Separating Church and State

A History

Steven K. Green

• Publisher: Cornell University Press
• Year: 2022
• Print ISBN: 9781501762062
• eBook ISBN: 9781501762086
• Topic: Theology & Religion
• Subtopic: North American History

Steven K. Green, renowned for his scholarship on the separation of church and state, charts the career of the concept and helps us understand how it has fallen into disfavor with many Americans.

In 1802, President Thomas Jefferson distilled a leading idea in the early American republic and wrote of a wall of separation between church and state. That metaphor has come down from Jefferson to twenty-first-century Americans through a long history of jurisprudence, political contestation, and cultural influence. This book traces the development of the concept of separation of church and state and the Supreme Court's application of it in the law.

Green finds that conservative criticisms of a separation of church and state overlook the strong historical and jurisprudential pedigree of the idea. Yet, arguing with liberal advocates of the doctrine, he notes that the idea remains fundamentally vague and thus open to loose interpretation in the courts. As such, the history of a wall of separation is more a variable index of American attitudes toward the forces of religion and state.

Indeed, Green argues that the Supreme Court's use of the wall metaphor has never been essential to its rulings. The contemporary battle over the idea of a wall of separation has thus been a distraction from the real jurisprudential issues animating the contemporary courts.

CHAPTER 1

Historical Antecedents of Separationism

Writing ten years after the Everson and McCollum decisions at a time of heightened debate over the meaning of church-state separation, religious historian E. Bruce Thompson asserted that “separation of church and state is a comparatively recent development in the evolution of human society. In fact, it is a uniquely American contribution to political and religious philosophy.” If Thompson was referring to the American version of church-state separation reflected during the 1950s, then he was correct. However, as Thompson’s own essay on “the European background” to American religious freedom documented, the impulse for a separation between the authority of the church and that of the state has deep historical roots in Western civilization. As John Witte Jr. has remarked, “separation of church and state has a much longer history, and much more complex and wholesome pedigree, than some recent historiography allows.”1

Scholars have commonly identified two sources for the separationist impulse, the older being religious and the more recent arising out of the Enlightenment. Although that assessment is essentially correct, this division risks creating the impression that these two strains of separationism arose independently from each other and reflected distinct concerns. Such a binary model obscures the fact that Enlightenment thought arose chiefly as a critique of the prevailing religious worldview of the time. Enlightenment theorists lived in societies saturated with religious doctrines and customs that controlled the most exacting aspects of human life. Theorists such as Francis Bacon and Isaac Newton sought to reconcile Christianity with science and reason, and even skeptics such as Lord Bolingbroke, Voltaire, David Hume, and Jean-Jacques Rousseau were responding to existing religious presuppositions. As such, central aspects of the Enlightenment—scientific inquiry, freedom of conscience, and religious toleration—meant little without considering the religious status quo. That said, by the founding period, figures as different as Thomas Jefferson and Baptist leader John Leland could identify two “distinct” strains of separationism: religious and secular.2

Religious Roots

By the seventh century, the Catholic Church was the established religion for most of the kingdoms of Western Europe).3 That status did not mean that the two spheres maintained an amicable relationship. The history of the medieval church was one of conflict and competition with civil rulers, with each entity frequently seeking to exert authority over the other. That tension, beginning with the sack of Rome and later barbarian invasions, led church leaders to promote dualistic paradigms of authority to protect the independence of the church. Augustine, Bishop of Hippo, reacting in part to the fall of Rome in 410, was one of the first church leaders to assert a model of separate spheres. In his City of God (410–26?), Augustine advanced the model of two entities, one spiritual and the other temporal, each with separate authority and functions. Augustine went so far as to employ an image of two walled cities separated from each other as a means to protect the purity of the church and those destined for salvation from the sinfulness of the world and its political institutions. Later church leaders utilized this idea of separate powers and functions to forestall attempts by civil rulers to exercise authority over clerical activities. At the end of the fifth century, Pope Gelasius resisted Emperor Anastasius’s efforts to encroach on spiritual authority by warning him that there were “two powers by which this world is chiefly ruled: the sacred power of the priesthood and the royal power. Of these the priestly power is the weightier, because it has to render account of kings of men [at the final judgment].”4

During what has been called the Papal Revolution of the eleventh and twelfth centuries, Pope Gregory VII modified the two-powers theorem into a model of “two swords” in which clergy wielded the spiritual sword and civil magistrates possessed the temporal sword. Gregory used this two-swords theorem to secure jurisdiction over not only church doctrine, liturgy, and patronage but also over various legal areas, including marriage, inheritance, and behavioral offenses.5 Later Thomas Aquinas affirmed this dualism by writing that “Church and State are as two swords which God has given to Christendom for protection; both of these, however, are given by him to the Pope and the temporal sword by him handed to the rulers of the State.” What this meant was that though the earthly and spiritual realms were separate, civil authority was subservient to that of the church, and civil magistrates were to enforce civil law consistently with canon law. Thus, although Catholic thinkers employed various imagery—two walled cities, two powers, or two swords—they concurred that the church and the state were separate entities with distinct powers and functions, though both were subject to God’s supreme authority.6

