DEFAMING RELIGIOUS FREEDOM 1 REFORMATION ACHIEVED P EDITORIAL

A MAGAZINE OF RELIGIOUS FREEDOM SAME FAITH OR NOT! DEFAMING RELIGIOUS FREEDOM 1 REFORMATION ACHIEVED p EDITORIAL

hat image do you put on new gay entitlement for a later issue. or other faiths—yet. There is very the cover of a magazine like Enough to say that it should not come nearly the same freedom given religion WLiberty? We do put a lot of down to the stark choice between gay as the practices of irreligion! Oh, well, in thought into what article to feature and rights and religious rights, so long as general the same freedom! what artist to assign the illustration both gay rights activists and religious But things are not quite as they NOT A to. Sometimes we aim to startle you a alarmists don't set it out that way. seem. bit. Other times we want the image to But we are headed into a very socially For at least a decade or more we PRETTY resonate with some current issue. And adventurous time, and the stakes for have seen in the United States an sometimes we want the cover to look civil liberty itself are very high. unseemly hunger for direct political PICTURE "classic:' Perhaps it was inevitable that my power for certain religious factions. And sometimes we just change mind wandered to a short story that So far their efforts have mostly been our mind. The royal "we" might be we had to read back in high school. directed toward plunder of the public misleading—sometimes I change my The Picture of Dorian Gray is the most treasury—that is, state funding for mind. Like this issue: the rather somber understated of horror stories, but its religious activity—the Office of Faith- cover picture of a somewhat Catholic ending is the most horrible moral Based and Community Initiatives being Paul Revere is attention-getting and meltdown. the most constitutionally egregious of well executed. But I had originally Written by literary legend Oscar this type. But the nature of such things We are simultaneously wanted the toppling statue of religion, Wilde, the story tells of a handsome means that eventually financial support in the "best of times" now only on page 17, to be our cover. It and popular young man who attacks for church institutions will tend to give too is effective! Perhaps too effective! life with a gusto that seems to escape way to a clamor for decrees on religious and "the worst of times." In its final form I thought the image consequences. It is not till the end of behavior. too stark and perhaps with overtones the narrative that we discover his dark For some time the establishment of fascist art to carry a cover without side: a hidden portrait that changes clause of the U.S. Constitution has been explanation. And, yes, I did expect into the misshapen immoral monster under attack, even as the free exercise our readers to get the analogy to the he has become, even as he seems clause has been administered in ever Saddam pull-down during the Iraq war. immune to the ravages of time and generous ways. I have often pointed How to put an image to our current debauchery. this out to lecture audiences as an religious liberty scene is of course more Writing and speaking on the state explanation of why there is not more than a cover challenge for Liberty. It of religious liberty, particularly in the obvious restriction of liberties. After goes to the heart of where we are in West, particularly in the United States, all, when certain religious factions are the whole church-state/civil liberty I am often struck with the dichotomy anxious to become synonymous with construct. between where we are in everyday the state and gain preferential funding Times change, and that change can assumptions and where we have they are hardly likely to try to restrict be startling. Yesterday as I lay helpless traveled behind the obvious. Call it other religious activity—not till the in a dentist's chair, and just before he the Dorian Gray effect. Or, to borrow establishment issue is settled, at least. lowered the drill with a grinder bit another literary analogy, and to quote I am now rethinking part of that onto the tooth that had fallen apart, from Charles Dickens and his Tale of model. the monitor above my head flashed a Two Cities, we are simultaneously in the It appears that we will not have to picture of the president and I heard him "best of times"and "the worst of times." wait till funded and favored religious announce that June is to be LGBT Pride One would be hard-pressed to entities seek to restrict the free exercise Month—actually it was said in full suggest that there is open religious of religion for others. It is now obvious as "Lesbian, Gay, Bisexual, and Trans- persecution in the United States. that the other party of the "culture war" gender Pride Month:' "It's a different Televangelists still roam the fruited is quite ready to do that now! world from when I was young,"said the plains of TV-land unopposed and well We can look to Canada as a caution- dentist as he switched on the grinder. funded. Megachurches are being built ary model of how easily the new social Little joy in the moment. faster than shopping centers. No secret model of gay entitlement can actually I'll save a full discussion of the police snatch religious faithful or dis- criminalize Christian statements on religious liberty ramifications of the senters from their homes at midnight. morality—even direct quotes from the We have no show trials—of Christians

2 LIBERTY° JULY/AUGUST 2009 President Obama has a fresh opportunity to implement reforms that create and maintain meaningful boundaries that protect church and state while enlisting all Americans to address the most pressing social problems we face. I p8

SAME FAITH OR NOT! DEFAMING REFORMATION 9 I BLEACHED FAITH RELIGIOUS FREEDOM ACHIEVED 16 1 CHANGING VIEWS The Office of Faith-Based Initiatives A UN resolution may signal The reign of Queen Elizabeth I ended is now the"Office of Faith-Based and a dangerous model of with England securely Protestant. Neighborhood Partnerships". religious inhibition.

Bible. Of course, Christians and those meet in a private residence—but they to religious harassment. It has long of other faiths such as Muslims must are seldom enforced in such a case been a position of my own Seventh-day DE LARATION recognize that they have no right to because the original intent was not to Adventist Church that past difficulties compel to any view, moral or doctrinal. restrict religious worship. But feed in with religious accommodation and

But a healthy civil rights model must community or country prejudice and union agitation will be repeated. The God-given right of religious liberty is best In fact, the political shifts of late, grant them the right to project their you will get the recent case of a San exercised when church and state are separate. religious opinion. I see signs that this Diego pastor and his 15-member Bible the morphing of religious power cen- right is being challenged. study group faced with escalating fines ters into more populist religious action Government is God's agency to protect indi- Zoning models have long been and a threat of things getting ugly groups, the economic collapse, the vidual rights and to conduct civil affairs; in used to restrict religious meetings. if they did not desist. Eventually the ongoing war on terror, the unfinished exercising these responsibilities, officials are In fact, the Chinese government situation defused; but it is a vanish- experiment with what used to be called entitled to respect and cooperation. continues to battle the home-church ingly short line between this and overt torture, the economic realignment Religious liberty entails freedom of movement there on an argument religious persecution. of power, the unmuzzled calls for a conscience: to worship or not to worship; to that these are improper gatherings In a time of economic meltdown, religious solution to the world's ills: all profess, practice, and promulgate religious apart from the publically authorized auto company bankruptcies, and labor augur a true paradigm shift. The fair beliefs, or to change them. In exercising Three-Self religious model. Unless layoffs, one might easily overlook the face of freedom may be something else these rights, however, one must respect you factor in the animus to religious bold moves to strengthen the ability of beyond the shadows. the equivalent rights of all others. expression it can easily pass for a unions to co-opt workers who might Attempts to unite church and state are public order question. Now we seem to have religious compunctions against opposed to the interests of each, subversive be seeing a resurgence of challenges joining. Card check sign-ups might of human rights, and potentially persecuting to home-held religious gatherings in be passed off as a convenient new in character; to oppose union, lawfully and the United States. As longtime Liberty model—but with public antipathy to Lincoln E. Steed, Editor honorably, is not only the citizen's duty but readers know, we have often featured marginal religious beliefs and a sense Liberty Magazine the essence of the golden rule--to treat others this throughout the years. Many local of a need to cooperate economically for as one wishes to be treated. ordinances restrict the ability of, say, the public good, it is likely it will lead Please address letters to the editor to a Tuesday night Bible study group to [email protected]

COVER ILLUSTRATION 0 ROBERT HUNT

LIBERTY° JULY/AUGUST 2009 3 Same Faith or Not! BY K. HOLLYN HOLLMAN ILLUSTRATION BY JONATHAN TWINGLEY

A look at the Office few weeks into his presidency, President Barack of Faith-Based Obama took the initial steps toward setting his and Neighborhood administration's course on cooperation between Partnerships. government and religious entities that provide social services. Having inherited an extensive bureaucracy of "faith-based" offices and regulations, President Obama now has the opportunity to provide that keep government from interfering with the needed reforms and to put his own mark on a work of churches and other religious entities. After signature policy of the Bush administration. So all, religious organizations have a long-standing far, President Obama appears to be taking an and proud tradition of providing social services, incremental approach toward reform. He has including in some cases, with the use of govern- indicated a strong interest in enhancing partner- ment funds that long predated charitable choice. ships between government and neighborhood Religious organizations known as "religious organizations, including religious ones, and is affiliates" traditionally had accepted government maintaining the agency offices established by his funds to provide social services, playing by the predecessor. Many are waiting to see how his same rules as secular providers. Under charitable plans for the renamed "Office of Faith-Based choice, however, the federal government reduced and Neighborhood Partnerships" will unfold. restrictions that typically follow government aid to religious organizations, offering the prospect Beginnings of direct government funding given to houses of riticism of the "faith-based initiative" has worship without establishing a separate, non- Ccome from many quarters, beginning with profit 501(c)(3) organization. Such direct govern- the legislative proposal known as "charitable ment funding of houses of worship represented choice." Charitable choice was first inserted into a radical erosion of First Amendment principles, welfare reform legislation and subsequently into a risking government funding of religious activity few other programs in the late 1990s. Primary in violation of the Constitution and endangering among concerns for religious liberty advocates like the autonomy of religious bodies by allowing Liberty Magazine and the Baptist Joint Committee government intrusion. for Religious Liberty, was how the policy threat'- While charitable choice excluded direct aid for ened important establishment clause protections sectarian worship, instruction, or proselytization,"

4 LIBERTY' JULY AUGUST 2009

it offered much less regulatory protection for reli- President George W. Bush gious freedom than the religious affiliate model. It and His Faith-Based Legacy was inserted into legislation with little debate or resident George W. Bush made charitable scrutiny, including in ways that conflicted with Pchoice expansion a top domestic priority and nondiscrimination provisions within the same announced it early in his administration. statute. Proponents of charitable choice claimed Though legislation to implement that goal stalled that their more lenient approach to church-state in Congress, the Bush administration aggres- relations was warranted by the decline of the U.S. sively pursued its policy through executive orders Supreme Court's "pervasively sectarian doctrine," that systematically altered federal regulations which prohibited government funding of many affecting nearly all federal social service pro- religious institutions, and greater acceptance of grams, making it easier for faith-based organiza- government aid distributed on a neutral basis tions to participate in federal grant programs among secular and religious entities. Such argu- without the traditional safeguards that protect ments glossed over the differences between indirect religious liberty. and direct funding and the fact that a majority of The Bush administration's White House the Court had continued to emphasize special Office of Faith-Based and Community Initiatives establishment clause concerns about direct govern- had a stated focus on removing safeguards (called ment funding to houses of worship. "barriers" by the administration) that protect the During the Clinton administration, concerns constitutional boundaries between church and about charitable choice were mitigated by sign- state to expand funding opportunities for reli- ing statements to the legislation that reduced the gious organizations. Taking advantage of what it risk of government funding for religious activity saw as changes in the Supreme Court's views on or discrimination. These statements required an the issue, the administration undermined long- interpretation consistent with constitutional standing and widely accepted constitutional val- constraints, expressly prohibiting federal funds ues, such as preventing direct funding of religious from flowing directly to pervasively sectarian activities, protecting religious freedom rights of institutions (religious organizations that do not beneficiaries, avoiding government-funded dis- or cannot separate religious activities from the crimination in employment, and maintaining the government-funded programs). autonomy and integrity of religious entities.

