Skinner Layne
Alastair Roberts
Steven Smith makes some interesting observations on the separation of Church and State in his recent book The Disenchantment of Secular Discourse, which I read a couple of weeks ago. Since I have a little free time this evening, I thought that I might post something, especially given the attention that Christine O’Donnell’s recent comments on the subject have received.
Many in America see a vocal religious element and their political representatives as a great threat to the separation of Church and State. Smith, Professor of Law at the University of San Diego, argues that such arguments are ‘almost exactly wrong’ claiming that ‘It would be more accurate, ultimately, to attribute our current malaise to secular influences than to religion.’ Secularism, according to Smith, far from providing a secure foundation for the separation, relentlessly chips away at it. In order to argue for this position, Smith undertakes an analysis of the development of the concept of the secular into its current form (Smith takes a different angle of approach from John Milbank’s seminal work Theology and Social Theory, but reading the two in parallel might help to flesh out aspects of the picture that Smith doesn’t address).
The original meaning of the term ‘secular’ is a Christian one. As Milbank writes: ‘The saeculum, in the medieval era, was not a space, a domain, but a time – the interval between fall and eschaton where coercive justice, private property and impaired natural reason must make shift to cope with the unredeemed effects of sinful humanity.’ The ‘secular’ was thus ‘one component within a more encompassing reality that we could describe (with misgivings) as “religious”.’ The epistemological framework within which secular and religious co-existed in the premodern era was a Christian one.
This division between two realms, each of which possess a ‘principal institutional representative’ is an idea that is in many respects distinctive to Western Christian civilization. In Rome, Caesar was God; in Islamic policy ‘there is no Caesar but only God, who is the sole sovereign and the sole source of law.’ This division served to place limits on the absolutism of the State, and upon the development of a hierocracy.
The spiritual realm was subject to the Church; the secular realm to kings, princes, and other earthly rulers. This two-realm approach give rise to the challenge of giving each of the authorities their due, rendering to God what was God’s, and to Caesar what was Caesar’s. The task was one of distinguishing jurisdictions. Within such a context the separation of Church and State was akin to the separation of England and France. At certain points jurisdictional claims might be disputed, but under most conditions both parties would recognize that their authority ended where the authority of the other began. Even well into the modern era, political philosophers such as Thomas Hobbes would approach the subject of the separation of Church and State on theological terms.
Within the Protestant Reformation the conception of the Church began to shift. The ‘spiritual center of gravity’ moved and ‘the position and functions formerly controlled by the church came to be transferred to the individual and his or her conscience.’ This movement led to a new conception of the religious realm: ‘As a consequence of these developments, the medieval commitment to separation of church and state, and hence to keeping the church independent of secular jurisidiction, was partially rerouted into a commitment to keeping the conscience free from secular control.’ Those who championed the freedom of conscience were often likely to see the authority of the church as a threat to this freedom, rather than ‘as a nurturing progenitor’.
By the time that the American founders came on the scene, the idea of the separation of Church and State (although it is worth remembering that the State itself was still something of a newcomer in the 18th century: previously the division had been between the rule of kings and princes and that of the Church) had been knocking around for some time. While the founders argued for the separation of Church and State against the Erastianism of the established religions of certain European states, they do not represent such a sharp break from the history of Church-government relations, just from some of the more recent forms. In arguing for the notion, Madison and Jefferson argued for the separation on explicitly theological bases.
They also retained the ‘jurisdictional aspect of classical thinking’. Madison wrote: ‘[I]n matters of Religion, no man’s right is abridged by the institution of Civil Society, and … Religion is wholly exempt from its cognizance [emphasis added].’ Against those who might argue that the American system envisaged a more complete separation than earlier models, Smith observes that the reality is once again more complex: in some respects the separation was more pronounced, yet in others it was relaxed.
While excommunication is far less likely to be used by the Church to dictate to the State in the modern world, or the State to become involved in the punishment of heretics, the American system relaxed rules forbidding clergy from holding public office, does not recognize any significant powers of ecclesiastical courts, or the traditional notion of the right of sanctuary. In this sense separation is decreased, more in line with the ecclesiology of Protestant independency.
Smith sees the separation of Church and State being subverted by those who treat the ‘secular’ as a ‘comprehensive view of life and the world – a view in which the “spiritual” or the “holy” or “supernatural” are denied, subordinated, or at least reduced to this-worldly terms.’ The tension between the secular and the religious realm is eliminated by preserving the secular realm, and discarding the religious one.
