Selected writings of James E. Wood, Jr.
EDITED WITH AN INTRODUCTION
BY Derek H. Davis
J.M. DAWSON INSTITUTE OF CHURCH-STATE STUDIES
Baylor University Waco, Texas 76798-7308
Published by the J.M. Dawson Institute of Church-State Studies
Waco, Texas USA
SEPARATION OF CHURCH AND STATE DEFENDED:
SELECTED WRITINGS OF JAMES E. WOOD, JR.
© Copyright 1995 by J.M. Dawson Institute of Church-State Studies,
Printed in the United States of America
All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without permission except in the case of brief quotations embodied in critical articles and reviews.
Address correspondence to J.M. Dawson Institute of Church-State Studies P.O. Box 97308, Baylor University, Waco, Texas 76798 USA
FIRST EDITION 1995
Library of Congress Cataloging-in-Publication Data
Preassigned Catalog Card Number: 95-75329
International Standard Book Numbers: ISBN 0-929182-23-5(CLOTH) ISBN 0-929182-24-3(PAPER)
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Table of Contents
Part I: Introduction: A Biographical Tribute to James E. Wood, Jr. 1
Part II: Twenty Selected Editorials from Journal of Church and State November 1963: Liberty of Conscience 27
Autumn 1964: The Christian State 33
Spring 1965: The Secular State 43
Winter 1966: Religion and Freedom 55
Spring 1966: Church and State in Latin America 67
Winter 1967: Religion and America's Public Schools 81
Autumn 1969: Conscientious Objection and the State 95
Autumn 1970: Civil Disobedience 107
Spring 1971: Jewish-Christian Relations in Historical Perspective 121
Autumn 1971: Parochiaid and the U.S. Supreme Court 139
Autumn 1982: New Religions and the First Amendment 153
Spring 1985: World Religions and World Community 165
Autumn 1985: Religious Pluralism and American Society 173
Spring 1986: Church Lobbying and Public Policy 185
Autumn 1986: Religion and the State in China: Winter Is Past 199
Winter 1987: Religious Fundamentalism and the Public Schools 219
Spring 1988: The Prophetic Role of Religion in Society 233
Autumn 1989: Making a Nation's Flag a Sacred Symbol 243
Spring 1993: The Branch Davidian Standoff: An American Tragedy 251
Winter 1994: Thirty-Five Years of Journal of Church and State in Retrospect 261
Annotations of Journal of Church and State Editorials and Articles
November 1959: Subject-Purpose of Journal of Church and State 273
May 1960: Subject-The Meaning of Church-State Separation 273
November 1960: Subject-JFK on Church and State 274
May 1961: The Problem of Freedom 274
November 1961: The Basis of Freedom 275
May 1962: Interfaith Dialogue 275
November 1962: Religion Sponsored by the State 276
May 1963: Minority Right vs. Majority Might 276
November 1963: Liberty of Conscience 277
Winter 1964: The Church-State Legacy of John F. Kennedy 277
Spring 1964: Church-State Relations in the Modern World 278
Autumn 1964: The Christian State 279
Winter 1965: Roman Catholicism and the State 280
Spring 1965: The Secular State 280
Autumn 1965: Church, State, and Missions 281
Winter 1966: Religion and Freedom 281
Spring 1966: Church and State in Latin America 282
Autumn 1966: The United States as a Pluralistic Society 283
Winter 1967: Religion and America's Public Schools 284
Autumn 1967: Church and State in England 285
Winter 1968: A Free Church in a Free Society 285
Spring 1968: The Role of Religion in Public Education 286
Dedication of the J.M. Dawson Research Center 287
The Problem of Nationalism in Church-State Relationships 288
Autumn 1968: International Year for Human Rights - 1968 288
Religious Liberty in Ecumenical and International Perspective 289
Winter 1969: The Encyclical on Birth Control 290
Kenneth Scott Latourette (1884-1968) Historian, Ecumenicist, and Friend 291
Spring 1969: Churches and Tax Exemption 291
Autumn 1969: Conscientious Objection and the State 292
Winter 1970: The Rise and Growth of Religious Pluralism in Latin America 293
Spring 1970: Christian Reconciliation and Religious Freedom: A Theological Inquiry 294
Autumn 1970: Civil Disobedience 295
Winter 1971: Church Schools and Public Funds 295
Spring 1971: Jewish-Christian Relations in Historical Perspective 296
Autumn 1971: Parochiaid and the U. S. Supreme Court 297
Winter 1972: Religion, Revolution, and Nationalism in Asia 298
A Theology of Power 299
Autumn 1972: Religion and Public Education in Historical Perspective 300
Spring 1973: The Impermissibility of Public Funds and Parochial Schools 300
Theological and Historical Foundations of Religious Liberty 301
Autumn 1973: Journal of Church and State: Fifteen Years in Retrospect 302
The Legacy of Joseph Martin Dawson (1879-1973) 303
Autumn 1980: Religious Fundamentalism and the New Right 304
Winter 1981: Tuition Tax Credits for Nonpublic Schools? 305
Spring 1981: Legislating Prayer in the Public Schools 305
Autumn 1981: The Proposed United Nations Declaration on Religious Liberty 306
Winter 1982: Tolerance and Truth in Religion 307
Spring 1982: "Scientific Creationism" and the Public Schools 308
Autumn 1982: New Religions and the First Amendment 309
Winter 1983: Religious Encounter in a Religiously Pluralistic World 310
Spring 1983: The Nuclear Arms Race and the Churches 310
Winter 1984: Journal of Church and State: After 25 Years 311
Religion and Education in American Church-State Relations 312
Spring 1984: U. S. Ambassador to the Vatican 313
Autumn 1984: Religion and Politics -- 1984 314
Winter 1985: Equal Access: A New Direction in American Public Education 314
Spring 1985: World Religions and World Community 315
Autumn 1985: Religious Pluralism and American Society 316
Winter 1986: The Battle over the Public Schools 317
Spring 1986: Church Lobbying and Public Policy 317
Autumn 1986: Religion and the State in China: Winter Is Past 318
Winter 1987: Religious Fundamentalism and the Public Schools 319
Spring 1987: "No Religious Test Shall Ever Be Required": Reflections on the Bicentennial of the U. S. Constitution 320
Autumn 1987: Religious Censorship and Public School Textbooks 321
Winter 1988: Religious Discrimination in Employment and the Churches 322
Spring 1988: The Prophetic Role of Religion in Society 322
Autumn 1988: Religion, the State, and Sexual Morality 323
Winter 1989: Religious Pluralism and Religious Freedom 324
Spring 1989: Separation Vis-à-vis Accommodation: A New Direction in American Church-State Relations? 325
Autumn 1989: Making a Nation's Flag a Sacred Symbol 326
Winter 1990: Religion and National Interests 326
Autumn 1990: Abridging the Free Exercise Clause 327
Winter 1991: Rising Expectations for Religious Rights in Eastern Europe 328
Spring 1991: Religion and Religious Liberty 329
Summer 1991: The Bicentennial of the Bill of Rights 330
Autumn 1991: The Religious Freedom Restoration Act 331
Winter 1992: Ceremonial Prayers at Public School Graduations: Lee v. Weisman 331
Spring 1992: Voices for Religious Liberty 332
Summer 1992: The Budapest International Consultation on Religious Liberty, Religious Rights, and Ethnic Identity 333
Autumn 1992: Religion and the U. S. Presidential Election of 1992 334
Winter 1993: The Place of Church-State Studies in the University 335
Spring 1993: The Branch Davidian Standoff: An American Tragedy 336
Summer 1993: The Battle over Religious Freedom in Russia 337
Autumn 1993: The Restoration of the Free Exercise Clause 337
Winter 1994: Thirty-five Years of Journal of Church and State in Retrospect 338
Part IV:Bibliography of the Published Works of James E. Wood, Jr. 343
This volume pays tribute to James E. Wood, Jr. on the occasion of his retirement in 1995 as director of the J. M. Dawson Institute of Church-State Studies at Baylor University. Long overdue, it is the first publication giving special attention to the work of Dr. Wood, who has no peer in the world today as an authority on the subjects of church-state relations and religious liberty.
The major part of Wood's life's work has been his scholarly defense of the American tradition of separation of church and state. In our own day when the separationist tradition is being attacked by many politicians, judges, journalists, and scholars, indeed by a great segment of the American population, it is appropriate to step back and re-examine the nature, history, and purpose of the idea of the separation of church and state, and then to evaluate whether the continued application of the tradition is something good or bad for America. There is no more thoughtful and insightful body of writing to which we could turn for this re-examination than the works of James E. Wood, Jr.
While Wood's writings on the themes of church-state relations and religious liberty are extensive, the present volume draws only from the major source of his scholarship, the eightysix editorials and articles authored by him since 1959 while serving as editor of the Journal of Church and State. Following an introductory biographical essay on the life and work of Wood, the reader will find twenty of Wood's finest editorials from the Journal. These editorials, presented chronologically, were selected with the dual goal of presenting the essential features of Wood's church-state thought while also demonstrating something of the range of topics which he has addressed under the broad theme of church and state. The editorials are followed by annotations of all eighty-six of Wood's editorials and articles published in Journal of Church and State. The annotations will provide the reader with an overview of an even broader range of topics addressed by Wood, although without, of course, the depth of coverage that might be gleaned from reading the complete texts. The annotations are followed by a complete bibliography of Wood's published works.
Special acknowledgment is made here, first of all, to the president of Baylor University, Herbert H. Reynolds, as well as other members of the University's administration, for their continued and enthusiastic support of the J. M. Dawson Institute of Church-State Studies and for their strong desire to pay tribute to Dr. Wood and to make available important parts of his scholarship through the publication of this volume. In addition, appreciation is expressed here to members of the Editorial Board of the Journal of Church and State who also have enthusiastically endorsed and made suggestions for this volume: Robert M. Baird, Rosalie Beck, James A. Curry, David W. Hendon, Glenn O. Hilburn, David L. Longfellow, Robert T. Miller, Harold W. Osborne, Bob E. Patterson, Stuart Rosenbaum, Donald D. Schmeltekopf, Bradley J.B. Toben, and Charles Tolbert. A special word of thanks is given to Dean M. Kelley, the retired Counselor on Religious Liberty of the National Council of Churches of Christ, U.S.A., for his review of parts of the manuscript for this volume, and to Robert T. Miller, Wood's close friend and colleague at Baylor University since 1955, for also reading parts of the manuscript as well as answering many questions about the early history of the J. M. Dawson Institute of Church-State Studies. Thanks are also due to Janice Losak, Wanda Gilbert, David Holcomb, Steve Heyduck, and Susanna Gooch for assistance in assembling the materials for this volume, and especially to Stephen Phillips for his excellent work on the annotations presented in Part III, and to Pat Cornett for her able editorial assistance and for creating the camera-ready copy for publication of this volume.
Derek H. Davis
Introduction: A Biographical Tribute to James E. Wood, Jr.
I n 1980, James E. Wood, Jr. was described by fellow Baptist Stan Hastey as "perhaps the most able living church-state scholar among Baptists in America." Now fifteen years later, due as much to his prolific scholarship as to his work as a consultant to nations around the globe, it may readily be said that Wood is today the leading authority in the world on the subjects of church-state relations and religious liberty. As we pay tribute to Wood on the occasion of his retirement in 1995 as director of the J. M. Dawson Institute of Church-State Studies at Baylor University, it is fitting that we reflect upon his remarkable record of achievement, a record that spans his life as a Baptist missionary, as the executive director of the Baptist Joint Committee on Public Affairs, as a professor of the history of religions and church-state studies at Baylor University, and as editor of the world's only scholarly journal devoted exclusively to the subject of church and state, the Journal of Church and State.
Born in Portsmouth, Virginia on July 29, 1922, Wood grew up in a close-knit family. His father, James E. Wood, Sr., was a painting contractor who divided his time between painting homes and painting ships in the naval shipyard at Portsmouth. His mother, Elsie Bryant Wood, was a homemaker. Both were persons of wide-ranging interests, especially fond of music and the arts, and were thoroughly committed to their family, church, and community. They had three children: James, Jr.; Katie, born in 1921; and Charles, born in 1928. The Woods attended the Fourth Street Baptist Church in Portsmouth, where Wood as a young boy was actively involved in the church's youth programs. It was through the Royal Ambassador program (discipleship training and mission studies) that Wood met missionaries from around the world and cultivated, from the time he was twelve, a strong interest in someday himself becoming an overseas missionary.
Upon graduation from high school, Wood entered CarsonNewman College in Jefferson City, Tennessee. There he was an award-winning varsity debater, an active member of the drama club, and president of the men's literary society. He regularly preached in Baptist youth revivals, and during his senior year, he was ordained (by his home church, Fourth Street Baptist, Portsmouth) and pastored the Main Street Baptist Church in Lake City, Tennessee. It was following Wood's first year of college, in 1940 while attending a Wednesday night prayer meeting at Tabernacle Baptist Church in Newport News, Virginia, that he met Alma Leacy McKenzie. Fresh out of college, McKenzie had been an honor student and campus leader at Averett College in Danville, Virginia and later at Coker College in Hartsville, South Carolina. She was also interested in Baptist missions and was making plans to attend Southern Baptist Theological Seminary that fall in Louisville, Kentucky. Wood and McKenzie courted for several years while she was a seminary student at Southern and he was a college student at Carson-Newman. Upon Wood's graduation from CarsonNewman in 1943, he too entered seminary at Southern, and the following year, only weeks after Wood turned twenty-one, they were married.
The Woods worked their way through seminary, Alma working as a department store sales clerk, and Wood as manager of the seminary bookstore and as pastor of churches in Kentucky and Tennessee. Eventually, Wood received the B.D. and Th.M. degrees and Alma the M.R.E. (Master of Religious Education, the only degree offered at that time by the seminary to women). Upon their graduation in 1948, the Woods moved to New York City where both studied English at Columbia University and were awarded M.A. degrees in 1949. Now ready to realize their dream of serving as foreign missionaries, they applied for overseas service through the Southern Baptist Mission Board. They were heartily received and soon commissioned to teach English at the University of Shanghai in China. In preparation, they spent a brief period at Yale University in New Haven, Connecticut, where they both received certification in Chinese studies.
As they prepared to leave the states, the doors to China, unfortunately, were closing because of the victory of Chinese Communists and the rise to power of Mao Tse-tung. Unable to enter China, the Woods were reassigned to Japan, where from 1950 to 1955, Wood was professor of religion and literature and Alma a professor of English at Seinan Gakuin (Baptist) University, at Fukuoka, Japan. While in Japan, Wood published his first book, A History of American Literature: An Anthology ( 1952). He also did language and postgraduate work at the Naganuma School of Japanese Studies in Tokyo.
The Woods planned a long stay in Japan, believing their work and environment to be "a wonderful experience." In 1955, however, Baylor University, a Baptist liberal arts institution located in Waco, Texas, approached the Woods about joining its own faculty. Wood knew nothing about Baylor, having never set foot on Texas soil, but he was impressed enough by a threeday visit to the university that he accepted an invitation to join Baylor's religion faculty as associate professor of the history of religions. Alma was also asked to serve on the Baylor faculty; she accepted and served as professor of English for several years.
Wood immediately became one of the University's most active and respected faculty members. Seeking to expand the religion department's program in missions and comparative religions, he created four new courses: Mission Principles and Practice, The Christian World Mission in the Orient, A History of the Christian World Mission, and The Philosophy of the Christian World Mission. In addition to teaching these and other courses, he became the first director of the University's program of Studies in Missions and Comparative Religions. He also inaugurated and chaired the Faculty-Student Exchange Program between Baylor University and Seinan Gakuin University. In addition, he served as the first director of the Baylor University Honors Program for superior students, as president of the Baylor Chapter of the American Association of University Professors, and was the founder and sponsor, in 1957, of an annual World Emphasis Week, which Wood described as an "attempt to stress openly in the Christian context...how we can relate ourselves to the world." In those early years, he also found time to complete his doctoral studies, receiving the Ph.D. from Southern Baptist Theological Seminary in 1957. It was also in 1957 that the Woods gave birth to their only child, James E. Wood, III, today an advertising executive in Washington, D.C.
Baylor's engagement in church and state as an academic discipline began in 1957. Dr. Paul Geren, a professor of religion, was appointed by the University as the first director of the J. M. Dawson Studies in Church and State, which eventually became the J.M. Dawson Institute of Church-State Studies in 1984. The project was named in honor of Dr. Joseph Martin Dawson, valedictorian of the Baylor class of 1904, an eminent Baptist minister, and the first executive director of the Baptist Joint Committee on Public Affairs in Washington, D. C. Dawson had written several books and was a pioneer in twentieth-century Baptist thought on church-state issues.
One of the first projects of the Studies in Church and State program was to publish a major book. When the Southern Jurisdiction of the Scottish Rite Masons made its first of several significant grants to the program, the money was used to publish a book, Church and State in Scripture, History, and Constitutional Law. Published in 1958 by Baylor University Press, the book was coauthored by three Baylor professors: James E. Wood, Jr. from the religion department, E. Bruce Thompson from the history department, and Robert T. Miller from the political science department. The book undertook to examine the biblical, historical, and constitutional bases for the separation of church and state. It also treated the relationship of political and religious freedom, with emphasis on their development throughout Western history. The book sold well from the beginning and today remains a popular title for use in classrooms at Baylor University as well as many colleges and universities elsewhere offering courses in church and state.
The following year, in 1959, Geren resigned as director of the Studies in Church and State program to accept a position as director of the Dallas Council of World Affairs. Given his deep interest in church and state and religious liberty, Wood seemed a natural to succeed Geren. Baylor president W. R. White promptly appointed Wood as the new director. When interviewed about his new role, Wood's characteristic vision and foresight were already evident. The program had already ventured into the realm of publications with Church and State in Scripture, History, and Constitutional Law. Wood, however, wanted the program to become an integral part of the curriculum at Baylor. While no formal course in church and state was available to Baylor students at the time, Wood was already thinking about possible courses at both the undergraduate and graduate levels. "The instructional materials we are able to offer at the present time are at the undergraduate level," he noted, "but it is our aim to make available studies on the graduate level as soon as possible.... We believe that
American college students, and certainly our Baptist students, should be taught the fundamental concepts of religious freedom, an area that has been too long neglected...." Wood also envisioned a church-state resource center to be located at Baylor. Although no location for such a center had been designated, Wood was still looking to the future: "We are giving serious attention," he said, "to an exhaustive bibliography and hope to build up a fine library on the subject, making Baylor the repository for source materials of every sort."
It was also in Wood's first year as director that the Studies in Church and State program launched its most ambitious project, the publication of the Journal of Church and State. While later reflecting on the experience, Wood noted the formidable challenge of "launching a journal with virtually no financial reserves, no real assurance of receiving quality manuscripts worthy of publication, and almost no financial resources for advertising and promotion." "Nonetheless," he explained, "we were sustained in our efforts because of our belief in the rightness and ripeness of our endeavor." The Journal's editorial board, today composed of fifteen members of the Baylor faculty, then numbered only three: James E. Wood, Jr., Robert T. Miller, and E. Bruce Thompson, the same three who a year earlier had authored Church and State in Scripture, History, and Constitutional Law. The editorial council, today composed of thirty-seven church-state scholars from around the world, was initially made up of fourteen distinguished American scholars: Theodore Adams, Glena Amber, Henlee Barnett, J. D. Bragg, A. P. Cagle, C. Emanuel Carlson, Merrimon Cuninggim, J. M. Dawson, Paul Geren, Kenneth Latourette, T. B. Maston, William A. Mueller, Louie D. Newton, and Leo Pfeffer. In his editorial (which became a regular feature of the Journal) appearing in the first issue, Wood explained the purpose of the Journal: "With the launching of this journal, opportunity is given for the publication of articles, case studies, monographs, and book reviews on matters related to religious liberty and church and state. There is nothing narrow or restrictive about the journal. Diverse points of view will be welcomed and it is hoped that prevailing attitudes of various denominations will be presented. It is hoped that this journal may find a real place in the growing interest, discussion, and literature concerning church-state relations."