Zelman v. Simmons-Harris Mitchell v. Helms 536 U.S. 639 (2002): The U.S. Supreme 530 U.S. 793 (2000): The Court upheld beliefs," which "is just what [the per- Key Modern Court approved a state program pro- a state and locally administered pro- vasively sectarian distinction] Establishment viding vouchers for children in a dis- gram that loaned educational materi- requires." In her concurrence, Justice Clause Cases tressed public school district to attend als, including books, computers, soft- O'Connor, joined by Justice Breyer, private schools, including religious ware, and audio/visual equipment, to held that for there to be a constitu- A Backdrop to schools, as well as neighboring public schools in economically disadvan- tional violation there must be actual schools. The Court held that "where a taged areas, including religious diversion to religious use; providing Faith-Based government aid program is neutral schools. The program required public aid that merely "has the capac- Programs with respect to religion, and provides schools receiving the aid to limit their ity for, or presents the possibility of, assistance directly to a broad class of use of the materials to "secular, neu- such diversion" is not automatically citizens who, in turn, direct govern- tral, and non-ideological" uses. A unconstitutional, thus essentially ment aid to religious schools wholly as majority of the Court rejected the abandoning the pervasively sectarian a result of their own genuine and strict separationist theory that some standard. independent private choice," the pro- organizations are too religious to par- gram does not violate the establish- ticipate in federal aid programs. The ment clause. plurality described the pervasively sectarian distinction as "offensive," stating that "[i]t is well established, in numerous other contexts, that courts should refrain from trolling through a person's or institution's religious

6 LIBERTY" JULY/AUGUST 2009 The most damaging aspects of the Bush leg- President Obama's Incremental Approach acy were the creation of funding opportunities uring his presidential campaign, then Senator without sufficient guidance to recipient organi- DObama affirmed the vital role faith-based and zations to prevent the risk of unconstitutional neighborhood groups play in serving those in need. funding (what they failed to say about separating He talked about his own experience as a grassroots religious activity and government funding) and organizer and expressed his interest in government the aggressive assertion of a right to hire accord- cooperation with faith-based groups, including the ing to religion even for positions funded by tax continuation of the offices established by President dollars (applying an exemption from nondis- Bush. He also promised reform, citing a firm com- crimination law in ways that lacked authority). mitment to the separation of church and state and The administration's outreach efforts included explicitly stating that the initiative should not be hosting conferences and making claims about used to proselytize, discriminate, or promote reli- faith-based groups that left many to question gious service providers over secular ones. These whether the faith-based initiative was a partisan comments gave new life to the debate over the tool with little effect on funding. In fact, some of proper ways in which religious organizations and the major complaints came from those close to government could partner to address social ills and the initiative, as explicitly recounted in the book promised a new approach that would draw upon Tempting Faith: An Inside Story of Political common commitments to religious freedom and Seduction, by David Kuo, who served as deputy was less likely to cast criticism solely as a concern director of the Office of Faith-Based and for secularists. Community Initiatives under President Bush. In his first official act in this arena, President Though the faith-based initiative was less prom- Obama amended Executive Order No.13199, inent during President Bush's second term in which originally established the White House office, his administration continued to claim Office of Faith-Based and Community Initiatives success for lowering barriers for religious orga- in January 2001. As revised, the order recognizes nizations that sought government funding, as the vital role of faith-based and neighborhood well as increasing the number of religious enti- organizations in meeting needs of low-income ties that received funding (though social service and other underserved communities. It states the spending on the whole declined). purpose of the office as strengthening the ability

Agostini v. Felton Bowen v. Kendrick Witters v. Washington Department of Service for the Blind 521 U.S. 203 (1997): In Agostmi the 487 U.S. 589 (1988): In Bowen, the 474 U.S. 481 (1986): In Witters, the Court took the rare step of explicitly Court upheld the constitutionality of Court approved a state program overturning two of its strict separa- the Adolescent Family Life Act (AFLA), designed to provide vocational Whatever the court positions tionist decisions. The Court upheld a which authorizes federal grants to training to the blind under which ben- it is clear to most proponents program providing remedial education public and nonprofit organizations, eficiaries could use state tuition grants of church-state separation to students of private schools (includ- including faith-based organizations, at religiously affiliated colleges and to that the FBI initiative repre- ing religious schools) in which instruc- for services and research in the area of pursue ministerial degrees. The Court sented a clear effort to tion is given on the premises of those premarital adolescent sexual relations held that because the grants were reverse long-term attitudes schools by public employees. The and pregnancy. The Court rejected the "made available generally, without to the First Amendment. Court acknowledged that its establish- notion that a program that is facially regard to the sectarian-nonsectarian, Liberty Magazine has always ment clause jurisprudence had signifi- neutral between secular and religious or public-nonpublic nature of the insti- cautioned against churches cantly changed since the 1970s and applicants would necessarily advance tution benefited," and flowed to reli- taking state aid. To do so 1980s, especially with regard to its religion in violation of the establish- gious organizations "only as a result of tends to blur church-state understanding of what constitutes an ment clause, noting that the act con- the genuinely independent and pri- distinctions, corrupts the impermissible effect of state indoctri- tained no requirement that grantees vate choices of" individuals, the pro- spiritual role of churches nation of religion or constitutes a be affiliated with any religious gram did not have the effect of and makes them vulnerable "symbolic union between government denomination and that there was advancing religion. to government control. and religion." The Court did not exam- "nothing inherently religious" about Editor. ine the character of the organizations the education and counseling activi- Summary provided by Christian Legal Society. aided by the program, and instead ties funded by the program. focused on whether any advancement of religion was reasonably attributable to the government.

LIBERTY' JULY/AUGUST 2009 7 WHI TE H OU SEPH O TO 8 LIBERTY• JULY/AUGUST 2009 Neighborhood Partnerships appointed byPresidentBarack Joshua DuBoishasbeen Obama astheexecutivedirector of theOfficeFaith-Basedand vided bytheBush administration,andreligious certainly willrequire betterguidancethan pro- while protecting religiousfreedomandcivilrights tions involvingexistingorprospective programs and thegovernmentthatinvolve taxpayerdollars and practices."Shoringupthelegal foundationsfor promoting partnershipsbetween religiousentities General onanyconstitutional and statutoryques- ensure thatitsprogramsandpracticesare"consis- learn aboutdifferentapproaches,itwillsimply the President,mayseekopinionofAttorney tent withlaw."Tothisend,theorderstates:"The Office. Astheofficecontinuestoseekadviceand Executive Director,actingthroughtheCounselto grams. Therewasnospecificguidanceonconsti- General's OfficeandtheWhiteHouseCounsel's sible fatherhood,andinternationalfaithdialogue. president inconsultationwiththeAttorney Instead, thoseissuesremaintobedecidedbythe tutional orotherlegalissuesintheexecutiveorder. the officestoensureseparationofreligiousand ties, suchasshoringupthelegalfoundationsfor tration willperformtheseandothermajorpriori- addition, thepresidentidentifiedfourparticular accomplish policygoalssuitabletotheagencies.In nonreligious contentingovernment-fundedpro- cial relationships,butwouldnotbefocusedon with thepresident'sCabinetsecretariesandeachof the 11agencyofficesforfaith-basedandneighbor- hood partnerships:economicrecoveryandpoverty Obama administrationplanstousetheoffices reduction, reducingtheneedforabortion,respon- policy prioritiestobecarriedoutbyworkingclosely ernment socialserviceprograms,includingfinan- funding religiousorganizations.Insteadofpro- moting federalfundingofreligiousentities,the religious andcommunityorganizationsgov- rooted firmlyinsupportforcooperationbetween ers' dollarsarenotedasprincipalfunctionsofthe tively "whilepreservingourfundamentalconsti- mitment andensuringaccountabilityfortaxpay- tutional commitments."Thatconstitutionalcom- of suchorganizationstodeliverserviceseffec- It remainstobeseenhowtheObamaadminis- appointed JoshuaDuBoisas office andledreligiousvoteroutreach during thepresidentialcampaign. will beperformed. DuBois hasstatedthattheofficeis the executivedirector.DuBoisisan Neighborhood Partnerships"and ously servedinthepresident'sSenate ordained ministerwithadegreein office the"OfficeofFaith-Basedand office, butnooperativepolicylan- guage yetdescribeshowthesegoals public administrationwhohadprevi- President Obamarenamedthe Religious Liberty. K. address themost pressingsocialproblemswe face. and maintainmeaningfulboundaries thatprotect church andstatewhileenlisting allAmericansto crimination override civilrightslaws,andpromotedanaggres- political issuesthatchallengefaith-based initiatives did notdevelopinaday.President Obamahasa sive publicitycampaignthatturnedtheterm work, issuedcreativelegalinterpretationsofthe fresh opportunitytoimplement reformsthatcreate progress, conductedconferencestopromoteits Religious FreedomRestorationActthatwould based groups,supportedlegislativechanges, printed reportstodefendhispolicyandclaim with thefederalgovernment. throughout theexecutivebranch,established based initiatives,openedfaith-basedoffices serving fundamentalconstitutionalcommitments, oped. Wealsohopetoseemoreinformationonthe review processesforgrantapplicationsfaith- counsel, weexpectitspolicywillbemoredevel- Bush issuedahalfdozenordersrelatedtothefaith- formation ofnonprofitorganizationsandother technical adviceforentitiesseekingtocooperate controversy toplaguetheoffice.Asadministra- tion seekstostrengthenpartnershipswhilepre- receiving advicefromitsadvisorycouncilandlegal possible reforms,itwasnotablyabsentfromthe focus inthemediaandpolicydiscussionsabout tion forcivilrightslawsremainsahighpriority. administration's aggressiveinterpretationofthe accountability, andareversalofpoliciesthatallow new order,which,fornow,leavesamajorsourceof While theemploymentissuehasbeeninsharp government-funded positions.ReversaloftheBush staff theagencyoffices,addadvisorycouncilmem- against fundingreligion,moretransparencyand Religious FreedomRestorationActasanexemp- bers, andconvenemeetings,religiouslibertyadvo- senting diversereligiousandpolicyperspectives, cates willcontinuetopushforgreaterprotections enlist abroadrangeofoutsidehelpandfeedback to ensurethatalotofgoodideasareshared. sory councilofexpertsinfieldsrelatedtothe ommendations. Composedofindividualsrepre- on implementationofpolicies,andmakingrec- religious entitiestodenyjobsbasedonreligionin work offaith-basedandneighborhoodorganiza- the memberswillserveforaone-yeartermand tions. Thecouncilischargedwithidentifying best practices,evaluatingneedsforimprovement report tothepresident.Thiseffortisintended liberty advocateswillcontinuetopushforreform. Hollyn Holtmanisthegeneral counseltotheBaptistJointCommitteefor During histimeintheWhiteHouse,President While theObamaadministrationcontinuesto The executiveorderalsocreatedanewadvi- on itshead.Thelegal,practical,and dis- BOOK REVIEI

Bleached Faith: When Religion Is Forced Into the Public Square

REVIEWED BY DAVID A. PENDLETON ILLUSTRATION BY LARS JUSTINEN forced faith is no faith at all: for the The speeches of President Abraham Lincoln, freedom to believe entails the freedom whether from Gettysburg or from his second to doubt. inaugural address, ring with biblical cadences and A Such is one of the unspoken though are punctuated with allusions to the Deity. His no less important lessons implicit in Steven was not an orthodox faith, but Lincoln was Goldberg's Bleached Faith: The Tragic Cost When BLEACHED FAITH steeped in religious imagery. Every Thanksgiving IN. .111.10M Religion Is Forced Into the Public Square. His is a the story is retold of pilgrims who endured hard- t In I 0 Vtl•lit timely primer on the significance of faith and the ships and trials in search, at least in part, for reli- need for sustaining a civic environment wherein gious freedom. And every four years clergy stand citizens are free of religious coercion. before the nation's capitol and offer up prayers for This Georgetown University law professor the newly inaugurated president, most recently reminds us that personal faith has played a defin- for the forty-fourth president of the United States, By Steven Goldberg, ing role in American history, culture, and politics. President Barack Obama. Stanford University Press, 2008. It has shaped the self-understanding of Americans, However important faith has been, just as vital 161 pages. regardless of their individual religious/nonreligious has been the right to determine for oneself the predilections. nature of belief or unbelief in one's own life. Faith A memorable image from high school his- and freedom have been conjoined in American tory class is that of General George Washington democracy. The first clause of the First Amendment kneeling in prayer at Valley Forge. It functions as to the United States Constitution underscores the an iconic moment despite the likelihood it did centrality of religious freedom, effectively making not happen. Similarly, Thomas Jefferson's most religious freedom our first freedom.' famous correspondence concludes with his The constitutional separation of church "prayers for the protection and blessing of the and state mirrors the distinction between the Common Father and Creator of man." public and private lives we lead individually and

