Church and State: Divided we stand; The religious right deliberately distorts the truth when it says the United States was founded on Christ

Alan Dershowitz

29 July 2007

Chicago Sun-Times

The experiment launched by Thomas Jefferson and his fellow patriots, separating church from state, has been a resounding success both for churches and for the state -- and most important for the citizens. Churches, synagogues, and mosques are thriving throughout America, at a time when many houses of worship, especially churches, are empty throughout Europe. The state remains strong, far stronger than ever anticipated by the founders. Our "godless constitution" has endured longer than any comparable document in history. Our citizens are free to practice any religion or no religion. In the words of an old folk saying, "It ain't broke, so why fix it. The wall of separation remains standing, despite intense efforts by fundamentalist wall breakers to tear it down. This great wall of America, invisible to the naked eye, yet more powerful than those made of stone, remains in danger because the pressures on its fragile structure are increasing. There are multiple ironies in this danger.

It is no coincidence, in my view, that organized religion is thriving in America and dying in much of Europe. The separation of church and state is good for religion. When church and state merge, natural antagonism that citizens feel toward their government carries over to the church. Moreover, when the state tries to enforce religious practices, enmity is generated. Witness Israel, a country I visit frequently. Because the mechanisms of the state are employed in support of Orthodox Judaism, a sharp division has developed between the Orthodox community and the vast majority of secular Jews. Many secular Jews feel strongly that their freedoms have been impinged, not only by Orthodox Judaism, but by the state as well. Today there is more anti-Orthodox feeling in Israel than in any other part of the world.

STATE WOULD CALL THE HYMN

If the wall of separation were to crumble in America, the ultimate losers could well be the churches, the synagogues, and the mosques. To be sure, organized religion would benefit initially from the support -- financial, political, and ideological -- of the state. Many religious leaders who are currently strapped for cash see the wall of separation as a barrier to filling their coffers. But in the long run, organized religion would suffer greatly from state involvement in their affairs. The state, by paying the organist, would call the hymn. This would be a tragedy for both religious and secular Americans. Religion, if it remains independent of the state, can serve as a useful check and balance on excesses of government. For example, during the 1920s, eugenics became the rage among scientists, academics, and intellectuals. Thirty states enacted forcible sterilization laws, which resulted in fifty thousand people being surgically sterilized. In 1927 the United States Supreme Court upheld these laws in a decision by Justice Oliver Wendell Holmes, an atheist, who wrote: "It is better for all the world, if instead of waiting to execute offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind." The only dissenting opinion came from a religious Catholic. Churches fought hard against sterilization laws. In this instance, religion was right; government and science were wrong.

In countries where the state controls religion, it is far more difficult for churches to serve as checks upon the excesses of the state. Were the wall of separation to come crumbling down, disbelievers and skeptics would also suffer greatly -- at least at the outset. I doubt we would have crusades, inquisitions, or pogroms -- as in centuries past, but there would be discrimination. Indeed, even today, there is discrimination in practice despite its prohibition under the constitution. In the long run, however, the number of openly skeptical Americans would increase. Church membership would drop.

Would this be good for America? Would this be good for secular humanists? Since none of us is a prophet, it is impossible to know with certainty what an America without a wall of separation would look like. It would almost certainly become a different place from the one we now inhabit, which is still the envy of the world. We are a prudent and cautious people. As such, we should not take the risks of breaking an edifice that has served us so well for so long.

EQUALITY THREATENED

We must have separation between church and state if we really believe in equality in America -- and even equality is an experiment if one considers all the countries of the world today and how few espouse and enforce real equality. Look at Eastern Europe, where in many places the shackles of communism are being exchanged for the shackles of religion. Some of the same liberal Romanian students who were demonstrating against communism in the streets are now demonstrating for church-sponsored schools and for laws against abortion. In Poland the government has introduced mandatory Catholic education into the public schools, clearly declaring Protestant, Jewish, and atheist Poles and others to be second-class citizens.

America is unique. Aside from the Native American population, we are all immigrants. The recency of our arrival on these shores is only a matter of degree, and as the generations pass, our ethnic origins become less important. In its first century of existence, when it was populated largely by white Anglo-Saxons, the United States was only a country with great aspirations, much like Canada, Australia, New Zealand, and others that have broken free from Britain. We became the greatest country in the world in our second century, after immigration, after desegregation, after women became enfranchised. We became the great America because of our diversity, not despite our diversity.

