Camelia Sadat
A guest at our Seder brought with him Camelia Sadat, the daughter of the late Egyptian leader Anwar Sadat. She had never before been to a Seder, and I was concerned that she might be offended by the story of how the Jews defeated the Egyptians and their leader Pharaoh. I took her aside before we began to recite the Haggadah, summarized the story, and told her that I hoped it wouldn’t upset her. “Why should it upset me?” she wondered. “Because you’re Egyptian,” I replied. “But now we are Muslims,” she said, “and as such are on the side of Moses and against the Pagan ruler Pharaoh.” She joined enthusiastically in the reading of the Haggadah.
These stories and cases highlight one of the great ironies of the American experiment with separation of church and state. And it was surely an experiment. Ours was the first nation in the history of the world to separate religion and government, at least in theory.24 Our constitutional provisions remain among the strongest in the world. Yet we are the most religious democracy on the face of the earth. More Americans believe in God and go to houses of worship than people in any other democracy. (Even among the 20 percent or so of Americans who do not believe in God, church and synagogue attendance on important religious holidays is common.) Indeed, in order to get elected, a candidate must loudly and repeatedly proclaim a deep belief in God and a strong commitment to “faith” (which has become the new political buzzword).25
Is this an irony, or is there a causal connection between our constitutional separation of church and state and the high level of religiosity among our people? I believe the latter is the case.
The original theory behind the metaphor of “the wall of separation” was to protect the holiness of the church from the corrupting influences of the secular state. Roger Williams, who is credited with coining the metaphor, was a seventeenth-century Baptist minister in Providence, Rhode Island. He insisted that a “hedge or wall of separation between the garden of the church and the wilderness of the world”26 was necessary to protect religion, as well as to assure freedom of conscience. And this wall has helped to do both.27
Churches are thriving in America, unlike in most European countries that have long traditions of established churches. When the state supports churches, resentment against government, which is inevitable, spills over to religion. In the United States, on the other hand, resentment against the government (Congress’s approval rating is always quite low) does not translate into resentment against the churches. To the contrary, cynicism about politics may well drive some people toward greater commitment to their churches.
I believe, therefore, that perhaps the single most important guarantee in our Constitution is one that is not explicitly enumerated: the separation of church and state. Although those words do not appear in either the body of the Constitution or in the First Amendment, there can be no doubt that the founding fathers constructed a system of checks and balances that required such separation. Without it, the church (representing organized religion) could not serve as an effective check on the secular excesses of the state; nor could the state, through its courts, serve as an effective check on the excessive involvement of the church in the business of governance and in the rights of religious and nonreligious dissenters. The marvel of our unique system of checks and balances is that it does not simply involve each branch of government—executive, legislative, and judicial—checking on the others; it also encourages—through the freedoms guaranteed by the First Amendment—other institutions to serve as checks on the government. In addition to the churches (broadly defined to include all religious institutions), these include the media, the academy, the business community, and especially the “people,” who have the right to vote, to assemble, and to petition for a redress of grievances.
Just before the fiftieth anniversary of the Declaration of Independence—the day on which two of its primary authors, Jefferson and Adams, both died—Jefferson wrote the following about the purpose of the Declaration:
May it be to the world the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessing and security of self-government. That form which we have substituted, restores the free right to the unbound exercise of reason and freedom of opinion. All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.28
While president, Jefferson—who believed in the nonbiblical God of Deism—had written to the Danbury Baptist Association, describing the “act of the whole American people which declared their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.”29
Even earlier, while Adams was president and Jefferson secretary of state, they jointly signed a treaty, ratified by the Senate, with the Barbary regime in Tripoli that stated unequivocally that “the government of the United States is not in any sense founded on the Christian religion” (emphasis added).
It is difficult, therefore, for any reasonable person, especially anyone who gives weight to the original understanding of the Constitution, to dispute Jefferson’s conclusion that the First Amendment built a wall of separation between church and state and that our state is not based on the Christian religion.
