Law and the Kingdom, Part I: Cracks in the Wall of Separation

A LOT of water falling from directly above Cambridge had cancelled the Common's second free Sunday rock concert by the time I hit the streets. May 17, 1970: for some, a celebration of Pentecost. A group called Pentecost Action had transferred its celebration from the Common to the First Church of Cambridge, Congregational. I attended with fifty-odd others including Bob Gordon, impresario of those rock concerts and, apparently, like myself, an interested observer

Two and one-half decided that the United States military had housecleaning to do in Cambodia; three days previous to that, Religious Heritage of America had named President Nixon Churchman of the Year for "carrying his deep religious commitment into the Presidency;" and Pentecost Action had called this meeting to conduct an excommunication of President Nixon from Christianity. A young Catholic priest and Harvard doctoral candidated, G. Ronald Murphy, presided with assistance from clergy of several other faiths. After a welcome and prayer, scriptural passages were read, the most material being 1 Corinthians 5:9-13, wherein sanction is given for judging those within but not those without the church: " 'Drive our the wicked person from among you.' "

And so the congregation recited a proclamation reading in part: ". . . our brother, Richard Nixon, by placing personal and national pride over brotherly love, you are separating yourself . . . from the spirit of Jesus Christ. . . Therefore, following our consciences to the best of our ability, we must advise you that by your own act, you are incapable of genuine participation in any Christian assembly or religious service, you are acting improperly in requesting ministers, priests, and rabbis to conduct services for you, and you are not in communion with us. . . In the name of the Lord and of the Christian people. Pentecost 1970."

Traditionally, at such severances, a lighted candle is removed from the gathering, turned upside down, and snuffed out in the earth. This time, however, in token of a hope that the disconnection be only temporary, the candle was simply removed. The assembly ended with Murphy urging everyone to try to have the proclamation read by many regular congregations.

OF THE two orders, religious and civil, one must be theoretically and effectively superior to the other. One of the two must be the underlying, ultimate referent and tribunal. Whenever a society considers a fundamental separation of the two to exist, the civil is necessarily the superior one.

Thomas A. Donovan, Roman Catholic priest in the Diocese of Brooklyn, N.Y., in his thesis, "The Status of the Church in American Civil Law and Canon Law," argues that free religious expression in America (public worship, ecclesiastical property holding, etc.) does not flow from the largesse of the civil order but from divine sanction and radical incompetence of the civil order in this matter.

Twice in New Jersey, however, courts have ordered vitally necessary blood transfusions for a fetus over the religious objections of the mother to such medical practice. The U.S. Supreme Court forced Mormons to abandon polygamy. For example.

The spiritual order enjoys a fundamental independence only when all civil dynamics flow from it in a union of civil and spiritual orders. Its radical freedom lies in the union of the orders. The radical freedom of the civil order lies in its "separation" from the spiritual order. Freedom in union vs. freedom in separation.

In which freedom does life originate? In which freedom is life fulfilled? Does the same freedom answer both questions?

THE FIRST English ladies and gentlemen to arrive in Indian country were not overly burdened with the urge to keep church and state separate. John H. Laubach, in his book, School Prayers: Congress, the Courts and the Public, writes: "The Puritan settlement . . . of Massachusetts Bay . . . established under Governor Winthrop . . . in the seventeenth century sought to join the cross and the sword in founding a new Israel, following the Calvinist model." In 1639, the General Court of Massachusetts summoned Ann Hutchinson, charging that she allowed religiously unorthodox people to meet in her home and air their unseemly doctrines. Part of the transcript of the trial reads:

Mrs. Hutchinson-What law do they transgress?

Governor Winship-The law of God and of the state . . .

Mrs. Hutchinson-What law have I broken?

Governor Winship-Why the fifth commandment.

Ann Hutchinson was banished from the colony. In England about the same time, the concept of the "social contract" began to spread via the ideas of Thomas Hobbs. Hobbs challenged the doctrine of the divine right of kings, declaring that legitimate government is formed by contracting men, and that temporal power is always superior to ecclesiastical power. (Although we remember that over four centuries earlier, the barons extorted the Magna Charta from King John, we do not as readily recall that before the year was out, John repudiated the document and was released from its observance by the Pope. John died the following year, 1216, and the agreement was reissued by Henry III.) Social contract theory was further developed by John Locke, Jean Jacques Rousseau, and Thomas Jefferson, who enshrined it in the American Declaration of Independence.