LIBERTY' JULY/AUGUST 2009 9

BOOK BEVIE1

collectively. Jefferson, in his January 1, 1802, public (government) places—whether the public correspondence to the Danbury Baptists, used place is a monument, historic edifice, courtroom, the phrase "wall of separation between church classroom, government policy, or curriculum. and state." The wall of separation is a metaphor In a succinct 161 pages, Goldberg references that has exerted, and for the foreseeable future a whole host of subjects in an overview of the will continue to exert, considerable influence. religio-political landscape—the Scopes trial, The truth of the metaphor of separation has Santeria religion, Sikhs, Social Darwinism—and never been uniformly accepted. Arguably, from those are just some of the S's touched upon. He its inception it has had its dissenters. But in manages also to cover a lot of ground: discussing recent decades the increasingly vocal and stri- figures as influential and diverse as Justice dent efforts by some to discredit and jettison the Samuel Alito, philosopher Baruch Spinoza, and principle of separation of church and state have novelist Herman Wouk; explaining legal doc- become a cause for concern. trines rooted in the establishment clause and The "bleached faith" Goldberg dreads is the grounded in the free exercise clause; sharing his threat to genuine faith inherent in a "watered- own personal familiarity with both observant down" religion contrived to achieve the question- and secular Judaism; and expounding on such able goal of installing one's religious worldview in hot-button topics as intelligent design, the public

10 LIBERTY® JULY/AUGUST 2 0 0 9

posting of the Ten Commandments, and France, where secularism reigns supreme, nor Christmas and Chanukah displays on govern- Iran, where one faith rules the roost. In France, ment property. students in public school cannot wear the Muslim The book is not an autobiography, but it is in head scarf; in Iran, they must. In America, the places profoundly personal. He writes not just as American Civil Liberties Union and the religious a detached and dispassionate legal scholar but as right agree that every public school student has a one well-versed in and appreciative of faith. "I right to wear religious garb if and only if he or she am a Jew who is not very observant, yet I have a so desires" (p. 5). American legal doctrine plots a strong Jewish identity," he divulges. "I have con- course to steer clear of both a wholly secular soci- cluded . . . that religion can provide me with a ety and a theocratic state. sense of humility, faith, and values that science That is not to say, however, that America is and secularism cannot" (pp. 5, 6). perfect. Alas, on too many occasions rancor, riot, Without being America-centric or anti-Euro- and raucous clashes have erupted where peaceful pean, Goldberg submits that the uniquely religious coexistence should have prevailed. Is American approach to faith in the public square Goldberg's account just a politically correct one? avoids the perilous shoals upon which other Or is he actually seeking the proverbial ships of state have run aground: "We are neither Aristotelian golden mean? I would contend,

LIBERTY' JULY/AUGUST 2009 11 rather, that he is describing the constitutional exceptions, nuances, and caveats abound, and balance gifted to us by the Founders. the legal doctrine itself has unpredictably evolved One can imagine Goldberg taking criticism over time. Witness the doctrinal progeny of from both far right and far left—fundamentalists Lemon v. Kurtzman2 and the on-again-off-again of the theistic and atheistic ilk. It should be applicability of the Sherbert v. Verner compelling apparent, however, that his "opposition to push- interest test.3 ing religion into the courthouse and the biology While a bright-line rule may not be easily classroom does not stem from hostility to reli- discernible, it is nevertheless the responsibility gion," for Goldberg is "opposed to bleached of government actors not to cross that line. faith—the empty symbolism that diminishes the "Finding your way between the establishment power of real belief" (p. 6). and free exercise clauses is like walking a tight- A bleached or watered-down faith can occur, rope," confesses Goldberg. "But it is a walk worth for example, when one seeks to situate in govern- taking to preserve the unique brand of religious ment buildings symbols of one's religious beliefs freedom we have in the United States" (p. 108). —whether a cross, crèche, crescent moon, or Ten In important respects Bleached Faith is a Commandments. While the government is not clarion call for all Americans to acknowledge required to be silent with respect to its history, it that the "unique . . . blend of free exercise and is not the role of government to bestow its impri- non-establishment—our insistence on avoiding matur on a given faith tradition. The USDA both intolerant secularism and suffocating the- grades beef as "Prime," "Choice," or "Select," but ocracy" (p. 128)— is worth the effort. no government agency can so grade a religion. It is a not too subtle suggestion that when we Goldberg points out how the Ten Command- visit the altars of our first freedoms we must ments and their posting in government build- return with the fire, not the ashes. Religious lib- ings is more about seeking the tacit approval of erty depends as much on the voices of individual government than in educating citizens about the citizens as it does on the opinions of courts or history of law. In seeking to make legal such the statutes of Congress, for the freedom to postings, parties have watered down the very believe (or disbelieve) is too important to leave to meaning of a singularly religious icon. This government officials alone. theme—of benevolent intentions being an insuf- Goldberg ultimately describes himself as ficient safeguard against genuine harm—recurs "someone who stands outside the camps of the throughout Bleached Faith. resolutely secular and the resolutely religious," for On the topic of intelligent design and con- his camp can be seen as that of the resolutely con- certed efforts by some to inject creationism into stitutional. He invites all Americans to dedicate the public school science curriculum, Goldberg and consecrate themselves to the preservation of warns against the serious untoward conse- our first freedoms, for we are all heirs and there- quences for such pedagogical meddling. Science fore stewards of the liberty bequeathed to us. is limited, and framing an essentially religious idea as though it were science will tend to cir- David A. Pendleton, an administrative law judge, was a policy advisor to the governor of Hawaii and an elected member of the Hawaii House of Representatives, cumscribe and diminish faith. "Science can nei- where he sponsored a state Religious Freedom Restoration Act. ther prove nor disprove the existence of God, the divinity of Christ, the nature of the soul, or any "'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" of the other teachings of actual religions," he 'The Lemon test for doctrinal analysis of establishment clause violations consists of writes. "Science cannot provide the sense of three prongs: humility or the guidance on how to live our lives (1)The government's action must have a secular legislative purpose; (2)The government's action must not have the primary effect of either advancing that these religions provide" (p. 51). Creationism, or inhibiting religion; and if it is to be taught at all, is properly the respon- (3)The government's action must not result in an "excessive government entangle- sibility of churches, mosques, and synagogues— ment" with religion. If the law fails any of the three prongs, the government's action is unconstitu- not public schools. tional. Subsequent cases, however, have called into question the application of the He cites with approval the Dover, Pennsylvania, Lemon three-pronged test. Most famously, former Supreme Court justice Sandra legal case, a recent intelligent design case, in which Day O'Connor advanced the endorsement test as a refinement of Lemon. Sherbert v. Verner, 374 U.S. 398 (1963), signaled the high-water mark for free exer- a federal judge held that the local school board vio- cise clause protection of religious freedom. This case involved Ms. Adell Sherbert, a lated the establishment clause when it made obliga- Seventh-day Adventist, and her fight for appropriate religious accommodation in tory the teaching of intelligent design by its high the workplace. It mandated the compelling interest test in free exercise clause liti- gation. Subsequently, Employment Division v. Smith, 494 U.S. 872 (1990), limited the school science teachers. compelling interest test to free exercise cases wherein unemployment compensa- That is not to say that the local school board tion was involved and permitted religious infringement by laws of general applica- intended to disregard the Constitution's estab- bility. Then the compelling interest test was reinstated in 1993 by Congress' pas- sage of the Religious Freedom Restoration Act (RFRA), only to be curtailed thereaf- lishment clause. Constitutional law as a whole is ter by the Supreme Court in City of Boerne v Flores, 521 U.S. 507 (1997), and complex, if not convoluted. Multi-pronged tests, Gonzales v. UDV, 546 U.S. 418 (2006).

12 LIBERTY° JULY/AUGUST 2009 BY JOHN GRAZ ILLUSTRATION BY STEVE CREITZ N THURSDAY, MARCH 26, THE HUMAN RIGHTS COUNCIL (HRC) OF THE UNITED NATIONS PASSED EARLY IN THE AFTERNOON THE RESOLUTION ON DEFAMATION OF RELIGION. THERE WERE 23 YES VOTES, 11 NO VOTES, AND 13 ABSTENTIONS.'

Americans who attend the council are surprised to defends religious liberty, be opposed to a resolution see the marginal role their country plays in the council. whose ostensible purpose is to defend religion against The United States is not a member, and in the past has attacks? It is worth recognizing that the original resolu- been one of the main targets of the critics. Since the tion, introduced in 1999 to the Commission on Human United States is not a member, it was not easily able to Rights by Pakistan on behalf of the Organization of the lead an opposition to the resolution. That role was taken Islamic Conference (OIC),3 was about defamation of by Europe. African country members of the Human Islam, and Saudi Arabia was one of the main sponsors. Rights Council either voted in favor or abstained: Latin Then the resolution was expanded to include all reli- American countries generally abstained: Cuba voted in gions. But, in fact, in the current resolution only Islam favor and Chile voted against.2 is explicitly mentioned and only Muslims are painted as You might ask, Why would the International victims.4 The resolution passed in 2001, 2002, 2003, and Religious Liberty Association, an organization that 2005. It also passed at the General Assembly in 2005,5 14 LIBERTY® JULY/AUGUST 2009 after being introduced by Yemen on behalf of by Christian leaders about Islam. The margin the OIC.6 between attacks on religion and attacks on sym- Yes, there are positive aspects to the resolu- bols, property, and members of that religion may tion: things such as encouragement toward edu- be narrow. This is why we should give attention cation about various religions in schools, a call to the concern behind the resolution. The for interreligious dialogues, and respect for all International Religious Liberty Association has religions in general. There has been legitimate done this for several years. Its Sixth World concern about Islamaphobia in Western coun- Congress and its Tenth Meeting of Experts tries since September 11, 2001. But it would have focused specifically on defamation of religion!' been far better if the resolution had also men- We think the best way to oppose defamation tioned all the problems and discrimination of religion is to be proactive in multiplying inter- Christians and other religious groups face— religious meetings and relations. We also think, particularly in the countries represented by as we have already expressed in the first two members of the HRC and the 01C.7 meetings of IRLA Experts (1999-2000), a Code However, it is useful to remember that the of Good Conduct should be worked on by all purpose of human rights is to defend and protect actors." After the cartoon on Muhammad was individuals, groups, and properties—not reli- published in Denmark, we saw that countries gions or ideas. So a call to violence or murder that had strong traditions of interfaith relations against the members of a religion should be were less affected by violence. This indicates that punished. This is covered in Article 20 of the when a religion is defamed, leaders of other reli- International Covenant on Civil and Political gious organizations should play the role of peace- Rights (ICCPR). The covenant has been signed by makers and bridge builders. Where there is no many countries and it is a binding document for freedom of expression, legislation against defa- them. It will be interesting to see how the country mation of religion will be used by the govern- members of the HRC observe this covenant. ment or by the religious majority to discriminate Another problem with the resolution is that it puts against minorities and to suppress what could be on the same level Defamation of Religions and useful and healthful critiques. Incitement to Hatred and Violence.' We believe everyone has the right to critique Dr. John Graz is secretary-general of the International Religious Liberty Association and secretary of the Christian World Communions. He writes from a religion and its leaders as long as he or she Silver Spring, Maryland. does not call people to discrimination, hatred, and violence. This right is part of our precious ' Resolution (A/HRC/10//L.2/Rev 1). Resolution 7/19. Combating Defamation of Religions. Azerbaijan, China, Cuba, Pakistan, Russian Federation, Saudi Arabia, and freedom of expression (Article 19 of ICCPR). The Sri Lanka are among the 23 votes in favor. resolution "urges States to provide, within their 'See United Nations press release, "Council Establishes New Expert in Field of respective legal and constitutional systems, ade- Cultural Rights, Extends Mandate on Democratic People's Republic of Korea for One Year." HRC, afternoon, March 26, 2009, pp. 18-22. quate protection."9 A new law will create more ' It appeared on the agenda as an item on "racism." See the analysis of The Becket problems than it solves. What is the legal defini- Fund at www.becketfund.org. tion of defamation? Where does defamation See Human Rights Council, Resolution 7/19, Combating Defamation of Religions. A/HRC/10/1.2. begin and where does it end? When does a cri- GA Res 60/15, UN Doc A/Res/60/150 (January 20, 2006). tique become defamation? ' Read the Annual Report on International Religious Freedom published by the It is true that an aggressive attack on a reli- United States Department of State and other reports on religious freedom in the world. gion may feed hatred and encourage violence ldem. and discrimination. In some parts of the world The U.S.A. did not sign. religious minorities have experienced this. It was The Tenth IRLA Meeting of Experts opposed the resolution because of its risk to freedom of expression. A final statement will be issued after the Eleventh Meeting the case of Christians in Pakistan, Indonesia, in September 2009. and Somalia after some unfortunate statements "Seer/des et Libertas, 2000.

