Commentary: The Rise of the New State Church

The United States is historically a Christian country, that is, it was founded by Christians and its population remains largely Christian to this day. The speeches and statements of our presidents, our official holidays, the prayers that are said before the opening of Congress and the Supreme Court, the imagery we see on official buildings all attest to the religious, indeed Christian, foundation of our nation. In fact, the U.S. Supreme Court in an 1892 decision declared explicitly that “we are a Christian nation.”

Nevertheless, at least until recent days, Americans have understood that we live in a pluralistic society where Protestants, Catholics, Jews, even atheists, were equal before each other and equal before the law. There was no official church at the federal level that would require belief, assent, or obedience. This is not to say that there have not been dark times in our history when we failed to live up to our ideals. Catholics may recall times when our churches were burned and there were riots against us. But the highest American aspiration has always been that all should be treated equally, that a Jew should get the same treatment in a court of law as a Methodist or a Muslim.

Our twin understanding of our country’s deep religious roots coupled with an ideal of religious freedom grew out of the English tradition of religious toleration. The English had an official state church, but the English also recognized the importance of providing dissenters with some measure of freedom. The Act of Toleration of 1689 provided this freedom.

However, the Act distinguished between the rights of individuals to their own private beliefs and the corporate freedom of an institutional church to act in the public square. For example, certain sects could meet privately, but their meetings had to be registered with the state, and they were not allowed public expression. Dissenters from the state church certainly could not hold public office. The Catholic Church, an institution that threatened the established church, was expressly excluded from the Act of Toleration.

This question of whether religious toleration extends merely to individuals, such as a Christian baker, or whether it also attaches to institutions, such as the Catholic Church or even to organizations such as the Boy Scouts or companies such as Hobby Lobby, is one of the most fundamental religious questions in America today. This question was apparent when the Obama Administration began shifting terminology from freedom of religion, a broad category that includes public action, to freedom of worship, which is permitted only in places, including churches, that are strictly segregated from the public square.

These thorny issues were of great concern to the American Founders, so much so that they concluded that it was unwise to have an established state church the way the English did; that it would be better to let the various religious groups compete in the public square. So, for example, when the Commonwealth of Virginia considered assessing a tax that would have benefited the teachers of the Christian religion, there were many petitions made against this tax, none more famous than James Madison’s “Memorial and Remonstrance.” Madison argued that the tax was a coercive imposition of religion on those who may disagree, and therefore a possible violation not just of conscience but of man’s duty to the Creator, which comes prior to his duty to the state. Madison mentions “duty” seven times in the text.

As Madison explicated, where there is an established state church, the punishment of dissenters can easily result. In a letter to William Bradford, young Madison expressed his horror that some religious dissenters to the Anglican faith in Virginia had been jailed. Madison would enshrine this notion in the First Amendment of the Constitution. He believed that men should not be coerced by the state into accepting a moral code they did not believe in. Keep this in mind as we later explore how a new faith is being imposed upon schoolchildren.

It is important to note that the discussion of freedom of worship, and the openness of the public square, was carried on almost entirely among men who were either practicing Christians or had been raised according to a Christian worldview. Their concern for their neighbors’ rights sprang directly from Christ’s admonition to love one’s neighbor. So, although the government, the law, and the state did not technically dictate a state religion, the society at large—from which the government sprang—maintained it by default. Or, as John Adams famously wrote, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Religiosity and Neutrality in Tension?

Yet, the tension between the religiosity of the people and the purported neutrality of the state to religion has always been apparent and explains two competing stories about us: one that says we are a Christian nation, that Christianity has pride of place among all faiths, and that the roots of our governmental system are found in the Bible. The other says our government, and by extension the public square, must be secular—that is, strictly neutral with respect to religion and even with respect to God. Each side can show historical warrant for its argument.

The question we must consider is whether it is possible for a government to be completely neutral with respect to the deepest truths.

