Works By John Courtney Murray, S.J.
Separation of Church and State: true and false concepts
John Courtney Murray, S.J.
There are two contemporary cases in which the issue of separation of Church and State is being agitated. One is that of Mr. Taylor's mission to the Vatican; the other is that of the inclusion of non-profit tax-exempt schools (therefore parochial schools) in programs of public aid to education.
As Mr. Sumner Welles has recently pointed out, it is quite impossible to deal seriously with the Protestant protests over Myron Taylor's mission to the Vatican. But the second case is extremely important, in view of the fact that public policy with regard to the extension and equalization of educational opportunities and services is still in a process of formation. At this critical juncture two organized forcesthe secularist educators and clerical Protestantismare bringing their influence to bear in order to write into public policy the exclusion of parochial school children from all public aid, Federal or State. Let me here consider the campaign of clerical Protestantism (I use the term in order exactly to designate the quarter from which the clamor is coming).
It is already significant that the Protestant campaign is not being waged under the device of "religious liberty" or "freedom of conscience"; neither of these two positive, intelligible formulas would suit the purpose. Rather, the banner bears the slogan, "separation of Church and State"that negative, ill-defined, basically un-American formula, with all its overtones of religious prejudice. This fact affords a preliminary insight into the ultimate forces that are inspiring the campaign; they are the forces of emotion and religious rivalry, not of reason and patriotic sentiment.
The workings of these forces can be further seen if one pauses for a moment over the two images, the two bits of rhetoric, which constantly recur in all the propaganda. Bus transportation for parochial school children or Federal aid to non-profit tax-exempt schoolsso the voters, legislators, or Supreme Court are vehemently toldis "the camel's nose under the tent"; it is "the thin edge of the wedge."
Presumably, the voters, etc., could be trusted to recall that the camel ended by usurping all the room in the tent, driving out the poor Arab (if he was an Arab?), and that the wedge, driven all the way in, caused the collapse of the wall. So the fearsome specter begins to rise: a work of usurpation and destruction is afoot. Let the parables now be applied. The tent is the American educational system; the camel is the Catholic Church (more specifically, the Roman Catholic hierarchy, since it is within the present Protestant universe of feeling to be tender to the Catholic laity); the camel's nose, rather picturesquely is a school bus, or a Federal pittance to a struggling parochial school. Beware, then, of the nose: what the Roman Catholic hierarchy really wants is to usurp the whole tent to bring all American education under clerical domination. Again, the wall is the constitutional distinction between civil and religious life; the wedge is the school bus, etc.; and, of course, the powerful arms of the Roman Catholic hierarchy swing the sledge. Beware, then, of the thin edge, the first light blows: what the Roman Catholic hierarchy really intends is to destroy the whole wall, and turn American democracy into a clerical-Fascist dictatorship.
I do not caricature the "argument" under the images; I merely clarify it. And when it is clarified, one sees what it springs from, and what it appeals tonot reason but fear. A leading and most fair-minded Protestant educator has recently said: "The intensity of Protestant feeling on this subject [public aid to parochial schools] can hardly be exaggerated. It springs largely from a deep fear of the extension of Catholic control not only in education but in other areas where church-state relations are involved." One can sense the intensity of this fear, and see the way it distorts the real issues, in an editorial in the Christian Century (October 30, 1946) on the Wisconsin bus bill.
It concludes with the usual fear-inspiring image: "The bus bill is the thin edge of the wedge which, when driven all the way in, will split American democracy wide open." And the author clearly conveys the conviction that the deliberate intention of splitting American democracy wide open is explicitly present in the minds of the Roman Catholic hierarchy. He begins:
With his insight sharpened by this bit of research, the author is enabled to perceive the real aim of the Church's action: it is "to discredit and eventually to over-throw a constitutional principle which it has never accepted"; quite simply, Catholic authorities are out to
effect "fundamental changes in our cultural and political institutions." (In this connection, note that Pius XII in his discourse to the Roman Rota, on October 6, 1946, taught that "political, civil and social tolerance" is "for Catholics a moral duty," as an obedience to civil law.)