THREATENS OUR WORLD STATUS

Without separation of church and state, it will be difficult for the United States to continue in our status as leader of the free world. Yet the wall of separation gets challenged at every turn, particularly during elections, when politicians not only wrap themselves in the flag but in the cross as well. During the 1984 presidential campaign Walter Mondale found it necessary to remind Ronald Reagan that in the United States the president, unlike the queen of England, is "not the defender of faith" but rather the defender of the Constitution. At that point I had written a column that I sent to political candidates across the country setting out what I called that "The Ten Commendments for Politicians." A Commendment is something between a commandment and an amendment. They were:

1. Do not claim God as a member of your party or that God is on your side of an issue.

2. Do not publicly proclaim your religious devotion, affiliation, and practices, or attack those of your opponents.

3. Do not denounce those who differ with you about the proper role of religion in public life as anti-religious or intolerant of religion.

4. Do not surround your political campaign with religious trappings or symbols.

5. Honor and respect the diversity of this country, recalling that many Americans came to these shores to escape the tyranny of enforced religious uniformity and, more recently, enforced antireligious uniformity.

6. Do not seek the support of religious leaders who impose religious obligations on members of their faith to support or oppose particular candidates.

7. Do not accuse those who reject formal religion of immorality. Recall that some of our nation's greatest leaders did not accept formal or even informal religion.

8. Do not equate morality and religion. Although some great moral teachers were religious, some great moral sinners also acted in the name of religion.

9. When there are political as well as religious dimensions to an issue, focus on the political ones during the campaign.

10. Remember that every belief is in a minority somewhere, and act as if your belief were the least popular.

POST BILL OF RIGHTS IN SCHOOLS

I wish that instead of the Ten Commandments, the first ten amendments to our Constitution would be put up in schools. Remember that even the most basic issues of separation are not universally accepted in this country. In 1987 Judge W. Brevard Hand of Alabama ruled that each state may establish its own religion, just as it may pick its own bird, flower, song, and motto. Ed Meese, who was then attorney general, agreed with him. He took out his copy of the Constitution and showed it to a friend of mine who was then at the Justice Department and said "Show me where it says that states cannot establish a religion. All it says is that Congress may not establish a religion." And, of course, historically, Hand and Meese were absolutely right -- if you stop the Constitution at about the time of the Civil War. The First Amendment of the Constitution was not intended to restrict state establishment of religion, and several states did establish religions. As late as the middle of the nineteenth century Jews, Turks, infidels, and other non-Christians were precluded from holding office and swearing oaths as witnesses. Catholics, too, did not have full equality during the early period of our nation.

When Hand was asked, "What will people do who have no religion or who belong to a minority religion?" he said, "A member of a religious minority will simply have to develop a thicker skin if the state establishment offends him." When I saw the statement I wrote a column in which I gave him the "Ayatollah Khomeini Award" for attempting to divide the country along religious lines and described the implications of his view. In Massachusetts, for example, the struggle for official recognition would be between Catholics and Protestants. Where I grew up, in Brooklyn, the religious warfare would be among the Jews. In Utah, Mormonism would prevail; in California, the various cults and fringe religious groups might unite to present a common front. Even if a state settled on Protestantism, which denomination would be the official one? Fortunately the Supreme Court of the United States reversed Judge Hand, characterizing his views as "remarkable," which is a judicial euphemism for "ridiculous." But we are still, even with the United States Supreme Court, seeing some very dangerous trends. The current Supreme Court may not be as protective of the wall of separation as were previous courts.

NO PUBLIC RELIGIOUS DISPLAYS

The trend of broadening religion in order to make it more acceptable had now gained momentum. The Supreme Court has upheld the constitutionality of placing a creche scene in a Christmas display, as long as a sufficient number of plastic reindeer and other accoutrements of secularity are included. In Pittsburgh, Pennsylvania, the city sponsored a Christmas tree, a creche, and a Hanukkah menorah. Significantly, as the Court described it, the menorah was placed in "the shadow of the Christmas tree." The Court decided that if displays were allowed to include a Christmas tree, they should also allow a Hanukkah menorah. A lot of people in the Jewish community were disarmed by that decision, because it gave them standing alongside Christians. But giving special status to religions is only the first step on the short road to tearing down the wall of separation between church and state.