Professor Steven D. Smith of the University of San Diego School of Law discusses the two views of the nation.  He calls one the “providentialist” and the other the “secularist” view. He writes, “Providentialists declare that God works in history, that it is important as a people to acknowledge this providential superintendence, and that the community should actively instill such beliefs in children as a basis for civic virtue.” Secularists, on the other hand, “insist that acknowledgments of deity (if there is one) ought to be purely private, and that government acts improperly if it enters into religion or expresses or endorses religious beliefs. Thus, what one constituency views as imperative, the other regards as forbidden.”

Many others have recognized these two strains in America’s view of itself. In his book Divided by God, Noah Feldman of the Harvard Law School describes one as “values evangelicals” and the other as “legal secularists.” James Davison Hunter, who wrote the influential book Culture Wars: The Struggle to Define America, referred to the two camps as “orthodox” and “progressive.” The orthodox camp is defined by “the commitment on the part of adherents to an external, definable, and transcendent authority” that tells us “what is good, what is true, how we should live, and who we are.” Hunter argues that the progressives, even the religious ones, place their trust in “personal experience or scientific rationality.”

These two views naturally play out in different ways in the political and policy arenas. But importantly, they inform their adherents’ understanding of who we are as a nation. Are we a religious nation, or are we a secular nation? The problem is acute because while incompatible beliefs that are purely abstract can be maintained by individuals, the physical world that we live in inevitably requires some specific answers to this question, whether in the expressed public statements of our leaders, the ceremonies we carry out, the words on our money, our national motto—and even, and perhaps especially, in what and how we teach our children.

Since we have tried as a people to avoid making an explicit commitment to one worldview in the form of an established state church, and because disparate views find warrant in our history and in our founding documents, there has been a competition in our society from the beginning as to which viewpoint will dominate. At various times, the providentialists have had the upper hand; and at other times the secularists have dominated. Professor Smith calls this the “principle of open contestation” and explains that the competition has been similar to the competition between the political parties. Sometimes the Democrats win, sometimes the Republicans. But the federal government has tried to avoid explicitly taking a side.

The Religion of Secularism

To preserve this delicate, and unnatural, balance of a religious people with a religious worldview governed by a secular government with no explicit religious commitment, Thomas Jefferson deployed the idea of a “wall of separation between church and state.” This “wall of separation” appears nowhere in our founding documents, but only in a letter from Jefferson to the Danbury Baptist Association.

Yet in 1947, it became an explicit precedent of the Supreme Court in the Everson v. Board case. The case applied the Establishment clause to forbid the establishment of a state religion by the individual states, rather than simply restricting the clause to the federal government. Ironically, the case upheld certain kinds of public funding for sectarian schools, but explicitly excluded “religion” from part of the public square. As a result, the court began to disturb the delicate balance that American society had historically maintained. Why? Because secularism itself is as much of a comprehensive worldview as any religion; therefore, at the limit, it is the functional equivalent of a religion, and yet its operation in the public was left unrestricted. What happened in the Everson case is that the Supreme Court put a thumb on the scale in what has become known as the Culture War. They did not come down on the side of Christians. They came down on the side of a nascent, but now a fully flowered, established church.

The “wall of separation” is now routinely invoked by leftists who tell us that we may not bring our faith into the public debate. How often do we hear things like “We cannot consider your objection to abortion because we do not live in a theocracy and your objection is based on your religious faith”? Have you been in an argument over gay marriage? I would bet you didn’t even try to make a religious case because you knew it would be shut down immediately. You might even have internalized the notion that your religious beliefs cannot inform public policy. Certainly, if you tried to mention them, your interlocutor would sneer, “We have a wall between church and state in this country.” And yet secular beliefs—which are often as much matters of faith as any religious beliefs—are admitted without comment.