Furthermore, with still more astonishing cleverness the author has uncovered our sly tactics: "Being wise in the ways of human nature, the church seeks to bring about changes in American institutions gradually." The "first step in a revolutionary process" is to get a few rural parochial school children on public buses. To this end, the extraordinarily resourceful Roman Catholic hierarchy devised the "child-benefit theory," so innocent in itself, so humanitarian in its appeal, but actually a "weasel way of nullifying the law," "conceived in the purpose of the church to gain for itself a position of special privilege. It is an integral part of its effort" to split American democracy wide open.
Obviously, then, bus transportation "will not be the end of the matter. Instead, it will be only the beginning." The immediate goal is to shift to government the entire cost of parochial school education: "This is precisely what the Catholic authorities are seeking to achieve." But even this triumph will not slake the hierarchy's unquenchable thirst for power; the further aim to "to open the public treasury to raids of ever increasing variety and size in support of church institutions," and eventually to make impossible any line of separation between Church and State." That will be the victory to which the ghost of Leo XIII urges. And at that point, presumably, the Roman Catholic hierarchy will produce the man on horseback and give orders to bring out the thumbscrews.
Fantastic? But there it is. And worse can easily be found in less responsible Protestant publications. It would seem that the Protestant lay electorate is being systematically encouraged to believe that the Roman Catholic hierarchy is engaged in a conspiracy (apparently not too successfully disguised!) to split American democracy wide open. By less thoroughgoing minds than that of the editor of the Christian Century, the milder persuasion is spread abroad that the Catholic Church is a pervasive threat to freedom in society.
And if evidence is asked, one usually gets two pieces: 1) the example of Spain ("There is your Catholic State, your ideal"), and 2) the famous paragraph in an essay by the late Msgr. Ryan (in Ryan-Millar, The State and the Church, p. 38), wherein the author supposedly let slip the episcopal plan of altering the U. S. Constitution and instituting legal persecution of Protestants. However, it is unmistakably clear that no evidence generated this propaganda line; rather, the line had other origins and then sought this evidence for itself. Its origins are in fearthat deep, irrational at times, and in certain individuals almost pathological fear that Newman long ago pointed out to be part of the "anti-Romanism" that seems to be inseparable from Protestantism.
It is of little use to refute this propaganda line; no rational refutation could possibly reach its emotional mainspring. One could, of course, point out the curious paradox that Protestants fear us most in that wherein we are weakestour practical organization for religio-social purposes. And one could study this fear as a problem in religious psychopathology. But the more urgent thing is to show the intrinsic worthlessness of the "screen-arguments" it puts up.
The "camel's nose" argument may be dismissed as silly. First, the camel (Catholic education) is not pushing his nose under the tent (American education); he already has a rightful, constitutional place within the tent. Moreover, being an intelligent and respectful camel, intent on service, not usurpation, he knows that the Arab (public school education) has its own legitimate place in the tent; and he has no intention of pushing the Arab out. (As a matter of fact, the present danger is that the Arab will push the camel out.) Properly, then, the only question is: is the camel, as a public servant, entitled to be fed by the same hand that feeds the Arab?
The "thin edge of the wedge" argument needs more treatment. Before one can know whether public aid to parochial schools is the entering wedge in the wall of separation between Church and State, one must know exactly where this wall is and what it walls off from what.
The metaphor, of course, is Madison's. It is not a particularly happy one, but it does convey a truth. There is a constitutional "wall" between state authority and the religious conscience. There is also a wall between state authority and the parental conscience; it was constitutionally affirmed in the famous Oregon School case, in which the Court denied to the State the right to force parents to send their children to public schools. In general, there is a wall between the areas ruled respectively (and exclusively) by civil authority and religious authority. But the metaphor must not be pressed too far. The Supreme Court of Mississippi (in Chance vs. Mississippi, on free textbooks for non-profit private school pupils) well said:
Useful citizenship is a product and servant of both the Church and the State, and the citizen's freedom must include the right to acknowledge the rights and benefits of each, and to import into each the ideals and the training of the other. . . . Indeed, the State has made historical acknowledgment and daily legislative admission of a mutual dependence, one upon the other. It is the control of one over the other that our Constitution forbids.