This idea of separate authorities and operations belied the reality of medieval Europe, where princes selected bishops, clerics served as legal and political advisers, and church officials relied on government actors to enforce religious edicts. During the Reformation, Protestants rebelled against what they perceived as the papacy’s autocratic exercise of both swords, seizing the two-swords theorem and “adding new accents and applications,” in the words of John Witte.7 Both Martin Luther and John Calvin distinguished spiritual from temporal authority and called for a division of labor between the two. Martin Luther adapted Augustine’s two-cities theorem by distinguishing between “two kingdoms”—a spiritual kingdom and a temporal kingdom. For Luther, God had ordained the spiritual and temporal kingdoms for human activity, the former being the place where people operated in faith in anticipation of salvation, and the latter being civil society, which relied on reason, force, and law. Each kingdom had its own jurisdiction, and people were to be governed by both, even though the earthly realm was corrupted by human sinfulness. Although the kingdoms overlapped, and people operated simultaneously in both, they were distinct; Luther wrote of a “paper wall” that separated the “spiritual estate” from the “temporal state.” Under Luther’s schema, “the church was not a political or legal authority. The church had no sword, no jurisdiction, no daily responsibility for law.”8

The other leading protagonist of the Reformation, John Calvin, advanced similar views. Calvin wrote in his Institutes of the Christian Religion (1559) that “Christ’s spiritual Kingdom and the civil jurisdiction are things completely distinct” and, as such, “must always be considered separately” because of the great “difference and unlikeness . . . between ecclesiastical and civil power.” These distinct realms did not mean, however, that civil authorities in Calvin’s Geneva had no interest in ensuring that society functioned according to religious precepts. Likewise, Luther preached subservience to civil authorities and did not object to “Lutheranism” being established by local princes.9

Unlike Luther and Calvin, Protestants in the Anabaptist tradition—Mennonites, Hutterites, Brethren—took the theological idea of separationism to heart, seeking to separate their communities from the corruptions of the fallen world, declining to swear oaths of allegiance to civil authorities or otherwise participate in civic functions. The early leader of the Mennonites, Menno Simons, used the term a “separating wall” or “wall of separation” to illustrate the degree of separateness their faith required from the world. That Anabaptists disputed the legitimacy of temporal authority and of the established churches ensured that they were persecuted by Lutherans, Catholics, and civil officials alike.10

Most Protestant dissenters did not seek to isolate themselves from the corrupt world to the extent of the Anabaptists; as a result, they did not promote notions of separationism where the two realms would never interact. Thus, while many Protestants decried the “adulterous union of church and state,” others, such as Presbyterians, promoted milder forms of establishment in which the regenerate organized a national church and where civil authorities enforced religious standards. Because of this prevailing arrangement, Philip Hamburger maintains that the “overwhelming majority of Protestants who criticized religious establishments and the union of church and state did not understand themselves as seeking separation.”11 That may be true as for advocating an absolute sense of that term, but that does not mean that Protestant dissenters did not promote versions of separation that were consistent with their particular needs and theology. Puritans—despite their reputation as theocrats—promoted notions of separation between the true church and the ecclesiastical authority of the Church of England, which served as a proxy for the British crown. Whereas English Puritans sought to purify the national church, their Separatist (Pilgrim) brethren went a step further, advocating a regenerate church that was separated from its temporal overlords. Early Baptists also employed the metaphor of separate spheres in their critiques of religious establishments.12

All of this indicates that separation was a familiar theme in the political-theological thought of many Protestants. While a greater number employed separationism as a rhetorical device rather than as a creed to be practiced, the idea—whatever its particular strain—was sufficiently prevalent in sixteenth-century Britain to draw the ire of Anglican theologian and apologist Richard Hooker. Hooker derided the concept of separationism, criticizing its appeal among religious dissenters. Dissenters, Hooker reproved, insisted on “a necessary separation perpetual and personal between the Church and Commonwealth.” Hooker believed that separatists threatened to undermine the system that God had ordained by urging that “the Church and the Commonwealth are two both distinct and separate societies . . . and the walles of separation between these two must forever be upheld.” On the contrary, the “episcopal form of government was the best for the Church of England. . . . Church and state were two aspects of the same Commonwealth,” he asserted. The “difference therefore either of affayres or offices Ecclesiastical from secular is no argument that the Church and the Commonwealth are alwayes separate and independent the one from the other.”13 The point is that while a minority of religious dissenters promoted actual separation between the religious and civil realms, the concept was familiar to people in both orthodox and dissenting camps. Jefferson reputedly owned a copy of Hooker’s Of the Laws of Ecclesiastical Polity, which provided the founder with one of several sources for the metaphor of a wall of separation.14

