Separation of Church and State, part 1

Jan Paynter: Micah Schwarzman is Edward F. Howrey Professor of Law at UVA. He received his BA from the University of Virginia, his doctorate in Politics from the University of Oxford where he was a Rhodes Scholar and his JD from the University of Virginia School of Law. Micah Schwartzman then clerked for Judge Paul V. Niemeyer of the United States Court of Appeals for the Fourth Circuit. Prior to joining the law school faculty at the University of Virginia, he was a postdoctoral research fellow at Columbia University’s Society of Fellows in the Humanities. He has also been visiting professor at UCLA School of Law. Professor Schwartzman has published in the fields of law and religion, political philosophy and jurisprudence. He recently coedited The Rise of Corporate Religious Liberty from Oxford University Press in 2016 and he is currently coauthoring a forthcoming case book on constitutional law and religion from West Publishing Company. A large part of what makes our American experiment so unique is the remarkable durability and flexibility of our founding documents. The way in which our founder’s constitution animates and even anticipates our ongoing national debates in the run up to the November election. One of the most fascinating, complex and indeed contentious conversations which we continue having as a country turns on the question of the appropriate separation of church and state, of the place that religion and faith should occupy in our democracy. We’re so pleased to have Professor Schwartzman with us today to explore this issue with us. Professor, before we begin our discussion of the history of the separation of church and state and the meaningful Supreme Court decisions speaking to this issue and how it animates our political life, share with us if you would a little about your family background, what brought you to your commitment to the exploration of the relationship between religion and politics. Your family background in rabbinical service is particularly striking.

Micah Schwartzman: Oh, thank you. So I come from a family with lots of rabbis—Reform rabbis. My father was a military chaplain for many years in the United States Air Force. His father was a rabbi. He taught at Hebrew Union College in Cincinnati which is a primary seminary for Reform Judaism. My sister is a rabbi. She has a congregation in Salt Lake City. So there’s…we have a rabbinic family and in some ways I think I’m probably the black sheep of this family. I work on church and state issues in the legal context and thinking about cases and the…the sort of philosophical, historical, legal foundations of the principles regarding religious freedom in our country. But it’s partly informed by this tradition that I have come out of.

Jan Paynter: That’s fascinating, the family background. Now let’s talk about the genesis and history of the idea of this separation of church and state. For those…we all know it but I’ll repeat it again. Congress shall make no law respecting establishment of religion or prohibiting the free exercise thereof or bridging the freedom of speech.

Micah Schwartzman: Yeah. So the First Amendment was obviously not part of the original Constitution. It was added as part of a slate of amendments and in fact it wasn’t initially drafted to be the first amendment. That was something that happened during the revisions of the text as it went through Congress and its adoption but it became our First Amendment. We don’t have a lot of information about the history of the drafting of the First Amendment but we have some and we know that it was added at the instigation of primarily anti-Federalists but drawing on an experience of efforts to obtain religious freedom at the state level through state constitutional amendments including our own in Virginia—Bill for Religious Freedom—which had been drafted by Thomas Jefferson in the late 1770s and adopted by Virginia in the mid-1780s after major efforts by Madison and Baptists in Virginia to push for not only religious freedom in the sense of free exercise of religion but also the disestablishment of religion in Virginia where the Church of England had been the state establishment. And that was a major change. I think a world historical change. One of great significance to combine religious free exercise and religious disestablishment. Our First Amendment includes what we often think of as two religion clauses—the free exercise clause on one hand and what’s sometimes called the establishment clause. On the other, they go together in the view of our framers, especially Madison and Jefferson.

Jan Paynter: Now did the establishment clause—so called—pertain just to the Federal Government initially or did it pertain to the states as well?

Micah Schwartzman: The First Amendment in general pertained only to the Federal Government. It did not apply to the states. There was a case in our early legal history called Barron v. Baltimore which held that the First Amendment—the free exercise provision of it—did not apply to states and it wasn’t thought—the establishment clause also—wasn’t thought to apply to the states and in fact it was not incorporated, that is implied, through the 14th Amendment as against the states until the middle of the 20th century.

Jan Paynter: Interestingly, there was a lot of debate… One of the things I wanted to ask you about was what was the framers’ intent with respect to the establishment clause and as you mentioned either before the program began or as we were talking that it’s difficult to know precisely what the framers thought and then it depended on who you talked to. Patrick Henry favored establishing a national church of Virginia. Obviously Jefferson and Madison had wanted much more restraint in that regard.