Church-state separation as embodied in the First Amendment to the U.S. Constitution was not, however, so thorough as we may tend to think. National religious and church establishment was thereby prohibited but state churches and state religious existed at that time. From the cited Laubach: "As Professor Wilbur Katz has pointed out, 'It seems undeniable that the First Amendment operated and was intended to operate, to protect from Congressional interference the varying state policies of church establishment.' The Amendment forbade Congress to disestablish as well as to establish religion."

In 1836, Massachusetts became the last state to disestablish a religion. In the 1840s, a New Orleans priest named Permoldi, convicted for conducting a burial according to his religious convictions but in contravention of Louisiana's burial laws, argued protection of religious liberty under the federal Constitution, and was told by the Supreme Court that the federal Constitution offered no such protection since it announced no "inhibition" of state religious policy.

The Fourteenth Amendment, conceived as the vehicle for changing slaves into citizens and keeping states from interfering with this transformation, only by fitful and contradictory interpretation and application, finally came to impose all First Amendment guarantees on the individual states.

In 1940, the State of Connecticut arrested a man named Cantwell for soliciting funds for a religious cause without a license. The U.S. Supreme Court declared for Cantwell: 'The First Amendment declares that Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws."

This decision was the last legal brick in the "wall of separation" between church and state urged by Jefferson. History may record that, sixteen years later, the first cracks began to appear in that wall, the first major blow being struck not by the state but by he church.

THE ISSUE of black citizenship occasioned in the Fourteenth Amendment the instrument through which government completed its self-disqualification from competence in religion. The issue of first-class black citizenship possibly occasioned, through the instrumentality of the late 1950s and early 1960s, the beginning of the church's move to reclaim the civil order. When Martin Luther King took to the streets in 1956 to challenge laws of the land, and when masses followed him, and when clergy followed the masses, the new "activist church" entered the headlines and the separated civil and religious orders in America moved from a substantially stable to a nervously uncertain coexistence.

I think it no mere coincidence that the school prayer controversy erupted at the height of the civil rights movement. Viewed as a kind of metaphysical drama, the Supreme Court rulings against prayer in public schools can be seen as a retaliatory strike by government against the new civil pretensions of religion in the civil rights movement. The media convinced us that the 1964 school desegregation decision was the Court's most intimate and dynamic relationship to the Kingled movement, failing to see any connection between that movement and the school prayer decisions. The media had so conditioned me to think of King as a "civil rights leader" that I was several times surprised to remember that he was also a minister of the gospel.

THE CHUROH remembering and reclaiming. From political activism to political candidacy.

Episcopal minister S. Lester Ralph, recently elected mayor of Somerville, told me that he felt that clergymen politicians were an untapped source for relatively "dispassionate" political service. He felt that the public would find the nationally emerging new breed acceptable because there is no danger of a church takeover of the civil order, the church being "so clearly in retreat" in society.

Boston Jesuit priest Robert Drinan, in also declaring the issue a non-issue, gives a curious reason. In his race for the Third Congressional District seat, he cited the federal Constitution: "No religious Test shall ever be required as a Qualification to any office of public Trust under the United States." But were ecclesiastical officials in the minds of the drafters of that language?

The confusion engendered by this citation of Drinan in support of his candidacy recalls an 1899 Supreme Court case, Bradfield v. Roberts . Bradfield, in the cause of church-state separation, tried to prevent Roberts, the U.S. Treasurer, from granting funds to Providence Hospital in Washington,. D.C., because the hospital was run by Roman Catholic nuns under the auspices of their church. Bradfield lost. The Court held that the hospital's incorporation papers made no mention of the religion of the incorporators and that, legally speaking, five women who happened to be Roman Catholic nuns but who were acting solely and simply as private citizens, had incorporated themselves as "The Directors of Providence Hospital."

In other words, we are to see it as legally the same thing if the directors of General Motors all happen to be Quakers or if all the directors of General Motors were bishops of the Russian Orthodox Church. Legally, there is no difference between being simply a member of a religious body and being under holy orders and/or in ecclesiastical officialdom. There shall be no religious test for privileges of civil (or pseudo-civil) incorporation, just as there shall be no religious test for public office. So the Bradfield decision and Drinan would have us reason.

But, perhaps, this analysis is needlessly and uselessly fastidious in the face of Drinan's assertion that, "It takes people maybe 24 to 48 hours to get used to a priest running for Congress. A friend told me that if they're real old fashioned, it takes 72 hours."

( To be continued. )

Copyright 1970