This is not the place to give a full history of the Journal of Church and State. The reader is referred to Wood's editorial reprinted in this volume from the Winter 1994 issue for a complete history of the Journal. It is appropriate, however, to briefly note here the success of the Journal under Wood's editorship ( 1959-73; 1980-94). Originally published at six-month intervals and distributed to less than one hundred subscribers in the United States, the Journal is now published quarterly and distributed to more than fifteen hundred subscribers located in all fifty states and more than seventy countries throughout the world. From the beginning the Journal was, and remains, the only scholarly journal of its kind expressly devoted to church and state. Each issue of the Journal has contained from three to seven scholarly articles reflecting a wide variety of perspectives and viewpoints, from seven to forty book reviews, a section offering "Notes on Church-State Affairs" which reports developments reflecting the interaction of religion and government throughout the world, and, since 1965, "a complete list of "Recent Doctoral Dissertations in Church and State." The most outstanding feature of the Journal during its first thirty-five years, however, was the regular editorial authored by Wood.
Wood's editorials were always more than traditional editorials; they were actually article-length, free standing essays representing his most profound thought on a remarkably wide range of church-state themes. Twenty of Wood's finest editorials are reprinted in this volume. As might be expected, the very process of selecting Wood's "finest" editorials was somewhat subjective and naturally resulted in many outstanding editorials being omitted. It should be noted that Wood had no role in the selection process, since this volume was prepared without his knowledge and presented to him at a special dinner hosted by Baylor University on the occasion of his retirement as director of the J. M. Dawson Institute of Church-State Studies. Every effort was made, however, to select a set of editorials that uniquely capture Wood's profound scholarship, the lively and provocative character of his writing, and the interfaith, interdisciplinary, and international focus which characterize his church-state thought. On the view that the reader will benefit from an exposure to the full range of Wood's writings, there are also provided in this volume, in addition to the twenty select editorials, annotations for every editorial or article (a total of eighty-six) written by Wood which has appeared, since 1959, in Journal of Church and State.
In 1960 the Dawson Studies in Church and State program inaugurated a new undertaking: a program of annual lectures/conferences/symposia on church and state. The first to be invited by Wood to lecture on the Baylor campus was Leo Pfeffer, the renowned Jewish scholar, jurist, and educator who was best known as a vigorous advocate of church-state separation in dozens of cases argued before the United States Supreme Court. The Dawson Institute has since hosted many distinguished authors, jurists, and scholars from a wide range of disciplines and traditions. These have included Winthrop Hudson, William Lee Miller, Robert F. Drinan, S. J., Henry Steele Commager, Franklin Littell, Robert Handy, James Luther Adams, Edwin Scott Gaustad, Henry J. Abraham, Dean M. Kelley, Kent Greenawalt, Jesse Choper, and Douglas Laycock.
It was also in 1960 that the Studies in Church and State program began offering a graduate course in church and state. All instruction prior to that time, at both the undergraduate and graduate levels, consisted of the inclusion of church-state themes in the more traditional religion, political science, and history courses. The new class was jointly taught by Professors Wood, Miller, and Thompson, intending thereby to reflect the religious, political, and historical dimensions of church and state as an academic discipline. The course was successful enough that a graduate degree program, leading to the Master of Arts degree, was instituted in 1965. In addition to at least two courses dealing specifically with church-state and religious liberty subjects, students seeking the degree would also take designated courses offered within the departments of religion, political science, and history. This interdisciplinary approach was later expanded to embrace also the departments of philosophy and sociology-anthropology. Since 1965 the Master of Arts program in Church-State Studies has attracted students from a wide range of religious traditions from throughout the United States and many parts of the world. Graduates of the program have gone on to become college and university professors, attorneys, government leaders, religious lobbyists, scholars, journalists, and ministers of religion.
Wood's dream of creating a repository for church-state materials was finally realized in 1968. With more than 1,000 items collected by Wood -- books, periodical literature, private papers, correspondence, and other unpublished materials -- the University set aside space in the Tidwell Bible Building for the creation of the J. M. Dawson Church-State Research Center. The Research Center in many ways immediately became the centerpiece of the Institute. The diverse holdings of the Institute carried the advantage of being tangible items, permanent in character, and perhaps most importantly, housed in a fixed location that gave the Institute a physical identity it had never before enjoyed.
The Research Center has since grown to include more than 12,500 items. In addition to more than 11,000 books, research items in the Center include historical, legal, and theological studies on church and state, along with materials pertaining to religious liberty, interfaith relations, court cases, and constitutional provisions on church-state relations and religious liberty throughout the world. An extensive vertical file of church-state archival and documentary materials and microfilm of rare and unpublished works are maintained in the Center. The Center also houses several special collections of the publications and writings of E. S. James, editor of the Baptist Standard from 1954 to 1966; Leo Pfeffer, the ardent Jewish scholar and legal advocate; and J. M. Dawson.
Today, the Research Center, unlike anything else at Baylor University, reflects the life and work of James E. Wood, Jr. From the time it was created in 1968, Wood unselfishly devoted untold hours, year after year, toward building a quality Center, and today it is no exaggeration to say that he knows the title, content, and location of virtually every book in the Center. Scholars who visit the Center for the purpose of conducting research routinely affirm that the Center has no parallel in the world, which always gives Wood the greatest satisfaction since the Center has always been for him a piece of heaven on earth, a true paradise for those who, like him, are endeared to church and state, a subject that Swiss theologian Emil Brunner once called "the greatest subject in the history of the West."
By 1968, then, four key components of the Studies in Church and State program were firmly in place: the graduate degree program; the Church-State Research Center; a program of publications, including the Journal of Church and State; and the annual sponsorship of a lectureship, conference, or symposium. These four programs, which today remain the foundational emphases of the J. M. Dawson Institution of Church-State Studies, were refined and expanded by Wood in the several years to follow. In 1972, however, the J. M. Dawson Studies in Church and State program, so thoroughly imbued with Wood's innovation, commitment, and leadership, would see its relationship with Wood abruptly interrupted.
The Baptist Joint Committee on Public Affairs is a Washington, D.C.-housed agency representing the public affairs interests of nine national Baptist bodies in the United States and Canada. The Committee had in 1971 accepted the resignation of C. Emanuel Carlson, who had served as executive director for seventeen years. The Committee offered the vacant position to Wood, who described his decision to accept in May 1972 as one "filled with anguish." He did not wish to leave Baylor, but he eventually did so, explaining that, "I have been led to make this decision because of a growing sense of the rightness of it in terms of God's direction for my life."
Wood was only the third director of the Baptist Joint Committee on Public Affairs. The first director, who served from the Committee's formation in 1946 until succeeded by Carlson in 1954, was, ironically, the one for whom the Church and State program Wood had directed at Baylor was named, J. M. Dawson. In any case, Wood was ideally suited to his new role. His leadership skills, his compassion for all human beings as the special objects of God's love, and his vast knowledge of church-state issues were the perfect combination to equip him to direct the Committee during the turbulent 1970s. The Committee could not have spoken more factually when it announced that "the new executive director brings to this office the background of experience and breadth of understanding in the field of public affairs that will continue the significant and growing influence which the Committee experienced under its past leadership."
The background and experience of Wood noted by the Committee was considerable. In addition to his successful efforts in building the J. M. Dawson Studies in Church and State program at Baylor, Wood had already been the author, contributor, or editor of ten books, as well as a prolific contributor of articles to scholarly journals and denominational publications. His more than sixty articles had appeared in Journal of the American Academy of Religion, Review and Expositor, Southwestern Journal of Theology, and Baptist History and Heritage, among others. His concern for civil and religious liberties had been expressed though participation and leadership in many organizations including the National Committee for Amish Religious Freedom, the National Committee for Restoration of Blue Lake Lands of Taos Pueblo Indians, the American Civil Liberties Union, Americans United for Separation of Church and State, the American Association of Asian Studies, the Commission on Religious Liberty and Human Rights of the Baptist World Alliance, the World Council of Churches, the Religious Liberty Committee of the National Council of Churches, the National Conference of Christians and Jews, the National Coalition on Public Education and Religious Liberty, the American Association of Professors of Missions, and the American Society of Church History.
In addition, he was listed in the Directory of American Scholars, Who's Who in the South and Southwest, Who's Who in American Education, the Dictionary of International Biography, National Register of Prominent Americans, Personalities of the South, Creative and Successful Personalities of the World, Community Leaders of America, Directory of Educational Specialists, Contemporary Authors, and was included in Two Thousand Men of Achievement, a publication honoring distinguished citizens of England and the United States. Never one to neglect local civic involvement, he also had served as president of the Waco Planned Parenthood Agency, as president of the Waco Area Civil Liberties Union, and had been a member of the Rotary Club.
In Wood's eight-year tenure as executive director, he sought to develop a new image and a broader role for the Baptist Joint Committee. The new image he sought was for the Committee to become an agency fully committed to "religious liberty and the role of the Church in public affairs based on the sanctity of human rights in a free society," and not to be merely "a lobby for the protection of various Baptist interests and institutions." The broader role he wanted for the Committee was an emphasis on the full range of public policy issues, both domestic and foreign, rather than merely defending the institutional separation of church and state in the United States. The Committee, of course, since its formation in 1946 had generally attempted to give witness to this broader range of issues, but was not always successful in achieving its goal. Wood thought the Committee, whose very purpose was "to give witness in public affairs," needed to find a way to speak effectively on the whole sweep of public affairs. In practice, this meant continuing to oppose such things as tuition tax credits and efforts to amend the Constitution to provide for prayer in public schools, but it also meant defending human rights on an international scale, working to remedy world hunger, and seeking an end to the nuclear arms race. Wood asserted frequently in his writings that for the Committee to limit its concern only to religious liberty issues was to deny the sovereignty of God over all of life. God cared for the whole person, he believed -- the social, physical, and economic in addition to the spiritual -- and thus the Committee, as an arm of Christ's church, was to express actively the same concerns.
The goals of gaining a new image and broadening the Committee's role were, by any standard of measurement, successful during Wood's tenure. So successful in fact, was the Committee in implementing this wider mandate that, since Wood's resignation in 1980 to return to the academic life he so loved at Baylor, the Committee has frequently been criticized for a policy of retrenchment-for abandoning the wider mandate in favor of one that concentrates exclusively on defending the institutional separation of church and state in American life. The Committee in recent years has indeed defined its mission to be one primarily of protecting religious liberty and maintaining the separation of church and state in the United States. This focus is less the result of the Committee's lack of commitment to a witness in public affairs on a worldwide scale, however, than the recognition that, with limited manpower and financial resources (especially since the Southern Baptist Convention discontinued its funding of the Committee in 1991), the Committee, in order to be an effective agency for Baptist interests, must of necessity limit the number of issues it can address. This strategy has certainly proved effective on the national scale, as proven, for example, by the Committee's undisputed leadership role in directing a coalition of sixty-eight religious bodies across the nation to lobby effectively for the eventual passage in November 1993 of the historic Religious Freedom Restoration Act.
When Wood returned to Baylor in 1980 to his position as director of the J. M. Dawson Studies in Church and State program and editor of Journal of Church and State, he replaced Dr. James Leo Garrett, Jr., a man of outstanding abilities who had served with distinction for eight years. From Garrett's perspective, Wood's return to Baylor was fortuitously timed, as it enabled him to return to the position that he had reluctantly left in 1972 to replace Wood, namely, as professor of theology at Southwestern Baptist Theological Seminary in Fort Worth, Texas.
Settled into familiar surroundings, and now serving as the Simon and Ethel Bunn Professor of Church-State Studies, Wood pursued his work with more energy and vigor then ever. Given fresh words of strong support by Baylor president Abner V. McCall, which were reaffirmed by Herbert H. Reynolds when he became president in 1981, that the Church and State program was indeed central to the long-term objectives of the University, Wood began expanding the outreach of the Studies in Church and State program in a number of ways: upon his recommendation, the University gave the program a more formal status by naming it the J. M. Dawson Institute of ChurchState Studies; he carefully but aggressively expanded the holdings of the Research Center; he achieved a dramatic increase in subscriptions to the Journal of Church and State; he publicized the opportunities for students to do graduate study in church- state studies, resulting in a marked increase in applications to the graduate degree program; and he continued to attract to Baylor an impressive collection of speakers on church-state themes.
Wood also resumed his brisk pace of writing scholarly articles. In the period from 1980 to 1995, he authored or edited eight books, contributed essays to at least fifteen additional volumes, and wrote more than 100 articles for scholarly journals other than the Journal of Church and State. These journals included, among others, ACS Journal, Affirmation, The American Baptist, The Annals of the American Academy of Political and Social Science, Ashland Theological Bulletin, Brigham Young University Law Review, The Canadian Baptist, Church and State, Conscience and Liberty ( U.K.), Ecumenical Review ( Switzerland), The Greek Orthodox Theological Review, Kidokyo Sasang ( Korea), Liberty, The Nigerian Baptist, Religion and Public Education, Search, and Southwestern Journal of Theology. Translations of many of these articles have appeared in Chinese, Croatian, French, German, Japanese, Korean, Russian, Serbian, and Spanish.
Wood also became much in demand as a guest lecturer on various college, university, law school, and seminary campuses. To date, he has lectured on church-state relations, religious liberty, and human rights at more than fifty institutions of higher learning, including Brigham Young University, Campbell University, Iowa State University, Notre Dame University, Southern Methodist University, Texas A & M University, Union Theological Seminary, University of Pennsylvania, University of Southern California, and Wake Forest University, as well as institutions in Australia, Albania, Austria, Bulgaria, Canada, China, Great Britain, Italy, Jamaica, Japan, Liberia, The Netherlands, Nigeria, Poland, The Philippines, Singapore, Spain, Switzerland, and the U.S.S.R.
In 1993, a life-long dream of Wood's was finally realized when Baylor University approved the offering of the Doctor of Philosophy degree in Church-State Studies. The core curriculum was expanded to include seven different church-state offerings: Religion and the Body Politic; Seminar on Church and State in the United States; Seminar on Church and State in the Modern World; Seminar on the History of Church and State in the West; The Jewish Experience and U. S. Church-State Relations; Seminar on Religion, Law, and Politics; and Seminar on American Civil Religion. Four students were admitted to the inaugural class in 1993, four more in 1994, and it is likely that similar numbers of new students will be admitted in 1995 and in future years. Many well qualified and aspiring students are already being turned away, simply because the program is new and its administrators do not wish to make the mistake of trying to do too much too quickly. But if interest in pursuing a Ph.D. in Church-State Studies is any measure, the program is already a success. Baylor administrators are unaware of any comparable program anywhere in the world with a specific focus on church and state and religious liberty. The doctoral program is, therefore, sui generis, and in a world where religion continues to play a major role in shaping the public philosophies of nations, and where religious liberty is seemingly everywhere threatened by those zealous to legally proscribe religious practices other than their own, it will fill a need by supplying men and women who can render aid to nations in need of understanding the complexities of church-state relations and religious liberty.
Increasingly, Wood found himself being called upon by nations around the world to share his expertise. As numerous countries entered periods of constitutional redefinition, particularly those in Eastern Europe following the anticommunist revolution of 1989, it became commonplace for them to consider anew the religious dimensions of their nationhood, and to seek to address in formal terms the relationship between church and state that would be observed. Wood's background in world religions, church-state relations, and the protection of religious liberty and other human rights equipped him as few others to serve in this role. He acted for several years as a consultant to the World Council of Churches on religious liberty issues; in 1977 he represented the churches of the U.S.A. at the Montreux, Switzerland Collegium on the Helsinki Final Act, a human rights agreement signed by thirtyfive nations in 1975; he served on the board of advisers of the First World Congress on Religious Liberty in 1977, and the Second World Congress on Religious Liberty in 1984; he convened in 1992 in Budapest, Hungary, the International Consultation on Religious Rights, Religious Liberty, and Ethnic Identity; since 1993 he has served as a member of the International Advisory Board of the World Report on Freedom on Conscience, United Kingdom; and as president of the International Academy for Freedom of Religion and Belief since 1990, he has been asked to consult with a number of nations in the New Europe.
Among Wood's most distinctive achievements was his leading role, as president of the International Academy for Freedom of Religion and Belief, in assisting the Soviet Union and Eastern European democracies such as Rumania and Hungary to implement protections for religious liberty in their new constitutions. In March 1993, he assisted Russia with the drafting of a new law on religion that would eventually be incorporated into the new Russian constitution. Although there had been no previous history of religious freedom as a civil right in Russia, the adopted provisions extended to Russian citizens unprecedented rights of freedom of conscience and belief. Key to the work of the Academy was convincing Russian officials that full religious liberty was necessary, indeed the essential cornerstone, of the democratic reforms that Russia sought to implement in its historic turn away from communism.
Rumania's revolution, unlike those of other Eastern European nations in late 1989, was marked by intense violence in which the communist dictator, Nicolae Ceausescu, was overthrown and executed, along with his wife, on Christmas day. Of all the communist regimes in Eastern Europe, Rumania had been among the most repressive both with regard to political as well as to religious freedom. For decades, believers had been subjected to abusive arrests and imprisonments for doing little more than conducting religious meetings. It was not uncommon for church buildings to be bulldozed whenever the government perceived that a religious group was failing to submit to its restrictive policies regulating religious activities. Wood was one of a select group of churchmen invited to Rumania in June 1990 to confer with ministers of justice and religion. His basic message to them was that for religion to flourish in Rumania, the people must be given the freedom to choose their religions. This seems simple enough, but for a people who had no history of freedom, where religion was considered a menace and a threat to governmental authority, and where Orthodox Christians and other Christians were already at odds over the right to direct the future course of religion in the nation, total religious freedom for all persons seemed a bit idealistic. Nevertheless, Wood and the contingent of religious leaders advising Rumanian officials insisted that freedom of religion should be part of the guarantees of a new constitution. In due course, provisions on religious freedom were enacted into Rumanian law. To date, these provisions have not always been closely observed, but Rumania today is nonetheless overcoming the chaos of the overthrow of communism and has hope for a new future, including the vision of being a protector of religious liberty for its people.
Wood was also a consultant to Hungarian officials as that nation enacted, on 23 January 1990, "The Right of Freedom and Conscience," a law guaranteeing the free exercise of religion and prohibiting state intrusion in religious affairs. In Wood's description, "The new law provides for a greater measure of religious freedom than has ever existed in Hungary. [It] provides that no one may be disadvantaged because of his or her faith unless the practice is in conflict with one's civil obligations, the mass media may be used to propagate religion, parents may choose the religious education of their children, and that churches have identical legal rights and obligations." In addition, the State Office for Church Affairs was abolished, church property confiscated by the government since 1947 was returned to the churches, ministers and religious leaders were permitted to be appointed without prior state approval, and restrictions on entrance to seminary were removed. It was indeed the dawning of a new era in Hungary.