LIBERTY• JULY/AUGUST 2009 15 Ch •n

uring his visit to America in April 2008, Pope Benedict XVI esteemed the model of American Dchurch-state relations as a potential schema to follow in Europe.' He noted that by disallowing state control over religion, religious groups have greater liberty to achieve their spiritual missions. Interestingly, the same train of thought regarding an American model of church- state relations entered discussions about the purpose of Benedict's September 2008 visit to France. Some commentators claimed that it might become one of the most notable visits of his pontificate. Benedict XVI's concern for France is its overtly secular stance in society, usually termed laicite.2 He proposed an alternate form of church-state relations patterned after the American model of sepa- rationism, and France's president, Nicolas Sarkozy, is open to discussing the possibilities with him.3 Perhaps the most startling aspect of these recent events, at least for church historians, is Pope Benedict XVI's recommen- dation given the historic condemnations by the Vatican of American concepts of church and state relations. Historically, the Roman Catholic Church has maintained that it is the obligation of the state to support the church in fulfilling its mission. As the church claims its mission is superior in nature to that of the state because of the spiritual objectives involved, so it also claims superior BY EDWIN C. COOK authority over the state in the temporal sphere. Prior to the ILLUSTRATION BY ROBERT HUNT Protestant Reformation the church achieved her aims much more easily because of the existing political structure of empires, such as the Holy Roman Empire, or dynasties, such as the Carolingian Dynasty—in each case, resulting in the concept of church-state union referred to as the Corpus Cristianum (Christian Commonwealth). Subsequent to the Reformation, the nascent existence of nation states, each with its singularity of purpose, posed more formida- ble challenges to achieving church-state union with the

16 LIBERTY° JULY/AUGUST 2009 44 church as the dominant player. Lacking a cohesive body be made: religious toleration is distinguished from reli- politic over which to exercise its authority, the church gious liberty, the former being a concession of the state adapted its strategies to each nation state, courting favor whereas the latter is an inalienable right. As George La with each in a variety of ways. Those that had a dominant Piana states, religious tolerance "is by definition connected Catholic populace, such as Spain, became known as "con- with something which is evil and undesirable. We tolerate fessional states"; in the case of France, which eventually things of which we do not approve because we cannot avoid adopted the concept of larcite, the church regarded it as an them without incurring a greater evil. Hence, Catholic the- "estranged daughter"; and America, where Protestants were ology admits that the practice of religious tolerance may at the dominant majority and which championed separation times be permitted by the moral law which allows the of church and state at its founding, was considered with choice of a lesser evil."" He further defines freedom of con- perplexity and no small degree of consternation. science as "the right of every person to choose one's own Since the beginnings of Roman Catholicism in America, religion according to the light of reason and the emotions the enduring issue of how to harmonize Roman Catholic of the heart," and freedom of religion as meaning "all reli- principles with American ideals has resulted in much gions have an equal right to exist and to be respected and debate, lengthy discourse, and even division among hierar- protected by the laws of the state."" chical leaders that reached a tense climax in 1900.4 The term typically given to this development is Americanism, Catholic Liberalism and Enlightenment Thought and includes such principles as "religious liberty, separa- n spite of such philosophical differences regarding reli- tion of church and state, cooperation with other religious gious tolerance and religious freedom, some European bodies, and greater lay initiative,"5 not to mention concepts ICatholic thinkers sought to bridge the growing gap of governance found within modern democracy.6 between Catholicism and intellectual forces of the Emphasizing the enduring nature of this dilemma, Dennis Enlightenment. Among them were: in Italy, Ludovico P. McCann comments: "No doubt, Muratori (1672-1750), Giovanni Lami (1697-1770), and the American church will con- Religious Giovanni Bottari (1689-1775); in Germany, Eusebius Amort tinue to struggle with this prin- (1692-1775); and in France, Jean-Baptiste Demangeot ciple for as long as it faithfully toleration (1742-1830).13 lives its Catholic identity."7 They "combined the philosophical thought of Descartes, Even though no Roman is distinguished Newton, and Locke, with a Gallican conciliar ecclesiol- Catholic hierarchical structure ogy."14 With the Enlightenment view of man and his indi- existed during the Colonial Era from religious vidual rights, they redefined traditional concepts of church of American history, some of the and state relations. Enlightenment views of society included underlying issues that later devel- liberty, political, intellectual, and religious pluralism. Emphasis on oped into the Americanism the individual allowed support for each area: politically, for dilemma were already present. As the former the individual who entered into society by contract with early as 1626 Pope Urban VIII's others; intellectually, for the person who rejected tradition nuncio was shocked that "under being a and applied individual, critical reason to inherited posi- the same roof in [Sir George tions; and religiously, for the multitude of religious groups Calvert's settlement at Ferryland concession making up society." on Newfoundland's Avalon pen- of the state The two major obstacles they faced were how to main- insula] , . Mass was had accord- tain political rights of religious pluralism without appear- ing to the Catholic rite, while in whereas the ing to condone indifferentism (that all religious groups are another the heretics [Protestants] valid means of salvation)" and the opportune political carried out their own."8 Calvert's latter is an structure to implement these ideas. The solution they pro- other entrepreneurial enterprise posed for the first was separation of church and state. in Maryland allowed Roman Under this schema the political rights granted by the state Catholics to coexist with Protestant inalienable to all groups were merely civil parlance for the peaceful groups, but only in the context of working of society. Since the church was separate from the "broad religious toleration for right. state, each religious group was free to maintain the cer- all."9 In fact, all other Catholic tainty of its convictions and to administer discipline as it settlements, such as those in "New Albion, in Virginia's saw fit to its members—without the corresponding loss of northern neck, and in Dongan's New York,"" recognized civil privileges, which, of course, was contrary to what was the crucial need for religious toleration if they were to sur- practiced under the traditional form of church-state union vive in a potentially hostile environment. Such concessions in Europe. of toleration to Protestants, born of expediency because of Regarding the second problem, Catholic Enlightenment Catholicism's minority status, rather than upon principle, thinkers were prevented from practical application of these largely ignored ideas of religious liberty based on principles because of the political structures prevalent in Enlightenment ideals. the European societies in which they lived. Thus, experi- Such a difference demands the following distinction to mentation with a working model of church-state separa-

18 LIBERTY' JULY/AUGUST 2009 tionism awaited the development of American republican gious liberty, it was not of the type envisioned by Madison ideals of political governance, birthed through the and Jefferson. Rather, a more specific analysis of Catholic American Revolution. concepts of church-state relations in America places them between the religious freedom guarantees of Virginia after John Carroll's Views of Church-State Separation 1790 and the religious toleration of Massachusetts." Joseph he Catholic Enlightenment thinkers who were most Agonito, in his Ph.D. dissertation, comments: influential upon John Carroll were Arthur O'Leary "Separation of church and state did not imply for T(1729-1802), Joseph Berington (1743-1827), and John Carroll, as it did for Madison and Jefferson, a secular (or Fletcher (1766-1845),r all of whom were from Britain. neutral) state, unconcerned and unconnected with Because of their influence, John Carroll, first appointed religion. Carroll could no more accept this idea of the as superior of the Catholic mission in 1784,18 and later state than the majority of his fellow-Catholics, or, for that elected as bishop of Baltimore in 1789,19 "thought that the matter, Rome itself. By separation, he meant that the state American principle of religious liberty was such a should not establish or favor one particular church over significant step forward, that England could do others; he did not oppose the idea that the state well to imitate it."2° should encourage and promote religion—even a In the American context, Carroll faced var- particular religion (e.g., Christianity).."31 iegated and complex issues related to religious Such a view was consistently practiced by liberty and internal church governance. Carroll when he gave as his rationale for sup- Officially, clergy appointments were made porting the Revolution the opportunity to through the Vatican. However, from the time gain "the toleration of all sects, professing of Catholic Colonial establishments until the the Christian religion." Agonito comments time Carroll was elected as bishop of on the use of the term "Christian" instead of Baltimore in 1789, there was great dearth of "Protestant" as Carroll's desire to make allow- formal organizational structure to American ance for Catholics, but to "exclude those not Catholicism." Without an abundance of of this faith" (i.e., non-Christians)." priests, and especially lacking organized par- This interpretation seems accurate because ishes, the spirit of independence infused the men- records indicate that Carroll aided in drafting The tality of American Catholics. Additionally, the pre- Declaration of Rights for the state of Maryland in vailing sentiment just prior to and following the 1776, which "specifically excluded non-Christians from American Revolutionary War was one of suspicion toward John Carroll, office-holding"." At no time during the debates for ratify- foreign authority, whether civil or ecclesiastical." To corn- the first arch- ing this declaration did Carroll speak against it. Later, in pound matters even more, American Catholics were com- bishop in the 1785, Carroll indicated his reluctance for "the state to prised of immigrants predominantly from Ireland and United States encourage, even indirectly, non-Christian religions" when Germany who did not want French clergy of Vatican Maryland proposed a bill for the religious assessment of all appointment." For Carroll, the simplest solution was the Christian groups, but that made exceptions for those who appointment of clergy through local (American) election, an were Jewish, Muslim, or a non-believer in the Christian ideal he and his fellow clergy envisioned." religion. Carroll bracketed this section in his copy and Carroll's pro-Americanist stance was greatly challenged wrote underneath it: "A bill for the encouragement of infi- in 1808, when the Vatican appointed "four suffragans to delity, Judaism, and Mahometism."34 the new dioceses of Boston, New York, Philadelphia, and Thus, from the historical record, it seems accurate to Bardstown, Kentucky," who were foreign-born and -trained." state that Carroll adopted a view of church-state relations By 1815, the time of Carroll's death, Americanism was still a that would allow government support of Christianity and vital element among American-born Catholic clergy, in spite that would tolerate, for the sake of civil peace, other reli- of nascent tensions with the Vatican.26 In fact, James gious groups, although even the latter position should not Hennesey, speaking of the development of Catholicism in be encouraged if it could possibly be avoided. For Carroll, America, referred to it as "the strongest nineteenth-century the church in a Protestant country such as America should conciliar tradition in the Western Church."" adopt this modified concept of church-state relations in Factors weighing in favorably for the support of order to coexist in a plurality of religious groups. For this American church-state separation and religious liberty, at reason, among others already mentioned, he advocated least in the mind of John Carroll, were the legal protections Americanist ideals. afforded to Catholics, along with all other religious groups, Even after Carroll's demise in 1815, the ideas of church- through the First Amendment." Additionally, the concept state separation continued to abound in Europe among of church-state separation was distinctly different from liberal Catholic thinkers. Such individuals as Abbe Henri that in Europe, where Catholicism faced anti-clerical Gregoire (1750-1831) argued for "a free church in a free E