Free communication, mutual dependence and encouragement, but respect for independent sovereignties, and no control of one by the other—that is a good basic statement of the case. And it contains a needed warning against making the "wall" a sort of "iron curtain" that would deny all community of interest between Church and State. Historically, the American Government has been greatly concerned about religion, as the leading factor in good citizenship and the general welfare; on its part, the Church has been greatly concerned about good citizenship and the general welfare, as necessary manifestations of religious duty. Good citizenship and the general welfare are complex but undivided entities; to them both Church and State, remaining "separate," make their respective contributions, each freely admitting and encouraging the contribution of the other. Whatever deformations may have been introduced into individual
minds by secularist or religious prejudice, this is historically and constitutionally the genuine spirit of the American principle of separation of Church and State.
It is, therefore, in the matter of good citizenship and the general welfare that the interests of State and Church meet on common ground; and no impenetrable iron curtain may stand athwart this ground, forbidding all transit to and fro. Moreover, it is obvious that in the school the citizen is made "good" and the general welfare promoted. Concretely, therefore, the school is a common ground on which State and Church meet in friendly cooperation. Each, indeed, has its special interests in schools, but a community of interest is undeniable. This is the fact that makes it difficult to apply to education the principle of separation of Church and State. Superficial and prejudiced minds make the application with simple ruthlessness; more honest minds admit the difficulty.
What canons of interpretation have we? I suggest three. First, the principle of separation of Church and State seeks to ensure the general welfare (chiefly the unity and equality of citizens as citizens) and to guarantee to both State and Churchand to parents under the guidance of religious conviction—full freedom for the discharge of their respective responsibilities. Consequently, this principle may not be so applied in the field of education as to result in damage to the general welfare, or in unreasonable limitation of either state sovereignty or religious and parental rights.
Secondly, the general welfare of the United States has as an essential component the maintenance of the free American system of education. By this I mean the co-existence and free functioning of two types of schoolsthe non-profit, tax exempt, church-related school (the original unit of American education) and the public school (the later growth). At the moment when all education becomes a state monopoly, or tends to become such (i.e., when non-profit church-related schools become the object of explicit or implicit governmental discouragement, and discriminatory legislation fosters the belief that the single American school is the public school) at that moment American democracy will be dead or dying.
Thirdly, one must take seriously the doctrine of the State as parens patriae, i.e., as the supreme sovereignty whose power must be exercised with particular tenderness towards those of its citizens who are under disability, especially the disability of childhood helplessness. Moreover one must realize that the State is primarily "parent" of children, not of schools. As a matter of fact, the so-called "child-benefit theory" is the direct offspring of the parens patriae doctrine wedded to the American theory of free education. Certainly from the standpoint of the Federal Constitution, the American State is not interested in whether a child attends a public or a parochial school; the choice of a school is a matter of parental right. But the American State is interested in its children, who are equally its wards and are equally to be its citizens.
Above all, one must accept the full logical implications of the fact that in this moment the Federal Government is taking up the challenge to itself as parens patriae, put by the deplorable inequalities in educational opportunities. Half of the nation's children are ill-educated; and the States cannot adequately cope with the situation. This is the proper starting-point of our whole discussion.
And the nub of the question is this: does separation of Church and State mean that the American Government cannot be parens patriae to all its children, but only to a portion of them? That it cannot effectively recognize both components of the free American educational system, but only one of them? That, in the name of a principle adopted for the general welfare, the State must be limited in its power to promote the general welfare? Finally, that in the name of a principle designed to secure full freedom to the religious and parental conscience, parents must be penalized for the exercise of their religious and parental rights?