Along the way, Wood was also the recipient of numerous rewards recognizing his many achievements. In 1974 he was given the Distinguished Service Award by his alma mater, Carson-Newman College; in 1980 he was awarded the Religious Liberty Award by the Alliance for the Preservation of Religious Liberty; in 1981 he received the Hadassah Henrietta Szold Award ( Texas Region); in 1983, Seinan Geikan University in Japan, where Wood had served his first professorate earlier in his career, awarded him an honorary doctoral ( L.L.D.) degree; in 1986 he was awarded the Distinguished Service in Human Rights Award by the Waco, Texas Conference of Christians and Jews; in 1991 he was named to the Circle of Achievement by the Baylor University Mortar Board; in 1993 he was the recipient of the Outstanding Professor Award, Baylor University; and also in 1993 he was given the Religious Freedom Lifetime Award by Americans United for Separation of Church and State.
Moreover, due in no small part to Wood's indefatigable efforts in his capacity as director, the J. M. Dawson Institute of Church-State Studies also received special awards from the American Jewish Committee of the Southwest, The First World Congress on Religious Liberty, and the Council of Religious Freedom, along with financial grants from the Scottish Rite Foundation of Freemasonry, the American Jewish Committee of the Southwest, the Anti-Defamation League of B'nai B'rith, the Council on Religious Freedom, the M. C. and Mattie Caston Foundation, The Pew Charitable Trusts, and the Lilly Endowment.
Church-state relations is an abundantly complex subject. It represents the intersection of the two human institutions that make universal claims on peoples lives -- religion and government. Because of the sometimes overlapping and competing claims of both church and state, the supreme challenge of every society in human history has been to consider and establish the relationship that would exist between the two. James E. Wood, Jr.'s superior understanding of the field of church-state relations rests in his mastery of the subject in its historical context. Without this perspective, others quite often tend to suffer from a kind of myopia, too ready to make accommodations to the presence of religion in public life with no real sense of the infringement upon personal liberty and the trivialization of religion that result from too close an association between the spheres of church and state. Perhaps an all-too-brief history of the relations between church and state will prove useful here to underscore this emphasis in Wood's strongly separationist approach to church-state relations.
In earlier societies church and state were usually merged and made inseparable-the result of a vision of unity, coordination, and social solidarity. Moreover, since human beings were conceived as essentially social and political beings, as collective societies formed, the individual was generally subsumed by and subordinated to governmental structures. This pattern prevailed for most of human history, in the East as well as in the West. In the Christian West during the Middle Ages, church and state were merged under the rubric of biblical law. The vision of instituting the divine order on earth allowed little room for diversity of religious belief. Church and state, the two earthly institutions of authority, joined to eliminate heresy. The goal was a kingdom of righteousness, but the result was a kingdom ruled by religious bigotry in which those whose consciences would not permit them to conform to the official version of truth were persecuted and all too frequently executed for their beliefs.
The deaths of tens of millions was the result of pogroms, inquisitions, and religious wars, all perpetrated in the name of God's truth.
The modern idea of the separation of church and state resulted from the religious pluralism that was an outgrowth of the Reformation, and the accompanying recognition that religion is perhaps more a matter of private conscience than public, governmental concern. The atrocities of the Middle Ages and the Reformation committed against religious dissenters for the sole purpose of conforming all peoples to common religious belief was thought to be the result of government having too much authority in matters of religion. The evolution of individual rights, which began in earnest in the fourteenth century, led human government to abandon its previous role of causing all people to conform to a common faith in favor of a new role of protecting individual natural rights, including the free exercise of religion. The United States led the way in proposing this new way of separation -- an idea built upon human freedom, and, a secular state without the authority to advance religion (Establishment Clause) or to limit religious freedom except for those forms which might pose significant threats to the health and safety of American citizens (Free Exercise Clause).
From this abbreviated account emerge two dominant themes which pervade the church-state thought of James E. Wood, Jr. They are, first, that religious liberty is a basic right to which all human beings should be entitled, and second, that this religious liberty cannot be fully realized without governmental commitment to an institutional separation of church and state, which itself can be guaranteed only through the mechanism of a secular, or neutral, state. Identifying these two themes as dominant in Wood's church-state thought is, of course, an oversimplification, because it undervalues the breadth and richness of what he has to say about religious liberty and churchstate relations. But it is nonetheless an accurate assessment, I believe, and the seemingly endless variety of church-state themes which Wood eloquently addresses all in one way or another give primary attention to these two themes.
The goal of religious liberty achieved through a secular state is not for Wood an arrangement serving secularism. Rather, it is a means of upholding religion, of preserving the sacredness and importance of religion to a society's people by removing it from the jurisdiction of government. Furthermore, Wood has frequently asserted that the separation of church and state does not, as many assume, lead to the privatization of religion. While religion might be fundamently a private matter, the obligation of the individual to make practical application of faith in the world makes religion a very public matter as well. The separation of church and state, then, permits religious persons, collectively the religious community, to exercise their right -- and duty -- to give witness in public affairs, that is, to influence public policy, both domestic and foreign. It is altogether appropriate, then, according to Wood, for communities of faith to form public affairs offices in Washington, D.C., not for the promotion of their self interests, but as an effective means by which they give witness in public affairs based upon their own understanding of their mission and prophetic role in the world. So fundamental to religious liberty and the separation of church and state is the right of the religious community to engage in public witness, so pervasive, in fact, is this principle in Wood's thought, that it might appropriately be looked upon as a third major theme in his overall perspective on church-state relations.
It is important, too, to note that the fundamental precepts of religious liberty, secular state, and public witness have never for Wood been grounded merely in pragmatism. Rather, they all are directly rooted in a biblical theology. In a 1980 interview, Wood indicated that with regard to his approach to church-state relations, his "ultimate concern is really a theological one." Religious liberty at the individual level is for him rooted in the sanctity of human rights as an expression of God's concern for every human being. The New Testament revelation mandates no set pattern of governmental form; therefore, the secular state is the best means of guaranteeing the liberty of soul and conscience that is God's handiwork. At the level of public witness, he has noted, "My concern is with the community of faith and the right of the community of faith to an integrity of its own which cannot be and must not be profaned by government." The religious community is biblically required to give witness not only on spiritual issues, but on economic, political, and social ones as well. For Wood, the duty of the religious community to engage in public witness is grounded in the distinctly theological view that all of life is sacred. As he once expressed it, "There is no part of this world outside of God's concern and God's dominion."
To conclude, let it be said that for a lifetime James E. Wood, Jr. has been a passionate advocate of religious liberty, an erudite defender of the institutional separation of church and state, and a living testimony to his conviction that these principles make it possible for the religious community to engage in its theological duty to be a witness in public affairs. Already the author/editor of eighteen books and more than three hundred scholarly articles (see the complete bibliography of Wood's published writings in this volume), no living church-state scholar can match the level of his productivity nor the quality of his erudition. It may well be said that James E. Wood, Jr. is the world's foremost church-state scholar in the twentieth century and one of its most ardent advocates of religious liberty. As we consider his retirement as director of the J. M. Dawson Institute of Church-State Studies, we take comfort in knowing that his reduced administrative load at Baylor University should permit him to extend his inestimable service to humanity as scholar, teacher, and advocate for many years to come.
James Wood and J.M. Dawson, 1970
Robert T. Miller, James Wood, and Bruce Thompson
Wood in Japan, 1953
Pat Neff Hall, Baylor University
Tidwell Bible Building, Baylor
James Wood, 1959
Dedication of Church-State Research Center, 1968
James Wood and Bruce Thompson receiving Scottish Rite Mason gift to institute from Lee Lockwood
Alice Cheavens, daughter of J.M. Dawson, presenting Dawson family plaque, 1983
James Wood and Leo Pfeffer
Robert T. Handy, Dean M. Kelley, James Wood, 1986
Gorge Huntson Williams and James Wood
James Wood lecturing, 1982
James and Alma Wood, 1989
Baylor President Herbert H. Reynolds, 1989
Liberty of Conscience
T he separation of church and state can never be the ultimate goal in church-state relations. Ironically, it is in the U.S.S.R., which officially affirms the principle of the separation of church and state in its constitution, where religion has been seriously challenged in the twentieth century. There is even some accuracy in describing the pattern of church-state relationship in the U.S.S.R. as one of separation; yet the American tradition of separation is totally alien to the Russian pattern of church-state relations. In the U.S.A., while there is separation of church and state in principle and in fact, a friendly attitude exists toward religion in general. Here civil authority is to maintain a neutrality between various faiths and no faith in order to assure complete freedom of religion in general and all religious or nonreligious groups in particular. In the U.S.S.R. there is an attitude of hostility toward religion in general, and traditional religious faith; e.g., belief in God is officially repudiated. Far from being neutral in matters of religion, the state officially maintains a position of atheism which it zealously promulgates throughout the country. Meanwhile, numerous restraints are placed on organized religion, and serious civil disabilities are suffered by those who profess religious adherence or membership. Religion is tolerated largely because the government of the Soviet Union believes and hopes that ultimately religion will be liquidated by the forces of history. Obviously, the principle of the separation of church and state, even when constitutionally guaranteed, cannot and must not be the final concern of those who champion religious freedom and liberty of conscience.
Historically, the espousal of the principle of separation, both among the Anabaptists and the American founding fathers, was a means, not an end. Perhaps we in the twentieth century often need to be reminded of the real objectives behind the facile phrase, "the separation of church and state." Just as the ultimate goal of the Radical Reformation in church-state relations was a free church in order that the church could be the church, so in America, as Winthrop S. Hudson has clearly shown in The Great Tradition, the churches did not have independency from the state forced upon them, but rather they claimed it for themselves in order to be free. The growing commitment to religious voluntarism also required the separation of church and state. Religious liberty, slowly but surely, came to be highly prized in the New World. Both within and without the church, persons of varying religious views came to espouse the ideal of liberty of conscience as not subject to the judgment of human councils or legislation. That is to say, the principle of the separation of church and state came to be regarded by its advocates as the best means to insure religious freedom and soul liberty. This in turn required a free church in a free state.
The phrase "liberty of conscience" is of modern origin. It came into use after the Protestant Reformation and appeared most prominently in English and American writings during the seventeenth, eighteenth, and nineteenth centuries. As generally used then, as now, liberty of conscience claimed the inherent right of each man to follow the dictates of conscience without interference by civil authority or reference to popular judgment, so long as the fundamental rights of others were not simultaneously violated. In his monumental and trenchant work, History of Freedom, Lord Acton declared that it "is the assurance that every man shall be protected in doing what he believes his duty, and against the influence of authorities and majorities, custom and opinion."
In the Western world, liberty of conscience has been based on two fundamental principles. First, freedom of conscience is a natural and sacred right of man, "unalienable," a domain which the true state must protect and into which it must not intrude. Whereas the final aim of religion is truth, the ultimate goal of the state is freedom, "the true aim of government," as Spinoza said. Thus the oft-quoted statement of John Leland, a Baptist preacher who ever sought to "vindicate the civil and religious rights of all men," is rightly to be understood. "The government has no more to do with the religious opinions of men," Leland wrote, "than it has to do with principles of mathematics." Almost a century later, in 1871, the United States Supreme Court perceptively declared ( Watson v. Jones), "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect."
The second axiom is that because conscience is a natural and sacred right, innate and universal, no man is to be above another in the freedom of its exercise. Men are equal in rights as in duties, from which human authority cannot take away in the case of the former, and to which it cannot add in the case of the latter. The American tradition of this principle was perhaps best expressed by Thomas Jefferson when he forthrightly stated, "Our civil rights have no dependence on our religious opinion." The reasoning concerning liberty of conscience is at the heart of the uniqueness of the American experiment concerning the separation of church and state.
Religious freedom, or liberty of conscience, requires along with non-interference on the part of the state, recognition of the right to believe or not to believe religious dogma; to worship one God or many or not to worship; to be a member of a religious association or of none; and to exert the "free exercise" of religion, without civil disabilities, as long as such exercise is not deemed detrimental to the basic ideals and security of the state.
Etymologically, according to the Christian tradition, conscience (con, together+scio, know) is the means by which one may come to know right from wrong. Conscience is moral awareness or moral insight, by which one feels the impulse to do right, and experiences restraint from doing wrong. The ethical meaning of conscience came largely with the rise of Christianity. The word does not even appear in the Old Testament, although it appears more than thirty times in the New Testament. To Christian theologians it has been regarded as a gift of God, also the voice from God. The Westminster Confession of Faith in the section, "Of Christian Liberty, and Liberty of Conscience," left unchanged in the American revision, affirms the following:
God alone is the Lord of the conscience and hath left it free from doctrine and commandments of men which are in any thing contrary to his word, or beside it, in matters of faith or worship. So that to believe such doctrines, or to obey such commandments out of conscience, is to betray true liberty of conscience; and the requiring an implicit faith, and an absolute and blind obedience, is to destroy liberty of conscience, and reason also.
For, as one American stated it, "To pretend to a dominion over the conscience is to usurp the prerogative of God." The words of Jesus, "Render unto Caesar the things that are Caesar's, and unto God the things that are God's," are best understood, therefore, as giving both status and limits to the state. For the first time in history civil authority was thereby clearly limited and, what was more, made subordinate to man's relationship to God!
The concept of liberty of conscience, however, emerged slowly. As Lord Acton ably showed long ago, the growth of liberty was the great achievement of the Middle Ages, although religious freedom was not actually realized until the modern era. Meanwhile the rivalries of ecclesiastical and political rulers at least helped prevent absolute sovereignty from being realized. Marsilius of Padua in the fourteenth century, disclaiming that religion can ever exercise coercion, was perhaps the first to recognize the right of conscience both as a natural and a political right. Nevertheless, heretics, in spite of the plea of "conscience" and "soul liberty," continued to be burned at the stake and tortured to death.
The Protestant Reformation emerged as a revolt against authority. "I cannot and will not recant anything," Martin Luther declared, "for it is neither safe nor right to go against conscience." A bold new freedom appeared. "I wish to be free," Luther said. "I do not wish to become the slave of any authority .... I shall proclaim with confidence what I believe to be true, whether it is advanced by a Catholic or a heretic, whether it is authorized or not by I care not what authority." Protestants came to enjoin freely the verse of Scripture, "We ought to obey God rather than men." For, "I am more afraid of my own heart," Luther said, "than the Pope and all his cardinals."
Inevitably there arose the cry, "faith is free." Steadily liberty of conscience was boldly affirmed, leading finally to the radical reformers' insisting upon "the competency of the individual under God in all matters of religion." Certainly ecclesiastical or religious authority was weakened to a degree beyond which it could never recover. Liberty of conscience was proclaimed as both a natural and divine right. Liberty of conscience, it was reasoned, demanded civil liberty, and civil liberty required liberty of conscience. "Give me the liberty to know, to think, to believe, and to utter freely, according to conscience," said John Milton, "above all other liberties."
Liberty of conscience was not, however, easily granted to those whose views represented a threat to one's own. Repeatedly, whether with the Cathari, Michael Servetus, or Leo Tolstoy, the church, unable to control the minds or consciences of men who represented threats to its authority, has persecuted and excommunicated dissenters from its ranks. For example, while Protestants generally spoke of "conscience" in matters of religious beliefs and in principle were opposed to persecution, at the same time they refused to tolerate religious beliefs and practices which were regarded as inimical to their own.
In the United States, where liberty of conscience and religious freedom were first officially sanctioned as basic natural and civil rights, the state was clearly limited in matters of religion and the dictates of conscience. For, as Roger Williams asserted, the power or authority of the state is "natural," "human," "civil," and "not religious." Thus the state is denied the right to legislate on purely religious matters and is not to sanction, support, or aid religion. In the Gobitis case ( 1943), Chief Justice Stone wrote in a way increasingly meaningful to many Americans today in the midst of our growing religious pluralism. If the Constitutional guarantees of liberty, he said, "are to have any meaning they must...be deemed to withhold from the state any authority to compel belief or the expression of it where that expression violates religious convictions."
As free men, as Americans, we need constantly to reaffirm the sacredness of the principle of liberty of conscience. For free people cannot long remain free if the state and state institutions, even if supported by the collective will of majorities, are allowed to prevail over the individual consciences of men. Liberty of conscience remains at the core of a free society and an inviolable check on the absolute will of the state, even when representing the majority, from which otherwise there may be no escape from tyranny. More than a century ago, in a way particularly modern for our times, Henry David Thoreau wrote: "There will never be a really free and enlightened State until the State comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly. I please myself with imagining a State at last which can afford to be just to all men." Not even democracy, even if under the guise of "the will of the people," must be allowed to be the foe of liberty and the final authority over the consciences of men.
JCS 5 ( November 1963): 5 - 14
The Christian State
For more than sixteen centuries, concern for the Christian state has characterized a large part of the Christian community. Even when not actualized by political decree or alliance, the Christian state has generally remained the ultimate goal of institutional Christianity and an important part of its mission. Most of Europe became Christian through the espousal of the faith by kings and rulers who thereby proclaimed their territories as Christian kingdoms.
Although Christianity had its beginning in a hostile world, in which there was not only separation of the Christian church from the state, but open conflict and hostility as well, by A.D. 313 Christianity had become the espoused faith of the Roman Emperor Constantine. No longer a religio illicita, it became a religio licita, and allied with the greatest military and political power of the ancient world. Not only was the character of Christianity profoundly changed by the Edict of Milan, but there emerged a new attitude of the church toward the state, which in turn altered the entire outlook of the church toward culture, society, and other faiths. Once the persecuted faith, then tolerated, Christianity gradually became by A.D. 346 the persecutor of rival faiths within the Roman Empire. NonChristian temples were closed or destroyed and the death penalty was imposed upon those who continued to offer sacrifices to pagan gods.
The concept of the Christian state found classic expression in the corpus christianum of Christendom, which under various names and guises has remained the goal of many zealous Christians, both Catholic and Protestant, who would seek to make the church virtually conterminous with culture, community, or state. Like the empire, the church was universal and included all men. This view prevailed throughout the Middle Ages. Although a duality of powers was recognized -- an altogether unique distinction of the Christian faith in the ancient world -- the spiritual and temporal powers were not equal. As Gelasius I wrote to the emperor: "There are indeed, most august Emperor, two powers by which this world is chiefly ruled: the sacred authority of the Popes and the royal power. Of these the priestly power is much more important, because it has to render account for the kings of men themselves at the divine tribunal."
With the establishment of the Holy Roman Empire by Charlemagne in A.D. 800, the concept of the Christian state became even more firmly established. Later the rise of nationalism and independent sovereign states constituted a threat to the supremacy of the church over the state, and resulted in a weakening of papal authority, particularly in temporal matters. Although the validity of the concept of the Christian state was occasionally challenged even by those within the church, such as Marsilius of Padua in the fourteenth century, the supposition prevailed and was generally accepted by the Protestant Reformers Luther, Calvin, and Zwingli, with only varying interpretations. To the Reformers a nation-state required religious unity, and religious pluralism was inconceivable. The Peace of Augsburg (1555) provided the basic policy for determining which church was to be officially linked with the state: cuius regio, eius religio -- whatever the religion of the ruler, that would be the religion of the state. The Magisterial Reformers remained committed to the corpus christianum of the Roman Catholic Church.
