

Abortion has been the jewel in the crown of the Christian Right’s activism. But as is well known, the evangelical movement is hostile to gays and gay marriage, is patriarchal, if not misogynistic, and has advocated for conservatives to be appointed to the judiciary. In great measure, evangelicals supported Trump because of his pledge to put conservative Justices on the Supreme Court, which he assuredly did. More broadly, they are contemptuous of liberalism, secularism, and a pluralistic society. Almost 85 percent of evangelicals voted for Trump.

Balmer has also written about how the evangelical subculture was repoliticized because of the integration of the public schools in the 1950s, which inspired them to form their own Christian academies. Because they were racially segregated, these private religious schools lost their tax exemption, Bob Jones University being the most prominent. It was the removal of their tax exemption in the 1970s that angered them most and caused them to enter the political fray, and not Roe v. Wade, as is often assumed. The conclusion is inescapable that behind Christian Right politics lies a racist motive.

With political power comes corruption, and Randall Balmer has written that religiously based values and the message of Jesus as expressed in the New Testament no longer count for much among evangelicals. As he notes, “(evangelicals) … have lost their prophetic voice, leaders of the movement and the Religious Right itself have become little more than a political interest group.”⁷

Not all evangelicals are fundamentalists, but many are. A component of the fundamentalist agenda aims to have their religious doctrine become the law of the land, binding on all citizens, both believers and the population at large. Consequently, the most militant arms of the Christian Right have worked toward the progressive takeover of government by religion in conformity with their beliefs and values. They often play the victim card to strengthen their attack while making their case in the name of religious freedom. They have increasingly expressed hostility toward secular government, Democrats, social welfare programs, liberalism, pluralism, feminism, gay rights, the critique of racism, and all values that have a progressive cast. As society at large is becoming more secular, and people are leaving the churches in unprecedented numbers, the Christian right has become more desperate, more extreme and increasingly reactionary.

When I speak of the movement of religion into the public square, the Christian Right, often in allyship with the Catholic Church, can count the rescission of Roe v. Wade as its greatest victory so far. But there have been many others. Through the power of the Supreme Court, which now includes seven Catholic members, they have been able to secure religious icons on public lands and provide vouchers to parents sending their children to parochial schools. A result is that taxpayers are subsidizing religious education that violates their own conscience. The Hobby Lobby case denied birth control coverage to employees of that company because it violated the religious beliefs of its owners. In the MasterpieceCake shop case, the Court ruled that a baker could refuse to bake a wedding cake for a gay couple based on his Christian convictions, in violation of public accommodation and anti-discrimination laws. (This case was argued on narrow grounds and the Court has indicated that the larger issues will be revisited).

Perhaps the policy that has been among the most destructive to the wall of separation was not a court case but the creation by the federal government’s Faith-Based Initiative otherwise known as Charitable Choice.

Charitable Choice began in the Clinton White House but greatly expanded under the Bush administration. It provides government funding directly to churches to support social service programs. In the past, if churches wanted to provide social services to assist the needy, they had to establish separate 501 (c) (3) non-profit organizations with separate boards, and those services had to be rendered outside of church grounds. Also, they could not discriminate in their hiring practices based on the religious identities and beliefs of the people they hired to deliver their services. With Charitable Choice, those stops have been eliminated. It is a massive government giveaway to the churches, especially the large and politically well-connected denominations, and we can conclude that those services are accompanied by religious proselytizing. Money is fungible, and religious freedom ensures that government takes a hands-off approach to the churches. The lack of oversight leads to abuse. One can readily ask whether tax dollars are used to pay to repair the leaky roof in the church or the minister’s salary.

With the passage of time and a Supreme Court increasingly friendly to religion, the expansion of religion into the public domain continues to assert itself. This past June, the Supreme Court in a 6-3 decision ruled that the State of Maine, which subsidizes students attending private schools, must now support the tuition of students attending religious schools. One can only conclude that this is a breathtaking violation of the Establishment Clause.

In one of his final dissenting opinions before his planned retirement, Justice Stephen Breyer said the Court seems to have lost all interest in enforcing the Constitution’s prohibition on the establishment of religion. He wrote,

“The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion.’ It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.”⁸

Breyer also said the Court was opening a Pandora’s box with its decision, suggesting that it was simply a way station toward requiring all communities to use taxpayer funds to pay for religious schooling. I personally find this categorical assessment by a Supreme Court Justice of his peers a remarkable and definitive statement on how far we have come.

Justice Sonia Sotomayor also dissented, lamenting what she sees as a series of decisions bringing the government closer to direct sponsorship of religious activity.

In very demonstrative terms, she stated,

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” “It is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.”⁹

In a decision six days later, the Court determined that a football coach could pray in public view on the 50-yard line. The prayers of coach Joe Kennedy were audible, done in public view, gathered students around him to join in prayer, and had been going on for years. Justice Sotomayor, again writing for the dissenting minority, stated that the Court “weakens” the Establishment Clause’s “backstop” protecting religious freedom.