AL republicanism bent on restricting its influence." Carroll state"; Count Charles de Montalembert (1810-1870) and his T PE also believed that adoption of such principles would allow friend Abbe Felicite Robert de Lamennais (1782-1854) ND RA

B for growth of Catholicism. urged this idea in the early 1830s as well." Not only did this M

RE However, as much as Carroll lauded the concept of reli- fuel the flames of church-state separation in American

LIBERTY• JULY/AUGUST 2009 19 Catholicism, but it also raised the ire of the Vatican. Pope who maintained sentiments of Americanism, such as arch- Gregory XVI (as pope 1831-1846) rejected this teaching as bishops Patrick Feehan, William Gross, Peter Kenrick, James heretical in his encyclical Mirari vos (1832), in which he Cardinal Gibbons, and John Ireland.4' denounced liberty of conscience as sheer madness, termed The most outspoken pro-Americanist archbishop, John freedom of the press as execrable and detestable, and disap- Ireland, of St. Paul, Minnesota, sought ways to defend proved of the separation of church and state, declaring that Americanism against its detractors. He pointed out that two princes hold their temporal government primarily for the of its core principles, religious liberty and the separation of defense of the church.36 church and state, had allowed the Catholic faith to flourish so rapidly since its inception there.42 Ireland was such a The Americanist Controversy visionary that he predicted that the civil and religious condi- oncurrently, distinct changes were underway in tions prevailing in America would soon become those estab- America. As if to reinforce Pope Gregory's objections, lished in the whole world.43 For this reason, he argued, in C large waves of Catholic immigrants who brought order for the church to fulfill its mission to the world, it was their Old World concepts of church imperative for American Catholics to demonstrate the com- governance contributed to estab- For Roman patibility of Catholic principles with concepts of democracy, lishing this mentality among religious liberty, and separation of church and state." American Catholicism.37 Such sen- Catholics living Such enthusiastic endorsement for American ideals by timents strengthened the position leaders of the American Catholic hierarchy caused concern of American Catholic leaders who in America at the Vatican. Given that America was predominantly a desired to follow more traditional Protestant nation from its beginnings and that the concepts of church-state relations, the dilemma Enlightenment so heavily influenced its political moorings resulting in growing animosity they faced was during the Founding Era," Pope Leo XIII issued Longinqua and division with other Catholic Oceani in 1895, in which he praised the growth of the church, leaders favoring Americanist how to reconcile but "warned against idealizing the American separation of ideals. church and state."46 In particular, he admonished American Attrition rates among Catholic Catholic Catholic leaders not to espouse American concepts of reli- membership also hammered gious liberty and church-state separation as ideals to be fol- deeper the wedge between Catholic principles lowed for the church in other parts of the world." In 1899 he leaders. Although the American with the followed this encyclical with a second one, Testem benevo- Catholic population grew from lentiae, in which he condemned Americanist ideals, espe- approximately 318,000 in 1830 to of cially pointing out grave concerns with Enlightenment influ- 3,103,000 in 1860,38 some American ideals ence and a certain type of liberty wholly free from external Catholic clergy were concerned their country. guidance of the church." Such blatant counsel stifled further with attrition rates, calculating consideration of Americanism so extensively that it was not that an estimated 3.75 million Catholics had left the fold until nearly 60 years later that the church would re-evaluate between 1786 and 1836.39 In spite of such unprecedented its concept of religious liberty at Vatican II." growth in previous decades, Peter Paul Cahensly, an immi- grant who founded Saint Raphael's Society for German Condusions immigrants seeking aid in America, issued a memorial in he Americanist controversy included many factors 1891 to Pope Leo XIII claiming that millions of Catholics related to American social, political, and religious were leaving the church." His memorial called attention to Tconcepts. For Roman Catholics living in America, the division among conservative Catholic leaders and those whether laity or clergy, the dilemma they faced was how to

20 LIBERTY° JULY/AUGUST 2009 reconcile Catholic principles with the ideals of their coun- Movements (New York: Charles Scribner's Sons, 1988), vol. I, p. 370. 'Neil T. Storch, "John Ireland's Americanism After 1899: The Argument From History," Church try. Consistently, the hierarchical leadership of the church History 51, No. 4 (December 1982): 444. in Europe believed that such a feat was impossible. Through 'Graham Maddox, Religion and the Rise of Democracy (New York: Routledge, 1996), p. 199. various encyclicals, some of which have been referred to 'Dennis P. McCann, New Experiment in Democracy: The Challenge for American Catholicism (Kansas herein, various popes made official pronouncements City, Mo.: Sheed and Ward, 1987), p. 33; David O'Brien also remarks: "Americanism, in short, now appears as one episode in a long series of controversies surrounding the Church's role in the mod- against what they perceived as dangers to the church. ern world" (David O'Brien, "Americanism," in Michael Glazier and Thomas J. Shelley, eds., The Some Roman Catholic leaders in America, however, felt Encyclopedia of American Catholic History [Collegeville, Minn.: The Liturgical Press, 1997], p. 99). otherwise. They conceived of compatibility between the 'James Hennesey, "Catholicism in the English Colonies," in Lippy and Williams, p. 346; James M. principles of their faith and American ideals. They were O'Neill, Catholicism and American Freedom (New York: Harper & Brothers, 1952), pp. 8, 9. Hennesey, p. 345; O'Neill, pp. 9, 10. influenced by Roman Catholic intellectuals in Europe and Hennesey, p. 354. Britain who attempted to reconcile Enlightenment thought "George La Piana and John Swomley, Catholic Power vs. American Freedom, Herbert F. Vetter, ed. with Catholicism but lacked the practical (New York: Prometheus Books, 2002), p. 45. means to test their conclusions. "Ibid., pp. 44, 45. "Joseph P. Chinnici, "American Catholics and Religious Pluralism, 1775-1820," in Timothy Walch, Through their writings they ed., Early American Catholicism, 1634-1820 (New York: Garland Publishing, 1988), p. 277. influenced Catholic leaders in p. 277. America such as John Carroll, "Ibid. Orestes Brown, and John Ireland. "Ibid., p. 279. "Ibid., pp. 277, 280, 281. Additionally, the American "Debra Campbell relates how the Jesuits of Pennsylvania and Maryland unanimously agreed in church, not being limited by an October 1784 that the appointment of an American bishop was still untimely and could threaten already established state structure, the safety of Catholics in general and Jesuit property in particular ("Catholicism From offered an opportunity to experi- Independence to World War I," in Lippy and Williams, p. 358; O'Neill, p.11. "Hennesey, p. 354; O'Neill, p.11. ment with Catholicism under the "Joseph Agonito, The Building of on American Catholic Church: The Episcopacy of John Carroll (New new Constitution, in which the prin- York: Garland Publishing, 1988), p.209; O'Neill notes as well Carroll's patriotic fervor (p.11). ciples of religious liberty and church-state separation were "Hennesey, p.354. enacted through the First Amendment. "Agonito, pp. 218, 220. "Campbell., p.359. Upon close examination of John Carroll's views of reli- "Ibid., p. 358. gious liberty, it becomes evident that while he was much "Ibid. more advanced than many of his European contemporaries, Ibid., p. 357. "Bernard Cooke, ed., The Papacy and the Church in the United States (New York: Paulist Press, 1989), his views still do not resonate fully with the concepts of reli- p. 37. Conciliarism in the Roman Catholic Church dates to the fourteenth century and is character- gious liberty and church-state separation advanced by ized by restraints imposed upon the pope by means of councils consisting of hierarchical leaders, Founders such as James Madison and Thomas Jefferson. such as bishops, theologians, etc.; cf. "The Republican Church," in which chapter Dale B. Light Additionally, while it is certainly true that Carroll's views details how St. Mary's church proposed to create a Catholic church of equal status to the national churches of Europe, but organized on a liberal, constitutional basis (Dale B. Light, Rome and the reflect adaptation of the traditional Catholic understanding New Republic: Conflict and Community in Philadelphia Catholicism Between the Revolution and the of church-state relations to fit an American context, it must Civil War [Notre Dame: Univ. of Notre Dame Press, 1996], pp.127-131). be emphasized that his views speak on behalf of American "Campbell, p. 357. Roman Catholicism. The Vatican maintained a consistent "McCann, p. 25. "Agonito, p.244. course throughout the Americanist controversy as evidenced "Ibid., pp. 248, 249. by various encyclicals cited herein, at least through the "Ibid., p. 260. beginning of the twentieth century (1900). In light of Pope "Ibid., p. 260. Benedict XVI's recent recommendations of the current "Ibid., pp. 262, 263. "Leonard Swidler, Toward a Catholic Constitution (New York: Crossroad Publishing Co., 1996), p. 58. American church-state model for Europe, and given Rome's "Ibid., pp. 58, 59. boast that she never changes, one is left to ponder whether "David O'Brien states: "In the United States, the continuing arrival of millions of Catholic immi- Rome's official position on the Americanist "heresy" has grants limited the appeal of an Americanizing strategy based on affirmation of American ideals and changed, or whether American concepts of church-state institutions" (O'Brien, p. 99). "Campbell, p. 361. relations have undergone a gradual transformation since "Ibid., p. 364. Pope Leo XIII issued Testem benevolentiae to reflect a posi- "Campbell., p. 370; Storch, p.438. tion more in harmony with Rome's traditional stance? "Campbell, p. 370; cf. Gerald P. Fogarty, The Vatican and the American Hierarchy From 1870-1965 (Stuttgart: Anton Hiersemann, 1982), pp. 27-64. Edwin C. Cook is currently studying for a doctorate in church-state relations at Baylor University, Texas. "Starch, p. 436. p.440. "Starch, p. 440; Swidler, p. 59; cf. Peter Hertel, "International Christian Democracy (Opus Del)," in 'Douglas W. Kmiec, "Why the Holy Father Likes America," retrieved on Apr. 13, 2008, from www. Gregory Baum and John Coleman, eds., The Church and Christian Democracy (Edinburgh: T. & T. catholic.org/popeinamerica/story.php?id=27583. Clark, 1987), pp. 95-105. 'Peter Mayer, "PREVIEW: Pope Benedict to Visit France, the Church's Wayward Daughter," retrieved "Maddox, p.197. on Sept. 11, 2008 from www.monstersandcritics.cominews/europe/news/article_1430019.php/ "Campbell, p. 371; for a highly detailed account containing copies of letters and correspondence PREVIEW_Pope_Benedict_to_visit_France_the_Churchs_wayward_daughter_. among participants, see Thomas T. McAvoy, The Americanist Heresy in Roman Catholicism, 'Austen Ivereigh, "Not Just Another Papal Visit to France," retrieved on Sept. 9, 2008, from www. 1895-1900 (Notre Dame: Univ. of Notre Dame Press, 1963), pp. 217-258. americamagazine.orgibloyentry.cfm?blog_id=2&id=47101D44-5056-8928- "O'Brien, p. 98. 10794EF10834F928. "Storch, pp. 435-436; Pope Leo XIII, Testem benevolentioe, in Glazier and Shelley, p.101; Campbell, ' Debra Campbell, "Catholicism From Independence to World War I," in Charles H. Lippy and Peter p. 371; cf. Fogarty, pp. 177-188. W. Williams, eds., Encyclopedia of the American Religious Experience: Studies of Traditions and "O'Brien., p. 98.