Religious toleration remained unknown anywhere in Europe or England, even at the beginning of American colonization, and prior to the seventeenth century was strongly opposed throughout Christendom by both the church and the state. Protestantism was forbidden in Catholic countries except for the limited toleration accorded the Huguenots in France up to 1865. Catholicism was forbidden in Protestant countries. Religious majorities denied civil and religious rights to religious minorities; established churches prohibited the right of dissent. Nonconformists were persecuted as heretics of the church and traitors of the state.
In England, James I said of the Nonconformists, "I will make them conform, or I will harry them out of the land." A Puritan leader of the House of Commons in 1629 declared, "Whoever shall bring in innovation in religion, or by favour seek to extend or introduce popery or Arminianism, or other opinions disagreeing from the true and orthodox church, shall be reputed a capital enemy to this kingdom and the commonwealth." Actually, even though England was many years ahead of the continent of Europe generally in advocating religious toleration, not until the Revolution of 1688 was religious toleration granted in England and even then limited tolerance was granted only to Protestant dissenters, not to Catholics, whose civil disabilities were not finally removed until 1829.
The concept of the Christian state, including the European pattern of church-state relations, was understandably transplanted to the New World, to which, however, came different religious minorities from England as well as members of the Anglican Church. The principle of religious liberty and the separation of church and state was little more recognized during the days of colonial America than it was in seventeenthcentury England. To be sure, the powers of the episcopacy and the Crown were immeasurably weaker in America, but establishment in the New World largely followed the pattern of the Old. Nine of the thirteen colonies had established churches: in Massachusetts, Connecticut, and New Hampshire the Congregational Church was established by law; while in Maryland, Virginia, North Carolina, South Carolina, Georgia, and New York City and three neighboring counties, the Anglican Church was established. The four exceptions to establishment were Rhode Island, Pennsylvania, New Jersey, and Delaware. In some states, only one denomination was favored; in others only Protestants could hold public office; and in Maryland full religious liberty was guaranteed only Christians, with Jews not being granted full political rights until 1826. Both of the original and most influential of the colonies, Virginia and Massachusetts, resisted religious toleration and were slow to permit religious pluralism. Except for Rhode Island and Maryland, religious toleration did not come into the colonies until the eighteenth century.
In New England, the Puritans sought not to establish a democracy, but a theocracy or "Bible Commonwealth," wherein the Bible was the basis of all law and God was the supreme legislator. In this Christian state, the early Puritans claimed freedom only for themselves, and Puritan leaders expressly condemned democracy which Governor John Winthrop, the real founder of the Massachusetts Colony, called "the meanest and worst of all forms of government." John Cotton, who regarded even toleration as "anti-Christian," wrote, "It is better that the commonwealth be fashioned to the setting forth of God's house, which is his church; than to accommodate the church frame to the civil state." Of democracy, he wrote, "I do not conceive that ever God did ordeyne it as a fitt government eyther for church or commonwealth." Like his Puritan contemporaries, as well as subsequent Protestant theocrats, Cotton held that "Theocracy (is) the best forme of government in the commonwealth as well as the church." The pioneer Baptist leader John Clarke wrote of Massachusetts during this period: "The authority there established can not permit men, though of ever so civil, sober and peaceful spirit and life, freely to enjoy their understandings and consciences, nor yet to live, or come among them, unless they can do as they do, say as they say, or else say nothing and so may a man live at Rome also."
The multiplicity of religious sects along with the absence of any one dominant church, the success of the noble experiments of Rhode Island and Pennsylvania with religious freedom, the influence of John Locke and the rationalism and skepticism of the Enlightenment, and the desire for independency on the part of the churches themselves all contributed to the ratification of the First Amendment in 1791: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." With this historic statement, the American tradition of the separation of church and state and religious liberty was made for the first time a matter of organic law, and the uniqueness of the American pattern of church and state has continued to be of tremendous importance in understanding the political and religious history of our country.
Although the American principle of separation was widely supported during the latter part of the eighteenth century and after, opponents to the church-state separation principle are not new. From the beginning of our national history, numerous Americans, past and present, have not readily or ever with unanimity favored either full religious liberty or the principle of the separation of church and state. Only gradually did the separation principle come to be acceptable to all the states, with Massachusetts not adopting disestablishment until 1833. Whereas most of the theocrats of the nineteenth century accepted the wisdom of the separation of any particular church from the state, the view of America as a Christian state, the "American Israel," persisted. Indeed, from the time of the Puritans down to the present America's theocrats have contended against the principle of separation, viz., the secular state, and have sought through various means to have America declared, in effect, a "Christian nation." Unable to control the behavior of their own members, America's theocrats have sought legislation to enforce on all persons Sabbath observance and "Christian morality."
Throughout our history, America's theocrats, not content with the making of individual Christians, have sought nothing less than the Christianization of the state. The fundamental responsibility of the nation, they argued, is obedience to the will of God, and this will is clearly revealed in the Scriptures. To the theocrats, the principle of separation never meant a repudiation of the concept of America as a Christian state. As Bela Bates Edwards expressed it, "Perfect religious liberty does not imply that the government of the country is not a Christian government," for there is a "real, though indirect connection between the State and Christianity."
The theocrats, first identified with the Federalists and then the Whigs, did not hesitate to press hard their concept of the Christian state through such measures as the chaplaincy to the Congress (begun in 1801), national observance of Christian holidays, Sabbath observances, and special recognition and privileges for religion and religious institutions. Opposition to their demands brought, as today, charges of infidelity and atheism. Jefferson and Madison, for example, were vigorously attacked by the theocrats for their unorthodox views and the lack of recognition given Christianity in their public addresses and utterances. One Presbyterian theocrat lamented, "From the close of General Washington's administration in 1797, to the inauguration of General Harrison, there was not more than one message to Congress, or inaugural address, in which the Christian religion was distinctly recognized. Most of the messages...expressed little or nothing to which a Deist might not assent." Although not successful, there have frequently been those theocrats who have advocated "a Christian party in politics" and, while not denying the right of non-Christians to run for public office, they have stressed the solemn obligation of Christians to support only Christians as candidates for public office.
Meanwhile, throughout our history there have been those political and religious leaders who have vigorously resisted all claims of America as a Christian state. These outspoken antitheocrats have included Thomas Jefferson, James Madison, John Leland, William Ellery Channing, Alexander Campbell, Andrew Andrew, James K. Polk, and leaders of both the Republican and Democratic parties. More than a century ago, Leland, a great Christian leader himself, warned that the theocrats of whatever religious persuasion always seek to violate the principle of the separation of church and state. He wrote, "The honor of religion, the spread of the gospel...the good of society, the safety of the state, and the salvation of souls, form the syrup in which the poisonous pill is hidden."
With the phenomenal and unparalleled growth of organized religion in twentieth-century America, increasing pressure has come for religion to receive the sanction and support of the state. The irony is not that organized religion is weak, but rather that, in contrast to the eighteenth century, it is institutionally so very strong and powerful. It is significant that, unlike the pleas for welfare aid to individuals, the most vigorous pleas for public subsidies to church institutions come generally from the major denominations rather than the smaller religious groups.
Since 1930 powerful church lobbies, representing virtually all major denominations in America, have maintained offices and staffs in the nation's capital. One sociologist has recently observed that "American churches actively support the Separation principle only against those churches with whose values and objectives they disagree; most are guilty of seeking the cooperation of the State in making their values mandatory for the entire community."
Post World War II brought an inflation not only of currency, but of religion as well. The 1950 s witnessed successful efforts to declare by decree and legislation our nation's religious faith. Congress voted that we are "a nation under God," and, paradoxically enough, proof of our nation's trust in god was confirmed by the words, "in God We Trust," being placed on all our currency. "Piety on the Potomac" was a phrase, perhaps somewhat cynical in intent, which nevertheless symbolized America's resurgence of organized religion. In 1954 Congress enacted a law to change the pledge of allegiance to include "under God," and shortly afterwards authorized the construction of a prayer room in the Capitol for the use of members of Congress. The following year, 1955, Congress passed a law requiring that "In God We Trust" appear on all our currency, whether minted or printed. And in 1956, Congress officially declared the phrase, 'In God We Trust," to be the nation's motto.
Whether such Congressional acts ever merit judicial review by the U. S. Supreme Court or not, they at least represent theocratic efforts to repudiate the tradition of America as a secular state, and to have the religious foundation of America officially affirmed in Judeo-Christian terms. Congressional support of these pronouncements was doubtlessly not based entirely upon concern for religion in America. However, like the theocrats of a century ago, many religious Americans today desire not only a religious commitment of persons, but of civil authority and nations as well.
Perhaps few would suggest that any major breach in the First Amendment has occurred as a result of these Congressional enactments, but the danger may be that Americans will increasingly so identify national loyalty with religious faith that the fundamental and necessary distinction between the church and the state will be blurred. For the church to be the church and the state to be the state requires that the identity of each be clearly maintained. Allegiance to God and allegiance to Caesar are never to be the same, and in fact suggest always a conflict or tension with which the Christian knows he must live. National loyalty is not the supreme allegiance of man, even if that nation declares itself to be a Christian state or "this nation under God." The very mixing of allegiance to God with patriotism, so characteristic of many of the militant organized movements today crusading under the banner of Americanism, is a dangerous threat to both the freedom of the state and the freedom of the church-the free society and the Christian church.
Americans need to understand and know how to live with the important distinctions between church and state. Tension, even conflict, between the religious community and the political community -- the church and the state -- is not only inevitable, but ought to be welcomed. To demand that the church receive the sanction and the support of the state is to degrade the church and pervert the state. How removed from our own time is the warning of Jesus to his disciples: "You will be dragged before governors and kings for my sake!" Historically, the alliance between church and state, viz., the religious and the political, has not made for religious vitality. The historic symbols of Christendom, the cross and the sword, remain for all time incongruous. In a profound sense, the Christian knows that the conflict between the church and the state can never be completely resolved. The very crucifixion of Christ, so central to the Christian faith, is an eternal reminder of the conflict between the two kingdoms and the rival claims of the two powers. The church can never adjust to the claims of nationalism or national sovereignty if the church is to be "holy" and "catholic." Nor can the church ever be bound by national interest, for the bounds of the church can never be coterminous with those of the state, if the church is to be the church. That the present World Council of Churches should find itself in conflict with nationalism should not be surprising to thoughtful people anywhere.
The most effective spokesmen for religious liberty have always come from persons of devout religious faith who possessed some real insight into the theological basis of religious freedom. Significantly, the strongest and most vigorous opposition to the recent Becker Amendment, which seeks to encourage government sanction and support of religion, has come from the churches themselves. The concept of the Christian state has by no means been acceptable to the churches in America, which more than a century and a half ago declared independence from the state for themselves. The Presbyterian Church, U.S.A., in its official report, Relations Between Church and State, prophetically declared, "History warns that the conception of the 'Christian State' is as dangerous for true religion as for civil liberty."
The rising tide of American nationalism, which seeks to express itself in terms of religious faith, would make religion in America a culture religion or tribal faith. To be a good American and to be a good Christian are not one and the same and can never be. Americanism can never be synonymous with high religion. God and religion are not something our nation can possess or which can be contained within our national life; nor is God some national resource we can harness or use to serve our national interests. To put it another way, God cannot be made an adjunct to American nationalism. God remains always above culture and nation, which are under his divine judgment. The mere claim of a nation that it is on God's side is of no real consequence at all, and may actually be more an expression of blasphemy than godliness. To give to Caesar that which belongs only to God is surely the great profanation of modern man. The important truth for Americans and men is the full recognition that religious faith and religious commitment issue not out of legislative debate or decree, but only out of the voluntary responses of free men to the Divine Initiative.
JCS 6 (AUTUMN 1964): 277-87
The Secular State
A lthough the emergence of the secular state is a phenomenon of modern history, the concept of the secular state reaches back through the centuries. However, throughout its history, until the modern era, the idea of the secular state has been uniquely related to the history of Christianity and the state. Inherent in the view of the secular state is the clear separation of the spiritual and temporal powers. The basis of the authority of the state is civil and natural law, not religious decree or divine law.
Surely, one of the major architects of the concept of the secular state was Marsilius of Padua, the renowned Catholic thinker of the fourteenth entury. In his great treatise, Defensor pacis, published in 1324, Marsilius vigorously challenged the claims of the supremacy of the church over the state and likewise rejected the notion of the Christian state ormundus Christianus. In this work he made a sharp distinction between divine and human law. He insisted that the state be based upon law inherent in nature, and that the church should not have jurisdiction over the state. Clearly ahead of his time, Marsilius held that
Laws derive their authority from the nation, and are invalid without its assent. As the whole is greater than any part, it is wrong that any part should legislate for the whole; and as men are equal, it is wrong that one should be bound by laws made by another. But in obeying laws to which all men have agreed, all men, in reality, govern themselves.... He (the monarch) is responsible to the nation, and subject to the law; and the nation that appoints him and assigns him his duties, has to see that he obeys the Constitution, and has to dismiss him if he breaks it.
Marsilius attacked the supremacy of the Papacy within the Catholic Church, and maintained that since Christ and the apostles did not claim temporal power, neither must the church. Furthermore, divine law cannot be enforced by temporal compulsion, and only Christ is the judge of divine law. Because of the nature of the secular state, there can be no coercion in religious matters. "The rights of the citizens," Marsilius said, "are independent of the faith they profess; and no man may be punished for his religion." Although almost entirely ignored for two centuries, Marsilius's thought on the state later influenced leaders of the Protestant Reformation and modern constitutional government.
Out of the Radical Reformation came a new conception of the church -- the corpus Christi -- the church of the redeemed, voluntarily committed to Christ, rather than the corpus christianum of Catholicism and the Magisterial Reformation. Unlike the Magisterial Reformers, the Radical Reformers championed the principle of voluntarism in religion, which they clearly saw required nothing less than the complete separation of the church from the state, the basic premise of the secular state. Their movement was predicated upon an uncoerced response to the gospel. This, they held, was essential for the esse of the true church. Thus, all use of coercion in religion was opposed. "A Turk or a heretic," Balthasar Hubmaie r wrote," is not convinced by our act, either with the sword or with fire, but only with patience and prayer; and so we should await with patience the judgement of God." Needless to say, the concern of the Radical Reformation was not individual or political rights as such, which came to be espoused later by John Locke and the leaders of the Enlightenment, but in the sacred principle of liberty of conscience. As Roland H. Bainton, Franklin H. Littell, and George H. Williams have shown, the "left wing of the Reformation" was dominated by one common characteristic -- the espousal of the separation of church and state.
The realization of the secular state-although long advocated by social philosophers, Anabaptists, and certain other Protestant sects -- did not occur until the inauguration of the "livelie experiment" of Rhode Island. Here, for the first time, under the able leadership of Roger Williams, a secular state was established, with full political rights for to all regardless of religious beliefs, as Williams said, "for the good of the whole." Indeed the story of religious liberty in America must necessarily always begin with Roger Williams.
Williams's remarkable work, The Bloudy Tenent of Persecution, published in 1644, is widely and rightly regarded as "an epochal milestone in the history of religious freedom and the separation of church and state." Throughout his writings, he sought to maintain a scriptural and theological basis for religious liberty and the separation of church and state. He held to the secular view of the state. Illustrative of this is the fact that Williams founded not only the first state with full religious liberty, but also a state wherein, for the first time, all religious matters were removed from the jurisdiction of civil authorities. For the authority of the state, Williams declared, is "not religious, Christian, etc., but natural, human, (and) civil"; and therefore it is "improper" for the state to prescribe or proscribe matters of conscience and religion. "All Civil States with their Officers of justice in their respective constitutions and administrations are proved essentially Civil, and therefore not Judges, Governors or Defenders of the Spiritual or Christian State and Worship." In fact, Williams wrote, "No civil state or country can be truly called Christian although true Christians be in it." To Williams, church and state must be separate not only for the church to be the church, but for the state to be the state, for God to be God, and for Christians to be Christians. "An inforced uniformity of Religion throughout a Nation or civil state," Williams declared, "confounds the Civil and Religious, denies the principles of Christianity and civility, and that Jesus Christ is come in the Flesh." Consequently, Williams held that compulsory and tax- supported religion is un-christian, that Israel is not a model state for Christians, and that the equality of all persons and groups before the law is a fundamental responsibility of all civil government.
Through John Locke, a Puritan whose thought virtually dominated the eighteenth century, the view of the secular state was given full expression, not on the basis of Christian liberty, but on the basis of natural rights; not popular or democratic sovereignty, but constitutional government. The starting point for Locke's political thought was not the state, but the individual. Every man is born with natural rights to life, liberty, and property. The authority of the state is derived from the consent of the governed, i.e., mutual agreement or social contract. The truth is that the state was created by individuals for their own convenience-for the protection of private property and "the execution of...laws...for the public good." All laws, Locke said, are always accountable to the citizens and political absolutism is "inconsistent with civil society." Therefore, the power of all government is inevitably limited by the natural rights of man as an individual. The direct influence of Locke on the American founding fathers is unmistakable, and is nowhere more clearly evident than in the Declaration of Independence, which is practically a verbatim restatement of Locke's political theory.
Although the concept of the secular state exerted considerable influence in England and France during the Age of the Enlightenment, the United States became the first nation in history constitutionally to adopt the pattern of the secular state-government has no jurisdiction over religious matters, wherein all religious sects are equal before the law and free from establishment or preferential treatment, and wherein all religious groups are regarded by the state as simply private and voluntary associations. This American tradition of the secular state represented, on behalf of the founding fathers, a bold experiment unparalleled in human history. As a matter of fact, not until the twentieth century was the separation of church and state ever actually attempted elsewhere in the world. Indeed, the American constitutional guarantee of the First Amendment, proscribing Congress from passing any law "respecting the establishment of religion or prohibiting the free exercise thereof," has distinguished the United States from even the most democratic states Western Europe.
The historical significance and uniqueness of America as a secular state has often been ignored by many, but at the same time has been clearly recognized by many others. As one distinguished European visitor to America in the 1880s, Lord James Bryce, wrote: "Of all the differences between the Old World and the New, this is perhaps the most salient.... All religious bodies are absolutely equal before the law and unrecognized by law, except as voluntary associations of private citizens." Or as one of America's greatest jurists of the nineteenth century, David Dudley Field expressed it: "The greatest achievement ever made in the cause of human progress is the total and final separation of church and state. If we had nothing else to boast of, we could lay claim with justice that first among the nations we of this country made it an article of organic law that the relations between man and his Maker were a private concern, into which other men have no right to intrude." More recently, Peter Drucker has written that "the relationship between religion, the state, and society is perhaps the most fundamental -- certainly it is the most distinctive-feature of American religious life."
The fruition of the secular state in America was the result of a number of factors. In contrast to Europe, one very practical consideration was the absence of any one powerful church or any clear religious majority. Even establishment in the colonies was not uniform -- some established churches were Anglican and some were Congregational. In spite of the tradition of religious intolerance and persecution in certain individual colonies, the formation of a united republic clearly revealed that religious pluralism was an undeniable fact and that no single church could possibly be accepted as the established church.