Micah Schwartzman: So there’s a great deal of controversy about what exactly the framers intended, if they even had a common intention behind the adoption of the establishment clause. It seems…I think…if there… There’s not really a consensus view but I think that a majority of scholars would say that at the very least it was intended to bar the Federal Government from establishing a national church and the model for a national church was of course the Church of England. So that church had various features. It included the government dictating religious doctrine, it included set-aside seats in the government for religious officials, it included religious tests. There were various attributes of a national establishment with which the framers were quite familiar and they wanted to bar the Federal Government from enacting those types of provisions. It’s a… There is some debate about whether the establishment clause was only intended to prevent the Federal Government from touching on state establishments of religion because of course during the founding many states did have established religions but I think it’s a distinct minority view to say that the establishment clause was merely a Federalism provision—a provision to prevent Congress from prohibiting state establishments as opposed to a provision that barred a national church.

Jan Paynter: Well, no meaningful discussion of the issue of the separation of church and state is complete obviously without talking about Article VI. No religious test shall ever be required as a qualification for any office or public trust in the United States. It remains, as so many people have noted, the only specific reference to religion that we have in the Constitution. Did the ban on a religious test again apply both to federal and state office holders?

Micah Schwartzman: So that ban, as you note, is in Article VI which is part of the original Constitution before it’s amended and it applied only to federal offices. And today, even so, it has never been held to apply directly to state offices. The Supreme Court did discuss the provision in a case in the early 1960s called Torcaso but it applied the First Amendment as opposed to the religious test clause from Article VI to hold that state official could not be barred on religious grounds. So it’s really a provision that’s focused on federal offices. It does represent a principle I think that the framers had—especially given their experience in England and in Europe—understanding that religious tests had been used to exclude people from government and that was something they found anathema.

Jan Paynter: How did Enlightenment thinkers, for instance such as Hobbes and Locke, influence Jefferson and Madison’s thinking about separation?

Micah Schwartzman: So Hobbes was deeply concerned about questions of political stability and he thought that religious disagreement, religious fragmentation contributed to instability and ultimately to civil war and so he favored acts of uniformity, that is government requiring a uniform religious perspective in order to create stable conditions. Locke made an important innovation on that theory. He understood that religious pluralism was not in itself a threat to political stability, that you could have acts of toleration that allowed for dissenting opinions and still have a stable political system. And I think it’s that view which influenced Jefferson and Madison most. I think Locke… They certainly read Locke, we know that they read his famous letter concerning toleration from 1689. We know that Thomas Jefferson read it very carefully because many of the arguments that he made in the Bill for Religious Freedom and many of the arguments that Madison made in the Memorial and Remonstrance which was a contribution to the passage of that bill and I think which was widely circulated and read and informed our understanding of the First Amendment. Those documents draw heavily on Locke’s theory concerning toleration. That is, they focus on the significance of inward persuasion of the mind, the inability of the government to coerce religious belief on the equality of all citizens in holding their religious views and of the incompetence of the government to make religious decisions. Those were very important principles to Enlightenment thinkers like Locke and I think they had a very strong and direct influence on some of our founders.

Jan Paynter: It’s really fascinating. In reading for this program I was rereading sections of Rousseau and I know Rousseau had an influence also on the founders’ thinking and of course he had almost an idea of like a tropism that we bend toward a religious impulse by nature and it’s interesting that that is in the atmosphere as well.

Micah Schwartzman: There is a sense… Well, Hobbes, Locke and Rousseau were all social contract thinkers and much of the debate about religious toleration is framed in that way but I really do think it was Locke who was most influential, of those three thinkers. His language, the arguments he used to justify religious toleration carried over into our founding generation.

Jan Paynter: Yeah and some of his language seems to make its way in very strikingly.

Micah Schwartzman: I think so. I think that’s right.