Despite this history, there are those who continue to insist that the United States is a Christian nation, as a matter of law. I became personally involved in this divisive controversy in 1988, when the Republican Party of Arizona proposed the enactment of a resolution declaring the United States to be “a Christian nation … based on the absolutes of the Bible.”30
The leader of the group (characterized by the late Arizona senator Barry Goldwater as a “bunch of kooks”)31 wrote to Justice Sandra Day O’Connor on the United States Supreme Court asking her to support their efforts:
Republicans are making some interesting advances in this heavily controlled Democratic area. Some of us are proposing a resolution which acknowledges that the Supreme Court ruled in 1892 that this is a Christian nation. It would be beneficial and interesting to have a letter from you.32
Despite the crass partisan objective of the undertaking and its utter incompatibility with the Constitution O’Connor had sworn to uphold, she agreed to help, writing the following letter on Supreme Court stationery for circulation by the Republican Party of Arizona:
You wrote me recently to inquire about any holdings of this Court to the effect that this is a Christian nation. There are statements to such effect in the following opinions: Church of the Holy Trinity vs. United States; Zorach vs. Clauson; McGowan vs. Maryland.33
Not only was O’Connor wrong to write any letter in support of this unconstitutional, partisan, kooky proposal, she was wrong on the law, wrong on the facts, and wrong on her history.34 First of all, if this were a “Christian” nation, its form of Christianity would be decidedly Protestant. Catholics would be second-class citizens. Indeed the Declaration of Independence was designed, at least in part, to protect Americans from the influence of the Catholic Church, which was reviled by many of our founding fathers, including Adams and Jefferson. (“Monkish ignorance” was a clear reference to the Catholic Church.)35 Second, there are no such “holdings.” Third, the first case she cited (which had long ago been discarded, if not discredited) contained—in dictum—some of the most bigoted language in Supreme Court history by one of the most religiously bigoted justices in its history, David Brewer.
Brewer’s dictum, in an obscure immigration case, declared “Mahomet” and “the Grand Lama” to be “imposters.”36 In his other writings and speeches, he decried the evil of Mormonism and other non-Christian faiths. He was anti-Catholic and anti-Jewish. He believed that we were a Protestant nation, and he smuggled the concep
t of a “Christian nation” into dictum in a case that did not even raise the issue.37
When, in 1892, Brewer wrote the bigoted opinion cited by O’Connor, the United States was, demographically, a white Protestant Christian nation. The nation’s demography changed dramatically in the nearly a century between that decision and O’Connor’s letter. And the law reflected that change.
Since 1892, the court has not referred to this nation as “Christian” or “Protestant.” Indeed, the justices have gone out of their way to be inclusive. For example, when Justice William O. Douglas sustained a New York program permitting public school students to be released for an hour each week for religious instruction, he specifically gave as an example of religious accommodations “a Jewish student [asking] his teacher for permission to be excused for Yom Kippur.”38 Yet this was one of the decisions miscited by Justice O’Connor as containing statements to the effect that this is a Christian nation.39
When her letter was disclosed, Justice O’Connor issued a statement regretting that it had been “used in a political debate,” and the Supreme Court media office said that O’Connor “had no idea” that the letter would be used politically.40 But that simply isn’t true, since the request to Justice O’Connor—stating that it would be “beneficial” to have a letter from her as part of a Republican proposal to enact a Christian Nation resolution—made it clear that she was being asked to write her letter specifically for use in a political campaign to make Republican “advances in this heavily controlled Democratic area.”
When I got wind of Justice O’Connor’s letter, I wrote a scathing op-ed for the New York Times criticizing her judicial ethics as well as her miscitation of the law. It accused her of giving
aid and comfort to partisan Republican causes. Her regrets came too late and only after public criticism. She has … allowed her name and judicial office to be used improperly. She has … violated the Code of Judicial Conduct, which unambiguously directs sitting judges to refrain from political activity.… A seat on the Supreme Court does not exempt a Justice from complying with the rules of the profession. Justice O’Connor must remember that her allegiances are no longer to a particular wing of the Arizona Republican Party but to all Americans, regardless of party affiliation, region or religion.41
I was told by several law clerks that after my op-ed appeared, Justice O’Connor was deeply embarrassed by what she had done, and she did not repeat her error during her subsequent years of service on the court.
Justice O’Connor was not, of course, the first (or the last) in public office to use Christianity in support of partisan politics. The issue got so bad during the 1984 presidential race that Walter Mondale found it necessary to remind Ronald Reagan that in the United States the president, unlike the queen of England, is “not the defender of the faith” but rather the “defender of the Constitution.”42
In 2012, a Republican candidate for president, Rick Santorum, said that the concept of an absolute separation of church and state, as articulated by John Kennedy when he was running for president, “makes me want to throw up.”43 Other candidates, though expressing themselves less graphically, have also railed against the separation of church and state. “Faith” has become synonymous with “values” in the minds of many, although there is absolutely no correlation. Indeed, the “values” espoused by some of the people who would impose their faith on others are highly questionable. They include denying gays the equal protection of the law; denying women (and young girls) the right to choose abortion, and sometimes contraception, even in compelling cases; and, often, other conservative political “values” that have nothing to do with religion, such as low taxes, the right to bear arms, the death penalty, and widespread censorship.44 The debates over these issues, especially gay rights and the right to choose abortion, have become wedge controversies that are unduly influenced by the churches in violation of the spirit, if not the letter, of our Constitution.