Perhaps of even greater significance was the fact that few Americans were formally identified with organized religion at the time of the adoption of the Federal Constitution. Four of the original colonies were without established churches. In 1776 church membership was only 5% of the total population, and even by 1850 had reached only 15.5%. From the beginning the spirit of nonconformity characterized the religious beliefs and practices of the citizens of the New World, many of whom had fled form the Old World to escape the strictures of dogma and prevailing ecclesiastical authority. Roger Williams, for example, in explaining his own immigration to the New World, wrote: "I yearned for a country where I could be free to worship God according to what the Bible taught me, as God enabled me to understand it. I left my native country to enjoy liberty of conscience in respect to faith toward God and for no other end."
To conclude, however, that America constitutionally became a secular state merely because of religious pluralism and/or the small percentage of the population who were church members is to fail to recognize the appeal and force of the secular state concept among the founding fathers themselves and in American constitutional law. Men such as Benjamin Franklin, Thomas Paine, John Witherspoon, Isaac Backus, Thomas Jefferson, and James Madison bespoke in large measure the consensus of the American people. Franklin, a strong believer in the secular state, wrote of religion: "When a religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support it, so that its professors are obliged to call for the help of the civil power, it is a sign, I apprehend, of its being a bad one...." Also strongly opposed to the sanction and support of religion by the state, the Baptist leader Backus declared, "Nothing is more evident, both in reason, and in the holy scriptures, than that religion is ever a matter between God and individuals; and therefore no men or man can impose any religious test, without invading the essential prerogatives of our Lord Jesus Christ....the imposing of religious tests hath been the greatest engine of tyranny in the world.""As to religion," Paine wrote, "I hold it to be the indispensable duty of all government to protect all conscientious professors thereof, and I know of no other business which government hath to do therewith." Jefferson expressed a similar view, widely shared by his contemporaries, when he wrote of the new nation: "All persons shall have full and free liberty of religious opinion; nor shall any be compelled to frequent or maintain any religious institutions." Thus, in continuity with the opinions expressed above, almost a century later the United States Supreme Court understandably would declare in Watson v. Jones ( 1871), "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." More recently the late Chief Justice Charles Evans Hughes, who was also a leading churchman, affirmed: "The effort to dominate the consciences of men by use of civil power has always been destructive of civil liberty itself. If there are any who would pervert our institutions to make them servants of religious dogma, they should be regarded as enemies of both religion and the state, as the success of their endeavors would undermine both."
Meanwhile, as Winthrop S. Hudson has noted, the great majority of the American churches did not have independence from the state forced upon them; rather "they claimed it for themselves. And they claimed it for good theological reasons." As the New England divine of the seventeenth century, Charles Chauncy, the second president of Harvard expressed it: "We are, in principle, against all civil establishments in religion.... It does not appear to us that God has entrusted to the State the right to make religious establishments." In contrast to the experience of most other countries, separation of church and state was not superimposed on the churches or decreed in the face of organized ecclesiastical opposition. Significantly, many of the strongest advocates of America as a secular state were (and are) themselves religious leaders.
To be sure, the view of America as a secular state has been and remains an unacceptable concept to millions of Americans, who, like the nativists of the nineteenth century, claim America as a Christian state, and make Christianity and the "American way" virtually coterminous. The problem is one to which this journal has addressed itself from time to time, but suffice it here to say that such thinking is a real barrier to the realization of the American tradition of the secular state and the free society. Protestant theocrats, as well as various others ecclesiastics, have been conspicuous in their opposition to the secular state concept in America. With the phenomenal growth of organized religion in recent decades, many churchmen have become quite vocal in their denunciation of the church-state separation principle and the decisions of the U. S. Supreme court since 1947, in which the Court has rather consistently and explicitly supported the secular state concept.
Adherence to the concept of the secular state, accompanied by the lack of state patronage and support of religion, has unfortunately often been viewed as an attack upon or threat to religion. Such a view is to misunderstand the very nature of the secular state, which is always to remain neutral toward religion. The secular state is to be neither hostile nor subservient to the church. Always in matters of religious faith and ultimate belief, the secular state is uncommitted. The secular state is committed to neither atheism nor secularism. It is neither Christian, nor religious, nor irreligious. Philip Schaff, America's most distinguished church historian in the nineteenth century, expressed it pointedly when he wrote that the Constitution "is neither hostile nor friendly to any religion; it is simply silent on the subject, as lying beyond the jurisdiction of the general government."
To interpret the First Amendment to mean simply that no denomination may enjoy special privileges, and that the state support and treat all religions impartially, is without constitutional support and a clear repudiation of the American tradition of the secular state. Indeed, the Constitution expressly forbids government from dealing with religion in any form or manner. The state is proscribed from establishing and supporting religion -- whether one church or all churches does not alter the meaning or the intent of the First Amendment. The U. S. Supreme Court provided a definitive interpretation of the Establishment Clause, for the first time, in the Everson case in 1947. The majority ruled:
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 organization or groups and vice versa....
More recently, in 1961, in Torcaso v. Watkins, the Court unanimously declared as unconstitutional the Maryland requirement that holders of public office qualify by taking an oath expressing their belief in the existence of , and reiterated in full the definitive Everson paragraph cited above. In 1962, in Engel v. Vitale, in proscribing the recitation of official prayer in the public schools, the Court categorically declared:
The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not.... When the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.
Furthermore, the Court said, "The Establishment Clause stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." The following year, in Schempp-Murray, the court reaffirmed that it "rejected unequivocally the contention that the establishment clause forbids only governmental preference of one religion over another." In conclusion, the Court said:
The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church, and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment.
The crucial issue in the present situation regarding churchstate relations in America has to do fundamentally with our understanding the nature of our society or state. This requires a renewed appreciation and comprehension of the free society, to which our nation is committed. In such a society, state absolutism is controlled by guarantees of civil liberties, which are, in effect, limitations on government and political authority. For example, the First Amendment has nothing to do with limitations on religion -- certainly not in its pursuit of religious ends through religious means -- but restrictions on government in the area of religion, which is above the competence of the state. In the final analysis, religious liberty is not something which the state can confer upon the church, but which can only be exercised by the church.
The First Amendment requires that we view America as a secular state, uncommitted in matters of religious beliefs and ultimate concerns. Since God and Caesar are not coterminous, the authority and laws of the state are human and natural laws, and, therefore, provide no basis for the deification of the state. As indicated earlier, the concept of the secular state was not born out of hostility to religion, for hostility to religion is thoroughly incompatible with the very nature of the secular state. Rather, the secular state is rooted in the inalienable right of conscience and the theological principle of voluntarism in religion. In the final analysis, as the Supreme Court has stated it, the state may not use religious means to accomplish secular ends nor use secular means to accomplish religious ends.
Just as religious toleration has never come easily among the major faiths of mankind, primarily because religious majorities are disinclined to grant full freedom to religious dissenters or minorities, so also resistance to the secular state has been generally characteristic of religious majorities, both in the East and in the West. The long and intimate association of religion and the state has understandably made difficult the acceptance of the concept of the secular state, even when espoused for the freedom of religious majorities. Paradoxically, the very affluence and growth of organized religion in the United States encourages larger denominations frequently to exert considerable pressure to obtain political patronage and financial assistance from the state to support their diverse and innumerable institutions, so distinctly characteristic of religious denominations in America. The secular state ought not to be regarded as a barrier but as a benefit to religion. Certainly, the phenomenal growth and marked vitality of religion in America -- Catholic, Protestant, and Jewish -- clearly attests to the fact that religion has not suffered from the American tradition in church and state. Perhaps the explanation for this was best stated by a French Catholic, Alexis de Tocqueville, who, writing more than a century ago as an official observer from his country concluded, "Far from suffering from the want of state support, religion seems in the United States to stand all the firmer because, standing alone, she is seen to stand by her own strength."
JCS 7 (SPRING 1965 ): 169 -80
Religion and Freedom
I n the present struggle between East and West, there is the marked tendency to identify the freedom of the West with its Christian heritage and the denial of freedom in the East with atheistic communism. The claim is frequently made that our freedom is rooted in our religious heritage and that the rejection of that heritage is the basis of the denial of freedom in the East today. While there can be little doubt that the denial of basic freedoms has occurred in communist countries, as in the Soviet Union for example, there is a fundamental fallacy in this interpretation of religion and freedom.
To assume that religion has generally been identified with freedom and that irreligion, or the denial of theistic values, inevitably results in despotism is not only a naive assumption but a gross distortion of the facts. Throughout human history religion and freedom have clearly not been natural allies. Even among the high religions, the ultimate concerns of the various religious traditions have in a sense precluded the right of freedom in matters of faith and practice. As Roland H. Bainton has pointed out, "the prerequisites for persecution are three: (1) The persecutor must believe that he is right; (2) that the point in question is important; (3) that coercion will be effective." These conditions have formed the basis of waves of intense persecutions carried on throughout the centuries by Islam and Christianity, in both Catholicism and Protestantism, and still in often less blatant ways are the foundation of religious opposition to full freedom today. Intolerance not tolerance, conformity not non-conformity, and assent not dissent, have been the hallmarks of the history of religion. More wars have been fought, more persecutions have been carried out, and more lives have been lost in the name of religion than for any other single cause. As one historian has recently observed,
"Nowhere does the name of God and justice appear more frequently than on the banner and shield of the conqueror."
There are those who, holding to an evolutionary view of history, prefer to regard the growth of freedom as progressively realized throughout the history of mankind. There is the tendency, even when not supported by the facts of history, always to associate persecution and tyranny primarily with the long ago. The truth is that the twentieth century has witnessed not the advance of liberty, but its recession and the emergence of a totalitarianism unparalleled in any earlier period of history. Surely, at least equally as sobering as the role of religion in the denial of freedom is the repeated claim made by reputable historians today that probably more people have been put to death -- men, women, and children -- during the twentieth century than were slaughtered during all previously recorded history.
The duality of both the espousal and denial of liberty has been a recurring phenomenon among both Christian and nonChristian religions and is one of the ambiguities of religious history. No greater example of this paradox may be found than that of Christianity itself. While more closely identified with the growth of freedom among cultures and nations than any other religion, Christianity has at the same time throughout history, at least from the fourth century onward, repeatedly and most vigorously opposed freedom of thought, freedom of speech, freedom of press, and indeed liberty of conscience itself.
Almost wherever the church has enjoyed patronage, prestige, and power, it has resisted the granting of freedom in conflict with its own teachings and truths. The capacity of the church to grant freedom, e.g. during times of establishment and state support, has not depended upon the strength or security of institutional religion. Rather, freedom has been the concern of disinherited and despised religious minorities, not established religious majorities. This is not unlike the American scene today where religious liberty and the separation of church and state are more the concern of the smaller and even disinherited religious minorities than of the larger and more traditional Catholic and old-line Protestant communities. As has been noted in this journal, demands for state patronage and state support come, in the United States at least, not from weak, struggling religious communities, but from the large, affluent denominations whose demands for public funds have steadily increased through the years along with denominational expansion. Meanwhile religious oppression and persecution have not come necessarily as a result of the threat of dissenters, individually or in groups, to the stability or survival of a given church or community.
Bainton's classic study on religious liberty is appropriately entitled The Travail of Religious Liberty. One has but to look at the history of both Catholicism and Protestantism, even in broad outline, to realize that religious liberty or even toleration only gradually after the seventeenth century came to occupy any real place in the life of the church. The history of Christianity is, in fact, replete with examples of this "travail" of religious liberty stemming from the church's resistance to liberty other than for herself and her repeated persecutions of dissenters who dared either to challenge the authority of the church or to embrace teachings in conflict with those of the church.
The church, once the religio illicita of the Roman Empire and therefore subjected to intense and widespread persecutions, readily became, with its new found power as the religio licita, the great persecutor of even the devout Christians whose views were thought to be in conflict with the official teachings of the church and its ecclesiastical authority. Heretics were punished more severely and treated with more stringency than the heathen within the Empire. The abrupt and radical change in the character of Christianity did not go unnoticed by, nor did it receive the approval of, all the great churchmen of that age. St. Hilary of Poitier, writing in A.D. 365, deplored the role of the church as persecutor, which he viewed as a revolutionary alteration in the character of the church and its mission.
The Church terrifieth with threats of exile and dungeons; and she, who of old gained men's faith in spite of exile and prison, now brings them to believe in her by compulsion.... She, who was propagated by hunted priests, now hunts priests in her turn.... This much must be said in comparison of that Church which was handed down to us, yet which we have now lost: the fact itself is in all men's eyes, it cries aloud.
The concept of compelle intrare, based upon Augustine's distorted interpretation of Christ's words in the parable of the lord and his supper, "Compel them to come in" ( Luke 14:23), came to be the solemn mission to the church to save men from themselves and to prevent them from leading others astray. Sixty-eight imperial laws, ranging from expulsion and confiscation to death, were enacted against non-conformists within a span of fifty-seven years. As early as A.D. 385, a gifted theologian, Priscillian, was accused of Manichaeism. Although he repudiated the doctrines, Priscillian was condemned to death along with several of his associates.
Throughout the Middle Ages tribunals were set up for the conviction and punishment of dissenter and heretics. The position of the church became firm. Centuries earlier St. Augustine had eloquently bequeathed to the church the view that liberty is for truth alone, and that the denial of liberty is the denial of error for the purity of the church. Even so moderate and devout a churchman as St. Bernard, who opposed the lynchlaw for heretics, maintained that "it would be better that they were coerced by the sword of that (magistrate) who 'beareth not the sword in vain,' than they should be suffered to bring many others into their own error. 'For he is the minister of God, a revenger to execute wrath upon him that doeth evil'." Heretics must be caught and punished, St. Bernard wrote, since they are "the little foxes that spoil the vines." In spite of ecclesiastical dominance during this period, heresy and religious dissent steadily increased, and with it the resistance of the church to religious liberty. Whereas earlier the Catholic Church had depended on the laws and power of the civil magistrates to carry out the punishment for heresy, in 1209 the death penalty for heresy was decreed "according to Canon Law and State Law" -secundum canonicas et legitimas sanctiones. At the Ecumenical Council of the Lateran in 1215, Innocent III decreed the obligation of every Catholic to seek out and "exterminate" heretics. The faithful were urged to report even their own parent or child suspected of heresy. Still heresy continued. Two years after personally "seeing to it" that a group of heretics were burned at the stake in Rome, Pope Gregory IX formally initiated the Grand Inquisition which he formally entrusted to the Dominican Order. Inquisitors were sent throughout Europe to establish tribunals which the people named chambres ardentes or "burning chambers." Inquisition tribunals continued to be held for more than six hundred years, as late as 1852, at least in Catholic countries. In Holland alone more than 50,000 persons became victims of the Inquisition.
Equally as incongruous to the spirit of Christianity as the Inquisition were the Crusades during the eleventh, twelfth, and thirteenth centuries. Inaugurated by Pope Urban II, the call to arms in the First Crusade, as in the seven major crusades which followed, was a war against infidels because "God wishes it." Its purpose, by means of military expeditions, was to recapture the Holy Land and extend the rule of the Christian faith eastward. While profoundly significant to the subsequent history of Western civilization -- in art, literature, learning, commerce, and international relations -- the Crusades must be regarded as a serious blight on organized Christianity. The real motto of the Crusades became "Kill the infidels." In the final analysis, the Crusades represented the spectacle of the most extreme act of avarice and economic exploitation, human cruelty and slaughter, and religious bigotry and oppression, carried out and done explicitly in the name of Christianity. Some churchmen, such as Peter of Cluny and Peter the Hermit, asked, "Why wait for the infidels in the Holy Land? We have infidels right here -- the Jews." Innumerable Jews and Jewish settlements in Austria, England, France, Germany, Italy, and Spain were wiped out. It has been estimated that the First Crusade alone resulted in the massacre of more than twelve thousand Jews.
Anti-Semitism remains as one of the black chapters in the history of the Christian church. No schema absolving the Jews of "crucifying Jesus," who was crucified by Romans not Jews in the first place, can possibly absolve Christianity of its utter inhumanity to the Jewish people during the Middle Ages. During that period the Jews were reduced to a pariah people, without human status and without civil rights. As religious aliens in the Christian state, Jews were subjected to repeated pogroms and expulsions -- from England in 1290, from France in 1306, and from German, Austrian, and Spanish cities during the fourteenth and fifteenth centuries. Even after the Middle Ages, the violent anti-Semitism of Martin Luther and the Counter Reformation, both aggravated by the refusal of the Jews to become Christians in the mundus Christianus, served to stimulate new waves of anti-Semitism. The annihilation of more than six million Jews in Nazi Germany, let it be remembered, occurred in the Christian West, in the very citadel of the Protestant Reformation, under a government vigorously opposed to atheistic communism.
Up to this point the impression might be given that the struggle of Christianity with freedom was rooted almost entirely within Roman Catholicism. Such an impression is not intended or warranted in view of the facts of history. Classical Protestantism was no less authoritarian and opposed to freedoms, as such, than was Roman Catholicism. If a seemingly disproportionate amount of attention is given in extended histories and treatises, as well as in so brief a general summary as this, to the Roman Catholic struggle with freedom, one should be reminded that up until the sixteenth century Western Christianity must be viewed overall in terms of the Roman Catholic tradition. Had Protestantism had a longer history, and during such a comparable period as A.D. 500-1500, its record might not have been altogether different from Roman Catholicism in its relationship to freedom.
Contrary to popular belief, religious liberty was not a contribution of the Protestant Reformation per se. William Warren Sweet clearly stated the matter some years ago.
There is a widespread notion among Protestant groups that the separation of Church and State, and thus religious liberty, was one of the immediate products of the Reformation; that the early Protestants were advocates of a large tolerance and that religious liberty was but the logical development of the principles held by all the reformers. Just where this notion arose is difficult to say, and no reputable historian of our own times would endorse it. Historically, of course, the exact opposite is true. The fact is that the rise of Protestantism was accompanied by an unprecedented outburst of intolerance and cruelty in which both Protestants and Catholics participated.
As Bainton has written, the Reformation actually "intensified persecution." To be sure, Martin Luther and John Calvin as rebellious heretics of the Roman Catholic Church pled for toleration of heretics and a measure of religious freedom. Later on as leaders of the Protestant Reformation, as churchmen and not rebellious heretics, they became as authoritarian and resistant to the concept of religious freedom as Rome. Indeed, Protestantism in the sixteenth century continued with the burnings, beheadings, and drownings -- i.e. the extermination of all dissenters and heretics -- just as the medieval Roman Catholic Church had done. Both Luther and Calvin personally approved and sanctioned the death of heretics and sectarians. Many Protestant scholars have gone to great lengths to explain, if not justify, the historical situation which prompted Luther and Calvin to take such drastic steps against heretics. In all candor one must say that Protestant scholarship, at this point, has not been unlike that Catholic scholarship which sought to establish a similar historical interpretation of such popes as Innocent III and Gregory IX who vigorously sought to preserve the church of their time against the potential threat of heresies and heretics.
The fact remains, however, that the Magisterial Reformers -Luther, Zwingli, and Calvin -- were not allies of religious freedom. Once Luther's movement was established in Germany, Luther did not fail to demand the extermination of adversaries and heretics whom he called on the rulers to "smite, slay, stab, and kill." To the Duke of Saxony, Luther wrote that it would lie heavy upon his conscience if he tolerated the Catholic worship. It was Luther's opinion that no secular prince could permit his subjects to be divided by the preaching of conflicting doctrines.