The idea of separationism made the transatlantic crossing with the early settlers of British colonial America, many of them being religious dissenters from the Church of England. As discussed, Puritans and their Separatist brethren promoted a separation between the offices and functions of the colonies and their church. William Bradford, the future governor of Plymouth Colony, wrote in 1605 that “no Ecclesiasticall Minister ought to exercise or accept of any Civill publique jurisdiction and authoritie, but ought to be wholly imployed in spirituall Offices and duties to that Congregation over which he is set.” According to colonial historian Edmund S. Morgan, Puritans “were particularly insistent that the church, because it was charged only with the spiritual welfare of its members (and of them only), must not become involved in the activities of the state, even when those activities were directed toward spiritual ends. The church must not do the state’s work.” In like manner, civil magistrates, though members of the elect and responsible for protecting the church, were to stay out of religious affairs. When magistrates prosecuted heresy and enforced religious behavioral norms, they did so not as an arm of the church but because the transgressions threatened the order and survival of the colony and violated enacted laws, such as those contained in the Lawes and Libertyes of Massachusetts Bay Colony. As Morgan notes, the “relationship between church and state was one of the things that the Puritans knew they must get right.” Yet despite the organizational formalism of the New England colonies, a “blending of spiritual and temporal authority penetrated to the lowest level of public life.”15

Today the most famous proponent of church-state separation during the colonial period was Roger Williams, the founder of Rhode Island in 1636. Initially identifying as a Separatist, Williams later affiliated with Baptists, attracted to their strong theological aversion to religious establishments. Like Baptists, he perceived that state support and endowments of religion corrupted true faith. In correspondence with Puritan leader John Cotton, Williams advocated erecting a “hedge or wall of separation between the garden of the church and the wilderness of the world.” Williams believed that such a model was not only necessary to protect the true church, but that it was biblically ordained because “the church of the Jews under the Old Testament” and “the church of the Christians under the New Testament . . . were both separate from the world.” Williams’s desire to erect a wall to protect the garden of the church from worldly corruptions led twentieth-century legal scholar Mark De Wolfe Howe to insist that his wall of separation was intended only to restrain the activities of the state but not those of the church (i.e., a “one-way” wall). However, as Williams biographer David Little correctly observes, the idea that separationism restricted only the actions of the state was inconsistent with both Puritan thought and Williams’s modifications of it. As Little writes, “the wilderness Williams fear[ed] [was] the condition of an established religion where both church and state are mutually degraded and corrupted by failing to observe the critical distinction between the inward and outward forums.” Although modern-day scholars credit Williams as an architect of the American idea of church-state separation with its wall metaphor, his writings were not generally known during the colonial period. Rather, his letters were rediscovered during the Revolutionary era by Baptist leader Isaac Backus, who, along with fellow Baptist John Leland, promoted the concept widely. It is therefore unlikely that Jefferson was familiar with Williams or had read his writings.16

According to historian Nicholas Miller, a strain of separationism was also evident in the writings of William Penn and in the operation of the colony he founded, Pennsylvania. If that is the case, then it would be of greater historical significance than the writings of Roger Williams. Penn was more widely known than Williams, and Pennsylvania, unlike Rhode Island, was a leading colony in British America, influencing the church-state arrangements in New Jersey and Delaware. People commended Pennsylvania’s practice of religious toleration as a model to be emulated throughout the colonies. In 1670, shortly after converting to Quakerism, Penn wrote The Great Cause of Liberty of Conscience, which championed that principle. Penn argued that liberty of conscience involved not only “mere liberty of the mind” but also the “exercise of ourselves [as dissenters] in a visible way of worship.” He called for obedience to government and laws “tending to matters of an external nature” but asserted that religious matters were “consequently wholly independent of the secular affairs” of the state. The believer had the right to private judgment about religion because God had not delegated that authority to secular governments. Miller maintains that these statements, and Pennsylvania’s practice of toleration and lack of an establishment, demonstrated “Penn’s commitment to the separation of church and state.”17 Although Penn envisioned separate spheres of governmental and religious authority, it amounted to a limited understanding of separationism. The Frame of Government of Pennsylvania (1682), written by Penn, asserted that “government seems to me a part of religion itself, a thing sacred in its institution and end.” The colony’s “Laws Agreed upon in England” (1682) required that all judges, sheriffs, members of the council and assembly, and all other public officers “possess a faith in Jesus Christ,” and the same statue authorized magistrates to enforce Sabbath laws and “all such offenses against God,” such as swearing, drunkenness, and g...

Table of contents

• Preface
• Introduction
• 1. Historical Antecedents of Separationism
• 2. Disestablishment and Separationism
• 3. The Early National Period
• 4. The Protestant Establishment of the Nineteenth Century
• 5. Separation Becomes Constitutional Canon
• 6. Separation’s Apex and Decline
• Conclusion
• Notes
• Index