Documents

Fides et Libertas

The Journal of the International Religious Liberty Association
1998 Fides et Libertas

The Distinctive Roles of Church and State

W. Cole Durham, Jr.

Professor of Law

J. Reuben Clark Law School

Brigham Young University

Provo, Utah, United States of America

I. Introduction

                In addressing this topic, I want to comment generally concerning roles that are genuinely different, roles that overlap, and principles that can help guide this sensitive interaction. Within that framework I then will discuss more concretely what I see as practical issues being faced throughout Central and Eastern Europe.

                But first a story--a story about three members of a small cultural minority group in Louisiana known as Cajuns. (Their name is derived from “Acadians,” Francophones who long ago migrated from Canada to the southern US.) On their way to the market the three Cajuns were delighted to find a one hundred dollar bill. They began to talk about how they would spend the money. Soon they passed by a church, the sight of which brought pangs of conscience.  “We really need to give some of this money to God,” one of them said. The others reluctantly agreed. Now they faced a new question: How much of the $100 should they give? One said they should draw a line between them and the church, then throw the bill in the air. If it landed on the church side of the line, they would give it to God. But if it landed on their side, they would keep it. The second Cajun disagreed. “What we should do,” he said, “is draw a circle on the road, and then throw the bill in the air. If it falls inside the circle, we give it to God. Otherwise we keep it.”  “But I have an even better idea,” declared the third Cajun. “Let’s just throw it up in the air, and if God wants it, he can take it.”

II. Perspectives on the Distinctive Roles of Church and State

A. The jurisdictional approach to separating church and state

                The Cajun story is democratic in its way. It celebrates peasant cleverness. But it can also be seen as a metaphor for a progression of approaches that have been taken to analyze the meaning of the famous remark of Jesus when asked whether He should pay taxes to the Roman Empire: “Render therefore unto Caesar the things that are Caesar’s, and unto God the things that are God’s” (Matthew 22:21). Through much of history, the answer has been thought to be jurisdictional. The Cajuns’ line in the road represents a boundary between the competing sovereignties of church and state. Other metaphors have been used to describe this line. Consider the “two swords” doctrine, first enunciated by Pope Gelasius I around the end of the fifth century: There are two swords “by which this world is chiefly ruled, the sacred authority of the priesthood and the royal power.”¹

                Philosopher John Locke used jurisdictional terms in what has become one of the classic formulations of the distinctive roles of church and state in his Letter Concerning Toleration.² Locke argued that it is vital “to distinguish exactly the business of civil government from that of religion. In his view,

the whole jurisdiction of the magistrate reaches only to . . . civil concernments; and . . . all civil power, right and dominion is bounded and confined to the only care of promoting these things; and that it neither can nor ought in any manner to be extended to the salvation of souls. . . .

                The vague modern notion of “separation of church and state” is yet another metaphor suggesting this jurisdictional approach. Thomas Jefferson imagined a “wall of separation” between church and state.³ As the United States Supreme Court has noted, however, in our complex world it is no longer clear whether the wall Jefferson envisioned is straight or curving, quite like the serpentine walls he designed for some of the buildings he constructed.

B. Protecting spheres of autonomy when state and religious interests overlap

                With the growth of the social welfare state and its pervasive influence on all aspects of life, it has become more typical to think about the relation of religious and state institutions in a way suggested by the second Cajun, the one who wanted to draw a circle on the road. Religious freedom is conceptualized in terms of “circles or spheres of autonomy” that can be encroached on only to advance compelling state interests that can be furthered in no less burdensome way.⁴  Current international instruments such as the European Convention recognize that religious freedom rights may be limited for certain reasons that correspond in essence to Locke’s notion of the role of civil power. According to the European Convention, any limitations must be grounded on legitimate state interests in protecting public safety, public order, health, morals, and the rights of third parties.⁵  Prevailing international law, however, recognizes that in the context of modern nation states these interests are so pervasive that one cannot be assured religious freedom will be protected by the limiting of state action to the civil interests specifically identified from Locke to the European Convention as legitimate bases for state action. Rather, state encroachment on religious freedom can be justified only if such limitations “are prescribed by law and are necessary in a democratic society” for the protection of civil interests. The Strasbourg Court has construed this to mean that the interference with a right must be motivated by a “pressing social need” and must be “proportionate to the legitimate aim pursued.” In modern legal systems this proportionality test is now crucial to determine whether state action that burdens religious freedom is legitimate or not. Note that while the sphere of freedom provided by this approach is smaller, the protection it provides is larger and stronger.