The second step is for the state, once it says religion is to be preferred over nonreligion, to define what religion means. You then have to define what is true religion and what is real religion. I defended Jim Bakker for principled reason relating to that. In imposing his forty-five year sentence, United States District Judge Robert D. Potter of North Carolina said: "We [pointing to himself] who have a true religion are offended by those who are charlatans and have a false religion."

It's not the role of a judge in America to distinguish between true and false religions. Judge Potter is a very religious Catholic and belongs to a church whose doctrines often conflict with those of the evangelical movement. The very idea of judges in this country imposing their own religious values on a sentencing process is un- American. And it's intolerable to the continued separation of church and state.

'BACK-DOOR ESTABLISHMENT'

There is another threat to separation that can be characterized as "back-door establishment." What happens is this: When a majority religion like mainstream Christianity seeks state help in promoting their religious doctrines at Christmas, the courts sometimes say, "Christianity really is the majority religion in this country; therefore, when something happens in the name of Christianity, it's really secular, because so many Americans are Christians. Christmas is a secular holiday. But if a smaller religion were to seek aid from the state, since the members are only a minority, then it would clearly be an establishment."

This is precisely the opposite of what the framers of our Constitution had in mind. The framers were not fearful of small, fringe, minority religions; they were fearful of the majority religion.

The late Chief Justice William Rehnquist expressed this view. In 1986, a chaplain in the Air Force named Dr. S. Simcha Goldman, who was a psychologist, wore a yarmulke to court when testifying in a case. He was disciplined for violating uniform regulations. The Supreme Court did not uphold his claim of religious observance, because to do so would establish religion. Justice Rehnquist, who worried about the establishment of Orthodox Judaism in America, had no problems about the establishment of Christianity. He also participated in the creche decision, saying creches were constitutional on public land. But which poses a greater danger of establishment: Christian creches on public land or a yarmulke on the head of an individual?

INCREASING FUNDAMENTALIST THREAT

Those are some of the problems that persist. Fundamentalism, tragically, is pervasive throughout the world today. There is almost no part of the world that is not seeing an increase in fundamentalism -- in know-nothingism; in I don't want to hear, I don't want to think, I don't want to know, tell me what to do, give me marching orders, point me in the right direction and I'll go! Nor is this rejection of reason limited to the uneducated or the ignorant. It is growing even among some sophisticated people grasping at faith to give meaning to their lives. Jefferson abhorred that approach to life and government. He believed that the Declaration of Independence declared our independence from the domination of clericalism over democracy and from the domination of faith over religion. Those who reject that kind of approach in religion, in politics, in personal life, and in law are always going to have a very difficult struggle ahead of them. They count on the possibility that the extremes within the movements have the seeds for self-destruction. But this is a dangerous approach because we are witnessing the emergence of far more intelligent, far more presentable fundamental movements throughout the world.

Every day is a new struggle for the separation of church and state. We must be willing to buck the tide of majority intolerance and to struggle against bigotry because we share Jefferson's vision. We know what losing this battle will do to America. We know that the greatness of this country depends on its being the most heterogeneous, the most diverse country in the world. We understand the experimental nature of the American dream.

If Thomas Jefferson could observe our nation today, he would, I believe, be pleased as well as surprised. He would be pleased that the wall he deemed so essential still stands, despite so many challenges and threats. He would be pleased that our complex system of checks and balances -- between the branches of government as well as among churches, the media, the academy, the economy, and other nongovernmental institutions -- is working. He would be surprised at the increasing power of the federal government, and especially of the executive, and of the relative weakness of the states. He would be surprised, most of all, at how his own views were being hijacked by the religious right in an effort to use him as a battering ram against the wall of separation between church and state that was so central to his theory of governance. He would regard this deliberate distortion as a form of civil blasphemy that should be confronted in the marketplace of ideas and soundly rejected.

Excerpted with permission of the publisher John Wiley & Sons, Inc., from Blasphemy: How the Religious Right Is Hijacking Our Declaration of Independence, by Alan Dershowitz. 2007 Alan Dershowitz. All rights reserved.