Father John A. Hardon, S.J. Archives

Metaphysics and Philosophy

Co-operation of Church and State - Part I
In American Legislation

by Fr. John A. Hardon, S.J.

Secularist leaders in growing numbers are telling the people that America needs an “entire separation of Church and State.” [1] Organizations like the American Humanist Association and Protestants and Other Americans United for Separation of Church and State are symptomatic of this frame of mind which, if sufficiently articulate, would threaten the juridical status of Catholicism in the United States. It is recommended, for example, that “the public school, nonpartisan, nonsectarian, efficient and democratic,” should be obligatory “for all of the children of all the people.” [2]

In answering these radicals we can argue from theoretical principles, showing a priori that a complete dichotomy between Church and State would remove the moral basis of human authority and consequently destroy the fabric of civil society. Another approach is the existential method of examining the history of our country to see what evidence there is for harmony between Church and State which has contributed to the peace and prosperity of America in the past and should, therefore, promote the same results in the future.

Following the historical method, we shall examine the outstanding evidences of Church and State cooperation in the United States from the origin of the republic to the present day. With such a broad field to cover, it seemed best to limit the study to three major areas of public interest—legislation, the courts and education, and further to confine these to religio-civil collaboration on a national scale, whether emanating from a national body like the American Congress, or affecting the whole nation, like the decisions of the Supreme Court. Subsequent articles will treat the judiciary and educational phases of the question.

Church and State alliance in the field of legislation has taken on a variety of forms. It may have begun with some action by a minority religious body successfully brining pressure on the government to enact laws which catered to its own sectarian prejudices and needs; or the initiative was taken by religious groups in general, and sometimes by religious-minded men in the government, who effectively influenced national legislation for the spiritual welfare of this country, without looking to the specific interest of any of the churches.

Sectarian Influence on National Legislation

1. Anti-Lottery Crusade

The campaign against public gambling on a national scale began as an organized opposition to the Louisiana lottery which was chartered by the state legislature in 1868 for twenty-five years. Church forces succeeded in preventing a renewal of the franchise in 1893; but the lottery interests were so powerful and widespread that nothing short of a stringent national law was considered adequate to curb this “dangerous socially entrenched activity.” Spearheaded by the clergy of Boston, the anti-lottery crusade enlisted the cooperation of the highest church officials in the country, including thirty-eight bishops of the Episcopal Church. Passed by the Senate, the bill was held up in the House until an intensive propaganda in the religious press of the country finally succeeded in having the Anti-Lottery Act passed by Congress in 1895. The opening clause of the Act forbids “any paper, purporting to be a ticket … dependent upon the event of a lottery … offering prizes dependent on lot or chance … to be brought into the United States, or carried by the mails of the United States or transferred from one State to another,” under heavy penalties of fine and imprisonment.” [3] It is said “there has been no event our history where the influence of the Churches and their clergy has been more effectively secured in the interests of wise social legislation.” [4] In 1902 the United States Supreme Court upheld the constitutionality of the Act and thus laid the basis for later legislation which excludes obscene literature from interstate commerce.

2. Protection of Christian Science

The legislative debate over Christian Science began shortly after Mrs. Baker Eddy published her textbook, Science and Health with a Key to the Scriptures, in 1875. According to Mrs. Eddy, sickness is unreal, and healing is accomplished by spiritual understanding, without medicine or surgery. Doctors opposed the doctrine as harmful to their profession and a danger to society. But the Scientists defended themselves so successfully in the courts that by 1949 all the States in the country had legalized the public practice of Christian Science as a healing art. Depending on the legal stand of their opponents, the followers of Mrs. Eddy introduced a variety of bills in the legislature, but always with a single end in view: legal immunity from prosecution for rejecting medical treatment and relying only on healing through the mind. A typical federal law for the District of Columbia (1928), regulating the practice of medicine, states, “The provisions of this Act shall not be construed to apply … to persons treating human ailments by prayer or spiritual means, as an exercise of enjoyment of religious freedom.” [5] The Ohio Statute (1949) takes a different approach, but comes to the same thing, providing that treatment of human ills through prayer alone by a practitioner of the Christian Science Church, in accordance with the tenets and creed of such church, shall not be regarded as the practice of medicine.” [6]