LIBERTY° JULY /AUGUST 2009 21

THE ENGLISH REFORMATION] AND RELIGIOUS FREEDOMI PART IV rcipATIPV BY DAVID J. B. TRIM ILLUSTRATION BY DAN CRAIG

eligious diversity and thus the very concept of religious freedom in IR the modern United States both derive from the English Reformation, thanks to the English colonization of North America. However, the Reformation in England is increasingly portrayed as something that was imposed on the English people by their rulers, who themselves did not have genuinely religious reasons for abandoning the traditional Roman Catholic faith of their forefathers. Some seem to feel that if it can be shown that the English Reformation's root causes lay in political maneuvering, economic advantage, or personal foibles, and only succeeded because it was imposed by force on an unwilling or indifferent population, then its consequences could more easily be undone. What would hold back reunification of Protestants and Catholics, at least in the English-speaking world, if they are merely prisoners of an unfortunate history? And if the English Reformation were imposed by force, does it mark a black period in the history of religious liberty? Three previous articles in this series have taken us from the origins of Henry VIII's break with Rome in the late 1520s up to the death of Mary I in November 1558. This article looks at her successor, the third of Henry VIII's children, Elizabeth I. By the time she took the throne there was more interest in, and sympathy for, Protestant ideas than on Henry's death a dozen years before; however, England was not yet a Protestant nation. In the 30 years prior to Elizabeth's accession, England's official religion had changed radically, not once, but thrice; the "Elizabethan settlement of religion" (as it was to become known) was to be the fourth significant shift in 30 years—and the third in just over a decade! But it was also to be the last. The reign of Elizabeth was to be a golden age for English literature, drama, culture, and exploration. On the stage, characters in the plays of Shakespeare, Marlowe, and Jonson grappled with issues that arose out of the wider contest

22 LIBERTY' JULY/AUGUST 2009 r.

* -** 10 of the population, who could often be swayed by the influence of government ministers) returned a majority of Protestant or at least anti- papal MPs, albeit the House of Lords was more conservative. The queen's counselors then shep- herded through Parliament and through the Convocation (an assembly of the Church of England's clergyman with limited legislative powers on ecclesiastical matters) the legal frame- work of "the Elizabethan Settlement." In 1559 Parliament enacted two key pieces of legislation: the Act of Supremacy and the Act of Uniformity, which restored both royal (rather than papal) authority over the church and the Protestant liturgy (the Book of Common Prayer) introduced in Edward's reign. In 1563 Convocation adopted the Thirty-Nine Articles, which defined the faith of, and would regulate, the new Protestant Church, and also a new book of official homilies, which, used in conjunction with the Book of Common Prayer, were to be read aloud in every church during divine services. However, the "Elizabethan settlement" was not a straightforward process. The queen and her ministers initially sought to put the clock back to Edward's reign, but their first pieces of legislation, having passed the Commons, were rejected by the House of Lords—the upper house in Parliament. Opposition was led by the bishops, who of course were mostly staunch Catholics, appointed by Mary, and who were ex officio members of the House of Lords; but a number of the hereditary noblemen who made up the rest of the Lords were also ecclesiastically conservative. The government "had to make major concessions" to get the Lords to pass the two amended The Princess Elizabeth, between confessions for Englishmen and— bills (passed once more by the Commons).' The aged about 13 (1546). women's loyalty—issues that were both personal Act of Uniformity, which reimposed the Book of and national. The Elizabethan era was to be the Common Prayer, was significantly altered, to metaphorical stage on which the drama of make the liturgy at some key points ambiguous national religious choice was to be played out— and hence acceptable both to Protestants and and resolved. For in the next four decades, the Catholics. Even then, the bishops still steadfastly ecclesiastical direction of the nation was to be opposed the bills. In a dramatic move, the gov- decided for the next four centuries. ernment imprisoned two of the bishops and forc- ibly excluded two others from sitting, all on THE ELIZABETHAN SETTLEMENT trumped-up charges. The legislation passed by 21 mmediately on succeeding her sister, Elizabeth votes to 18—had the four bishops been present, replaced almost all the Catholic royal coun- the government's program would have failed. 1selors and ministers of state with men who The initial Elizabethan program of radical were known to be committed evangelicals. In reform thus was tempered by political necessity. the next four years, the newly Protestantized Convocation proved easier to deal with than central government ensured that, in elections Parliament, but the Thirty-Nine Articles per- to Elizabeth's first Parliament, the House of force reflected the revisions to the 1559 legisla- Commons (at that time elected by fewer than 1 in tive program.

24 LIBERTY• JULY/AUGUST 2009 The young queen and some (though by no means after . . . a mediocrity; and are crying out that all) of her ministers took the moral of the story the half is better than the whole."' to heart. After the upheavals of the previous Elizabeth and others of her ministers took a decade, it is unsurprising that few people in the different view and apparently reached it quickly. early 1560s realized the program eventually The lord chancellor, Sir Nicholas Bacon, declared enacted during 1559-63 would "constitute a per- to the concluding session of the 1559 Parliament manent `settlement ."2 That it did was due not (in words that would have been approved by the only to its nature, but also to the lessons learned queen): "I mean to comprehend as well those and applied thereafter. that be too swift as those that be too slow, those As we have seen, ambiguity was not originally that go before the law or beyond the law as those the intent of the new regime. But Elizabeth had that will not follow."6 The set of injunctions learned one lesson from the tumultuous reigns of which were issued that year by the government her younger brother and elder sister—that push- "for the suppression of superstition" and the pro- ing religious reform too far, too fast, only excited motion of "true religion," and which provided hostility that could politically undermine the sov- for enforcement of the parliamentary legislation, ereign. And the lesson she "learned from the clash "took more account of Catholic sensibilities" than ELIZABETH of 1559" was caution.' Thus, what she initially the equivalents issued during Edward VI's reign accepted perforce eventually became her prefer- had done. They allowed for the preservation of WANTED HER ence. In contrast to the radicalism of the much of the material culture of traditional Edwardian reformation, which alienated as many churches, condemning the "superstitious abuse" CHURCH, AS MUCH as it appealed to, prudence and conciliation were of stained glass windows, crosses, altars, and so to be hallmarks of the Elizabethan church. forth, rather than requiring their destruction (as AS POSSIBLE, What must, however, be emphasized is that, particularly radical adherents of Calvinist while Elizabeth's ecclesiastical agenda after 1560 Protestantism had hoped).7 TO UNITE was, by the standards of the time, conciliatory, and was to be characterized by later generations THE ELIZABETHAN CHURCH OF ENGLAND HER PEOPLE as a via media (or middle way), it was not half- lizabeth's church, as it emerged from the hearted. Some revisionist historians sneer at Parliament of 1559 and Convocation of RATHER THAN Elizabeth as "a Protestant (of sorts)," but it is € 1563, "blended traditional episcopal widely recognized that the evidence we have for structure, an anglicised semi-Catholic liturgy, DIVIDE THEM. the queen's opinions on doctrine (whether in pub- and a thoroughly Protestant theology," as her lic proclamations, from her own private devotions, brother's had done.8 But Archbishop Cranmer or in her correspondence) reveals her theology as and the other leading reformers of Edward's day unequivocally Protestant.4 However, she emphati- had seen the Edwardian church of the early cally was not a Calvinist—and it was the Calvinist, 1550s as a staging post, a halfway house, to a or Swiss, confession that commanded the alle- more thoroughly reformed church in the future. giance of most leading English Protestant clergy- In contrast, Elizabeth for the rest of her reign men, and yet it was the most radical and divisive defended the church that, by accident as well as of the Protestant confessions. Elizabeth wanted by design, had emerged in its first four years; it her church, as much as possible, to unite her peo- certainly was not Catholic, yet nor was it as ple rather than divide them—wanted it, in the unambiguously Protestant as many prominent language of the time, to "comprehend" as much Englishmen, clergy and laity alike, desired. of the population as possible. Under Elizabeth, the set liturgy of the Book The queen and some of her counselors seem of Common Prayer was identifiably Protestant; to have decided that the moderation enforced on furthermore, many of the traditional rituals, them by the opposition in the Lords in 1559 was around which communal worship and personal a blessing in disguise, though it was not a view spirituality had centered, were abolished or that all shared. Most of the new Protestant bish- altered significantly. This ensured the opposi- ops, and some prominent Protestant nobles, tion of some traditionalists. Many other rituals, were puzzled by the queen's acceptance of what however, including some banned under Edward, (to them) seemed a half-baked Protestantism. were restored, or retained in somewhat modified The celebrated theologian John Jewel, soon to be form; and the same was true of much of the appointed bishop of Salisbury, wrote unhappily material culture of traditional worship: clerical that some of his colleagues were "seeking vestments, the implements used in Communion,

LIBERTY• JULY/AUGUST 2009 25 and the furnishings of the parish church. a City at unity in its self, because of [their] mani- All this angered the "hotter sort of Protestants" fold dissentions and divisions . . . the Doctrine (as they called themselves), who, because of their of Luther was no sooner bred, and borne, but it passionate commitment to "purify" the Church divided it self like a Hydra into many heads: of England of any residue of the Church of Rome, Lutherans, Calvinists, Anabaptists, Libertines ... were to become known (by their enemies, more etc."9 In a sermon preached at Oxford in 1555, a THE OFFICIAL than by themselves) as "Puritans." However, pre- Catholic priest emphasized the newfangled serving traditional outward forms and the rites "diversity in opinions" among English Protestants, EDWARDIAN AND associated with them, even while preaching a who were "Lutherans, Oecolampadians, [and] distinctly new theology, provided much-needed Zwinglians," in contrast to the "old . . . Catholic ELIZABETHAN continuity. It must have been reassuring to the faith." i° many people who, while hostile to Rome, were Members of these different Protestant groups REFORMATIONS bewildered by the multiple changes of confes- disagreed, sometimes violently, over both the sional direction, had not heard much distinctly theology of the Eucharist (or Communion, or "COULD NOT Protestant preaching, and were still uncommit- Lord's Supper), and, in consequence, how it ted. It facilitated their conversion to what a sub- should be celebrated liturgically; they also dif- MAHE ENGLAND sequent generation of English Protestants would fered, sometimes heatedly, over soteriology and call "prayer book Protestantism." ecclesiology (the doctrines of salvation and of PROTESTANT" the church). The revisions made in 1559-63 to RELIGIOUS DIVERSITY the Act of Uniformity, Book of Common Prayer ANY MORE THAN he compromises of the Elizabethan settle- and Thirty-Nine Articles, and maintained and ment thus did not negate all opposition enforced over the next 40 years, were intended to THE OFFICIAL —far from it. However, they did minimize conciliate not only Catholics but also different opposition. types of Protestants—for, without unity among MARIAN COUNTER- Many English people initially were unhappy them, there was no way to overcome the inertia with the Elizabethan settlement—yet crucially, of tradition which in circa 1560 still affected the REFORMATION very few hated it sufficiently to reject it entirely. majority of the population. There was enough in it that was familiar or For much of Elizabeth's reign there was COULD MAHE desirable for it to be accepted—or at any rate doctrinally (though never ecclesiologically or not repudiated!—by a whole range of different liturgically) a "Calvinist consensus" at the top of IT CATHOLIC. opinion groups. the church. However, by the end of her reign the There were outright Roman Catholics (a small diverse strands in English Protestantism made minority), and Henry VIII-style Anglo-Catholics, themselves felt and a "new mood in English who hated the Papacy but disliked the doctrines Protestantism" emerged—one that drew on a and liturgical practices of Protestantism. There range of other Protestant traditions and embraced were middle-of-the-road evangelicals, essentially sacramentalist views more typical of Luther than supporters of reform but still hoping for reconcili- of the Swiss reformers." It is a mistake, albeit one ation in Christendom; and Lollards, the native even distinguished historians are guilty of, to English "heretical" movement, founded by John conflate English Protestantism with Puritanism; Wycliffe, almost 200 years earlier (whose absorp- it was an error Elizabeth did not make. tion into Protestantism in the mid-sixteenth century remains one of the great mysteries of English "WINDOWS INTO MEN'S SOULS" reformation history). There were also, of course, hy, then, did England become Protestant? out-and-out adherents of the reformed confes- The governments of Edward VI and sions: Lutherans; Calvinists; a few Anabaptists; Elizabeth I imposed what have been but also followers of other Protestant reformers: termed "political Reformations," which certainly Zwingli, Bucer, and Oecolampadius, whose fol- helped the process of Protestantization. However, lowers in Europe had merged into the Lutheran in sixteenth-century France, the Netherlands, and and Calvinist confessions, but because of parts of Germany, princes were unable to impose England's separation from the continent, retained their religion on all of their subjects; early-modern (for the moment) a quasi-separate identity. society was far more hierarchical than ours, but This diversity among Protestants was well early-modern people were just as willing as their known. A common Roman Catholic charge was ancestors and descendants to defy authority over a that they "cannot be the true Church, which is as matter of conscience. The 36 years of the French

