Separation of Church & State: Europe vs the United States
NEW YORK—Americans may have almost invented the concept of religious freedom, but Europeans have a more pragmatic approach to the issue, at least in the case of the Italians, a seminar audience was told here Oct. 29 at the New York University (NYU) Law School.
While the United States has clung to a model of Church-state separation in the cause of religious liberty, the Italian model—contingent upon agreements negotiated by religious leaders with the government—“is no less effective than separation in [safeguarding] religious freedom,” Giuliano Amato, a former Italian prime minister, said.
Amato, now a professor of law at NYU, provided a European perspective on Church-state issues along with Cardinal Jean-Marie Lustiger of Paris. They were joined by two American jurists, Judge John Noonan, a California federal court judge and legal scholar—as well as a one-time candidate for the Supreme Court—and the Rev. Barry Lynn, director of Americans United for Separation of Church and State, who is a minister and an attorney.
“We have a range of solutions,”Amato said about the Italian approach. Before becoming prime minister, he said, his job was to negotiate agreements with various religious groups regarding issues such as publicly-funded chaplains, Sabbath observance and education, among other concerns. For example, a religious group might be able to declare a forest holy ground, and the Italian government would make an effort to allow the group to spend a weekend retreat there, undisturbed by outside influences.
Many of the agreements, he said, offered provisions similar to the concordat that the Italian government maintains with the Catholic Church. The agreements, he said, provide a series of ready solutions to possible impasses over religious freedom issues. While thorny issues remain—such as the right of Jehovah's Witnesses to refuse necessary blood transfusions for their children—Italians enjoy religious liberty in an atmosphere with little discord.
Total separation, he said, is not possible in a European context without being unfair to believers. Calls for separation of Church and state in Europe, he said have always been tinged with anti-religious sentiment. Only gradually, he said, has the ideal of religious tolerance taken hold in Europe. “The principle of liberty has legs and it takes steps little by little,”he said.
While Amato claimed progress in Italy, the situation is, of course, much murkier in France. Cardinal Lustiger said that Church-state relations in his country have been marred by the fallout from the French Revolution, which included widespread persecution against the Church. Only “since the beginning of this century have we learned to live together,”he said. “Modern France is founded on political freedom against religion,”added Cardinal Lustiger. Although the leader of Catholics in France, Cardinal Lustiger himself was born a Jew and is a convert to Christianity. The end result of the long French Church-state conflict has been a complex “compromise the French way,”noted the cardinal, who sometimes grasped for the proper English words to convey his meaning. The French government owns and maintains churches and pays the salaries of Catholic school teachers.
“The state can control some things in the Catholic school,”said the cardinal, who noted that the French government is able to set standards about curriculum, while still allowing the Church to maintain the religious character of its schools.
France is now dealing with the needs of new immigrant groups, including many Muslims from North Africa, who share neither the tradition of French religious skepticism nor the country's Catholicism. For example, the French government has prohibited female circumcision and polygamy, practices which are often part of African and Muslim religious practice.
The French are also preparing for integration into the European community. “We are in a hurry to make our own laws,”noted the cardinal, citing a fear in France that decisions on knotty issues will be made by the European community if firm national laws are not developed soon. Whether that rush to judgment will be good or bad for French Catholics, the cardinal couldn't say.
In contrast to the 18th century European experience—where the religious faith of the people was frequently determined by the beliefs of the reigning sovereign—“the American commitment to the free exercise of religion was unique,” Judge Noonan told his audience.
Noonan, a Catholic who has written extensively on religious freedom concerns. He noted that the Founding Fathers made sure “that free exercise, not mere tolerance, was written into the Bill of Rights.”
While nearly half the original states featured established Churches, the arguments of James Madison—who said that faith was “a great barrier resisting the tyranny of the state”—resulted in the federal government resisting the temptation to establish a national Church.
Still, said Noonan, American law has yet to solve three basic problem areas:
√ Religious-based conscientious objection to military service and taxation. Noonan, who has represented a Catholic conscientious objector to the Vietnam War, said that the courts in such cases have traditionally ruled in favor of small peace sects, such as the Amish, but have not supported the rights of Catholics to object to military service on the grounds of just-war theory. “We can let a member of a little religious group get out (of military service), but not a member of a large one,”said Noonan, who said the court rulings in such cases bended to pressure from the government to maintain military forces.
Only gradually, he said, has the ideal of religious tolerance taken hold in Europe.‘The principle of liberty has legs and it takes steps little by little.’
√ Moral crusades based on religious belief. Noonan skipped contemporary examples, of which the argument over abortion may be the largest. But he did cite the fight to abolish slavery, which was sparked by a small group of New England ministers who met in 1831. He said that “the [Civil] War would not have happened if the South was not morally outraged by this crusade.”Such outbreaks of religious zeal raise uncomfortable questions for those Americans who do not share the moral perspective of the crusaders, he added.
√ The challenge of religious pluralism. When Madison promoted the free exercise of religion, he was convinced that the four major Protestant denominations active in the new nation would cancel each other out, never letting any one become overly-dominant. He never envisioned a large Catholic presence in the United States and loyalty to a Church that transcends national boundaries.
While Noonan, Cardinal Lustiger and Amato all conceded the need for government to cooperate with religious authority to advance the public interest, Lynn advocated the absolutist separatist point of view. A leader in the American Civil Liberties Union, he argued that the “hedge of separation between the garden of the Church and the wilderness of the world”—first articulated by Rhode Island founder Roger Williams and repeated by Thomas Jefferson—is a guarantee that the Churches can exist free from government interference.
He said that the separation ideal is a long American tradition. Jefferson, as president, declined to declare public days of prayer and Madison later recanted his support of a federally-funded Congressional chaplain, he said. Lynn argued that the United States, which has one of the most religious populations in the industrialized world, is in danger of allowing the state to contaminate religious practice.
He criticized laws allowing peyote to be used in Native American Indian religious rituals, despite its being illegal for secular use. And various groups, he said, are attempting to breach the wall of separation between Church and state on issues such as prayer in public schools, promoting religious symbols on public property and distributing welfare through religious agencies. The temptation, he said, is towards “a mutual corruption”of both the state and religion. “Both are dangerous and both are wrong.”
As an example, he cited the first Nativity scene allowed on the White House lawn in the mid-80s. He said the créche featured a ceramic Holy Family behind Santa Claus and his reindeer. The end product was “a Christian zoo”offensive to believers and non-believers alike.
But Amato countered that Lynn's stance of non-accommodation towards religion could never have worked in modern Italy, which, for much of the post-war era, struggled with the influence of a strong communist party in electoral politics. Religious groups, he claimed, could not have been silent in the face of such a threat. The result was the formation of political parties that accepted the Christian label and unabashedly supported Catholic concerns. Yet he conceded that the pontificate of Pope John Paul II, a non-Italian, has discouraged Church leaders from becoming overly-involved in internal Italian politics.
Lynn, however, was not too sure that there is enough distance in the Italian model between Church and state. Noting Amato's hypothetical sacred forest, he asked what would happen if a non-believer wanted to tread through the woods on his day off. Would the government prevent it? Amato looked at the civil libertarian and responded: “I would just call him a wise guy.”
Peter Feuerherd is based in New York.
- November 10-16, 1996