Separation of church and state can mean different things to different people. Some see it as a mechanism to try to scour religion from American public life and religious expression from the public square. Others see it as an excuse for people of faith and houses of worship to refrain from engaging in politics or even public policy debates. Still others think it is a bogus concept altogether and would merge church and state if they could.
Each of these ideas is woefully wrong. The separation principle is simply another way of saying government should not try to help or hurt religion, but it should leave religion alone. Under the First Amendment, there should be both no establishment and free exercise of religion. These clauses, taken together, command an institutional and functional separation as a constitutional means to the end of ensuring religious liberty for all.
In short, government must be neutral towards religion — a friendly, accommodating and “benevolent neutrality” as the U.S. Supreme Court put it. Yes, government needs to refrain from propping up religion or picking and choosing favored religions, but sometimes it must accommodate or protect religious choices by lifting government-imposed burdens. On the knife edge of American neutrality, we must come down on the benevolent side, not the malevolent side.
This notion is unique to our country. Just compare it to the concept of separation in other countries. Now, I am not talking about hotbeds of persecution or intolerance such as China, the Central African Republic or the Sudan. Even some progressive Western democracies get it wrong. They often pay lip service to religious liberty ensured by separation, but in practice they promote a pervasive secularism that is hostile and unfriendly to religion in public places.
Three examples come to mind.
A Canadian appeals court in Alberta ruled that their civil courts have jurisdiction to review membership decisions by a Jehovah’s Witness congregation. In a 2-1 decision, the court ruled that it could penetrate the church’s autonomy shield when property rights are involved or where a nebulous “breach of the rules of national justice” is asserted. In the U.S. system, nothing is more inviolate than the idea that houses of worship should make their own decisions about membership selection and discipline, hiring and firing of clergy, property division in case of church splits, and matters of internal administration. Indeed, the U.S. Supreme Court, in the Hosanna-Tabor decision — a case about the firing of clergy teaching in a religious school — ruled unanimously in 2012 that the courts would not enforce anti-discrimination laws on behalf of clergy in a way that would compromise the religious body’s autonomy and competency to make those decisions.
In France, the wearing of a “burkini “— swimwear covering the entire body to ensure Muslim women’s modesty — has been banned by a number of French cities as an unacceptable public expression of religion. This intolerance of religious expression by private citizens (not government actors) comes on the heels of disputes about forbidding hijabs or headscarves by public school students and the banning of burqas that cover the face outright. Thankfully, a French court struck down the ban in late August, but this insistence upon a secularity that condemns private citizen expression of public religion continues to fester. How different in our country! In the recent EEOC v. Abercrombie & Fitch (2015) decision, the U.S. Supreme Court ruled 8-1 that a qualified potential employee could not be denied a job because wearing her hijab would contravene the clothing retailer’s “look policy.” Also, public school students can wear religious garb and don headgear such as yarmulkes and turbans. And a walk down almost any street in an American city will reveal a mottled tapestry of religious clothing and accoutrements that reflect our religious pluralism.
Finally, Denmark removed a religious exemption from animal cruelty laws in 2014, now making it illegal to slaughter animals to produce kosher or halal meat in accordance with Jewish and Muslim traditions. In fact, Denmark’s Minister of Agriculture and Food is quoted as having said, “Animal rights come before religion.” Even though Denmark does not have a separation of church and state — the Evangelical Lutheran Church is the established, state-supported church — this policy is obviously intended to target Jewish and Muslim minorities. How different was the outcome in a 1993 landmark case from the U.S. Supreme Court, Church of Lukumi Babalu Aye v. City of Hialeah, where the High Court unanimously condemned an attempt to ban the ritual sacrifice of animals by Santeria practitioners in South Florida.
Don’t get me wrong. We don’t always get it correct. That the Baptist Joint Committee has been busy for eight decades is confirmation that the American legal system sometimes misses the mark of perfect neutrality on both establishment and free exercise issues. Charles Haynes’ column on page 9 of this issue is a good current example. But it’s fair to say that, at our best and most of the time, our system has been committed to benevolent neutrality on the part of the government that allows religious practice to flourish without government dictating religious choices.