As Smith explains, “the Founders did see a place for religion in public policy.” It is unavoidable. So, the “wall” was never intended to exclude religious arguments from the public square. It was never intended to prevent American citizens from making religious arguments on public policy matters. The “wall” does not even keep the institutional Church out of the debate. Indeed, the U.S. Conference of Catholic Bishops has a capable lobby shop that advances Church beliefs and interests in government deliberations.

Neither does the “wall” keep us personally from serving in government posts; the U.S. Constitution prohibits any religious test for office. But this has not stopped some senators from hectoring candidates for federal judgeships about their religious beliefs. Remember Senator Dianne Feinstein’s ominous questioning of then-Notre Dame law professor Amy Coney Barrett? Remember the judicial candidates asked about their membership in the Knights of Columbus?

But of course, most of us would never cite Scripture or encyclicals in making a public-policy argument. Sometimes it’s prudent, but often, sadly, it is because we have internalized the secularist assertion that such arguments are simply not allowed in our discourse. Even worse, if you are a recognizably religious person making secular arguments, using social science, you may still be told: “There is a wall of separation between church and state.” What has evolved is that religious folks may not make any arguments at all if even their motivation is perceived to be religious. In fact, this very accusation was leveled at lawyers in federal court making arguments in favor of traditional marriage.

The problem is that the “wall” is now perceived in a manner that is diametrically opposed to the way it was originally intended. Jefferson intended the “wall” and the First Amendment itself to be our protectors, to be used as weapons to defend our rights. But now, as I will elaborate upon in due course, whenever the “wall” is breached, it is always by the state as it encroaches upon our religious liberties, both individual liberties and the liberty of the institutional Church.

Breaching the Wall

How did this all happen? After the Supreme Court unbalanced the competition between the providentialists and the secularists, the Court began to promulgate, according to its own sense, the proper role, or lack thereof, of religion in society. In the 1962 school prayer decision, Engel v. Vitale, the Supreme Court rushed the field and took the side of the secularists.

On a personal note, when I told my wife that I would be writing critically about the school prayer decisions of the early 1960s, she was surprised. Though she is thoroughly conservative and deeply religious, she is a graduate of an elite law school and assumed the rightness of the Supreme Court’s school prayer decisions. This is how deeply all of us have imbibed the idea that these cases were rightly decided. After all, we do not want Catholic children to be reciting Protestant prayers, do we? And it also simply seems right that school administrators and school teachers should not be leading our children in prayer. That would be, well, weird—dare I say, even unconstitutional.

But remember, prayer in school was not practiced everywhere in these United States prior to 1962. In fact, school prayer occurred chiefly in the eastern United States and in the South. It was relatively rare in the Midwest and in the West. So, managing school prayer was exactly the sort of local issue that our federal, decentralized system was designed to handle.

Engel v. Vitale was brought by a group of parents in Nassau County, New York, who were unhappy with what was known as the Regents’ prayer that was then recited in local schools. The prayer was the product of serious consideration and reflection by a group of ministers, priests, and rabbis and was endorsed, quite remarkably at this remove, by the New York Association of Secondary School Principals, the New York School Boards Association, and the New York Association of Judges of Children’s Courts. The prayer read, “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.”

The first judge to hear the case, no advocate of school prayer, nonetheless ruled in favor of its constitutionality. His decision was appealed and affirmed by two more levels of the New York court system. As Smith points out, “By the time the case reached the Supreme Court, 11 of the 13 judges who had considered the case had concluded in favor of the permissibility of school prayer.” The U.S. Supreme Court, however, struck down the Regents’ prayer in a 6-1 decision. Smith points out the decision likely would have gone 8-1 but for the fact that Felix Frankfurter had suffered a stroke and Justice Byron White had only recently joined the court.