                To give practical examples, this means that any limitation on freedom of religion--whether it be rules governing the initial grant of entity status to a church, the coercive imposition of tax rules on the transfer of funds from believers of one faith tradition to another, the enforcement of health regulations, the application of accreditation requirements to private schools, or the regulation of evangelistic missions--is permissible only if it is “prescribed by law” and “necessary in a democratic society.” All such regulations should deal with those civil interests Locke would have seen as appropriate for state oversight. But the intervening centuries have taught us that more is required to protect religious freedom. It is vital to set constraints on majoritarian legislation and bureaucratic action--constraints that will assure religious minorities they are protected and their rights are to be overriden only if the state action in question passes the proportionality test.

                What the “sphere of autonomy” model recognizes is that one cannot satisfactorily answer the question about what is Caesar’s and what is God’s by providing a list of distinctive roles for religious and state institutions. Church and state have overlapping interests. Religion will be marginalized if it has authority to act only with respect to matters in which the state has no interest. Moreover, as construed in modern democratic societies, state action can be justified only if it is the least restrictive or least burdensome method of advancing the state interest in question. If the state’s objective can be fulfilled nearly as well while accommodating religious beliefs and practices, the less burdensome approach must be chosen. In many situations, this can be accomplished by giving churches appropriate exemptions or by narrowing the scope of the regulation in question.

C. The hazard of secular blindness: Undue privileging of secular outlooks

                The “even better idea” proposed by the third Cajun--throw the hundred dollar bill in the air and see if God takes it--corresponds to the pervasive secularism of our times. It is easy to give lip service to the importance of religion in society and to religious freedom, but fail to provide effective protections on whims of inconvenience. The difficulty is that those charged with enforcing good secular regulations do not understand how religious communities work and what is vital to their functioning. An example:

                A recent case in the United States involved the Salvation Army, the provider of a most effective treatment program for alcoholism. Recovering alcoholics are situated under 24-hour supervision and occupied with tasks such as gathering used clothing for charity. But an overzealous enforcer of labor laws charged that the Salvation Army was not paying even minimum wages. Of course, the whole program would collapse if the Salvation Army were required to pay its clients minimum wages and overtime as well for their voluntary participation in a therapeutic work program.  Fortunately, wiser heads prevailed; an accommodation was arranged.

                But this does not always happen. Too often secular blindness combined with bureaucratic insensitivity cripples the ability of religious groups to provide the kinds of contributions contemporary society needs them to make. The cure for this problem lies in taking the proportionality test seriously, and not manipulating the test to give undue weight to the secular interests of the state.

                Ultimately, it was the second Cajun, rather than the first or the third, who was wisest.

III. The Importance of Religion to Civil Society

                It has become common to view society in three sectors: the private market, government, and not-for-profit organizations, charities, and religious bodies. According to private market theories, societal wealth will be maximized by taking advantage of the natural incentives and efficiencies of private markets. However, it is well known that private markets break down in certain areas. For example, markets fail to generate optimal social solutions whenever entrepreneurs can profit without internalizing the full cost of business activities--such as not bearing the costs of pollution caused by business operations. Moreover, some vital social functions--care of the poor, for example--are inherently not profitable. Such market problems make vital the second sector: government. But government institutions likewise provide no panacea. They are often too cumbersome, insufficiently responsive to private needs, and too prone to become bureaucratic and impersonal. When both market and government fail, the third sector--not-for-profit, charitable, and religious organizations--is vital.

                I have a problem with this picture. Why should this sector be placed third, a last resort when all else has failed? Historically, it was probably first, and in any event it makes sense to let the voluntary private sector accomplish as much as it can before society resorts to solutions from government.