"If Calvin ever wrote anything in favor of religious liberty," wrote Sebastian Castellio, the Protestant scholar and contemporary of Calvin, "it was a typographical error." Not only heresy, but criticism of religious authority, according to Calvin and his close associate Beza, were considered blasphemy and punishable by death. "God hath put the sword," Calvin wrote, "into the hands of magistrates to suppress crimes against the first, as well as the second, tables of the law of God." To deny the church the right to suppress dissent or heresy is to incur the guilt on oneself. Calvin declared, "Whoever shall now contend that it is unjust to put heretics and blasphemers to death, will, knowingly and willingly, incur their very guilt. This is not laid down on human authority; it is God that speaks and prescribes a perpetual rule for His Church." The story of the martyrdom of Michael Servetus at the hands of Calvin and the town council of Geneva is well known. Before Servetus's arrival in Geneva, to which he fled after his condemnation by the Inquisition in France for holding Anabaptist views, Calvin had clearly warned:
"...if he comes, and my authority avails anything, I shall never suffer him to depart alive."
The references cited above are simply intended to show that Protestantism in its early history not only did not espouse freedom as such, but advocated coercion and physical violence, if necessary, to maintain its sway over the territories where it became established.
Throughout the seventeenth and eighteenth centuries the major churches, wherever they were established, were consistently conservative, if not reactionary, on virtually all social and political matters. Almost without exception the church in each country was identified with the royalist and antirepublican traditions. The divine right of kings and the institution of the monarchy were expressly defended, while opposition was repeatedly directed against emerging democratic revolutions. In France, bishops allied with the nobility against the French Revolution. Popular government was generally denounced by the churches. As late as the nineteenth century, the Roman Catholic Church categorically and officially condemned the democratic credo. Pope Gregory XVI castigated the "deadly and execrably liberty" of the press, and with it "the absurd and erroneous maxim, or rather insanity" of liberty of conscience. Pius IX left no doubt about Catholicism's unalterable opposition to democratic liberalism in his Syllabus of Errors, with its list of eighty heresies. In 1870, at Vatican Council I, Pius IX consummated the longest pontificate in history ( 1846-1878) with the dogma of papal infallibility, which in part must be understood against the rise of powerful nation states and the spread of democratic liberalism.
To the established churches, non-conformity has represented not freedom but a threat to the traditional order. The Anglican Church was long in the vanguard of the Tory reaction against democratic ideals. Unfortunately, in spite of certain eloquent and articulate non-clerical spokesmen within, the churches have not as a whole been identified with causes affecting the advance of civil and religious liberties.
By the beginning of the nineteenth century, Protestantism, far earlier than Catholicism, was embracing democratic ideals and supporting many liberal and social reforms. The changes in Protestantism were in some respects the inevitable outgrowth of Protestant theology, as in the case of opposition to the absolutizing of all human authority, political or otherwise. The growing alliance of religion and freedom, though still far from complete, was accelerated by the emergence of pluralistic societies resulting from constitutional governments and he shifting of many large ethnic and religious communities. Whereas democracy as such is no guarantee to religious liberty, a pluralistic society does provide, in the absence of any established religious majority, the best deterrent to religious totalitarianism and the denial of religious freedom. The very disintegration of a united Christendom, or mundus Christianus, has actually advanced the cause of liberty, if not religious liberty, throughout the Western world.
The espousal of religious liberty by various Christian denominations may, therefore, be as expedient in the modern world as the denial of religious liberty seemed to be expedient to the churches during the Middle Ages and the Reformation period. Political patronage to the churches has been in steady decline during the past century and a half. Outside the West, Christianity is represented by scattered, microscopic Christian groups in the midst of the great resurging, non-Christian civilizations of the East. Even the larger established churches in the West have felt the need to express concern for the status of Christian minorities which have emerged, particularly during the nineteenth and twentieth centuries, as a result of their farflung missionary enterprises. Meanwhile, in the West, the widespread defections from Christianity have caused the churches to come to be regarded as representing only small minorities in largely alien and hostile cultures. The gradual endorsement of religious liberty by the various Christian communions, and now most recently by the Roman Catholic Church at Vatican Council II, is in part a glowing tribute to the faithful witness of the free church tradition. It also may be a profound acknowledgment on the part of the churches themselves of their true mission in the world.
JCS 8 (WINTER 1966 ): 5 - 15
Church and State in Latin America
P erhaps nowhere in the Western world has the relationship between church and state been more intimate and involved during the past five hundred years than in Latin America. On the one hand, the Roman Catholic Church has been one of the major forces in shaping the cultures of the twenty Latin American republics. On the other hand, during the colonial period the Catholic Church experienced almost total absorption by the crown, and since the days of colonial rule the Catholic Church has been repeatedly subjected to waves of anticlericalism throughout almost all of Latin America. Ironically, in both instances -- during colonial rule and since independence -- the real objective of the state in its relationship to the Catholic Church in Latin America has been much the same, namely the subordination of the Church to the control of the state.
While one may describe with reasonable historical accuracy the Portuguese and Spanish penetration of America in terms of a partnership between church and state, the fusion of two powers, spiritual and temporal, symbolized by the two-edged sword, the partnership of the spheres of church and state was by no means coordinate. Rather, the "partnership" was one in which the Catholic Church was clearly a junior partner, subject to the will of the monarchy. Nevertheless, as Catholic and non-Catholic historians alike have noted, the union of church and state was never, before or since, more completely actualized than in the Portuguese and Spanish colonialism of the sixteenth and seventeenth centuries.
The Christian monarch during the period was invested with all power and authority by virtue of his sacred, not secular, office. His duties stemmed from "the charge on the royal conscience," to use an oft-repeated phrase of the period, to describe the rights of kingship. The king shared the dual responsibility, by no means incongruous to the people of that period, for the promotion of the Church and the prosperity of the state, "to implant the Cross with the Crown in every possible new conquest." Columbus, writing in 1492, readily rejoiced "for the exaltation of our Faith and for the increase of our wealth," as a result of his historic voyage to the New World.
To the monarch went the responsibility of planting the Faith in the New World. Known as the real patronato de Indias, or royal patronage of the Indies, the authority of the monarchy over the Church in America was virtually absolute. In fact, real patronato de Indias conceded greater jurisdiction to the crown over the Church than has ever before or since been granted by the papacy to temporal power. All ecclesiastical affairs, including appointments, were under the direct control of the king throughout Spanish America. The history of the Church throughout the colonial period was dominated by this one fact.
The supremacy of the crown over the Church in the New World was explicitly recognized in three famous bulls. In 1493 Pope Alexander VI, who drew the Line of Demarcation between the Portuguese and Spanish territories in the New World, entrusted the exclusive privilege of Christianizing and civilizing the natives to the monarchs of Castile and Aragon. A second bull in 1501, known as Eximae Devotionis (as was the first bull), extended to the Spanish monarchy all rights of royal patronage previously accorded Portugal, e.g. the selection of all persons for ecclesiastical office and the right to collect all ecclesiastical tithes throughout its dominions in the New World. Still another bull, Universalis Ecclesiae, issued in 1508 by Julius II, Alexander's successor, conferred upon the monarchs of Spain all previous privileges in a perpetual and unqualified grant of universal patronage to them and their legitimate heirs. Any infringement on the king's right of approval in the founding and erection of churches and the selection of persons for clerical position, Julius warned, "will incur the indignation of God Almighty and of the blessed apostles Peter and Paul."
No matter what the theoretical rationale for such an arrangement, which was obviously rooted more in expediency than in principle, the inevitable result of patronato real, or royal patronage, was the control of all ecclesiastical affairs by the crown. Not only was the king, or some civil official designated by him, accorded the right to nominate all clerical appointments, for example, but also even the most petty details such as the quality and quantity of wine required for the Mass. Subsequent papal bulls only further confirmed royal patronage for all of Spanish America, and further extended the power of the crown over the Church, as did Benedict XIV in 1753, who declared that royal patronage was contracted "by foundation and endowment, by privilege and apostolic concession, and by other legitimate title." Needless to say, the crown was not reticent in asserting from time to time its own overt claims to ecclesiastical patronage. Clear indication of this may be seen in a cédula Philip II sent to his viceroy in Spanish America, in which the king forthrightly proclaimed: ...the right of the ecclesiastical patronage belongs to us throughout the realm of the Indias -- both because of having discovered and acquired that new world, and erected there and endowed the churches and monasteries at our own cost...and because it was conceded to us by bulls of the most holy pontiffs, conceded of their own accord. For its conservation, and that of the right which we have to it, we order and command that the said right of patronage be always preserved to us and our royal crown, singly and in solidum, throughout all the realm of the Indias, without any derogation therefrom, either in whole or in part; and that we shall not concede the right of patronage by any favor or reward that we or the kings our successors may confer.
In the absence of direct personal control over the Church and its missions in Spanish America, royal patronage was actually carried out through the Consejo de Indias, the Spanish department for colonial affairs, which determined the certification, salary, number, and assignment of all clerics and missionaries. All ecclesiastical appointments were subject to the approval of the viceroy, the vice patron of the king, or by a delegate appointed by him. On occasion, the viceroy himself served even as archbishop.
In a real sense, therefore, planting of the Catholic Church in Spanish America was carried on without the direction or voice of the papacy, since all Catholic missions in New Spain were under the direction and control of the Spanish monarchy. As J. Lloyd Mecham concluded in his definitive study, Church and State in Latin America, "...it is difficult to conceive of a more absolute jurisdiction than that which the kings of Spain exercised over the ecclesiastical affairs of the Indies.... Never before or since did a sovereign with the consent of a pope so completely control the Catholic Church within his dominions."
As has often been noted, and not without significance, the Catholic Church arrived in America with the conquistadores. Whereas Spanish conquest and colonization in the New World were undertaken in the name of the Church and the planting of the Faith, as indicated earlier, in actual practice the planting of the Faith more often served conquest and colonization. In spite of the genuine religious motivation of many devout Catholic missionaries during the period of the Spanish conquest of America, the fact remains that the mission and the missionary were agents of colonialism and the state -- dependent on the crown for authorization and appointment as well as for financial support.
At the same time, the papacy was denied any real voice in the Catholic missions to Spanish and Portuguese America. Indeed, no communication was permitted between the Holy See and clerics in Spanish America without submitting to the censorship and imprimatur of the monarchy.
The mission served as the pioneer agency for reaching the Indian, the immediate object of Spanish conquest and colonization. With regard to the Indian, Herbert E. Bolton observed that the Spanish monarchs had three purposes: "to convert him, to civilize him, and to exploit him." These purposes were primarily realized through the encomienda system, by which the Indians were gathered into villages or settlements. The encomiendas were under the control of encomenderos who were charged by the king with the responsibility of the Indians' conversion and education as well as the exploitation of their labor. To the encomiendas, therefore, came the Catholic missionaries in great numbers to provide schools, such as they were, for the education of the Indians grouped within the encomienda, and to effect their mass conversion to the Catholic Faith. Historical records show that by 1574 there were approximately five million Indians subject to Spanish rule living in nine thousand encomiendas of the king under the direct rule of some four thousand encomenderos. From a political point of view, the Indians whom the conquistadores could not bring under the sway of Spanish rule through conquest, the missionaries were able, through persuasion and self-sacrifice, to bring under Spanish dominion.
The cruel and harsh treatment accorded the Indians by the Spaniards in their conquest and colonization, although by no means uniform throughout America, hardly bears repeating here. Suffice it to say that the stated purpose to convert and to civilize the Indians clearly became secondary to the exploitation of them and that the encomiendas became little more than forced labor camps to serve Spanish colonialism. There were those who maintained that the ruthless treatment of the Indians, as idolaters, was proper should they resist Spanish conquest and colonization. The Spanish geographer and explorer, Fernando de Encisco, expressed a view widely held in the sixteenth sixteenth:
"The king has a very good right to send people to the Indies to force these idolaters to yield up their territory to him, since he has it from the Pope. If the Indians refuse he can with perfect justice fight them and kill them and reduce the captives to slavery."
Significantly, among Catholic missionaries, some voices of protest were raised against any claimed rights of exploitation, cruel treatment, and enforced labor. As early as 1510, the Dominican Antonio de Montesino courageously preached to the Spaniards: "It is to make you aware of your wrong treatment of the Indians that I have come up into this pulpit. . . . You are in a state of mortal sin; you are living in it and you will die in it, because of your cruelty to an innocent race. . . . Be assured that under these conditions you have no more chance of salvation than a Moor or a Turk." Not a few missionaries served heroically in the interests of the native population, some even at the cost of their lives. However, it fell to the lot of Bartolomé de Las Casas, the first to be ordained a priest in the New World, to become the greatest single champion of the rights of the Indian for whom Las Casas earnestly sought both social and religious liberty. Appointed by the King in 1516 as Protector General of the Indians, La Casas, who made more than a dozen trips across the Atlantic to plead the cause of the Indians, founded a colony in Venezuela to express his ideals. Nevertheless, in spite of the genuine religious motivation and high ethical idealism of countless missionaries, the fact remains that the missionaries in Spanish America were never simply agents of the Holy Faith but agents also of the state, by which they were appointed to serve political ends and on which they were financially dependent. Inasmuch as the missions served the state, they were supported by the state. As Bolton described it in his perceptive study:
The missions. . .were agencies of the State as well as of the Church. They served not alone to Christianize the frontier, but also to aid in extending, holding, and civilizing it. Since Christianity was the basic element of European civilization, and since it was the acknowledged duty of the State to extend the Faith, the first task of the missionary, from the standpoint of both State and Church, was to convert the heathen. But neither the State nor the Church--nor the missionary himself-in Spanish dominions, considered the work of the mission as ending here. If the Indian were to become a worthy Christian or a desirable subject, he must be disciplined in the rudiments of civilized life. The task of giving the discipline was likewise turned over to the missionary. Hence, the missions were designed to be not only Christian seminaries, but in addition were outposts for the control and training schools for the civilization of the frontier.
Bolton notes further that "while it is true that the missions were supported to a very considerable degree by the royal treasury, it is just as plain that the amount of government aid, and the ease with which it was secured, depended largely upon the extent to which political ends could be combined with religious purposes." Many missionaries were well aware of their role as political agents, and therefore were quite ready to cooperate with secular authorities for the extension of Spanish rule.
The record of Catholic missions during the colonial period, while notable in certain respects, as in the case of compassionate efforts to alleviate misery among the Indians and Negro slaves, was by no means an unqualified success. While phenomenal numerical gains were made, the growth was through mass conversions at a rate which prevented any real assimilation or adequate instruction in the Faith. Mexico, for example, which was first entered by Catholic missionaries in 1519, reported a million Mexicans baptized by 1531. Equally serious was the failure of Catholic missions, after three hundred years of colonial history, to produce an indigenous or national church. At the time of the independence struggle, 1810-1824, fifty percent of the clergy were Spanish born, who largely occupied all positions of ecclesiastical authority. Native priests were almost entirely limited to the lower positions within the Church. The denial of Papal authority and control in Spanish America only drove the Church further to a role subordinate to the state, to which the Church looked for protection and support.
During the three centuries of colonial history the Church became virtually absorbed by the state as a result of the long tradition of royal patronage. In time, perhaps inevitably, the Church became increasingly identified with the power and prestige of Spanish rule. Mecham concluded from his study, "Since Catholicism was indissolubly linked with royal authority, the Church was quite as effective an instrument in the conquest and domination of the Indies as was the army. It was one of the principal agents of the civil power in America for over three centuries." The Church, now wealthy and politically allied with Spanish colonists and colonial power, reflected less and less concern for the rights of the oppressed masses. Missionary fervor waned as the clergy became increasingly an economically and politically privileged class. Large numbers were attracted to the ranks of the clergy as a means to position and power. One scholar has graphically noted that this "easy means of acquiring an honorable position and comfortable livelihood attracted such large numbers that in 1655 the town council of Mexico City implored Philip IV to send no more monks, as more than six thousand were without employment, living on the fat of the land."
With the struggle of the colonies for independence during the period 1810-1824, the Church entered an era with which it was ill prepared to deal. As a Spanish church, rather than an indigenous church, the sympathies of the hierarchy were clearly with Spain and not with the emerging new nations. As an institution of privilege and prestige, long the beneficiary of the crown's protection and support, the Church had for three centuries been the crown's copartner in colonialism.
However, it should be remembered that the Church was by no means united in its loyalty to Spanish rule. Whereas, throughout this period, the papacy sided with the crown against the movement for independence, the clergy itself in Spanish America was bitterly divided in their sympathies and support. To be sure, the sympathies of the hierarchy and the higher clergy-almost all of whom were Spanish born--were on the side of the crown, but the sympathies of the lower clergy--the vast majority of whom were native Americans of Indian and Negro parentage--were on the side of political independence from Spain. Members of the lower clergy even actively participated in the independence movement, often in open defiance of ecclesiastical orders to the contrary. In Mexico, for example, the independence movement was led by two mestizo priests--Father Miguel Hidalgo, often referred to as the George Washington of Mexico, and Father José María Morelos. Many of the lower clergy actually lost their lives fighting for independence from Spain-either in battle or as a result of execution.
After independence from Spain was finally won, the status of the Catholic Church in newly independent states was a crucial one. The sympathies of the Church, at least officially, had been on the losing side in opposition to the movement toward independence. Furthermore, now that the centuries-old politicoecclesiastical system of royal patronage and royal vicariate was broken, the Church was without its accustomed protection and support. To whom was patronage now to be given? The new state rulers maintained that they inherited the right of patronage with sovereignty. Such reasoning was expressly condemned by the papacy with the reminder that royal patronage was not a right, i.e., regalistic in its origin, but a papal concession made in 1492 which was no longer applicable. Nevertheless, national patronage, or patronato nacional, was substituted for royal patronage throughout most of Latin America. Thus the independence won by Spain's former colonies did not result in independence being extended to the Catholic Church in Latin America.
Following independence, anticlericalism ensued throughout Latin America in an effort to restrict the activities of the Church to purely religious affairs and to subordinate the Church to the control of the state. There was widespread sentiment throughout the republics that independence could not be guaranteed if the states were not in control of the Church. The church-state struggle which followed was seemingly inevitable and many phases of that struggle have not been resolved to this day in certain parts of Latin America. Certainly the church-state struggle is an important key to much of Latin American history since the era in which independence was born. One writer has recently written that "during much of the first century of independence the most bitter element of political controversy in Latin American countries was the status of the Church." The result of this struggle has been the gradual triumph of anticlericalism generally, although the situation has long varied from country to country.
Anti-clericalism in Latin America has not meant antiCatholicism to most anticlerical liberals, most of whom have regarded themselves as devout Catholics, but rather the withdrawal of the Church from political affairs, reform of the priesthood, civil liberties for Catholics and non-Catholics alike, the right of the state to control education, the reduction (and even denial) of the privileges of the Church, and the expropriation of the Church's vast wealth--particularly landholdings acquired during the days of Spanish colonialism. Unfortunately, the Church generally responded to these demands by aligning itself with strong conservative, often military, forces seeking political power. In various ways, particularly through excommunication, the Church vigorously opposed civil marriages, divorce laws, public or state education, state welfare programs, religious liberty for non-Catholics, and the separation of the Church from the state--all of which are viewed with alarm as secularizing tendencies.