3.The Volstead Act

Protestant opposition to alcoholic beverages goes back to John Wesley, the founder of Methodism, who forbade his followers to drink, sell or even to handle that “liquid fire.” Led by the Methodists, American churchmen promoted the organization of a National Temperance Society (1865), and the National Prohibition Party, committed to “the total prohibition of the manufacturing, importation and traffic of intoxicating beverages.” [7] Five years before the Volstead Act was passed, the liquor dealers of the country publicly identified their chief opponents. “It is only necessary,” they said, “to read the list of those persons who are active in the present propaganda for legislative prohibition to realize that it is the Methodist Church which is obsessed with the ambition to gain control of the government.” [8] After prohibition was repealed, the Methodist Episcopal Church declared “it has accepted no discharge in the war for a saloonless nation free from the denomination of legalized liquor.” [9] In its official statement of doctrine, the Methodist Church (membership 10 million) “reasserts its long-established conviction that intoxicating liquor cannot be legalized without sin … Therefore, to be true to itself the Church must be militant in opposition to the liquor traffic.” [10]

4.Pacifists and Conscientious Objectors

The legal status of conscientious objectors to military service shows the extent to which the American government respects the religious convictions of its citizens; it is also a graphic example of the power of organized churches to influence legislation in their favor.

The Quakers were pioneers in concerted opposition to military service. In 1865 they secured the incorporation of an exception clause into the National Mandatory Enrollment Act, which seems to have been the first recognition by the federal government of a religious scruple against war. Section 17 of the Act provided that “members of religious denominations, who shall by oath declare that they are conscientiously opposed to the bearing of arms, and who are prohibited from doing so by the rules and articles of faith and practice of said religious denominations, shall when drafted into the military service, be considered non-combatants, and shall be assigned by the Secretary of War to duty in the hospitals, or to the care of freedmen, or shall pay the sum of three hundred dollars to such person as the Secretary of War shall designate to receive it, to be applied to the benefit of the sick and wounded soldiers.” [11]

After the Civil War, conscription was not considered necessary until America’s entrance into World War I in 1917. At that time Congress exempted “the members of any well-recognized sect or organization whose existing creed or principles forbid its members to be participate in war in any form, but no person shall be exempted from service in any capacities that the President shall declare to be non-combatant.” [12] While this clause was liberally interpreted, there had to be a limit to its extension; and consequently those who refused to engage in non-combatant services were court-martialed. It is estimated that 450 men were imprisoned on this score, mainly members of religious groups which felt it was wrong to promote the war effort in any capacity. A more serious objection against the law was that it made no provision for individual pacifists in those denominations which had not adopted a definite policy prohibiting participation in war. Between the two World Wars, the Baptists, Methodists and others successfully promoted a modification of the existing law. As it now reads, military conscription does not “require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” [13]

5.American Representation at the Vatican

The history of American representation at the Vatican covers two periods: from 1848 to 1867, when the United States had a fully-accredited diplomat at the papal court, and 1939 to 1950, when Myron C. Taylor was President Roosevelt’s personal representative to the Holy Father. Both periods are significant: as indicating a certain degree of cooperation between this country and the Holy See, but more pertinent to the present study, as an object lesson in Protestant influence which cut short the American delegation.