THE RIGHTS OF GAYS TO ABSOLUTE EQUALITY
When I was growing up, it was impermissible to use any words that were demeaning to African-Americans (whom we called Negroes or colored), to other religions or ethnic minorities (except for the Germans and the Japanese during World War II), or to women. But insulting gay boys (we had no idea there even were lesbians) was perfectly acceptable. Indeed, we commonly used the “F” word to insult nonathletic classmates or effeminate-looking boys. We never actually met a real live homosexual (at least to our knowledge), but we knew there was “something wrong” with anybody who was sexually attracted to people of the same gender.
Our bigotry was not religiously based, though we knew that the Bible prohibited sex between men45 (perhaps the Bible’s authors, like us, had no idea there were lesbians). We just didn’t like “homos.” It was as simple as that. You really do have to be taught to hate,46 and we were taught to treat all people, except gays, equally.
It’s very different among today’s youth, at least in the parts of the world that I frequent. Most young people I encounter can’t understand why anyone would discriminate against someone based on his or her sexual orientation or preference.
Today, the discrimination against gay people does seem religiously based, at least to a significant degree. The Bible is frequently cited as the authoritative source for condemning homosexuality, and the sanctity (a religious term) of marriage between a man and a woman serves as the primary basis for opposition to gay marriage.
Since my youth, the movement toward full equality for gays has made great strides, despite continuing religious objection from some church groups and some Orthodox Jews. The fact that many churches, as well as Conservative and Reform Judaism, support equality has muted the impact of the religious right somewhat on this issue. Before long, I predict, it will not be an issue for most Americans.
Walking Out on the Chief Justice
In 1986, the Supreme Court upheld a Georgia statute criminalizing homosexual acts between consenting adults.47 In his concurring opinion, Chief Justice Warren Burger went out of his way to demonize homosexuality by quoting, with approval, William Blackstone’s characterization of homosexuality as “the infamous crime against nature,” an offense of deeper malignity than rape, and “a crime not fit to be named.”48 Shortly after this decision was rendered, I attended a meeting of the American Bar Association at which the Chief Justice was to speak. When he was introduced, I stood up and led a quiet walkout in protest of his bigoted opinion.
In 2003, during the beginning of the 2004 presidential election season, the Supreme Judicial Court of Massachusetts rendered the first-in-the-nation decision declaring it unconstitutional to limit marriage to heterosexual couples.49 This decision was truly a knife that cut both ways: It was a Magna Carta for gay and lesbian couples, but it was also a boon to social conservative candidates who could use it as an important part of their appeal to the majority of Americans who then believed that marriage should be reserved for heterosexual couples.
I decided to write an op-ed that would seek to eliminate gay marriage as “a wedge issue” in the upcoming political campaign.50 I argued that if marriage is indeed a blessed sacrament between man and woman as ordained in the Bible, it would follow that the entire institution of marriage has no place in our civil society, which recognizes the separation between the sacred and the secular, between church and state. Just as the state has no role in baptisms, circumcisions, or other religious rituals, it should play no role in sacred marriages.
The state is, of course, legitimately concerned with the secular rights and responsibilities currently associated with the sacrament of marriage: the financial consequences of divorce, the custody of children, Social Security and hospital benefits, and so forth.
The solution I proposed was to unlink the religious institution of marriage—as distinguished from the secular institution of civil union—from the state. Under this proposal, any couple, regardless of gender, could register for civil union, recognized by the state, with all its rights and responsib
ilities.
Religious couples could then go to the church, synagogue, mosque, or other sacred institution of their choice in order to be married. These religious institutions would have total decision-making authority over which marriages to recognize. Catholic churches would not have to perform gay marriages. Orthodox Jewish synagogues would not perform a marriage between a Jew and a non-Jew who did not convert to Judaism. And those religious institutions that chose to perform gay marriages could do so. It would be a religious decision beyond the scope of the state.
Under this arrangement, marriage would remain a sacrament, as ordained by the Bible and as interpreted by each individual church, and gay couples would win exactly the same civil rights as heterosexual couples in relationship to the state. They would still have to persuade individual churches of their point of view, but that is not the concern of the secular state.
Not only would this solution be good for gays and for those who oppose gay marriage on religious grounds, it would also strengthen the wall of separation between church and state by placing a sacred institution entirely in the hands of the church while placing a secular institution under state control.
My column generated considerable debate. I was invited to appear on television and radio shows, where extremists on both sides pilloried me: gay activists for not going far enough; religious antigay activists for going too far.
Shortly after my column appeared, I received a phone call from the then governor of Massachusetts, Mitt Romney, who told me that he found my idea interesting and asked me to draft legislation that he might consider proposing in order to break the deadlock. I drafted the legislation but never heard back from the governor, who by the time I submitted it had decided to run for president. He was almost certainly fearful of the push-back he would get from the religious right—whose votes he needed to be nominated—if he were seen as favoring anything that even resembled gay marriage.
Taking the Stand Page 52