What will seem strange from this remove of nearly 60 years is that the reaction against the court’s decision was immediate, widespread, and intense. From coast to coast, newspapers denounced the decision. This would be unthinkable today. Every governor in the country condemned the decision, with the lonely exception of New York’s Nelson Rockefeller. Signs began to appear around the country saying, “Impeach Earl Warren,” then the chief justice of the Supreme Court. Prayer in school was obviously an unremarkable thing, not just to parents and students but also to those we would consider to be elites. As exotic as school prayer may seem to most of us these days, it was profoundly strange for people in those days to think the Supreme Court would reject as unconstitutional something that had gone on in schools since before the founding.

The Engel case was followed the next year by Abington School District v. Schempp, in which the Supreme Court said Bible reading was also unconstitutional. Schempp went further and insisted that “the Constitution demands the governments in this country be ‘neutral’ in matters of religion, and governments can be neutral only if they limit themselves to actions serving ‘secular’ purposes and having primarily ‘secular’ effects.”

It is worth pausing to note that secularity has had a confused meaning down through the ages. It began as a religious term meaning “to do with this world” as opposed to the transcendent world of eternity. But it was always understood that even the “secular” world fell under the aegis of God. By contrast, in recent decades, it has come to mean “without religion,” “without God.” So, when our government insists upon secularity defined this way, it is insisting upon a politics and a law without God, without religion—which means, quite obviously, the government’s choosing a side in the modern culture wars. Once again, we see the inherent contradiction between neutrality in matters of religion and the insistence upon secularity in purposes and effects. If the government is to be neutral, then how can it insist upon a secularity that, in modern parlance, means without God and religion?

The court’s pretensions to neutrality and secularity have had reverberations far beyond these Supreme Court cases. As I have pointed out, religiously identified folk who enter into public debates are chastised by secular interlocutors on suspicion of violating the separation of church and state, even when they are not making religious arguments. The assumption is that religious people are motivated by religion. Therefore, anything they say violates neutrality, secularity, and the wall of separation. As outrageous as this is, even many religious folks have internalized this point of view.

What’s more, religious people tend to muzzle themselves because they know they are not allowed to make religiously based arguments. I saw this happen one week during the homosexual “marriage” debate. Tony Perkins, long-time president of the Family Research Council, was on television on a particular Monday making arguments from Scripture. Only a few days later, he was back on television making arguments from social science, citing studies that show children do best when raised by their married biological mother and father. This became the talking point of social and religious conservatives through the entire marriage debate. There was hardly any talk of tradition because tradition was understood as religiously based and therefore impermissible under the purported neutrality of secularity. See how that works?

And what traditional marriage spokesmen ever talked about the manifest immorality of homosexuality and homosexual behavior? The organizations doling out money to run state efforts to block gay marriage were quite explicit that they would not fund any campaign that commented upon the moral question of homosexuality. The only language now permissible in the public square, according to the Supreme Court and accepted by religious conservatives, is the supposedly neutral language of empiricism, science, and secularity.

As I recall, the lawyers who argued this case in California at the Ninth Circuit were chided by the homosexual judge for not making any moral arguments about homosexual “marriage.” Of course, had they made such arguments, the judge probably would have dismissed them as inadmissible. In just such a marriage case, the Iowa Supreme Court expressed its suspicion that the secular rationales used by defenders of traditional marriage were really a cloak for religious arguments. As my father used to say, “damned if you do, and damned if you don’t.” My mom would have responded, “can’t win for losing.”

Look beyond the law courts. Look to the classrooms. Consider the teaching of evolution, creationism, and intelligent design. The court has ruled that school districts may not teach creationism or intelligent design even though intelligent design is a serious scientific area of study. But it is not allowed because it is viewed as religious and therefore a violation of constitutional tenets. Even apart from intelligent design, not even well-established scientific evidence against Darwin’s view may be taught. According to the secular ideology, the only objection to Darwin is religious, and therefore Darwin wins by default.