Jan Paynter: Yeah. I wanted… There’s a fascinating read I wanted to just make note of as we go along. It’s Mark Lilla’s book A Stillborn God: Religion, Politics and the Modern West which came out in 2007 and there’s just a portion of it that I wanted to read to what he had to say. As for the American experience, it is utterly exceptional. There is no other fully developed industrial society with a population so committed to its faiths and such exotic ones while being equally committed to the great separation. Our political rhetoric, which owes much to the Protestant Sectarians of the 17th century, vibrates with messianic energy. It is only thanks to a strong constitutional structure and various lucky breaks that political theology has never seriously challenged the basic legitimacy of our institutions. Americans have potentially explosive religious differences over abortion, prayer in schools, censorship, euthanasia, biological research and countless other issues. Yet they generally settle them within the bounds of the Constitution. It’s a miracle.”

Micah Schwartzman: Well, I agree that certainly at the founding it was an exceptional…an event in the history of religious freedom and I think there’s no question about that. After 200 years of experience, I would agree with Lilla that it continues to be an impressive phenomenon that the stability of our system has never been seriously challenged by religious forces that would undermine the broad secular or ecumenical, if you will, character of our political society. I’m not sure I would agree that we’re entirely exceptional in that regard. Maybe in the longevity of our system we’re exceptional but I do think there are other countries at this point that struggle with similar levels of pluralism in our tribe to sustain secular governments.

Jan Paynter: Yes, exceptional is a loaded word these days.

Micah Schwartzman: Right and you have India or, especially given the reason news, Turkey but other countries that face these kinds of tensions and some of them are managing those tensions better than others but I would think there are now some comparison points.

Jan Paynter: What was the first U.S. Supreme Court decision to utilize the phrase ‘wall of separation’ between church and state?

Micah Schwartzman: That’s a great question and I’m not entirely sure I have an answer. So I don’t know whether the phrase was used in Reynolds in the late 19th century but I would suspect that’s an early example because the Chief Justice who writes the opinion there—this is a case involving Mormon polygamy—relies heavily on Jefferson’s views. It’s of course invoked in Everson which is a case involving funding of parochial schools from the 1950s. But it’s not, as you know, that phrase the separation of church and state is not mentioned in the text of the First Amendment. It’s a phrase derived from Jefferson’s gloss on the First Amendment and I think also an idea that resonates, as I mentioned earlier before in the social contract ideas of Locke and some of his predecessors.

Jan Paynter: Yeah, I feel…for many I think it’s implied but not stated.

Micah Schwartzman: There’s an idea that political society is a different sphere from religion and that these two spheres have some distinct capacities and roles and that there should be some effort to differentiate them. And again, Locke, Madison, Jefferson come from a tradition that tried to demarcate some of those lines.

Jan Paynter: What was the significance of the 1971 Lemon v. Kurtzman Supreme Court ruling under the Warren Burger court?

Micah Schwartzman: So Lemon set forth a test which was used for many years to apply the establishment clause, that is to interpret it and then give it some legal or doctrinal content so that courts could make decisions about what counted as an establishment clause violation. The test had three parts. First the court said that a law has to have as its primary purpose some secular reason. Second, the law could not have the primary effect of advancing or inhibiting religion. And third, the law should not have excessive or create excessive entanglements between the state and religious organizations. And that test was used by the Court and by lower courts for many years—it continues to be used I think by lower courts—across a wide range of issues. The most important and Lemon itself involved state funding of religious schools. And it was a fairly stringent test. The Court applied it to strike down many efforts to send funds in the direction of religious schools. But the Lemon test was also used in other areas in terms of religious symbols where the government uses symbols of various kinds. It was used to constrain efforts by the government to engage in religious expression. So those are the two major contexts in which this test has been applied—funding…state funding of religion on one side and government expression of religious views on the other.

Jan Paynter: Now it was modified in ’97 with the decision Agostini v. Felton. How did it become modified in that test?

