Separation of Church and State Is Crumbling Before Our Eyes

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Illustration by Elizabeth Brockway/The Daily Beast
Illustration by Elizabeth Brockway/The Daily Beast

Bow your heads and say a prayer over the separation of church and state, may it rest in peace. Who knows, doing so may someday entitle you to a government subsidy.

During a week in which much of our focus is on the public assault on our democratic values that took place on Jan. 6—and just as a looming Supreme Court decision seems all-but-certain to strip away the federal guarantee of reproductive rights at any moment—that same court may have more stealthily put the dagger in another principle on which our nation was founded.

In the case of Carson v. Makin, the court ruled that public funds intended to support the education of students for whom a public education option was not available must be made available to parents who wished to use them to pay for religious schools’ tuition. In so doing, the court’s conservative majority essentially ordered that taxpayer funds be used to support religious institutions.

Here’s What the World’s Media Thinks of the Jan. 6 Hearings

The decision is fraught with problems. In his dissent, Justice Stephen Breyer argued: “The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another or favoring religion over nonreligion.” (This refers to the section of the First Amendment that prohibits Congress from establishing a state religion.)

Not only is Justice Breyer’s argument sound, but if anything it may understate the problem. That’s because if states are permitted (or even obligated in such a case) to fund a religious enterprise, they are likely to favor some religious groups over others—which is also to the detriment of those who eschew religion. But such funding also opens the door to government interference in the operations of religious groups. This fact is often overlooked by the advocates of permitting such funding.

The state that can write the check can set the rules by which checks get written, or penalize religious groups whose activities fall out of favor. (Would the Bush administration have funded Islamic religious schools they argued promoted extreme views? Should states or the federal government provide funding for entities that promote intolerance or violate certain laws they argue conflict with their beliefs?)

In a separate, searing dissent Justice Sonia Sotomayor wrote what might be considered the epitaph for the separation of church and state. “I feared that the Court was leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment… Today, the Court leads us to a place where separation of church and state becomes a constitutional violation,” Justice Sotomayor argued.

In other words, the court’s conservative justices—by ruling that Maine was obligated to provide funds to the religious schools if it was providing funds to other private schools—were opening the door to other such obligations, and with them precisely the sort of establishment of state-supported religions that the Constitution explicitly prohibits.

America has long debated the role of religion in public life. James Madison wanted to include language in the Constitution prohibiting individual states from establishing religions, but the proposal did not carry in the U.S. House of Representatives. Nonetheless, Madison—the lead author of the Constitution wrote years after its passage—wrote in an 1811 letter to Baptist bishops that the, “practical distinction between Religion and Civil Government is essential to the purity of both, and as guaranteed by the Constitution of the United States.”

Thomas Jefferson’s views on religion were such that when he ran for president he was accused of being an atheist. In an 1802 letter, Jefferson wrote, “I contemplate with sovereign reverence that act of the whole American people which declared that their ‘legislature’ should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”

That wall has been breached. Indeed, given the current mood (in both political parties) toward religion, it is likely that Jefferson would not win public office today. Imagine how the public would react to a candidate who meticulously created his own version of the Bible in which references to miracles, Jesus as a deity, even Jesus rising from the grave were edited out with a razor blade.

Face it. Jefferson (yes, the author of the Declaration of Independence) wouldn’t stand a chance in 2022.

American Institutions Might Not Be Crumbling After All

Many may be moved by politicians referring to God and the Bible in both public and private forums, like congressional hearings and campaign rallies. For example, while I appreciate the efforts of the Republicans who stood in Trump’s way on Jan. 6, I’m not exactly comfortable with their repeated invocations of religiosity as a source of validation of virtuous intent. I actually think it’s dangerous.

To be very clear, I don’t begrudge people their beliefs. My concern is that, increasingly, government proceedings and statements of government officials seem to place greater focus on the introduction of religious views into places they do not belong (especially when they favor a focus on a few particular subsets of religious beliefs).

Worse, of course, is that religious demagoguery has grown so commonplace it is almost expected—whether it is Bush administration’s public piety contrasting with its embrace of the use of torture, or recent Democratic presidents who loved to quote scripture but whose personal behavior or public policies were hardly consistent with the values of the book they were quoting, or Donald Trump’s walk across Lafayette Park to stage a photo op holding a Bible as he unleashed federal forces against peaceful protestors.

In the days ahead, we may see more evidence of the religious right’s onslaught against the separations that Madison and Jefferson advocated. The Supreme Court will offer a decision on the case of a football coach who was, in part, fired for post-game prayers on the 50-yard-line of the football field. If they rule in favor of the coach, the door to more religion in publicly funded venues opens wider still. Certainly, overturning Roe v. Wade would be seen as a victory for the religious right as well, a decision in which science and medicine were forced to take a back seat to an extreme religious view of when life starts (that is supported neither by science nor, frankly, by biblical or other traditional religious beliefs.)

In fact, it is clear that over time, whether it is cases like those mentioned above, or others requiring the teaching of Bible-based alternatives to evolution or the ascendancy of those with extreme religious views to our courts (when it is likely atheists would never get confirmed), the wall separating church and state has been so battered and beaten down that it is little more than rubble at this point.

It is a sorry state of affairs. We are living in a moment in which what is broken in our Constitution we can’t fix (see our constitutionally mandated drift toward minority rule) and what is not broken we are breaking.

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