On their side, the secularist educators (whose voice is obediently echoed by many Protestants) maintain that separation of Church and State entails as a necessary consequence separation of parochial school children from public school children. Only the latter are truly wards of the State, objects of its beneficent action as parens patriae; the latter, as far as their education is concerned, are simply wards of the Church, a sort of political bastards (sit venia verbo). If the wall between these two groups of children is breached by including parochial school children within the active care of the State as parens patriae, the wall between Church and State is likewise breached. They are one and the same wall.
As frequently presented, this theory also incorporates a false theory of American education: "The only American school is the public school, others are beyond the pale; they have to be tolerated, of course; the State may grant 'exemptions' to attend them; but they are purely private institutions, not fit for public aid." At other times, the theory assumes a highly legal form: "The State provides for schools for all American children; if some parents wish to send their children to church-related schools, the State is forbidden to interfere with them, but it is likewise forbidden to aid them; their choice is entirely free; it is purely a matter of private concern; let them pay the consequences of it."
The theory involves an ingeniously distorted view of the First Amendment, of parental rights and of the nature of a non-profit, tax exempt, church-related school. But it contains one grain of truth that is its initial undoingthe parent's choice of a parochial school is his private concern. Indeed it is. The parental conscience, and the religious motives that may determine it, belong in an area into which the State may not penetrate; they are truly behind the wall of separation between Church and State; the State may not legitimately know anything about them. But from this it follows immediately that, from the stand-point of the State, the parent's choice of a parochial
school may not be regarded as free, but as made under State compulsion. Compulsory education laws oblige the parent to make a choice; but the reasons for the choice of a parochial school are a matter of private not public concern; hence when this choice is made, it must be regarded by the State as simply an obedience to civil law. The State implicitly admits this fact when it accepts attendance at parochial schools as compliance with compulsory education statutes. And this fact puts parents of parochial school children on an exact parity with parents of public school children; they have not "cut themselves off from public aid" by a "free" choice. Yet this is the factual premise of the argument: "The choice was free; let the parent pay for it."
Note another confusion in the argument. From the fact that the parent has private reasons for sending his child to a parochial school, it concludes that the parochial school merely fulfills the parent's private purposes. This is false. Like its predecessor, the early American church-related school, the present parochial school fulfills an essentially public functionthat of preparing an educated citizenry. The State itself acknowledges this fact when it grants these schools tax exemption. Yet one always sees this hidden premise in all arguments against public aid to parochial schools: "These schools are private; therefore their purposes are private; and tax money cannot be given them." The fallacy is patent. The Church does not run schools simply for its own "private" purposes. Actually, it runs schools. And the function of a school is primarily to cultivate the intellectual virtues, to enable men to live as men in this worldas rational creatures, members of a rational society. Because a school may do more than thisbecause it may recognize that man is a religious person as well as a civic person, and therefore may educate him religiously, it does not for this reason cease to be a school, and to fulfill a public function, and to contribute to the general welfare. Therefore not on this ground may government refuse its aid to parochial schools, when its concern for its children leads to concern for the schools that train them as citizens.
This said, suppose now contra factum that the parent's choice is actually free. Could it have the effect attributed to it by secularist and Protestant theorists? In their theory, the State would say: "Being separate from the Church, I cannot forbid you the choice of a parochial school. But if you choose such a school, mind the consequences: you will cut your child off from me; I shall no longer be able to be parens patriae to him; I shall have to disown him; for separation of Church and State, which obliges me to permit you this choice, also obliges me to penalize you for making it."
This is sheer mutual frustration. By his "freedom" under separation of Church and State, the parent frustrates the power of the State as parens patriae; and by its obligations under separation of Church and State, the State frustrates the parental right by making its exercise the reason for a penalty. Yet separation of Church and State is supposedly a principle of freedom, not frustration.