“It elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”¹⁰

These decisions by a religion-friendly Supreme Court are violating the religious conscience of those who believe differently, including religious minorities as well as humanists and secularists. Increasingly, because of the political influence of the Christian Right, we are inching closer to having an established religion, a theocracy, in all but name; ironically at a time when society is becoming more religiously diverse, and, as noted, increasingly secular.

The governing dynamic is that these decisions from the high court both enable and are responsive to very powerful and extreme forces on the ground.

A very dark storm is coming over the horizon, and it is driven by ultra-conservative, fully politicized religion that seeks to impose its extremist vision on the rest of us. Many who stormed the capitol on January 6th were carrying Christian symbols.

With the last midterm elections we found American democracy is teetering on a precipice. For the moment, the forces of authoritarianism and incipient fascism have retreated. In that election close to 300 candidates running for House, Senate, or key state offices of the governor, lieutenant governor, secretary of state, or attorney general have either denied or publicly questioned the results of the election and embraced the Big Lie. While we can breathe a momentary sigh of relief, we remain in a battle for the life and soul of our democracy. The constituencies that supported these candidates include tens of millions of Americans. The social, economic, and political dynamics that have given birth to and fuel the extremism, irrationality, and distrust of democracy endure and remain potent.

This is not a good thing. While most religious accommodationists will concede that the Constitution bars the United States from having an established religion, we now witness mainstream candidates who declare themselves “Christian nationalists.” Such Christian nationalists believe America has gone astray and a true America is an America which is a white, Christian nation. Not Christianity of any sort, but again, a Christianity that reflects their extreme version of a politicized Christianity. And many feel that violence is a justified vehicle to achieve their ends.

Governor Ron DeSantis of Florida has been presented as an anodyne alternative to Donald Trump, but he takes his place among Christian nationalists, as do Congresswomen Lauren Boebert of Colorado and Marjorie Taylor Greene of Georgia; all, needless to say, are Republicans. When polled, 61% percent of Republicans say they want to see America declared a Christian nation.

Such is the domestic variant of religious nationalism characterized by the merger of religion with the powerful feelings that comprise the darker reaches of national and ethnic unity. It is the breeding ground of fascism. Religion and nationalism are among the two most powerful supervening forces that form a person’s identity, claim their allegiance, and mold their values.

Religion can appeal to the most sublime of human thoughts and aspirations. It can also support and legitimate the basest instincts and behaviors of which human beings are capable. Religion often predicates its “truths” in absolutes. It is adept at drawing thick lines between insiders and outsiders, the believer and infidel, the blessed and the wicked, the saved and the damned. It sets the stage for xenophobia and the violence that follows. Part of religion’s allure is an appeal to the mysterious.

Nationalism is rooted in ethnic and cultural solidarity. As with religious affiliation, nationalism provides the individual with a sense of identity, place, and purpose. It is animated by the universal need of people to feel at home in the world, and this proclivity is reinforced by communion with others like oneself with regard to language, shared values, and common folkways that define national identity. To varying degrees, nationalism results in increasing identification of the individual with the purposes and causes of the group as individual autonomy begins to fade. The stage is set for authoritarian rule and the emergence of fascism. The values fundamental to democracy – individual freedom, autonomy, critical thought, the right to dissent, and a regime of checks and balances – stand in stark contrast to the malignant forms of nationalism.

Conjoining nationalism with religion provides it with an idealized, even romanticized, attraction that overwhelms the power of reason and augments its political danger. It is an ominously dark phenomenon that we witness in the Christian Right today.

There is a long history of religion aligning itself with and fueling the most despotic and fascistic regimes in the political career of humankind. We can invoke the alliance of the Catholic Church with the Franco dictatorship in Spain, and then in the 1970s with the military junta in Argentina. We see it today in Modi’s India and the triumphalism of “Hindutva,” the movement to transform a pluralistic and democratic India into a Hindu state. Israel has just installed its most reactionary government, giving increasing power to the growing Orthodox sectors of the populace. It threatens Israel’s democratic character already diminished by the protracted occupation of Palestinian Territory itself spearheaded by religious ideology. Today, Vladimir Putin, the latter-day czar of Russia, has the blessing of the Russian Orthodox Church. In the emotional grasp of religious nationalism, reason speaks with a weak voice, a voice that is essential to the maintenance of democracy and democratic sensibilities.

American democracy and freedom, as well as religious freedom, were built on the disengagement of religion from the state. Today we witness that fateful alliance reemerging in our midst.

The times we are in bring into stark relief the conscious reclaiming of democracy and its values.

Moving ahead we need to ensure that we diligently educate our children in democratic and constitutional principles and the importance of civic engagement. We need to promote and elect to office leaders who speak a public language and understand that whatever their private convictions, religious belief has no place in political and public discourse within a pluralistic and secular republic. And we need to ensure that such leaders appoint to our judiciary judges who will work to reverse the tide. We need to work to restore our time-honored commitment to keeping the church private while our government remains committed exclusively to protecting our rights and enhancing opportunity for all.

Dr Joseph Chuman teaches Human Rights at Columbia University and Hunter College, CUNY. He recently retired as leader of the Ethical Culture Society of Bergen County, NJ. You can follow his writing here.