                Religious institutions have long provided a vital buffer between the individual and the leviathan state.  Religious organizations provide vital contexts in which individuals can find the meaning of life and experience many of their most meaningful relationships. They are vital to the inculcation of habits of honesty and moral integrity. They energize efforts in such altruistic areas as education, health care, and social services where profit motives are not sufficient. Their link to the transcendent is a constant source of renewed vision and deepened commitment to the social good. Of course, organized religion does not have a flawless track record; humans are not always true to their religious ideas. But in general, religious institutions have a massively positive influence on society.

                There is, however, a paradox concerning the cultivation of civil society. While the state has a vital interest in the flourishing of civil society, the state cannot itself create civil society by direct action. The essence of civil society in general and religion in particular is voluntarism. Government efforts to bring it about simply yield more government.

                Alexis de Tocqueville recognized this paradox in his analysis of the role of religion in reinforcing mores in American democracy. He understood that unlimited materialism can be a terrible source of instability in democratic society, and that mores are necessary to keep natural passions in check. What religions have in common is the general promotion of good morals. According to Tocqueville, “While the law allows the American people to do everything, there are things which religion prevents them from imagining and forbids them to dare.”⁶ Pluralism in religion tends to keep religion vibrant in part by keeping it competitive. The state contributes to this process not by direct action, but by the indirect route of protecting religious freedom. As Robert Bork suggests in his book Slouching Towards Gomorrah, one of the hazards of our day is that corrosive secularism is undermining the voluntary institutions vital to keeping the potentially destructive forces of material culture in balance.⁷ In Central and Eastern Europe the hazard is that societies are inundated with the allures of American material culture without a counterbalancing revitalization of the influence of religious life.

IV. Practical Concerns in Respecting the Distinctive Roles of Church and State

A. Church finance

                One of the great challenges for revitalizing religion in the countries of Central and Eastern Europe has to do with the financing of churches. For centuries, churches in this region have depended on state support, a dependency compounded during the communist era by the expropriation of church facilities. These two factors combine to make virtually impossible the existence of church entities without, in some form, substantial state support. (The American patterns of voluntary support of churches that have grown up over two centuries, which allow the “no aid” principle to work, cannot be replicated overnight in Europe.) But even in Europe there ought to be some limitations to state support of religion.

                First, every effort should be made to assure that the aid granted to churches does not compromise their independence. In this regard, note that restoration of church property has a rather different character than direct funding of church programs. When the state restores wrongfully seized property to a church, there is no assumption that the state has a right and an obligation to monitor how the restored property is used. But whenever tax dollars are spent by private organizations, it is almost inevitable that some level of state regulation will follow. One of the reasons many smaller churches reject state aid as a matter of principle is that they believe such regulation is too great a cost to pay for financial subsidies.

                Second, even where direct funding is required, efforts should be made to structure it in ways that will not reinforce the dependency of churches on government largesse. Spain’s effort to bring about a transition toward voluntary support of religious institutions seems very interesting. Successful or not, it is certainly praiseworthy. 

                Third, the Hungarian experience suggests that aid should be channeled to areas where there is broad consensus that religion is providing a general social benefit. Thus, support of health care, the secular aspects of education, and sports and youth programs is far less controversial than the funding of salaries of teachers of distinctive religious doctrines. Similarly, where buildings have historical value, some public support for maintenance costs can be justified, since the  public has a general interest in preserving historical structures, notwithstanding the specific faith represented by the building.

                Fourth, support should be structured to minimize the extent to which tax systems are used to force citizen support of religious institutions in which they may not believe. One major approach is tax exemption schemes which, without directly endorsing any particular religion, alleviate churches of burdens as part of a general recognition of the benefits of altruistic society.  The German model provides for an important constraint. As is well known, Germany has a sophisticated church tax system. What is less well known is the extent to which this system is structured to minimize coerced taxation in support of particular religious institutions. Actually, the church tax is not really a state levy, but a tax imposed by the churches in their capacity as public corporations. The church tax is collected by the state pursuant to a contract paying the state for this collection service. Taxes collected from a believer in one church are not transferred to another body in which the taxpayer does not believe. Moreover, under rulings of Germany’s Constitutional Court, the church tax scheme would be unconstitutional if those subject to the tax do not have a right to withdraw from the church imposing the tax. To that extent, then, the tax remains voluntary.

