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Separation Anxiety

church-state debated anew

Church State fenceFor fifty years, the guiding principle in the relationship between government and religion in America has been the "separation of church and state." This doctrine suggests that a fence strictly confines both institutions to their own parts of the public square. To promote the First Amendment's prohibition against establishing religion, the United States Supreme Court held consistently through the 1970s that government actions should neither burden nor support religious entities. More recent decisions, however, have sparked debate as to whether the separationist doctrine has been replaced by a neutrality principle, which allows greater interaction between government and religion and would treat religious groups the same as other entities. As the court's recent hearing of a challenge to the Cleveland, Ohio, school voucher program demonstrates, the debate over the relationship is most vigorous when the state provides funds to benefit religious groups.

The Boston College Law Review brought this discussion to the Law School on April 5, during its 2002 Symposium, "Shifting Into Neutral?: Emerging Perspectives on the Separation of Church and State." Ten nationally recognized experts in the areas of law and religion discussed the appropriate guiding principle in the relationship between government and religion. Articles from the symposium will be published in the Boston College Law Review in the fall of 2002. All symposium participants agreed that there has been some shift from separatism to neutrality, but they debated the extent and wisdom of the change.

Specifically, Professors Ira Lupu and Robert Tuttle, both of George Washington University School of Law, examined government programs which provide funds to refurbish religious structures that are also historical landmarks. They agreed that neither the strict separatist view nor a wholly neutral view was appropriate. Rather, they proposed a more nuanced approach that accommodated both the state's legitimate concerns about historic preservation and the constitutional concerns raised when public funds are given to religious organizations. For the exterior of religious structures, they accepted the neutrality position that governments should be allowed to provide funds because such structures are part of the face of the larger community. However, they contended public funds should not be used to improve interior spaces because the funds would give the state too much involvement in-and potential control of-worshippers' religious experiences.

Professor Fred Gedicks of the Law School at Brigham Young University agreed that while neutrality should be a tool in interpreting the Establishment Clause, separationism is necessary to prevent government funds from being used to support religious worship directly.

Other participants, including BC Law Professor Aviam Soifer and Derek Davis, director of the Dawson Institute of Church-State Studies at Baylor University, noted a clear decrease in religious participation in countries where religion and the state are closely intertwined, and argued that a further move away from separation would impact religion in America negatively. The faithful would no longer see religions as separate and independent entities deserving a special place in their hearts and society but merely as organs of the state, Davis said.

Another negative result of a further shift toward neutrality would be its effect on the rights of smaller, less-established religious groups, argued Mohammad Fadel, an associate with Sullivan & Cromwell in New York, and an expert in Islamic culture. Under a neutrality doctrine, large religious groups would be more likely to benefit from their political activity and influence in the legislative process than smaller groups would be. As a result, the views of minority religious groups that lack such political influence will be less respected under a neutrality principle.

While a shift toward neutrality has no doubt occurred, many questions remain as to how complete the shift will be and what its ultimate effects will be. The neutrality shift recognizes the beneficial role religious organizations can play with the government in society, and that the two institutions can work together effectively. However, as a great deal of the discussion at the symposium indicated, at least some degree of separation between religion and state must remain to protect the constitutional rights under the First Amendment.

-Doug Sondgeroth '02


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