Seeing a religious sign in the yard of a church, I sometimes joke: Don’t they know about the separation of church and state? Or if a television show has a religious theme: Don’t they know about the separation of church and state? And this is not terribly far off the mark because the understanding, most especially among the secularists, is that there is absolutely no place for religion in our society except maybe within the four walls of church on Sunday or in the privacy of our own homes. There is no place for public expressions of religious faith.

This is also why the fight has been so centrally located in public schools. There is something about public education, government-sponsored schooling, that tells us who we are as a people. Prayer in public school was unremarkable from our founding up to the 1960s precisely because we viewed ourselves not just as a religious people but as a Christian people. The fact that religion generally and Christianity specifically may no longer be mentioned approvingly in the public schools demonstrates the degree to which we may have become an entirely different people. And that is not just historical happenstance. This is the deliberate intent of the secularists who have fought to have Christianity removed from the public square and who want us to be a different people.

The Courts Choose a Side

It should be obvious, then, that the school prayer and Bible-reading decisions of 1962 and 1963 were about more than religion in public schools. They were about the Supreme Court’s choosing a side, a side against Christianity. Indeed, after the court made its choice, it began furiously delineating the contours of the new official state religion. In the 1965 case Griswold v. Connecticut, the court determined that married couples have the constitutional right to use contraception. The court based this on a general right to privacy that appears nowhere in the Constitution. Seven years later, the Supreme Court in Eisenstadt v. Baird extended the same right to contraception to the unmarried. A year later, Roe v. Wade ushered in a right to abortion. Twenty years later, Planned Parenthood v. Casey further enshrined abortion into constitutional law. It is here that we see the ethereal “mystery passage” penned by Justice Anthony Kennedy that in America, one has “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That is not an interpretation of law; it is simply an expression of Kennedy’s personal religious beliefs, which, for now, govern the nation.

The sweet mystery-of-life passage reappeared in 2003 in the Lawrence v. Texas decision that made homosexual sodomy a constitutional right. As Justice Antonin Scalia wrote in his dissent, it was now nearly impossible to think that “homosexual marriage” would not follow from this decision. And as night follows day, this is precisely what the Supreme Court declared in the Obergefell decision of 2015. In June 2020, the Supreme Court decided that gender identity is a protected category under the 1964 Civil Rights Act, which forbids discrimination based on sex. Consequently, it is now official government writ that boys must be allowed to shower with girls in high school sports programs.

Keep in mind, there was no groundswell of public opinion for any of these decisions. One hears these days as a truism that “politics is downstream from culture.” This false assertion keeps people out of politics, alas. But these cases did not come from the ground up. They came from the top down. Just as there had been no public call to eliminate school prayer, there was no public call to strike down laws on contraception, to make abortion a constitutional right, and certainly no call to constitutionalize sodomy, and or to invent sodomitical marriage. These were decisions that found their warrant only in the elite opinions of lawyers, corporate chiefs, news professionals, and the academy.

So, what we have seen in recent decades is the exclusion of Christian argumentation from the public square, and the enshrinement of a new state religion of secularism—without religion, without God—in the same halls of discourse.

Consider that as late as the 1950s, fornication was illegal in at least 38 states. Adultery was illegal in all but five states. Sodomy was illegal in all the states. Even seduction was considered both a tort and a crime. And contraception was forbidden in most places. Each of these laws reflected fundamental aspects of traditional Christian teaching. By contrast, the new, sex-centered faith idolizes sexual pleasure and indeed the new State Church—really an established state church of exactly the kind that America’s founders feared—has codified this viewpoint. Walter Russell Mead describes this as “a genuine revolution in civilization.”

In an important book about Christianity in Europe, French author Olivier Roy considers whether the new faith of the “desiring subject”—whatever we desire to do we have the right and even the obligation to do—may be a current too strong for Christian civilization to resist. And now we have seen how this cult has been enshrined in our laws, and in our democracy, not through the democratic process but through the least democratic means: imposition by the courts.

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Austin Ruse is the author of the newly published Catholic Case for Trump (Regnery).