The age of independence has brought about profound changes in the status of the Church and, therefore, in the nature of the relationship between church and state. As has often been noted, the extent of the revolution in each country has had a direct bearing on the status of the Church in that country. The strength of anticlericalism, which has largely patterned its policies of reform on the the policies in France and the United States, has had a proportionate effect on matters affecting religious liberty and the separation of church and state. The church-state pattern in Latin America has varied greatly during the past one hundred years and remains in a very fluid condition. For example, Colombia, the first Latin American republic to endorse separation of church and state ( 1953), is today perhaps more under the control of the Catholic clerical power than any other Latin American republic. Any summary of church-state relations in Latin America is, at best, only a tentative one. In a recent publication, Alexander T. Edelmann has graphically summarized church and state in Latin America under three general groupings: 1. 1. States which have expressly or implicitly retained Catholicism as the established privileged religion in society. There are seven states in this group: Argentina, Colombia, Costa Rica, Ecuador, Paraguay, Peru, and Venezuela. In these states, the constitutions may require that the president and other officials be Roman Catholics, a requirement that is broadly interpreted and is apparently satisfied by their having been baptized in the Church. Moreover, the Church is the recognized protector of the family; consequently, in accordance with Catholic doctrine, divorce is either difficult or impossible to obtain. The Church may also administer the national program of education or give religious instruction in Catholicism that is compulsory for all students, sometimes with specified exceptions. The government usually has certain peculiar functions, such as nominating members of the clergy, levying and collecting tithes, and using tax money for the support of the Church.
2. 2. States that have dissolved their former union or close association with the Church, which is recognized as nominally independent, or actually so--"a free church in a free state," as we have in the United States. Comprising this group are the following 12 nations: Bolivia, Brazil, Chile, Cuba, the Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama, and Uruguay.
4. 3. One state, Mexico, where the Church has been separated from the state but kept under its close control. In addition to the restrictions already mentioned, members of the clergy in Mexico may not wear clerical garb in public, engage in politics, hold office, or even vote.
The tendency of the Catholic Church in recent years has been the gradual independence of the Church from the state and toward the social revolution sweeping Latin America. During the first century of political independence the Catholic Church in Latin America generally stood on the side of the status quo. The Church was strongly conservative on political, economic, and social questions and resisted most changes of any kind. In spite of its support of conservative governments the Church steadily experienced the loss of social prestige, economic privileges, and political power. Recent decades, however, have witnessed profound changes within Roman Catholicism in Latin America and have revealed a remarkable capacity of the Church for reform and renewal. Once the supporter of conservative dictatorship, the Church has more recently opposed the dictatorships of Juan Perón in Argentina, Rojas Pinilla in Colombia, Pérez Jiménez in Venezuela, Fulgencio Batista in Cuba, and Rafael Trujillo in Santo Domingo. A changing attitude of the Church on social issues has been noted, by Catholic and non-Catholic observers alike, in such areas as land reforms, trade union movements, peasant movements, community development programs, and the opening of Catholic universities in a number of the republics.
Opposition to and open attacks on Protestant missions, by both North and South American clerics, have strained churchstate relations in Latin America but have frequently intensified the cause of religious liberty for the continent. Aside from the substantial contributions of Protestant missions to the religious, educational, and social welfare needs of Latin America, Protestant missions have doubtlessly contributed significantly, at least indirectly, to the revitalization of the Roman Catholic Church in much of Latin America.
Meanwhile, the stark fact is that today not more than 15 to 30 percent of the entire population of Latin America are practicing Catholics. Acknowledgment of the Roman Catholic Church's plight in the present situation in Latin America has, in recent years, been frequently expressed in Catholic assemblies and publications. A recent Maryknoll publication, The Christian Challenge in Latin America, soberly warns Catholics, "Let us have no illusions about the fact that the Church is still in deep trouble." The International Eucharistic Congress held in Rio de Janeiro in 1955, which was the first General Conference of the Latin American hierarchies, recognized that much of Latin America was spiritually barren. The Congress pointed to three fundamental problems: the acute shortage of priests, the mass need of religious education, and the challenge of a vast Catholic social action program. According to Catholic sources, Catholics in the United States presently contribute well in excess of 10 million dollars a year to the Church in Latin America and are expected to furnish 5,000 additional priests, Brothers, and Sisters to Latin America during the 1960s.
The future course of church and state in Latin America is, to be sure, impossible to predict; but it is to be hoped that regardless of the solutions attempted, Catholic and Protestant churches will be both faithful and relevant in their witness and a vital influence for good in the expanding revolution throughout Latin America.
JCS 8 (SPRING 1966): 173-85
Religion and America's Public Schools
D uring the past two decades there has been a marked tendency in the United States to adjudicate the Establishment Clause of the First Amendment in the area of the public schools.
Almost twenty years have passed since the unprecedented McCollum case, which was in effect the first of four historic decisions made by the U.S. Supreme Court relative to religion in the public schools. That the Court's most far-reaching decisions on church and state should have to do with the public schools has been noted as both historically appropriate and judicially significant. Some understanding of the historical background of the American public school and its relationship to the American tradition of church and state is essential if "the great debate" over religion in the public schools is to be culturally and constitutionally meaningful to Americans today.
To begin with, the American public school is as historically unique as the American tradition of church and state. Together they represent the two great contributions of the United States to civilization. Founded as a secular state, the United States was the first nation in history constitutionally to prohibit the establishment of religion, in general or particular, and to guarantee the free exercise of religion. While this view of church and state has been frequently referred to as the greatest single concept America has contributed to civilization, the public school has been called by many the supreme achievement of American democracy and the greatest institution produced by American civilization.
It must be remembered, however, that only gradually did the American tradition of church and state, as embodied in the First Amendment, and the American public school, as it developed after the middle of the nineteenth century, come to represent a radical departure from the European traditions in church and state and education.
In church-state relations, the colonial period was largely dominated by the European pattern of an established church, the Staats-religion or église dominante. Religious liberty and the separation of church and state were little more recognized during the colonial period than they were in seventeenthcentury England. Nine of the thirteen colonies had established churches. Both of the original and most influential of the colonies, Virginia and Massachusetts, resisted religious toleration and were slow even to permit religious pluralism.
"The origin of public education in the United States not merely antedates separation of Church and State," Leo Pfeffer has noted, "to a considerable extent it owes its very existence to the fact that it antedated separation." For the fact is that in education, as in church-state relations, the European pattern prevailed, i.e. church-dominated schools. Here the first schools were avowedly religious, not secular. America's first education laws, enacted in Massachusetts in 1642 and 1647, explicitly acknowledged that common schools were to be organized to teach children "to read and understand the principles of religion and the capital laws of this country" and to frustrate the designs of "ye ould deluder, Satan, to keepe men from the knowledge of ye Scriptures." Connecticut in 1650 similarly expressed the religious purpose of education. Not only New England colonies, but Southern colonies also emphasized the central role of religion in education. As late as 1766, for example, the constitution of North Carolina affirmed "the great necessity of having a proper school of learning established whereby the rising generation may be brought up and instructed in the principles of the Christian religion." The basic text in the colonial era, known generally as the New England Primer, provided for instruction in catechism and religious concepts, as well as in reading and spelling. This primer, brought from England to the New World, reputedly "taught millions to read, and not one to sin." It presented the alphabet through rhymed couplets, such as "In Adam's Fall/We sinned all."
As the pattern of the state church gave way to disestablishment and pluralism in the New World, so the free, secular public school gradually emerged and in time supplanted the sectarian school which dominated during the colonial era and the early decades of the new republic. With the growth of experimental science, international trade, and religious diversity of the population, the religious character of America's schools was increasingly a source of conflict and consequently resulted in an increased demand for secular subjects without ecclesiastical or sectarian control.
Developments in the Commonwealth of Virginia in the latter part of the eighteenth century marked a turning point in the course of American history-both in church-state relations and in the emergence of a non-sectarian public school system. Under the leadership of Jefferson, Virginia disestablished the Anglican Church and laid the foundation for church-state separation. Having disestablished the Anglican Church in 1779, the state legislature in 1786 passed a Statute of Religious Liberty which declared "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even forcing him to support this or that teacher of his own religious persuasion, is depriving him of [his] liberty."
It was Jefferson also who first conceived of public schools free and tax-supported, as the basis of an informed, democratic citizenry. According to Jefferson, these public schools were not necessarily to replace private schools, but to provide free education for all. In his Report of the Revisors of Virginia, 1770, Jefferson proposed that at each of the public schools "shall be taught reading, writing, and common arithmetic, and the books which shall be used therein for instructing the children to read shall be such as will at the same time make them acquainted with Graecian, Roman, English, and American history. At these schools all the children, male and female...shall be intitled to receive tuition gratis." In 1817 Jefferson specifically advocated that free common schools be nonsectarian, in advocating that "no religious reading, instruction or exercise, shall be prescribed or practiced inconsistent with the tenets of any religious sect or denomination." Jefferson's opposition to state support of religion in education extended even to the colleges of William and Mary and the University of Virginia, because he thought it proper "to leave every sect to provide, as they think fittest, the means of further instruction in their own peculiar tenets."
By the 1830's Jefferson's concept of nonsectarian public schools began to take root in one state after another. Horace Mann exerted particular influence on the state legislatures to pass laws prohibiting all sectarian practices, including the use of sectarian textbooks, in tax-supported schools. It is interesting to note that Mann's first speech after his election to the Massachusetts Assembly was on religious liberty. Mann contended for the free public school, tax-supported and without sectarian control, on the principle of religious liberty and the separation of church and state. In his Final Report to the Massachusetts State Board of Education, 1848, he wrote, "If a man is taxed to support a school where religious doctrines are inculcated which he believes to be false, and which he believes that God condemns, then he is excluded from the school by the divine law, at the same time that he is compelled to support it by the human law. This is a double wrong." Education in America remained primarily under ecclesiastical control up to the middle of the nineteenth century until gradually state support of sectarian schools was withdrawn.
Meanwhile, sectarian influences and teachings in the public schools compelled some, especially Catholics, to emphasize parochial schools to escape sectarian teachings in conflict with their own. Bible readings and prayer recitations were in most instances a Protestant-sponsored practice, more easily maintained by Protestants in view of their numerical superiority over other religious groups, specifically Catholics and Jews. Here it may be well to note that in the United States there has been a marked tendency of main-line Protestants to favor religion in the public school, and, in many quarters at least, to view the public school as a basically Protestant institution.
Consequently, and quite understandably so, the presence of Protestant-oriented and Protestant-dominated public schools, in which the Protestant Bible (King James Version) was read and studied, has frequently precipitated Catholic demand for public funds for the operation of their own parochial schools. While most Protestants in America did eventually come to oppose the use of public funds for parochial schools, Protestants generally have not been reticent to favor Protestant influences, including Protestant religious exercises, in the public schools.
During the first half of the nineteenth century, bitter conflict resulted over rival claims of Baptists, Methodists, Presbyterians, and Catholics, among others, for tax-support of educational and welfare institutions. Public support of some, while denying or terminating support to others, served to sharpen the issue of the great difficulty, if not impossibility, of supporting sectarian institutions in a secular state. Protestants vigorously objected to tax-support of Catholic institutions, as in New York state in 1840, and Catholics were strongly opposed to the broadly Protestant influences on the tax-supported public school. Riots and lawsuits during the nineteenth century over Bible reading and prayer recitation in the public schools attest to the bitterness engendered over the role of religion in the public schools. Disagreement frequently erupted over which version of the Bible should be read in the public schools, if indeed it was to be read at all. In the middle of the nineteenth century, for example, churches were burned and several persons were killed in one riot in Philadelphia. Growing support was expressed for the concept of secular public schools, without sectarian control. The Reverend John Hughes, Roman Catholic Bishop of New York, expressed for many his support of this viewpoint:
If it is asked, "then, what system would be deemed just by Catholics?" I answer, any system that will leave the various denominations each in the full possession of its religious rights over the minds of its own children. If the children are to be educated promiscuously as at present, let religion in every shape and form be excluded. Let not the Protestant version of the Scriptures, Protestant forms of Prayers, Protestant hymns, be forced on the children of Catholics, Jews, and others, as at present, in schools for the support of which their parents pay taxes as well as Presbyterians.
In the 1880s and 1890s waves of immigrants, particularly from southern, eastern, and southeastern Europe, greatly increased the multi-faith character of American society by bringing exceedingly large numbers of Roman Catholics, Eastern Orthodox, and Jews. These immigrant groups, as they integrated into American life, understandably challenged any form of Protestant establishment, especially when manifested in public schools. There was now less and less of a religious consensus to give support to either religious instruction or religious exercises in the public school. Consequently, vigorous debates continued with regard to the role of religion in the public schools and the use of public funds for parochial schools.
At a time when there is so much debate over federal aid to parochial schools and the actions of the U. S. Supreme Court outlawing religious exercises in the public schools, Americans would do well to recall that the states themselves led the way in outlawing state support of parochial schools and, in many instances, actually prohibited altogether religious exercises in the public schools. The fact is that by the 1870s most state constitutions expressly denied the use of state funds to parochial schools and divorced religion from the public educational system. Increasingly state courts in the latter part of the nineteenth century espoused church-state separation for the public school. For example, the Ohio Supreme Court in Cincinnati v. Minor ( 1872) declared:
Legal Christianity is a solecism, a contradiction in terms. When Christianity asks the aid of government beyond mere impartial protection, it denies itself. Its laws are divine, and not human. Its essential interests lie beyond the reach and range of human governments. United with government, religion never rises above the merest superstition; united with religion, government never rises above the merest despotism; and all history shows us that the more widely and completely they are separated, the better it is for both.
Donald E. Boles has shown in his factual study, The Bible, Religion, and the Public Schools, that "the high watermark of the principle of separation of church and state seems to have occurred in the waning days of the nineteenth century and the early years of the twentieth," and that the practice of Bible reading in the public schools substantially increased after World War I. And Robert F. Drinan, S. J., has noted that, with but one exception, all statutes authorizing Bible reading in the public schools today have been enacted since 1914. "It appears that during the nineteenth century only one state, Massachusetts, enacted a statute requiring Bible reading; from the passage of this law in 1826, no state enacted a law requiring Bible reading in the state schools until the year 1913! In that year, Pennsylvania passed the first law ordering the reading of the Bible in the schools of that state." The first released time program of religious instruction in the public schools was begun in 1914. By the time of the McCollum decision of 1948 all but two of the fifty states had released time programs. Undoubtedly the phenomenal gains in church memberships account in no small way for the waning of church-state separation in the public schools along with the renewed demand for Bible reading and schools prayers. Church membership had risen to an estimated thirty-five per cent of the total population in 1900, and to slightly more than 50 percent in 1940.
By the time of the Supreme Court's decisions on Bible reading and prescribed prayers, church membership in the United States had climbed to more than sixty-three per cent of the total population. This is not to suggest that during this period Bible reading and prayers in the public schools were expressly given legal recognition by the states, for such was not the case. At the time of the Court's historic Schempp-Murray decision of 1963, outlawing prescribed Bible reading and prayer in the public schools, eleven states explicitly prohibited Bible reading and religious exercises in the public schools; nineteen states permitted Bible reading in that there were no statutes specifically prohibiting the practice; six states had statutes which permitted Bible reading; and only eleven states had laws requiring Bible reading (all of which states, except Idaho, are along the Eastern Seaboard or in the South). In any event, the bases of Protestant support for the secularization of the public school -- namely the fear that one particular Protestant denomination might dominate in certain school systems and that in certain Catholic communities the public school might be subject to Roman Catholic influences -- no longer seemed to apply after World War I. There is ample evidence to show that between World War I and World War II, there was considerable reinstatement of religion in the public schools of America, so much so that in many quarters, particularly in the East and the South, the secular character of public education was greatly obscured, if not in actual jeopardy. By 1960 it was estimated that religious exercises of one kind or another were conducted in about 50 percent of the nation's school districts. An examination of many school bulletins in the period since World War II will show how opening services of worship became traditional in many public schools -- not to mention the explicitly Christian assemblies held on special occasions throughout the school year and the baccalaureate services at graduation.
The Supreme Court has rendered but four decisions involving religion and the public schools, and all four of them have been handed down since 1948: McCollum v. Board of Education ( 1948), Zorach v. Clauson ( 1952), Engel v. Vitale ( 1962), and Schempp-Murray ( 1963). Two other cases actually reached the Court but were dismissed. The first case to reach the Court, Clithero v. Showalter ( 1930), involved Bible reading in the public schools. The litigation came not as a result of persons protesting the practice, but as a mandamus suit seeking to compel the school board of the state of Washington to institute Bible reading in the public schools. The case was dismissed for lack of federal jurisdiction. The second dismissed case, Doremus v. Board of Education ( 1952), also involved Bible reading in the public schools and provided the Court with its first opportunity to deal with the constitutionality of the practice, which by then had become so widespread. The case was dismissed because of the litigants' lack of standing in the case.
In the McCollum case, the Court declared by an 8 to 1 vote that "released time," i.e., setting aside a portion of each day for religious instruction by representatives of various faiths, was unconstitutional even though attendance in these classes may be regarded as purely voluntary. The Court explicitly rejected the argument that the First Amendment only meant non-preferential treatment of one religion over another. "For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable." The decision was a controversial one. Catholics and main-line Protestants generally expressed disappointment over the decision, although the Christian Century, Baptists, Unitarians, Jews, and most of America's relatively small sects praised the decision.
Four years later the Court in the Zorach case, by a 6 to 3 vote, declared constitutional the practice of "dismissed time," which was essentially the same program of religious instruction considered in the McCollum case except that the program was maintained off the school grounds. Once again the Court affirmed that the First Amendment means the separation of church and state, of which "there cannot be the slightest doubt." "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or more of some religion on any person."
In 1962 the Court ruled in the Engel decision, by a vote of 6 to 1, that the state-sponsored prayer program of the schools of New York state was unconstitutional. In effect, the Court said that whether such a prayer program is nondenominational, or optional, or involves the use of tax funds, is immaterial. Prayer is a religious act and therefore cannot be sponsored by the state without violating the Establishment Clause of the First Amendment. As in McCollum, the Court disclaimed that its decision was in any way to be interpreted as a government hostility to religion. "It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers."
The following year the Court was inevitably faced with the widespread practice of Bible-reading exercises. Again by an almost unanimous vote, 8 to 1, the Court ruled in the SchemppMurray decision the practice of devotional Bible reading and the recitation of the Lord's Prayer to be unconstitutional. Once again the Court rejected "unequivocally" the reasoning that the Establishment Clause forbids "only government preference of one religion over another," but that the First Amendment means nothing less than the separation of church and state. Quoting the Everson decision of 1947, the Court declared, "The (First) Amendment's purpose was not to strike merely at the official establishment of a single...religion.... It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion." Once again the Court affirmed that the decision outlawing religious exercises is not a manifestation of a hostility to religion, nor does it mean establishing a "religion of secularism." Neither the study of the Bible nor the study of religion, when made the object of academic inquiry, and "presented objectively" is necessarily in conflict with this decision or the First Amendment. Rather, devotional Bible reading and prayer recitation "are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion."