In this connection, I would make another essential point. If the State is parens patriae and has all child-citizens as its wards, it must take strict account of what kind of patria it is "parent" of; namely of a nation of mixed religions and of a free, two-component educational system. It must therefore so frame and administer its legislation, based on the parens patriae power, as to see that all its benefits flow equally to all children, regardless of their religion and regardless of the particular type of education they want in consequence of their religion. This principle was recognized by the Court in Chance vs. Mississippi: "The State is under duty to ignore the child's creed but not its need. . . . The State which allows the pupil to subscribe to any religious creed should not, because of his exercise of this right, proscribe him from benefits common to all." The principle was likewise recognized by Senators Murray, Walsh, Aiken and Morse, in urging an amendment of the Thomas-Hill-Taft bill introduced in the 79th Congress:
The Federal Government in providing aid to education must be careful not to encourage or discourage one system of education as against another. Its aim must be the general welfare of all citizens. Federal aid to education must not operate merely for the benefit of some children, be their number ever so large, but for the benefit of all children. To do otherwise would in effect penalize those who are not eligible to receive the benefits of the act, and inequity would result.
It is here that one sees the misleading tendency of the negative formula, "separation of Church and State." As a matter of fact, instead of making separation of Church and State the protection of State sovereignty and the sovereignty of religious and parental rights, adversaries of public aid to parochial schools make it destructive of both. In the name of a somewhat fraudulently pious interpretation of the good American principle, "Government must keep its interfering hands off religion," they say, "Government must not lend its helping hand to the education of this group of its child-citizens, precisely because of their religion." Religion, therefore, has put one group of citizens behind a wall, in a sort of educational ghetto, where they are "second-class" citizens, barred from general governmental benefits, less free than the group across the wall. Religion has become a civic liability, a principle of discrimination in regard of common educational assistance, and an embarrassment to government itself. Is this what the famous American system leads to?
The absurd consequences to which the theory leads clearly show that the wall of separation between Church and State has been erected in the wrong place. It no longer separates Church and State; it now separates the State, parens patriae, from a whole group of its wards. From another standpoint, this false wall lies squarely-across a path that should be open and unobstructedthe path of all American citizens, regardless of creed, to full participation in all the benefits decreed by the State for the sake of the general welfare. From a third standpoint, this false wall blocks off two classes of parentsthose whose right to the kind of education they want for their children is facilitated by government, and those whose equal right is frustrated; those whose religious freedom is abundantly dowered by government, and those whose
religious freedom is dearly bought by themselves. Finally, what is perhaps worst, this false wall is a barrier deflecting American democracy towards a disastrous development, alien to its primitive spirit; I mean that this false wall deflects all governmental aid singly and solely towards the subsidization of secularism, as the one national "religion" and culture, whose agent of propagation is the secularized public school. Many thinking Protestants view this development with alarm. Catholics view it with horror; they have fought the theory of l'école unique (the single State school) in almost every country in the world, for they know that it is the destruction not only of religion but of society itself. And it is no good to say that in the United States the Government does not interfere with religious schools. The issue is not interference vs. non-interference. The issue is support vs. non-support, at a moment when government is facing its responsibility for extending equal educational opportunities to all children. In such a context, non-support is only a mitigated form of legal suppression.
The question, therefore, is whether American legislators (and Supreme Court judges, too) are going to be misled by a false location of the wall of separation between Church and State, and write into public policy all the various un-American "separations" which I have noted. The thin-edge-of-the-wedge argument is being frantically brandished before them. One hopes that they will remember that a wedge cannot be driven into a wall that isn't there.
I have been discussing separation of Church and State largely from the standpoint of the Federal Constitution. It is true that State Constitutions generally forbid, with varying degrees of stringency, public aid to sectarian schools; and these proscriptions are generally said to be legitimate interpretations of the American principle of separation of Church and State. The question is: are they? A study of the forces that led to the insertion of these proscriptions in State Constitutions during the nineteenth century would, I think, reveal two forces strongly at work: 1) Protestant prejudice, especially as it waxed in the face of Catholic immigration, and 2) secularist advocacy of the imported theory of the single State School. It is no accident that these same two forces should now be trying to triumph on the national scene, as once they triumphed in the States, and with the same war-cry, "Separation of Church and State!"
1947c. "Separation of Church and State: True and False Concepts." America 76 (February 15): 541–45.