26 LIBERTY• JULY/AUGUST 2009 Elizabeth I presiding over Parliament

IN MI os al.0 orAD I. M. alk OrrrIROh Mk Wet Ilp.- 'i'ilp infr!Iligg 7eim ".+....1.'"C ,ar • If ..4111"4 1 aft m rw A .11 111111 le NO NII NMI WI 101 • IV. MN • MI SIN IMF IF • gal • AO, Ili Ea MI INKY • \ 1661 1111 xt (*. 11...P101.1.1111:w

Wars of Religion and the Eighty Years' War in the Furthermore, when English people had the Low Countries stand as potent testimony to the chance to hear the gospel preached, on the whole, fact that sovereigns could not simply dictate their they responded enthusiastically. This took time, subjects' religion. As one historian observes, the as recent revisionist histories make clear." One official Edwardian and Elizabethan reformations consequence of the Marian counter-reformation "could not make England Protestant" any more was that, in the early 1560s, there just were not than the official Marian counter-reformation could enough committed Protestants in the clergy: in make it Catholic. Nevertheless, "statute by statute," the circumstances, they simply could not "have Elizabeth gave England "Protestant laws and made made much progress."14 Gradually, though, the popular Protestantism possible."" divinity schools of Oxford and Cambridge started

LIBERTY' JULY/AUGUST 2009 27 r The order where Morning and Eue- nine Prayer !hall be v fed and laid. irbe mamfng ant, Netting warty, Aire of the charcka>cbappett,o; cboncrtherceptMall be bieD In the acrnrfomet English people were Protestants. Whereas in the betennineo bp tbe EIV)inarp of the it (all be otbettnire 1540s and 1550s the great question was whether wattle, as tbep bane Done in tune paa.piece, anD the kinD chancels tball re, England would be Roman Catholic or Protestant, Moil, bare to to be noto,tbat tile tViniff a at tbe time t at all tuber times in Ett of tbe by the 1640s and 1650s, it was what sort of in the rbarch,an Inert oinfniarattori,tbaa We farh °momentsCamti- Protestants English people would be—and it was in We bp antbottie of Peat ortbe Leigne eking 00Watto parliament in fix femme one they felt so strongly about that it resulted in taadionsent fet in the beginning tOe an , arcogIng to tpe aa of of the bootie civil war and revolution. of common weer. An ordcr for Generational change could never have taken Morning prayer, daily throughout place, however, if, as in contemporary France, at the Whole yeete. the beginning bath of ordinary people were passionately devoted to wafer, thesr; inflict. coil tnoming pattr,fawn* of tinning maintaining Roman Catholic belief and practice. real) Witt) aloInGe Wire , fame our Itticbrentenees Ea of toe ADeelptureo,tbat ration). ,anb tpen of tte.s The English people accepted the new church— .,,,,, toOtten after tbe foto fentenreo. bee trot( tap that and probably did so not least because of the .1;,1",) N 0.• approach of its "supreme governor": their queen. elk 4 - : ibbat time . Although it is often attributed to her, Elizabeth net Doti.) rt pent foetteratin, eft*, 7; tie bottom (u of bto fin, from VAIL probably never actually said that she "did not wish 2 , o f b to bort, X bto Wit put ail to make windows into men's souls." But it may well IDICREDtiffre out of nu; Nan re 1 1410 the 1140. cement- have been said by her chief minister, William Cecil, I DO know and it certainly reflected Elizabeth's attitude. As nub nip mine °tun aline fgi at LIMPlotrkeDnetre, itainit mot long as her subjects worshipped in her church each Zane the face inee. Sunday, using her liturgy, she did not mind what alines, ii) Lo2D, anti tap now our ID taUt. they thought. By modern standards, this is hope- 4 fogatutiffifintit o offence. blot out alt Our LoID, bumble a Cacti ft ces to lessly intolerant! By the standards of the sixteenth ammo contrite efin 0; mpile century, it was remarkably open-minded. Elsewhere bats. ' nor, ilD be Lois raLlf. in Europe, both Protestants and Catholics sought 13Mt pour your Deort0 Oota, (Inn not your garMentO, MID turne to noel, attest anti of snug) to repress "heretical" opinion, as well as practice, tecattlemercie be , IS mate ant) inerctfult , beefs if. q Your oftitatom 011D (deb a Otie tDat 63 and evidence of divergent thinking was punished to tbez, 0 Loll) ZoD , Come with death. Elizabeth wanted unity among her sub- once Dour belot ' -Op goneaump from igetbinercle auk rogitienerce Zan.* jects, and as long as they cooperated with her, she bolce,0 tber, arm baue would not try to look into their minds and their patty tog nitirbt Waffle in tbp latlie0not bartieneb gift 7 Ion hearts, to see if they did so enthusiastically or only .. .Cball grudgingly. Inevitably, people of conscience from both ends of the confessional spectrum, Roman Catholics and Puritans, refused to acknowledge the queen's A page from the right to govern their theology or how they wor- Book of Common Prayer shipped—and refused, therefore, to participate in to turn out numbers of well-educated and zealous the services of her church. They were then perse- Protestant priests, who started to preach the gos- cuted, sometimes brutally, though on nothing like pel—and, even more, to celebrate the sacraments the scale of Mary's persecutions. In response, some with the Book of Common Prayer. By the early called for political resistance to the government, seventeenth century, this wonderful liturgy which in turn evoked even greater repression. (whose language, even more than the better- But this was not an issue for the great mass of known King James Version of the Bible has deci- Elizabeth's subjects; thanks to the accidentally sively shaped the liturgical practices of all denom- contrived but purposefully maintained via media inations throughout the English-speaking world) of the Elizabethan settlement, most English peo- had won a devoted following, as recent research ple were not confronted with practices that fla- has shown.'5 In the new grammar schools, grantly outraged their consciences. Their church too, children were educated as Protestants. was Protestant, but it did not advance only one Generational change ensured that, probably by restricted theological Protestant perspective, and the time of the attempted Catholic invasion of the so it appealed to a broad spectrum—at least it did Spanish Armada in 1588 (whose defeat was not appall people sufficiently to defy the govern- acclaimed in England as evidence of divine favor ment. And so most people chose to conform out- to a Protestant nation), the great majority of wardly and "took their places in church . . .

28 LIBERTY' JULY/AUGUST 2009 [though] What they made of the service and the and always have. Today, Protestants and Catholics sermon we cannot say."16 Many Puritans flocked coexist across the world, respecting each other's to parishes of Puritan priests to hear their ser- sincerely held but distinctive doctrines, styles of mons; many Roman Catholics, as and when they worship, and approaches to spirituality. Respect could, sought out itinerant priests (missionaries is inconsistent with disdain; we should respect from the Continent, who literally braved death) the choices of believers in the past, as well as in and took Mass. Yet many, from both ends of the the present. confessional spectrum, still went to a prayer book Accusing people of the past of insincerity in service as well; this outward conformity was gen- their decisions to become Protestant or to remain erally all that their queen wanted. Roman Catholic is nothing new. It was common- Thus, there was opposition from both ends, place in the sixteenth century. Protestants and and there was some compulsion, but in the end it Catholics accused each other of the same faults— was not because of these that England became of using religious rhetoric but actually only caring truly a Protestant nation, as well as having a about wealth or power—blind to the irony that Protestant church and state. It was because the people on each side thought themselves sincere majority of people, who, on Elizabeth's accession and the others hypocrites. The reality is that peo- RESPECT IS were Catholic-leaning or uncommitted, were ple in sixteenth-century England took the choices given mental time and space to adjust to the new between Roman Catholicism and Protestantism INCONSISTENT national Protestant church. Then, over the space and between different types of Protestantism very of a generation, the English people embraced it. seriously: there were Catholic martyrs under WITH DISDAIN; Henry VIII and Elizabeth I, as well as Protestant CONCLUSION martyrs under Henry VIII and Mary I. We should WE SHOULD ooking back over the whole of the English take their choices no less seriously; it is the best Reformation, we can see that, while Henry way to honor their commitment and to preserve RESPECT THE laVIII's reign let the genie of religious diver- the respect between different religions that is the sity out of the bottle (though that was never his best protection for religious freedom. CHOICES Of intention!), the reigns of his children were deci- sive in the transition of England from Catholic David J. B. Trim is presently the Walter C. Utt Visiting Professor of History at RELIEVERS 111 Pacific Union College, Angwin, California. to Protestant. Yet although the personal religious preferences and policy choices of Edward ' Christopher Haigh, English Reformations: Religion, Politics, and Society Under the THE PAST, VI, Mary I, and Elizabeth I were very influential, Tudors (Oxford: Clarendon Press, 1993), pp.239-241, at 240. For details of how the Elizabethan settlement was eventually approved by the first Elizabethan they did not, in and of themselves, determine Parliament, see Norman L. Jones, Faith by Statute: Parliament and the Settlement of AS WELL AS England's eventual confessional allegiance. Religion, 1559 (London: Royal Historical Society, 1982). It was the choice of the English people to Haigh, "The Church of England, the Catholics and the People," in Haigh, ed., The IN THE PRESENT. Reign of Elizabeth I (Athens: University of Georgia Press, 1985), p.196. embrace Protestantism—it was not a free choice, Haigh, English Reformations, p. 241. because early-modern European governments did Ibid., p. 242.—but contrast p.237: "Elizabeth herself was a Protestant, though an not allow their subjects the freedom to choose their undogmatic one"; cf. Haigh, Elizabeth I (London: Longman, 1988), pp. 27, 28: "There can be little doubt of Elizabeth's Protestantism." See also, e.g., Jones, Faith by religion; but it was still a genuine choice. Across Statute, p. 9; Susan Doran, "Elizabeth l's Religion: The Evidence of Her Letters," Europe in the century after the Reformation, where Journal of Ecclesiastical History, p. 51 (2000): .699-720. populations and rulers were adherents of different Quoted in Jones, "Elizabeth's First Year: The Conception and Birth of the Elizabethan Political World," in Haigh, The Reign of Elizabeth I, p.47. confessions, widespread rebellions and civil wars 6 Quoted in Patrick Collinson, "Sir Nicholas Bacon and the Elizabethan Via Media," broke out. That this did not happen in England Historical Journal 23 (1980): 255. highlights that a choice was made—and it was ' Eamon Duffy, The Stripping of the Altars: Traditional Religion in England 1400-1580 (New Haven, Conn.: Yale University Press, 1992), p. 568; Haigh, English Reformations, made for the Reformation. There were significant p. 242. differences between Roman Catholicism and the David Cressy and Lori Anne Ferrell, eds., "Introduction," Religion and Society in different forms of Protestantism, and it was these, Early Modern England: A Sourcebook, 2nd ed. (New York: Routledge, 2005), p. 5. 'John Robe, trans., A faithfull admonition of the Poltsgroves churches (London: 1614), rather than the will of four Tudor sovereigns, much sig. AT (spelling modernized). less the marital infidelities of Henry VIII, that In Cressy and Ferrell, Religion and Society, doc. No. 8, p. 38. shaped the process of religious change in sixteenth- " Diarmaid MacCulloch, Tudor Church Militant (London: Penguin, 1999), pp. 204-209, at 208, 217-219. century England and determined its outcome. "Haigh, English Reformations, p. 14. All Christians worship the same God and "See esp. Duffy, and Haigh, English Reformations. believe they are saved by the same Lord. 141-laigh, English Reformations, p. 250. 15 E.g., Judith Maltby, Prayer Book and People in Elizabethan and Early Stuart England Nevertheless, fundamental differences underlie (New York: Cambridge University Press, 1998). the division between Catholic and Protestant 16 Collinson, "The Church and the New Religion," in Haigh, The Reign of Elizabeth I, p.173.