Jacob L. Martin, a Catholic convert, was appointed to the Roman legation in 1848 after formal approval by Congress. “There is one consideration,” his instructions read, “which you ought always to keep in view in your intercourse with the Papal authorities. Most, if not all, the Governments which have Diplomatic Representatives at Rome are connected with the Pope as the head of the Catholic Church. In this respect the Government of the United States occupies an entirely different position. It possesses no power whatever over the question of religion. All denominations of Christians stand on the same footing in this country—and every man enjoys the inestimable right of worshipping his God according to the dictates of his own conscience. Your efforts therefore will be devoted exclusively to the cultivation of the most friendly civil relations with the Papal government.” [14]

Contrary to the expectations of critics, the twenty years of American Vatican relationship passed without serious difficulty, and with recognized benefits to the United States. The refusal by the Washington Monument Association in 1852 of a block of marble for the monument sent by the Pope was an exception to the general rule. Yet as early as 1850 sectarians in the States protested against the restriction of Protestant worship in Rome, and finally this issue terminated the American ministry to the Holy See. Actually the papal authorities permitted non-Catholic services to be held regularly on the American legation property. Later, when the number of worshipers increased, apartments were leased outside the legation where, the United States minister reported, “our American fellow-citizens have assembled for public worship … without let or hindrance.” [15] But the facts were misrepresented in the secular press, so that in 1867 Congress refused to appropriate any more money for the American delegation in Rome.

The more recent experiment in American-Papal relations is common knowledge. One detail, however, which should be emphasized is the theoretical basis for the Protestant opposition to Myron Tayor’s presence at the Vatican. During the years in which the Federal Council of Churches protested against the appointment, it insisted that “we are not speaking against Roman Catholicism as a form of Christian faith worship … But we find it necessary to make a sharp distinction between the Roman Catholic religion and the political power exercised by the Roman Catholic hierarchy for its own institutional ends.” [16] It was this unproved accusation of the Church’s political aims, backed by thirty-odd million members in the Federal Council, which ended America’s second diplomatic alliance with the Vatican.

As an anticlimax, on October 20, 1951, President Truman nominated Gen. Mark W. Clark to be United States Ambassador to the Vatican, resuming the formal relations which ended in 1868. This provoked a storm of protest, from the successor of the Federal Council, the National Council of the Churches of Christ, and from the American Jewish Congress. Clark withdrew after members of Congress raised a legal technicality, that a man in military service is not eligible for the post of ambassador.

Legislation Affecting the Spiritual Welfare of the Nation

1.The Churches and Slavery

It is a matter of history that the single largest influence in brining about the abolition of slavery was the concerted action of a dozen religious denominations during the first half of the nineteenth century. Feeling over the question ran so high that it cause a permanent split among the Baptists (1845) and the Presbyterians (1861), and a Methodist schism that lasted ninety-five years (1844-1939) – dividing the sects into Northern and Southern denominations.

As early as 1787 the Presbyterian Synods of New York and Philadelphia recommended to all their people, “to use the most prudent measures … in the counties where they live, to procure eventually the final abolition of slavery in America.” [17] The American Anti-Slavery Society was established in 1833 by representative Presbyterians, Congregationalists, Methodists and Baptists, with the avowed purpose of “influencing Congress” to abolish slavery. In 1835 the Quakers petitioned Congress to outlaw domestic slave trade, which prompted Senator Calhoun to complain that petitions “do not come as heretofore, singly and far apart, but in vast numbers from soured and agitated communities.” [18] About the same time a memorial, two hundred feet in length, was presented to Congress, bearing the names of 3,050 New England clergymen and begging, “In the name of Almighty God,” that slavery be abolished. In a few months 125 distinct remonstrances were sent by the ministers of New England. At first the congressional reaction was unfavorable. A committee of the House of Representatives recommended that “all petitions relating … to the subject of slavery or the abolition of slavery, shall, without being either printed or referred, be laid upon the table, and … no further action whatever shall be had thereon.” [19] John Quincy Adams denounced the House measure as a “direct violation of the Constitution of the United States,” because it contradicted the provision of the Bill of Rights guaranteeing the right of petition which, he said, is “coextensive with the liberty of speech.” [20]

