During oral arguments in the case of Shurtleff v. City of Boston, Supreme Court Justice Neil Gorsuch made a pointed reference to "so-called separation of church and state." What precisely this aside was meant to convey is unclear. Yet Gorsuch's dismissive comment laid bare what many have known for some time: "Separationism," as a judicial and legislative doctrine, is on life support. Courtesy of the Christian right, it languishes in a theologically-induced coma.
This article first appeared in Salon.
The many Americans who yearn for secular governance, believers and nonbelievers alike, must confront this truth, accept it and innovate accordingly. They need to do so expeditiously, given the Supreme Court's hard pro-religion turn — a turn that advantages a white conservative Christian majority at the expense of religious moderates, religious minorities and nonbelievers.
Gorsuch may have just been trolling, but he had a point. Let's ask ourselves some hard questions about the "separationism" we know (and love).
If we really had a "wall of separation," the Supreme Court wouldn't appear receptive, as it does in Carson v. Makin, to affirming "a religious right to government funds" for schools that teach a "biblical worldview." Huge Christian crosses honoring fallen soldiers wouldn't sit on state property (American Legion v. American Humanist Association). The recently re-established White House Office of Faith-based and Neighborhood Partnerships would not exist. Symbolically, Christmas videos from the Trump White House wouldn't be permitted, nor would Joseph Biden's shout-outs to St. Augustine on Inauguration Day.
We have no real separation in the United States. Luckily, separationism is just one type of secularism. There are others. The secularist movement in the United States, however defined, has an interest in learning about them and thinking outside of the box — as well as beyond the purported wall between religion and government.
Secularism is a governing policy in which the state regulates the relationship between itself and its religious citizens, and also between religious citizens. A secular state strives to balance freedom and order. It must provide citizens who are beholden to very different worldviews with as much freedom of religion or — since demographics are changing rapidly in this regard — freedom from religion as possible. Simultaneously, it secures the civil calm required for them to enjoy those freedoms.
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Other nations teach us that these secular goals are achievable without separationism. India's beleaguered secular model accentuates sarva dharma sama bhava, or "equal respect for all religions." Far from walling itself off, the government accommodates faith communities. India's constitution, for instance, even makes provisions for Muslims to abide by their own law codes.
French secularism is altogether different. Laïcité, as it is known, doesn't separate itself from religion: It actively controls it. French laws strike Americans as overly severe (e.g., prohibiting public display of religious attire, like burkas). French citizens, though, overwhelmingly prefer a strong state grip on religion, a preference conditioned by centuries of traumatic clashes with the Catholic Church.
France and India are constitutionally secular. The United States, as Christian conservative activists cheerfully note, is not. There is no constitutional guarantee of separation. Instead, there are a few dozen ambiguous words in our founding documents, 16 of which read: "Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof."
In 1802 President Thomas Jefferson interpreted these sparse clauses to say that a "wall of separation" must exist between church and state. That was a radical and unpopular opinion — especially with the Great Awakening on the horizon. Even James Madison, author of the First Amendment, did not share his colleague's separationist zeal. Jefferson's opinion was mostly ignored until 1879, when it surfaced in a Latter-day Saint polygamy case, Reynolds v. United States. It then lay dormant for another 70 years!
While separation is often assumed to be a foundational principle of American democracy, it was first operationalized as a judicial framework in the 1947 Everson v. Board of Education case. Soon thereafter, nondenominational prayer in public schools was deemed unconstitutional (Engel v. Vitale, 1962), as were daily Bible readings (Abington School District v. Schempp, 1962). Lemon v. Kurtzman (1971) prohibited "excessive government entanglement" with religion. When John F. Kennedy exclaimed in 1960: "I believe in an America where the separation of church and state is absolute," he was trumpeting the new separationist status quo.
By the 1970s, that status quo was in the crosshairs of a resurgent religious right. That triumphant onslaught aside, separationism's constitutional basis was always wobbly. In Wallace v. Jaffree (1985), Chief Justice William Rehnquist pronounced the wall metaphor to be based on "bad history" which "should be frankly and explicitly abandoned." As indeed it soon was; 37 years later, Justice Gorsuch took a victory lap.
Instead of demanding something the Constitution doesn't guarantee (i.e., a wall of separation), secularists ought focus on something it does: equal protection for all citizens, as guaranteed by the 14th Amendment. Borrowing from India, they might advocate for the equality of all believers (and non-believers). "Equal-rights secularism" would highlight the legal inequalities that conservative Christian political activism fosters.
Thus, no county clerk could deny a marriage license to a same-sex couple in the name of religious liberty. No single notion of when life begins could assume the status of law. As dozens of religious organizations noted in their amicus curiae brief for Dobbs v. Jackson Women's Health Organization: "[T]here is a diversity of views both within and across religions concerning the nature and timing of the beginning of life." A secularist should argue that to subject a Jewish woman in Texas to a conservative Catholic standard of fetal viability renders the former unequal to the latter.
Borrowing from laïcité, American secularists might emphasize how privileging the rights of a few religious groups threatens order. When worshipers congregate during a pandemic, that's not free exercise, but reckless endangerment. When extremists storm the U.S. Capitol, that's not protected free speech, but sedition. Even colonial-era constitutions stipulated what the First Amendment somehow never mentioned: Your free exercise can't threaten public safety. American secularists should demand equal protection, literally.
Enough with walls. This rigid (and illiberal) metaphor undersells the complex task secularism performs in multicultural societies. Instead, secular legal and cultural activism should focus on the lawlessness and inequality that arise when LGBTQ persons, nonbelievers, religious minorities and religious moderates are forced to live under one particular religious conception of God.