LIBERTY• JULY/AUGUST 2009 29 Test the Waters "John Newton and Religious Liberty of the myriad of potential services to We have never requested or paid for Amazing." address religious persuasion. this or any other subscription for Liberty JUDGE GERALD S. ZORE As a student of both government magazine. Please remove us from your INDIANAPOLIS, INDIANA and religious studies, I have developed mailing list and stop this magazine. pretty definite feelings about the need Two of your articles in the Septem- An Intellectual Avenue for safeguards separating church and ber/October, 2008 edition are frighten- Just completed reading your March/ state issues. If I err, and I am certain I ing for their implications;"America April 2009 issue of Liberty. Thank you often do, it will be on the side of caution Comes to Rome"and "Keep Church and for the articles—they were both in this arena. Nevertheless I will go to State Separate." informative and provocative. It is ironic the ribbon cutting and participate. I am The"Rome" article seems to overlook that I read them today. This afternoon cognizant too of the rule of the majority "With respect to total the hideous indiscretions of over 2,000 I will go to a ribbon cutting at our local and realize that even though my opin- separation of church Roman Catholic priests who found sol- detention center—a facility holding ion did not carry the day, the decision of ace in pedophilia. Through the political over 400 inmates. The ribbon cutting the court was the final decision. and state, you should be action of separation of church and state, is to celebrate the construction of an Thank you again for your articles. careful for what you ask these priests have been shielded from addition to the jail—a chapel. The They provide me with an intellectual and demand because prosecution. Their identity is further official name for it is a multipurpose avenue that stimulates my thought pro- obscured by the Vatican policy of chang- meeting room, but there is little doubt cess to analyze difficult points of view. you are in line to receive ing their names and transferring them that the purpose of the facility is to hold REID HAIRE it in the form of the to other locations, without disclosing religious services for the inmates. There DAVIESS COUNTY JUDGE EXECUTIVE their threat to families. are no public dollars expended in the OWENSBORO, KENTUCKY left-wing politicians." The Trinity Decision of 1892 by the construction—all are privately raised U.S. Supreme Court confirms that the from Christian-based initiatives. Not Alone United States is truly a "Christian nation." There is little doubt too that the I've long thought that I was alone in my That decision definitely does not include addition of the facility will do much passion toward the issue of religious the Roman Catholic Church. The topic good in the work of trying to turn the liberty and separation of church and is grossly over the head of your young hearts and minds of criminals into law- state; that it was "my" issue. Discover- author of this article. abiding citizens. When the proposal ing Liberty magazine has changed all DR. MYRON HUBLER was put to me two years ago, I was of that for me. The fact that there's a JEFFERSON, OHIO skeptical about the ability of the propo- magazine dedicated to these things nents to raise the necessary funds. But sends the message that it's OK to have I wish Dr. Hubler had not cancelled. He through their diligence and hard work in the top of your political/ideological caught the drift in our articles, but then it was accomplished. priority list. I love this magazine. Keep connected them in ways that we never Despite the good intentions of the up the terrific work! do. We are all offended by the revelations proponents, and despite the pressure TREY of abuse by Catholic priests. But we have from this Christian bastion of Middle E-MAIL not made much of it, as it is not central America, when the vote came to the to the church-state discussion. Dr. Hubler court to approve the initiative, I was Role Play reacted in the manner of America a century the lone dissenter. The motion passed The John Whitehead article in the cur- ago—a reflex assumption that Rome is 3-1 and work was begun. Although I rent issue of Liberty ("Are We Shedding evil. True religious liberty gives us a more knew that good would be achieved and Rights?"September/October 2008) has charitable view of those faiths we differ understood as well that there would be some actual errors about the Borden from. And true religious liberty would also no infusion of public dollars (at least for case. Our attorneys are representing the tell us the danger of proclaiming the United now), I was troubled by the construc- school district, and they are quite upset States a Christian nation. Editor. tion of a Christian-based facility on with the grossly inaccurate description public grounds. Granted that the room of the case that John has given. Enjoying Liberty is open for all faiths, it is highly unlikely John indicates that the football Enjoyed the January/February 2009 there will be Jewish services or Muslim prayers have always been student-led issue, especially the article on "The services, or Hindu services, or any other and that the coach wanted to silently Break From Rome" and the article on bow his head only out of respect.

30 LIBERTY' JULY/AUGUST 2009 The court record shows exactly the represented the school district in court, should not interfere in this relationship. opposite. Over a 25-year period the is portrayed as taking the position that Whitehead also fails to mention coach organized the prayers, often a coach should not even have the right that Borden's actions divided the Chairman, Editorial Board Halyard B. Thomsen led them himself, chose students to to bow his head. community and resulted in some Editor Lincoln E. Steed lead them, and sometimes brought in In fact, the court record shows students being subjected to verbal Associate Editor Melissa Reid ministers to lead them. He moved to conclusively that Borden was doing attacks and slurs. Several were assailed Administrative Assistant Snehlatha Bathini on a student-run blog. One commenter Consulting Editors Eugene Hsu a more passive posture only when the a lot more than simply bowing his Jan Paulsen situation was heading toward a legal head or"taking a knee"while students wrote: "Damn Jews ... then you Don C. Schneider showdown. prayed. Over a 23-year period, Borden wonder why Hitler did what he did back John Graz Consultants Vernon Alger The coach's misuse of his school organized the prayers, often led them in the day." Amireh Al-Haddad authority to advance his religious himself, chose students to lead them, The Supreme Court declared school- Barry Bussey Walter Carson viewpoint was clearly unconstitutional. and sometimes brought in "chaplains" sponsored religious worship uncon- Charles Eusey That's why we were so alarmed when to offer premeal prayers. Borden always stitutional in 1962 and 1963. There is Samuel Green Gregory Hamilton the district court ruled in his favor. led the locker-room prayers, before simply no excuse for any public school Kevin James The facts of the case need to speak every game for his whole tenure as official to be violating those decisions Grace Mackintosh Matthew McMearty to the larger issue at stake—should coach. He adopted a more passive 45 years later. Rather than hail Borden Adrian Westney school personnel be allowed to direct posture only to make his case look as a hero of religious liberty, it would Alan Reinach the worship activities of their students? better when he took the school district be better to simply describe him as Art Direction/Design Bryan Gray JOE CONN to court. what he is: a man who ignored court Website Management Emanuel Pelote Treasurer Kenneth W. Osborn AMERICANS UNITED FOR Whether Borden had a right to bow rulings, violated the rights of players Legal Advisor Todd McFarland SEPARATION OF CHURCH AND STATE, his head was not the issue. The 3rd U.S. and parents and who was, thankfully, www.libertymagazine.org made to stop. WASHINGTON, D.C. Circuit Court of Appeals realized that. Liberty is a registered trademark of the General Conference The court said Borden's actions must BARRY W. LYNN, Corporation of Seventh-day Adventists'. A case of two correct issues intersecting. It be viewed in light of his long history EXECUTIVE DIRECTOR, AMERICANS Liberty •(ISSN 0024-2055) is published bimonthly by the North American Division of the Seventh-day Adventist Church, is wrong to use the authority of a govern- of intervening in the religious lives of UNITED FOR SEPARATION OF CHURCH 12501 Old Columbia Pike, Silver Spring, MD 20904-6600. ment school to organize religious activity. students. In a unanimous ruling, Judge AND STATE, WASHINGTON, D.C. Periodicals postage paid at Hagerstown, MD. It is also wrong for such a school—the D. Michael Fisher wrote: "[I] in Borden's POSTMASTER send changes of address to Liberty, P.O. Box 1119, Hagerstown, MD 21741-1119. Copyright CO 2009 by the North government—to restrict individual case, the conclusion we reach today is Original Right American Division. expression. Both dynamics are presently clear because he organized, partici- With respect to total separation of Printed by the Review and Herald Publishing Association, on view in our society, and it seems both pated in, and led prayer activities with church and state, you should be careful 55 West Oak Ridge Drive, Hagerstown, MD 21741-1119. Subscription price: U.S. $7.95 per year. Single copy: U.S. $1.50. are present in this story. The following let- his team on numerous occasions for for what you ask and demand because Price may vary where national currencies differ. For subscrip- ter by director Lynn does show the possible 23 years. Thus, a reasonable observer you are in line to receive it in the form tion information or changes, please call 1(800) 456-3991. Vol. 104, No.4, July/August 2009 provocation behind the case. Editor. would conclude that he is continuing of the left-wing politicians. to endorse religion when he bows his In my opinion: A balance of Moving? Please notify us 4 weeks in advance Counterpoint to head during the premeal grace and religion and government is necessary—

Coach-Led Prayer takes a knee with his team in the locker tempered with good judgment. The Name John W. Whitehead's article about Mar- room while they pray." pilgrims and founding politicians had cus Borden, the New Jersey high school Whitehead sees this case a violation it right. Address (new, if change of address) football coach who was ordered to of Borden's religious liberty rights. JOHN L. PATTON City stop engaging in religious activity with I must disagree. The federal courts MARION, ILLINOIS players ("Are We Shedding Rights?" have consistently ruled that teachers, State Zip September/October 2008), fails to give coaches, and others who work in public Church-state issues should not be seen as New Subscriber? an accurate portrayal of this case. schools have no right to engage in a "right-wing" or "left-wing" function. ATTACH LABEL HERE for address change or inquiry. Whitehead's portrait of Borden is of religious activity with students. The Some right-wing initiatives have empow- If moving, list new address above. Note: your subscription expiration date (issue, year) a highly sympathetic figure, a man who reason for this is obvious: ered a troubling marriage of church and is given at upper right of label. Example: 0308L1 would simply wanted to silently bow his head It's a usurpation of parental rights state, and some left-wing views are end with the third (May/June) issue of 2008. out of respect as the team engaged and subjects young people to undue reflexly antireligious. But it would be both To subscribe to Liberty check rate below and fill in your in voluntary, student-led prayer. By coercion. Parents have an absolute simplistic and misleading to characterize name and address above. Payment must accompany order. ❑ 1 year $7.95 contrast, Americans United, which right to direct the spiritual upbringing the issues that way. Editor. Mail to: Liberty subscriptions, 55 West Oak Ridge Drive, of their children. Public school officials Hagerstown, Maryland 21740 1(800) 456-3991

LIBERTY• JULY/AUGUST 2009 31 A PRECIOUS JEWEL

AMERICA HAS•GIVEg.TOTHE WORLD A MI, PRECIOUS JEWEL. IT HAS SHOWN THAT A GOVERNMENT WHOSE CONCERNS ARE PURELY SECULAR AND WHICH LEAVES TO THE INDIVIDUAL CONSCIENCE OF ITS CITIZENRY ALL OBLIGATIONS THAT RELATE TO GOD IS THE ONE WHICH IS ACTUALLY THE MOST FRIENDLY TO RELIGION. IT IS A PRECIOUS JEWEL

THAT WE HAVE. WE SHOULD GUARD IT WELL. •

-LEO PFEFFER. IN EARL RAAB, ED., RELIGIOUS.CONFLICT'" 2

IN AMERICA (NEW YORK: ANCHOR, 1964), P.163