Nine days before the first Emancipation Proclamation (September 23, 1862), Abraham Lincoln received a delegation of clergymen from Chicago who believed that “the country is now suffering under Divine Judgments for the sin of oppression,” and favored “the adoption of a memorial to the President of the United States, urging him to issue a decree of emancipation.” [21] In the light of its background; it is not surprising that the final proclamation (December 18, 1865) was couched in religious terms, invoking “the considerate judgment of mankind and the gracious favor of Almighty God.” [22]

2.Religious Observances Authorized by Congress

The number of religious observances proclaimed by the Presidents of the United States and at least permitted by Congress runs to over a hundred. Especially in times of crisis or national peril, Americans have come to expect the chief executive to announce a special day of prayer or fasting for the entire nation. During the cholera epidemic, for example, President Taylor ordered that “all business be suspended” on a certain day (First Friday, August, 1849), and recommended that the people “assemble in their respective places of worship … to implore the Almighty … to stay the destroying hand which is now lifted up against us.” [23] At a critical stage in World War II, President Roosevelt issued a proclamation, setting aside September 8, 1940, “as a day of prayer,” and urging “the people of the United States” to implore of God “to grant to this land and to the troubled world a righteous, enduring peace.” [24]

The most significant of these religious proclamations because of its long history and explicit authorization by Congress is associated with Thanksgiving Day. A resolution to observe a national Thanksgiving Day was introduced by Elias Boudinot in the first Congress after the adoption of the Federal Constitution. After some opposition, a bill was passed by both Houses authorizing President Washington “to recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many signal favors of Almighty God.” [25] Breathing a deeply religious spirit, Washington’s proclamation (October 3, 1789) began with the observation that “it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor.” In pursuance of the request of Congress, he assigned a special day “to be devoted by the people of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our humble and sincere thanks … and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of nations, and beseech Him to pardon our national and other transgressions.” [26]

From Washington to Eisenhower there was among the presidents only one who was known as opposed to carrying out the wishes of the First Congress for an annual Thanksgiving Day proclamation. “For conscientious reasons,” Thomas Jefferson broke with the tradition of Washington and Adams on the propriety of the Federal Government’s establishing days of national prayer and thanksgiving. His explanation:

I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, disciplines, or exercises … I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines; nor of the religious societies, that the General Government should be invested with the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious exercise; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercise, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it. [27]

It should be remembered that Jefferson was a confirmed Deist, who openly denied the Christian revelation, although in his private life he showed a high admiration for the person and teachings of Jesus, whom he regarded as “the greatest of all the reformers.” [28]

Abraham Lincoln made Thanksgiving Day a permanent American institution, in gratitude and “praise to Almighty God, the beneficent Creator and Ruler of the Universe,” when the citizens of the country should “reverently humble themselves in the dust and from thence offer up penitent and fervent prayers and supplications to the Great Dispenser of Events.” [29] The most recent legislation on the subject was a joint resolution of Congress, approved December 26, 1941, designating the fourth Thursday in November of each year as Thanksgiving Day.

3.Federal Approval of Chaplaincies

Among the clearest proofs that the State recognizes the importance of religion in the lives of its citizens is the Federal Government’s appointment of chaplains for the Army and Navy, the Senate and House of Representatives. The practice began during the Revolutionary War when the Continental Congress in 1775 provided for the pay of chaplains, and the following year authorized the appointment of ministers of the Gospel as chaplains in the army. In 1777 George Washington succeeded in obtaining separate chaplains for individual regiments, instead of one for each brigade, in order to give “every Regiment an Opportunity of having a chaplain of their own religious Sentiments.” [30] Writing from Valley Forge, he directed that “Divine service be performed every Sunday at eleven o’clock,” for “to the distinguished character of a Patriot, it should be our highest glory to add the more distinguished character of a Christian.” [31]

This spirit has remained substantially unchanged. The Army Regulations issued by the War Department in 1937 instructed the chaplains to “hold appropriate religious services for the benefit of the command,” to “serve as friends, counselors and guides without discrimination … regardless of creed or sect, and strive to promote morality, religions and good order.” [32] In 1941 Congress appropriated the sum of $12,816,880 to build 604 chapels in Army posts, camps and stations throughout the country, where members of the armed forces—Catholic, Protestant and Jewish—might worship in a dignified setting. Described as “one of the most interesting cases of Church-State co-operation in the United States,” this appropriation met with practically no opposition from any quarter.