                Finally, care should be taken to assure that all religious groups are treated equally. Essentially, once the state decides to make public benefits available to some, it needs to provide reasonably equal access to equivalent benefits  to all, to the extent they are requested. This does not apply, of course, to restoration of wrongfully seized property since this is not at all a benefit, but rather just compensation.

B. Non-intervention in matters of belief

                One of the axioms of religious liberty is that the state should not intervene in matters of religious belief. The state should not regulate patterns of worship or matters of doctrine. Significantly, church organization is very often extremely important as an aspect of doctrine. This is one of the reasons why it is vital for the state not to intervene in the internal affairs of a church, including regulation of those who shall serve as clergy and other employees. Non-intervention extends to ecumenism. The state should not take any stand on the movement of churches to attain organizational unity. Many churches believe this would be a good thing--which is fine for them. But other bodies are conscientiously opposed to such unification. Such separatist religious beliefs should be respected.

                Moreover, while the state may have legitimate interests in limiting the excessive politicization of religion, it is vital to remember that religious institutions have a right to speak out on issues about which they have conscientious beliefs. Individuals and institutions should not be deprived of the right to freedom of expression merely because they are religious. If anything, the combination of religious freedom and freedom of expression should assure religious expression greater protection than ordinary political speech.

                Similarly, the state should respect rights to share beliefs through evangelism. For many religious traditions, the obligation for members to share their religious beliefs with others is an imperative. To say to such that they may have religious freedom so long as they do not evangelize is the equivalent of telling Roman Catholics they may worship however they please so long as they not take the Eucharist.

C. Accommodation of religion

                In view of the proportionality principle stressed above, every effort should be made to accommodate practices motivated by sincerely held religious beliefs. Religious holidays and days of rest should be respected. There should be a presumption in favor of accommodating religious needs even to the extent of granting exemptions from ordinary laws, unless those laws reflect compelling interests that are “necessary in a democratic society.”

                It is important to notice that this principle extends to laws granting entity status to churches. In the modern legal world, freedom of religion is significantly constrained without access to at least some type of legal entity. In compliance with principles recognized in the Helsinki Process, countries should provide religious organizations with access to some appropriate kind of legal entity or recognition so that it is possible for religious organizations to acquire property, enter into contracts, and build houses of worship without hassle or delay. Entity status should not be used as a method to exclude or discriminate against smaller religious communities.

V. Conclusion

                Religious liberty is one of the great cultural treasures of modern democratic society. Its implementation contributes to the alleviation of the countless forms of human suffering that have flowed over the ages from intolerance and religious persecution. Tocqueville is correct. Protection of religious freedom is one of the critical roles that the state can play to bring about indirectly the flourishing of civil society. The expansion of religious freedom has been one of the great achievements of the last several years in Eastern and Central Europe, but this key value is under constant pressure from a variety of sources. I hope for its strengthening.

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Notes

                ¹Berman, Harold J.: Law and Revolution: The Formation of the Western Legal Tradition 92 (1983).

                ²Locke, John: “A Letter Concerning Toleration” (first published in 1689), appearing in Library of the Liberal Arts (New York: Macmillan Publishing Co., 1950).

                ³Hanson, Joel: Jefferson and the Church-State Wall: A Historical Examination of the Man and the Metaphor.  1978 Brigham Young University Law Review 645.

                ⁴See Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). The “compelling state interest” test was substantially weakened by the U. S. Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990),  then substantially restored by Congress in the Religious Freedom Restoration Act, 42 U. S. Code, Sections 2000bb to 2000bb-4 (Supp V. 1993). During the summer of 1997, however, the Supreme Court resorted to the separation of powers doctrine to declare the RFRA largely unconstitutional.

                ⁵Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, U.N.T.S. 213:222, entered into force September 3, 1953, as amended by Protocol No. 3, entered into force September 21, 1970, and Protocol No. 5, entered into force December 21, 1971.

                ⁶Tocqueville, Alexis de: Democracy in America 292  (_______: Harper Perennial).

                ⁷Bork, Robert H.: Slouching Towards Gomorrah: Modern Liberalism and American Decline (_______: _______, 1996).

                Adapted and edited from an address by Professor Durham to the International Symposium on the Role of Churches in Renewed Societies, Budapest, Hungary, 1997.