The term ‘secular’ has gradually come to mean ‘not religious’ – which is certainly not what it meant traditionally. This now provides the terms in which the concept of the separation of Church and State is tackled. ‘Now the “secular” describes an encompassing worldview or framework, and the state is supposed to be “secular” in the sense of “not religious.”’ Smith claims that one of the first effects of this changing definition is to dissolve the problem of jurisdiction: ‘the bottom line is that actual legal and political jurisdiction – sovereignty – will now belong to the state, period.’ Any freedom or immunity that the Church enjoys is a freedom or immunity that the State has granted it. The State no longer sees its jurisdiction reaching a limit where the jurisdiction of the Church begins, but rather treats the Church as if its authority functioned within a sort of State-established reservation.
As the problem of jurisdiction disappears, its place is taken by the problem of justice. The State seeks to be liberal and just, and to respect the rights and equality of its citizens, and the public interest. The Church is just another organization within the realm governed by the State, and the State will seek to treat it in a manner that this justice requires. Of course, this means that the theological arguments that once dominated discussions of the separation between Church and State can be dispensed with.
Within this new situation the classical ‘wall of separation’ might become little more than a ‘holdover’ from the past, serving no practical purpose (save perhaps that of providing a perimeter fence that keeps religious convictions on the reservation and prevents them from disturbing the non-religious character of the State). Within such a situation, Smith argues:
[T]here would be very little reason to embrace any notion of separation of church and state as a distinctive and constitutive commitment. Instead, religious citizens and religious groups or organizations would simply be one class among many that the government would need to deal with. And government would presumably deal with them in basically the same ways it deals with other citizens and other comparable (by secular criteria) groups – no better and no worse.
The Church is treated just like any other voluntary organization, like the Rotary Club, a sports club, or a college. ‘On modern secular assumptions, there is no realm of reality – no realm cognizable by the state, at least – that transcends the secular.’
The jurisdictional thinking that previously governed the relationship between the Church and the State led to the further notion of the sanctity of the realm of conscience. Once this jurisdictional approach is abandoned, though, the commitment to the freedom of conscience will also be undermined, not least because the notion of ‘religion-specific “free exercise exemptions”’ would seem to be contrary to liberal principles of equality. Smith claims that this is increasingly the situation in which we find ourselves. Recent constitutional decisions, he argues, manifest a movement away from ‘affirmative protection for free exercise of religion.’
Of course, society hasn’t ceased to be religious. Many people in politics and public life are religious, and religious convictions influence public discourse, even though the terms of the debate may be secular ones. The erosion of the separation of Church and State is a process that occurs gradually and haphazardly. The great cracks and collapses in the old jurisdictional barriers have left eccentric stacks, which seem incongruous with current conceptions of the separation. For instance, the fact that the State refrains from imposing employment discrimination laws upon the Church to force it to ordain women priests, in contrast to its treatment of other voluntary organizations, is in many respects an anomalous holdover from old jurisdictional ways of thinking (within which the State had no more right to dictate to the Church in such matters as England has a right to dictate to France concerning presidential appointments).
Smith explores some of the ways in which old jurisdictional commitments have been recast in terms of neutrality or equality – in which the Church is treated no differently from any other organization (which fails to explain the ministerial exception mentioned above), or in terms of ‘personal autonomy’. This shift in the theoretical basis of the separation produces some bizarre positions. For instance, the commitment to the autonomy and inviolability of conscience and the right to free religious practice mutates into something entirely different – ‘the sacredness of consumer preferences’ – within which understanding the right to celebrate the Eucharist is classified along with the right to enjoy hardcore pornography.
The emptiness of the concept of the separation of Church and State within the modern secular public order hasn’t gone unnoticed by scholars. Smith lists a number of scholars who have argued for doing away with the notion altogether, subsuming what remains of the commitment to freedom of religion under other basic liberties. Once the jurisdictional perspective is abandoned there no longer seems to be any justification for extending ‘special immunities and special disabilities’ to religion.
Americans aren’t going to abandon the idea of the separation of Church and State and the freedom of conscience in a hurry. However, these celebrated notions will drift even further from their historical moorings, and be used to argue for positions that are quite at odds with their original purpose, such as the idea that public discourse should be scoured of anything driven by or articulated in terms of religious commitments. The fact that a notion with a clear Christian genealogy, which framed the secular space in terms of theological arguments, has transmogrified into a secularist whip that is used to drive such arguments from the space that they once framed, is an irony that shouldn’t escape us.