Chaplaincies in Congress have an equally impressive history. Jacob Duché, an Episcopalian, was the first chaplain elected by Congress (July 9, 1776), receiving a stipend of $150 for his services of opening congressional sessions every day with prayer. In 1789 the Senate and House voted to appoint one chaplain each, of different denominations. For several decades their duties included a sermon in the Hall of Representatives on Sunday morning, besides “visiting the members detained from their seats by sickness,” and attending “on the funeral solemnities in the event of a death among the members.” [33] By 1887 the Sunday sermon was dropped after the privilege was abused by certain politically-minded preachers.

Apparently the only voice of criticism of congressional chaplaincies was James Madison, who protested that such practice “establishes a religious worship for the national representatives, to be performed by Ministers of religion.” It is also “a palpable violation of equal rights (since) the tenets of the chaplains elected (by the majority) shut the door of worship against the members whose creeds and consciences forbid a participation in that of the majority … Could a Catholic clergyman ever hope to be elected a Chaplain?” [34] Madison was a poor prophet because at least two Catholic priests have served as chaplains to Congress, though one of them, Charles Pise, had to defend his position against nativist opponents. “I acknowledge no allegiance to the Pope’s temporal power,” Pise declared. “I am no subject of his dominions—I have sworn no fealty to his throne—but I am, as all American Catholics glory to be, independent, devoted to freedom, to unqualified toleration, to republican institutions.” [35]

In current practice, each session of both Houses of Congress is opened with prayer by the respective chaplain, invoking divine assistance on the subsequent deliberations. An average length for the invocation is about 150 words, frequently ending on a Christian note, e.g., “Hear us (O God) in Christ’s name.” [36]

4.Clerical Exemptions

The American government’s respect for clerical rights and privileges goes back to colonial times. Recent examples are the reduced clergy fares legalized by the Interstate Commerce Act of 1887, and the O.P.A. exceptions for the clergy as regards tire and gas restrictions in the 1940’s. More significant, however, because of its deep implications is the exemption of clergy and religious from active military service.

As originally drafted in 1940, the Burke-Wadsworth Bill provided only for the deferment of regularly ordained ministers of religion. Monsignor (now Bishop) Michael J. Ready appeared before the House committee to protest, stating that if conscription was necessary it should provide for a complete exemption of the clergy, not a mere deferment, along with students for the priesthood and members of religious communities. This was in contrast to the general Protestant feeling that theological students as such should not appeal to exemption, and a widespread opinion that ministers as ministers should not be automatically exempted. A special problem arose as to whether lay brothers in Catholic communities qualified as “regular ministers of religion.” Washington decided in their favor after Cardinal Mooney certified that according to Church Law, lay brothers are “not only bound to the same obligations of the clerical state, but they also enjoy the very same privileges as clerics.” [37]

In its present form, the law provides that, “regularly or duly ordained ministers of religion … and students preparing for the ministry … who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily leading to their entrance into recognized theological or divinity schools in which they have been pre-enrolled, shall be exempt from (military) training and service.” [38]

There has been a steadily wider application of the original basic law. In 1940 the law exempted students for the ministry, provided they attended divinity schools, recognized as such, for more than one year prior to 1940. Eight years later, the one-year limit was removed. In 1954 not only divinity students, but also those in pre-theological studies were exempted. After litigation in the lower courts, the Jehovah’s Witnesses were upheld by the Supreme Court as ministers of religion, which means that nominally every member of the Watch Tower Society is exempt from military service.