Micah Schwartzman: Right. So in the ‘70s and through the mid-‘80s, the Court applied the Lemon test to a wide variety of efforts to direct funds to religious schools and it struck many of those efforts down. In the mid to late ‘90s the personnel of the Court had started to change and there were different views about the permissibility of state funding of religion. And so some of the stringency of the Lemon test starts to weaken in these later cases. And so in cases like Agostini, the Court said that excessive entanglement was no longer a major concern. That in other words the Court would not presume that just because a state was sending money to a religious school that it was automatically creating excessive entanglements and also that it would assume that teachers who were employed in schools where some of this money was being directed, that they would act in good faith, they would not indoctrinate their students in religion. That is, the state didn’t have to monitor those teachers, which would create a kind of entanglement, because the assumption would be that they would act in good faith and that they would not use state money in order to preach a religious message. So that new approach to the Lemon test allowed for more state involvement, more state funding of religious education I think and I think much of this doctrine has now been displaced by another line of doctrine involving school vouchers where the Court has held that as long as money is directed on a neutral basis, that is without regard to religious background, and it’s directed to either a parent or a student and as long as that parent or student is making the decision, it’s not the state’s responsibility how their money is used. The idea is that there is a kind of circuit breaker. The student or the parent makes decisions about where to use a voucher or funding and then that decision is not attributable to the government. So if they use it to spend on religious education, that’s fine and that doesn’t count as a form of establishment of religion, of state funding of religion.

Jan Paynter: Yeah. My understand is if the parents are reimbursed, that’s permissible as opposed to a particular religious organization or entity receiving those funds.

Micah Schwartzman: Right. As opposed to sending the money to the school itself. The Court has even blurred that line to some extent saying that as long as the money goes to a school on a per capita basis there’s effectively no difference between giving the money to the parent and giving it to the school per pupil but a majority of the Court has not coalesced behind that further extension. We have a plurality decision in a case called Mitchell against Helms which makes that move but it will depend on the new composition of the Court on where things go in the future. Whether that plurality becomes a majority is not clear yet. We have new justices on the Court—Elena Kagan, Alito and obviously we have a vacancy currently after Justice Scalia’s death. And so we don’t know what the future of this line of doctrine is.

Jan Paynter: Yeah. In that regard, how did Justice Kennedy’s descent in the case of Alleghany County v. the ACLU known as the Coercion Test suggest greater governmental support of religion?

Micah Schwartzman: So there’s a question in the establishment clause context in trying to interpret what the principle of disestablishment means about what counts as an establishment and one way of thinking about that is to say that the government only establishes religion when it requires people, when it coerces people to engage in religious practices that they have some objection to. This is sometimes called what you just described as a coercion theory and some Justices subscribe to this theory—in order for there to be an establishment the government has to be coercing people to support religion in some way. Not everyone subscribes to that view and in fact I think it’s not the current doctrine. There are cases on the books which say that the government can have a law that respects an establishment even without coercing anyone. Take for example if the government put a cross on top of the capitol building, a state capitol building, that might not coerce anyone but I think a lot of people think that would look an awful lot like a form of religious establishment. But in Alleghany County, Kennedy expressed support for a coercion theory and again that theory has never become the dominant account but we will have to see in which direction the future Supreme Court goes.

Jan Paynter: Ah, this is a great question I think facing us. What was the significance of Justice Sandra Day O’Connor’s proposed idea of the Endorsement Test on the question of church and state?

Micah Schwartzman: I should have mentioned Alleghany County involves government expression of religious symbols. These are crèche cases, cases involving the use of religious symbols on government property. So whether you put a Christmas tree or a menorah or a crèche inside a courthouse, are these kinds of actions permissible. And Justice O’Connor said that the way we should understand the idea of disestablishment is to say that the government should not send a message of religious disapproval or approval. That is, if you put a crèche on a courthouse steps or a cross or some other religious message, Justice O’Connor thought, ‘You’re sending a message of exclusion to religious minorities.’ People who don’t share that religious perspective will think they’re not being treated as equal citizens. The idea was the government should not endorse a religious perspective. Even if it’s not coercing anyone, it should still refrain from engaging in that type message.

Jan Paynter: Yeah, it’s interesting. Her thinking about the perception created in the mind of a reasonable observer I think is key to her views on that.

Micah Schwartzman: Right. So that’s the issue, right? How do you know when someone’s sending a religious message and Justice O’Connor thought, ‘Well, you figure that out by asking, “What would a reasonable person think the government was trying to say in this case”?’ And that created all kinds of difficulties because of course what counts as a reasonable observer and who’s the reasonable observer. And a lot of people thought, ‘Well, the reasonable observer is just Justice O’Connor.’ I think there’s probably more to the idea than that but it turned out to be a somewhat difficult standard to apply even for Justice O’Connor who developed it.

Jan Paynter: Professor Schwartzman, thank you so much for joining us. We’re going to adjourn now and we’ll look forward to joining you for part two of our program.

Micah Schwartzman: Thank you.

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