Toppling the wall: beyond separation of church and state

Christian Century, July 3, 2002 by Andrew R. Murphy

More broadly, Hamburger's intriguing historical account raises a number of important questions about church and state, not merely in the American past but in the present and for the future as well. If an erroneous, and indeed pernicious, metaphor has dominated American jurisprudence and public discourse for years, then correcting that error would yield real-world changes in law, politics and society.

Yet Hamburger does not take up this practical question. Indeed, the contemporary ramifications of Hamburger's historical argument are the dogs that don't bark in this book. (I must admit that pointing out what is not covered in a nearly 500-page book opens a reviewer to charges of masochism. But if a strict separation of church and state is not justified historically, we may reasonably ask what some of the implications of repairing such a misconception might be.)

In other words, if Hamburger is right, what difference should it make in the day-to-day relationships between religious individuals, religious communities, religious institutions and the state? He rightly points out that "there are myriad connections between religion and government that do not amount to an establishment.... [Separationists] have mistakenly assumed that such connections infringe upon their constitutional freedom." But certainly at least some of these potential connections do impinge on religious freedom, and deciding which do and which do not deserves a bit of attention after the thought-provoking narrative that makes up the bulk of the book.

One possible approach to the issue is to replace "separation" with a better metaphor, one more faithful to the intentions of those who drafted the First Amendment. A number of scholars who resist the metaphor of separation are attracted to that of "accommodation." Indeed, something akin to Hamburger's own argument, directed explicitly to contemporary church-state issues, has appeared in the pages of this magazine (Michael McConnell, "Why `Separation' Is Not the Key to Church-State Relations," CHRISTIAN CENTURY, January 18, 1989). But this too is a metaphor into which a wide variety of political content can be poured, and whose adherents display a remarkably wide variety of perspectives and programs. One ends Separation of Church and State wishing that its author had at least suggested a few elements of an alternate jurisprudence or public philosophy to take the place of misguided separationism.

Lurking behind the scenes in this story are important questions about constitutional interpretation. Hamburger makes two implicit, related claims: 1) we can know with relative certainty what early American Founders or dissenters intended regarding church and state, and speak about those intentions as a coherent body of thought; and 2) continuing decisions about church-state relations ought to remain faithful to the intentions of those groups. Many of Hamburger's critics would agree with his first claim. Witness, for example, Isaac Kramnick and R. Laurence Moore's The Godless Constitution: The Case Against Religious Correctness (1996). Despite calling the idea that we can know what the Founders really thought on religious issues "an illusion," Kramnick and Moore criticize those who view the U.S. as a Christian state: "The principal framers of the American political system wanted no religious parties in national politics. They crafted a constitutional order that intended to make a person's religious convictions, or lack of religious convictions, irrelevant in judging the value of his political opinion or in assessing his qualifications to hold political office."