5.Religious Mottoes Legislated by the Government

The most publicized acknowledgment of the nation’s dependence on God is the religious motto authorized by Congress for American coins, which dates from the Civil War. The most recent, on another wide scale, is the postal cancellation, “Pray for Peace,” approved by the 84^th Congress just adjourned.

During the Civil War the government received so many urgings from religious groups that the Secretary of the Treasury, Salmon P. Chase, instructed the director of the mint that some “device be prepared without delay with a motto expressing in a few words the recognition of the trust of our people in God.” [39] In 1864 the present motto, “In God We Trust,” appeared for the first time on American coins—the two-cent piece issued April 22. Its choice was suggested by the director of the mint who reported to the treasury department that “we claim to be a Christian Nation—why should we not vindicate our character by honoring the God of Nations in the exercise of our political sovereignty as a Nation? Our national coinage should do this. Its legends and devices should declare our trust in God—in Him who is ‘King of Kings and Lord of Lords.’” [40] By Act of Congress dated March 3, 1865, it was enacted that “In addition to the devices and legends upon the gold, silver, and other coins of the United States, it shall be lawful for the director of the mint, with the approval of the Secretary of the Treasury, to cause the motto ‘In God we trust’ to be placed upon such coins hereafter to be issued as shall admit of such legend thereon.” [41]

Taken for granted for forty years, the motto raised a question of principle when President Theodore Roosevelt ordered the removal of the inscription, on the occasion of a new coin issue. When reproached for his action by church leaders, he stated that there was “no legal warrant for putting the motto on the coins.” This was a mistake, since it had been authorized by Congress, though not made mandatory. Roosevelt’s reason was a religious scruple, namely, “my firm conviction that to put such a motto on coins … is in effect irreverence which comes close to sacrilege.” Let it be inscribed “on our national monuments, in our temples of justice … wherever it will tend to arouse and inspire a lofty emotion.” But not on coins and postage stamps. [42] Finally the matter came before Congress which, by another Act, this time mandatory (May 18, 1908), directed that, “The motto ‘In God We Trust’ … shall hereafter be inscribed upon all such gold and silver coins … as heretofore.” [43]

During the past year the United States Senate concurred in a previous approval by the House for the slogan cancellation, “Pray for Peace,” to be used by every first and second class postoffice in the United States. The bill authorizing this slogan was introduced by Representative Rabaut of Michigan who also was the author of the amendment inserting the words “under God” in the pledge of allegiance to the flag. Apart from its intrinsic value as a national prayer for peace, the motto assumes special importance in view of the opposition it had to overcome. Slogan cancellations presently in use are paid for by interested organizations. Under the present bill, the federal government was being asked not merely to permit the exhortation to prayer, but to finance the production of the necessary dies. The postal department opposed the bill on financial grounds, and perhaps also as a matter of principle. Yet the bill was passed (June 11, 1956), and the government purchased the cancellation dies, one each for 10,000 post offices throughout the country. Commenting on the motto, Postmaster General Summerfield declared that it “epitomizes the highest aspirations of the American people. I believe that by repeating this message on millions of letters … we will reaffirm our faith in prayer to achieve the Nation’s most cherished hope—everlasting world peace.” [44]

The question of Church and State in America is complicated by the wide divergence in religious opinions, which prevents the Churches from offering a united front on matters of vital importance to the nation’s spiritual welfare. It is further harassed by the agitation of a vocal minority which appeals to the Constitution to secularize the American way of life. Both problems find at least a partial solution in the past and current history of our government’s legislation, which has been remarkably successful in protecting the interests of even the most erratic sects, and whose tradition of dependence on God and appeal to His aid is a ready answer to the godless secularist.

References

Homiletic and Pastoral Review
Vol. 57 - #4, January 1957, pp. 309-319

Copyright © 1998 by Inter Mirifica