Tuesday, July 27, 2004
Myth of separation
By Nono Alfonso, S.J.
IN THE LAST elections, a case was filed before the Supreme Court challenging the electoral involvement of Eddie Villanueva, Mike Velarde, the Iglesia ni Cristo, among others, on the grounds that it violated the constitutional provision on the separation of Church and State. Outside of the electoral season, every time Jaime Cardinal Sin or the Catholic bishops issue a statement concerning government or the country's political situation, critics complain that the Church is meddling in politics, thereby violating the sacred democratic principle of separation of Church and State.
Indeed, the 1987 Constitution provides that "the separation of Church and State shall be inviolable," (Art. II, Sec. 6) and that "no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof" (Art III, Sec. 5). Legal luminaries, such as Fr. Joaquin Bernas, S.J. who was a member of the 1986 Constitutional Commission, have time and again explained that the separation clause only means two things and these the above-cited Bill of Rights provision explicitly states: first, that the government will not establish any religion; and secondly, that every citizen enjoys freedom of religion. It is thus argued that pastors who run for political office or church people who give their opinion about politics do not violate the constitutional principle of separation of Church and State. Still, as surveys tell us, the popular opinion is: the separation clause covers more ground than the Constitution provides, indeed that the two are distinct entities and "never the twain shall meet."
The United States is facing the same dilemma. In recent years, there has been much controversy there over the extent or scope of this constitutional principle. Cases have been filed against the practice of prayer in public schools, and against the teaching in schools of the Evolution Theory which challenges the biblical account about the creation of man. Of late, a controversy erupted over a stone image of the Ten Commandments that was exhibited in a public building. What all this points to is that more than being a crystal clear concept, the separation principle is a very ambiguous one. Increasingly, academic scholars and legal practitioners are finding out that this principle is by no means a simple one.
One such legal scholar is Philip Hamburger who, in 2002, came out with a thick book (500 pages, Harvard University Press) on the subject. A law professor at the University of Chicago and a long-time columnist of the New Yorker, Hamburger challenges conventional wisdom and contends in "Separation of Church and State" that the constitutional history of the principle is in fact not a long one. Many Americans, he says, think that the principle has been enshrined in their constitution from its ratification in the 18th century. But this, he argues, is only a myth. To support his claim, Hamburger traces the evolution of the principle in the history of the nation. The starting point of course is the First Amendment which was drafted in the 18th century by the US Congress to further strengthen the Federal Constitution. The First Amendment, like Section 5 of our Bill of Rights, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."
How this came to mean separation (as it is now widely interpreted), according to Hamburger, runs directly counter to the intention of the people of that time. Separation, he insists, would have been the farthest thing in the mind of the Americans in the 18th century. The Americans then were a religious lot. (Secularism became a phenomenon only in the 20th century.) They believed they were being called to be a Christian nation and that their faith must be reflected in all dimensions of their lives. Note that at that time it was common practice among states to adopt an official religion. For example, in England, from which the new American nation had broken off and, the Church of England was the official religion. The faithful of the state religion enjoyed privileges, such as state-funded salaries for its ministers. On the other hand, members of the less-favored denominations were persecuted and punished.
It was in this context that the First Amendment was adopted. The battle cry was for the non-establishment of any religion by the state and the freedom of citizens to belong to any religious sect without being discriminated against. Certainly, not the separation of religion from government. Originally therefore, the First Amendment was introduced to limit government. In the 19th century however, the emphasis shifted. The Amendment was reinterpreted to limit religion. It was also claimed that from the start, the separation of the Church and State was always guaranteed.
Such was the claim of those who, like Thomas Jefferson, envisioned a society "unburdened by the customs of their forefathers or the authority of their ministers." Some Protestant sects feared the growing immigrant Catholic population and saw the latter's hierarchical and "popish" religion as inimical to their ethos of individual independence and personal authority. So they pushed for "the separation of a church and state." Some so-called "secular" and "liberal" groups even called for a "total separation of church and state." They abhorred morality in government and advocated the abolition of religious holidays (imagine working on Christmas Day!) and the abandonment by government of its concern for the poor since charity was the domain of the Church.
Although these three main groups would be influential in shaping public opinion, the definitive word on the matter only came in the 20th century. In 1947, in the landmark case of "Everson v Board of Education," the US Supreme Court ruled that separation was enshrined in the First Amendment. Significantly, its decision would become the foundational jurisprudence of future cases. Despite this, however, the controversy over the nature, scope and extent of the separation principle rages till now. In the last analysis, Hamburger concludes, "there are myriad connections between religion and government that do not amount to an establishment, let alone a full union of church and state." More to the point, "union and separation are overgeneralizations between which lies much middle ground."