Although less vigorous than against the Engel decision the year before, reaction against the Schempp-Murray decision was, in many quarters, one of strong protest and even bitter resentment. While firm support was given both of the Court's decisions by the National Council of Churches, the Assembly of the United Presbyterians, the Baptist Joint Committee on Public Affairs, and most Jewish groups, opposition was voiced by U. S. Roman Catholic bishops and spokesmen, the Greek Orthodox Church, the National Association of Evangelicals, and many prominent Protestant spokesmen, even such theologically diverse men as Bishop James A. Pike and Evangelist Billy Graham. Rank and file Protestants and Catholics have generally opposed the decisions, and numerous polls have continued to show public sentiment strongly in favor of school-sponsored Bible reading and prayers. Several months after the SchemppMurray decision in 1963, a Gallup Poll indicated that 70 percent of the people of the United States disapproved of the decision and only 24 percent approved. In response to the question, "Do you favor regular prayer and Bible reading in the public schools?" the Christian Herald reported 116,000 of the 120,000 respondents answered in the affirmative. Just recently, as published in Good Housekeeping, a poll of the 20,000 members of the Good Housekeeping Consumer Panel overwhelmingly favored school prayers (82 percent) and Bible reading (62 percent), as proposed by Senator Everett Dirksen of Illinois, and opposed the Court's decisions on Bible reading and prayers as defended by the Reverend David Hunter, Deputy General Secretary of the National Council of Churches.
Clearly, the great debate continues with repeated attempts to amend the First Amendment with the hope that thereby the Engel and Schempp-Murray decisions may be rescinded. More than one hundred proposals to amend the First Amendment have been introduced in Congress as a result of these two decisions. The "Dirksen Amendment," last year designed "to permit voluntary participation in prayer in public schools," has been reintroduced in the 90th Congress by Senator Dirksen and broadened to include "any public building." It already has the support of forty-four Senators. In some quarters there has been open defiance of the Court's decisions on religious exercises in the public schools; there is even evidence of a resurgence of religious exercises since 1963.
The degree and nature of America's commitment to the First Amendment is necessarily and directly related to the conditions which prevail in our public schools. Since the Constitution means what the Court says it means, the public schools have a solemn obligation not only to teach the Constitution, but to uphold it by example and practice. There is surely no place in American life where the free-exercise and no-establishment clauses should be more clearly manifest than in America's public schools. Such a manifestation would be the most effective means of teaching the meaning and significance of the First Amendment to the children of the United States.
The highly pluralistic character of the enrollment of America's public schools is all too often overlooked or ignored. But the fact is that the vast majority of American school children are in public schools, elementary through secondary. Although 92 percent of all private school pupils are enrolled in Catholic parochial schools, more Catholic children are to be found in the public schools than in all of the Catholic parochial schools, which in 1966 had only 42 percent of the Catholic children enrolled. There is an even higher ratio of Protestant, Orthodox, and Jewish children enrolled in public schools than in parochial schools. Meanwhile public school enrollment continues to increase at a greater rate than parochial school enrollment. Last year Lutherans, who have the second largest parochial school system in the United States, reported both a decline in the enrollment in elementary schools and in the number of schools in operation. Religion in the public schools inevitably involves conflict for the simple reason that religion by its very nature is sectarian. There is no core of beliefs and practices common to all religions, not to mention the fact that one-third of the population is without religious membership. This was clearly evident in the claim that the New York Regents' prayer was nonsectarian, for prayer itself is sectarian and therefore not a concept shared by all religions. The very phrase, "Almighty God" is a sectarian view limited to the great Near Eastern faiths of Judaism, Christianity, and Islam, and therefore not a concept shared by most of the traditional faiths of mankind. George Santayana was right when he said that one cannot be religious without being religious in a particular tradition.
Parents, religious leaders, and all citizens genuinely concerned for the moral and religious education of America's youth would do well to note the increasing evidence that it is early moral training rather than religious education per se which in the final analysis determines a young person's moral character. There are studies which suggest that children who attend public schools are as religious and moral as children who attend the non-public schools. For a review of recent studies of the effectiveness of parochial schools in moral education, see the review by Dr. Walfred A. Peterson, pp. 113 - 117. The effect of the Court's decisions is to place the responsibility for religious education on the home and the church, not the public school.
Finally, it should be noted that the U.S. Supreme Court has explicitly disclaimed that it has ruled out the study of the Bible or religion from the curriculum of the public schools, so long as the Bible or religion is simply the object of academic inquiry and not the object of religious worship or religious faith. As Justice Jackson wrote in the McCollum case: "Nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with the religious influences derived from paganism, Judaism, Christianity-both Catholic and Protestant -and other faiths accepted by a large part of the world's people's." Serious efforts are being given today to find ways and means of dealing with the role of religion in men's lives, as a part of their culture, while remaining true to the Court's exclusion of religion as such from the public schools. Serious attention has been given to the language of the Schempp-Murray decision as the the basis for courses in comparative religion and the integration of Bible study into the curriculum of the public school. Here the Court unequivocally declared that "it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment." In this the Court left no doubt that religion has not been emasculated from the curriculum of the public schools in the Court's outlawing school-sponsored religious exercises. As Paul A. Freund has recently remarked, these decisions "are more important for the doors they leave open than for those they shut." In all discussions of America's public schools we would do well to remember that "the public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny" (McCollum).
JCS 9 (WINTER 1967): 5 - 16
Conscientious Objection and the State
Conscientious objection to war has become, as never before, one of the most vexing moral and political questions of our time. During the past several years, no issue has provoked more debate and dissent in the United States than the Vietnam War, and nothing has been more disruptive to American foreign relations. While many have understandably objected to the war on purely economic and political grounds in view of its spiraling cost in human and material resources and the lack of any real military objective in sight, an increasing and unprecedented number of Americans, young and old alike, have expressed moral and/or religious considerations. Indeed, objection to the Vietnam War has reached its greatest intensity and most vocal dissent from those who do so on moral and religious grounds. Never before has so much objection to a particular war in which the United States has been involved come from American clergymen and American churches. According to a poll of members of the Religious Newswriters Association, the dissent of the clergy against the draft and the war in Vietnam constituted one of the top three religious news stories of 1968. There is nothing to indicate that this dissent has in any way abated in 1969. Rather, there is much to suggest that the dissent among the clergy and within the churches has measurably increased during the past year.
The growing dissent over the Vietnam War is clearly much deeper than mere impatience with a military strategy which is neither able to effect a victory nor to bring about a termination of the conflict in the foreseeable future. With American casualties now exceeding 300,000, vocal protestors of the war see these casualties as unnecessary and unjustifiable. Growing opposition to the war has come from university students and professors, clergymen, doctors, lawyers, businessmen, congressmen, and even members of the armed forces. Obviously, many of the protestors are themselves not even subject to military conscription, but choose to protest the war on principle. Their common bond as protestors of the war is that they question the rationale for the war itself, a war they regard as immoral and unjust and therefore in conflict with American idealism and America's moral commitments. As a result of their position on the war, they feel compelled for reasons of conscience to oppose and resist the war effort as a matter of principle and with the hope that politically they can alter America's involvement in the war itself. Their role has become one of activistic conscientious objection, at least with regard to the Vietnam War. Thereby they are not to be regarded, at least in the traditional sense, as absolute or vocational pacifists. Quite to the contrary, they are generally activistic pacifists, and in some cases even belligerent pacifists, as anomalous as that may sound. Out of this unrest, "just war," "selective conscientious objection," and "relative pacifism" have emerged as burning moral and legal questions within the church and the state.
By its very nature of minority non-conformity, conscientious objection to war has provoked dissension and division within both the religious and political communities. Also, since war potentially calls for the supreme sacrifice of citizens for the state and historically has been associated with defense of the state itself against a foreign enemy, tolerance of conscientious objection to war has not been readily granted by the state or uniformly defended by the church. In recent years, however, there has been evidence of a growing support for conscientious objection to war both within and without America's religious denominations. There has been a growing tendency toward supporting the moral and political legitimacy of conscientious objection; persons not in sympathy with the principle of conscientious objection at least have defended the right of the conscientious objector. Meanwhile, the constitutional power of the state to conscript an army has inevitably brought the case of conscientious objection in conflict with the power of the state to draft its citizens into military service, whether they be conscientious objectors or not. Some indication of the extent of this conflict became clearly evident during World War II when, it was reported by the Bureau of Prisons, one out of every six persons in the federal prisons was sent there for violation of the Selective Service Act because of religious convictions. Subsequently, increased support for conscientious objectors, even selective conscientious objectors, has come from the churches themselves. Today, more than fifty religious bodies have taken official action in support of the principle of conscientious objection, or in support of those of their members who hold this position. At the meeting of the World Council of Churches in Uppsala last year, the churches were urged to support conscientious objectors within the church, whether they were absolute pacifists or not. The Council declared:
Protection of the conscience demands that the churches should give spiritual care and support not only to those serving in armed forces but also to those who, especially in the light of the nature of modern warfare, object to participation in particular ways they feel bound in conscience to oppose, or who find themselves unable to bear arms or to enter the military service of their nations for reasons of conscience. Such support should include pressure to have the law changed where this is required, and be extended to all in moral perplexity about scientific work on weapons of mass human destruction.
Conscientious objection to war has a long and significant history in Christianity, and may be said to have been present, although often obscured, in every age of Christian history. Indeed, the pacifist origins of Christianity were never completely lost at any time in its history. Even in the Middle Ages, the Christian was admonished by the Church not to obey his political superiors to fight in an unjust war or to ignore the means of warfare employed. The Christian's objection to war was deeply rooted in the view of the limited state and the sovereignty of God and thereby challenged the total sovereignty of the state over the individual conscience. Since by their very nature the state as well as state institutions were provisional in character, they could not be given supreme allegiance or ultimate loyalty, which belonged only to God. To the early Christians, therefore, pacifism was born out of their very refusal to swear supreme allegiance to Rome in order to avoid idolatry. Many of the early Christians, as Christian pacifists today, also objected to war because they felt the Christian ethic, as the higher law of life, clearly forbade killing in warfare. In this matter, as Peter expressed it, "We must obey god rather than men" ( Acts 5:29). Christian conscientious objection to war has been inextricably tied to a moral idealism, i.e., the love (agape) ethic of the gospel. It is, therefore, important to recognize that there is an historically long and theologically profound basis in the Judeo-Christian tradition for conscientious objection to war.
Perhaps it is well to note also that the religious basis for conscientious objection to war is not peculiar to Judaism and Christianity. Rather, religious opposition to war has an ancient and almost universal precedent among the major religions of the world. Aversion to war and advocacy of peace may be said, in fact, to constitute normative elements in the religions of mankind. This is not to obscure the fact that religion has frequently contributed to and supported particular wars in the past, but the truth is that most of the religions of the world sanction, in principle at least, peace and non-violence rather than war and violence. Furthermore, the major religions of the world possess explicit teachings in opposition to participation in war or committing acts of violence. Thus in a pluralistic society, not to mention a religiously pluralistic world, it is well to recognize that, in spite of religious sanctions given to many wars in the past, there is considerable support for peace and conscientious objection to war from among the traditional religions of mankind.
As a matter of fact, world peace and conscientious objection to war have increasingly come to be proudly proclaimed principles of the major religious traditions of mankind -principles seen as deeply rooted in the respective religions themselves. In recent decades it has not been uncommon to observe rival claims made on behalf of various world religions that they contributed the concept of peace and non-violence to the world. Some world religions have not been reticent to claim to be the basis of world peace. In the early 1950 s the East Asia Secretary of the World Council of Churches was asked by a leading Burmese statesman, "What is the meaning of your Evanston theme 'Christ the Hope of the World'? It is in Buddhism, and only in Buddhism, that there lies any hope for the world's peace." The point that should not be overlooked is that religious sanction for war has become increasingly difficult to obtain at a time when religious sanction for peace and nonviolence is almost universally and zealously espoused among the religions of the world. Furthermore, within the religious traditions themselves, teachings on peace and conscientious objection to war have been reaffirmed and reinterpreted in the light of today's world.
While conscientious objection to war in the United States is not, nor has it ever been, of one piece in motives, methods, or objectives, "opposition to war," as Edward LeRoy Long, Jr. has observed, "all but demands a religious foundation, though not necessarily a theistic belief, for its sustenance." That is to say, conscientious objection ultimately rests upon what must be called a "religious conviction," whether acknowledged as such or not. Significantly, as stipulated by Congress, the United States Supreme Court has consistently ruled that conscientious objection to war must be predicated on the basis of "religious training and belief." In United States v. Seeger, the Court said that this statutory test "is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?" Conscientious objection may not be based on "essentially political, sociological, or philosophical views" or on "a merely personal moral code." Whether or not this test "is simple of application" and whether the Court is able always to determine with any meaningful accuracy when conscientious objection is actually based on "religious training and belief" is a moot question. A prior question may be whether Congress or the Court has the constitutional right to define "religion" at all. This question, however, may be implicit in the nature of the First Amendment itself which requires some consensus on what constitutes religion in order to make the "non-establishment" and "free exercise" clauses specifically applicable to religion.
While exemption of conscientious objectors from combatant services is a precedent going back to colonial times, it is nowhere guaranteed as a constitutional right as in the case of freedom of religion, freedom of assembly, or freedom of speech. Congress clearly has the power both to conscript and to exempt as it feels the occasion may require, whether in time of war or in time of peace. The Supreme Court has repeatedly affirmed the supremacy of the defense of the state against a foreign enemy as taking precedence over constitutional guarantees of civil liberties and individual rights. In a famous case in 1931, United States v. Macintosh, the Court repudiated as "astonishing" the claim that it is a "fixed principle of our Constitution...that a citizen cannot be forced and need not bear arms in a war if he has conscientious religious scruples against doing so." The Court categorically declared:
Of course, there is no such principle of the Constitution, fixed or otherwise. The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because and only because, it has accorded with the policy of Congress thus to relieve him.... The privilege of the... conscientious objector to avoid bearing arms comes not from the Constitution but from the acts of Congress. That body may grant or withhold the exemption as in its wisdom it sees fit....
Both the Hamilton and Summers cases of conscientious objection were decided on this basic premise of the power of the state to conscript its citizens for military service. As Leo Pfeffer has noted, "We may...accept as the law today that both Congress and the states have the constitutional power to compel all to engage in armed combat, irrespective of individual religious contrary convictions." While the basis of exemption may rightly be tested on the grounds of constitutionality, exemption from military service remains a privilege granted by the state and not a constitutional right per se. Furthermore, Congress has the right to require conscientious objectors to accept non-combatant military services or employment by the state in lieu of military service should it decide to do so. Therefore, to conspire with or to encourage others to resist military conscription is clearly in conflict with the priority given to the constitutional power of the state to conscript an army. Such action cannot be constitutionally defended even for ministers of religion or leaders of recognized peace churches.
The problem of conscientious objection did not really emerge as an issue in American life until compulsory military service was enacted at the time of the Civil War by both the North and the South. Even then exemption could be obtained by choosing to serve in a non-combatant capacity, or by hiring a substitute (North), or by paying an exemption fee (South). Not until World War I was there a universal or national conscription for military service. Understandably, for the first time the proper status of the conscientious objector became a serious legal and moral question. The Selective Service Act of 1917 specifically restricted conscientious objector status to "members of any well- recognized religious sect or organization whose existing creed or principles forbid its members to participate in war in any form." The Act did not exempt conscientious objectors from military service, only from combatant service. During the nineteen twenties and thirties, American Protestantism, particularly, became increasingly pro-pacifist and involved in programs devoted to world peace, e.g., the National Council for the Prevention of War and the Church Peace Union. World War II substantially modified the pro-pacifist views within American Protestantism, and these views were not really revived in American churches until after the War had ended. The Selective Service Act of 1940 broadened the status of conscientious objection to include simply those of "religious training and belief' rather than membership in one of the peace churches and the option of civilian public service rather than non-combatant military service.
The religious basis of conscientious objection became especially acute with the passage of the Universal Military Training and Service Act of 1948. "Religious training and belief" was specifically defined in terms of a belief in a Supreme Being, as follows: "Religious training and belief in this connection means an 'individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.'" During these two ensuing decades, the constitutionality of Congress' requiring a belief in a Supreme Being as the religious basis of conscientious objection has been seriously questioned by many. Fortunately, the Supreme Court, as in United States v. Seeger, broadly interpreted this provision to include those whose religious beliefs may not be theistic in nature, but who possess "a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by God of those qualifying for the exemption." The statutory test is: "Does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?" In June 1967 Congress wisely deleted the Supreme Being clause as a basis for conscientious objection.
While there has been a steadily liberalizing tendency in granting exemptions to conscientious objectors from military service, the question of conscientious objection is still far from resolved in American life. Humanists, agnostics, and atheists have increasingly protested the religious basis of conscientious objection. In December 1968 Michael Schacter asked for conscientious objector status but stated, "I do not believe in any being superior to man in the universe." Judge Alexander Harvey II of Baltimore ruled that Schacter's beliefs were a "product of faith" and thereby granted him conscientious objector status. In April of this year Charles Edward Wyzanski, Chief Judge of the U. S. District Court for Massachusetts, ruled the present draft law unconstitutional on the basis of the First Amendment since it discriminates against atheists, agnostics, and those without "religious beliefs and training." The statutory test, Wyzanski said, should simply be based on the genuineness and sincerity of one's views. He argued, "We can all discern Thoreau's integrity more quickly than we might detect some churchman's hypocrisy. The suggestion that courts cannot tell a sincere from an insincere conscientious objector underestimates what the judicial process performs every day." His decision is now being reviewed by the Supreme Court.
An even more complex and controversial question has emerged with regard to the selective conscientious objector. The issue has been particularly sharpened by America's involvement in the Vietnam War, a predominantly unpopular war. The present law limits conscientious objector status to those who oppose "war in any form." An increasing number of religious groups in the United States, not to mention the resolution of the World Council of Churches cited earlier, have endorsed the granting of recognition to the selective conscientious objector. These groups include the United Presbyterian Church, U. S. A., the General Synod of the United Church of Christ, the American Baptist Convention, and the National Council of Churches. Generally the viewpoint of these religious organizations is represented in the statement of the Methodist Board of Social Concerns: "Those who are conscientiously opposed to the war they are asked to fight are no less conscientious because they are unprepared to generalize about past or future conflicts which are irrelevant to the choice currently confronting them." Conscientious objection, they reason, is no less rooted in conscience when it is selective in its judgment of a particular war as unjust than when it maintains an absolute pacifist position of viewing all wars as irrevocably unjust. Meanwhile, the recent Report of the National Advisory Commission on Selective Service has rejected the claims of selective conscientious objection as essentially 'a political question" not to be judged in terms of "moral imperatives." The Report concluded, "Legal recognition of selective pacifism could open the doors to a general theory of selective disobedience to law, which could quickly tear down the fabric of government; the distinction is dim between a person conscientiously opposed to participation in a particular war and one conscientiously opposed to payment of a particular tax." To say the least, the case for selective conscientious objection is far from resolved in American life, and will remain a crucial question in the foreseeable future.
One other area of particular concern has been the difficulty of obtaining conscientious objector status for those who became conscientious objectors to war after conscription into military service. This is an especially acute problem during a period of universal conscription of eighteen and nineteen year olds who, not previously committed by religious background to conscientious objection, may find themselves compelled on the basis of conscience to request conscientious objector status after conscription. Should men in military service, it is asked, not have the same rights of conscientious objection as those whose earlier commitments preclude their serving in the military?
While many of the questions raised by conscientious objection are yet to be resolved in American life, happily the moral and legal validity of conscientious objection is receiving greater recognition today than at any previous time in American history. Since protection of conscience is the most sacred trust given to the free state, and liberty of conscience is the most fundamental feature of the free church, conscientious objection can neither be politically ignored by the state nor morally abandoned by the church.
JCS 11 (AUTUMN 1969): 5 - 8
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