University of Tennessee, Knoxville TRACE: Tennessee Research and Creative Exchange Supervised Undergraduate Student Research Chancellor’s Honors Program Projects and Creative Work Spring 4-2003 Religion and Law: Separate or Equal? Cory Stephen Stott University of Tennessee - Knoxville Follow this and additional works at: https://trace.tennessee.edu/utk_chanhonoproj Recommended Citation Stott, Cory Stephen, "Religion and Law: Separate or Equal?" (2003). Chancellor’s Honors Program Projects. https://trace.tennessee.edu/utk_chanhonoproj/689 This is brought to you for free and open access by the Supervised Undergraduate Student Research and Creative Work at TRACE: Tennessee Research and Creative Exchange. It has been accepted for inclusion in Chancellor’s Honors Program Projects by an authorized administrator of TRACE: Tennessee Research and Creative Exchange. For more information, please contact [email protected]. UNIVERSITY HONORS PROGRAM SENIOR PROJECT - APPROVAL Name: COry S. Stott College: Arts and Sciences Department: __~R~e!!.ligt!S!·~ous!!i!..!S,!!tu~d!±!i~es!!......... ___ Faculty Mentor: Dr. Rosalind I.J. Hackett PROJECT TITLE: Religion and Law: Separate or Equal? I have reviewed this completed senior honors thesis with this student and certifY that it is a project commensurate wi onors level undergraduate research in this field. ,/' Signed: , Faculty Mentor Dote. ! o!> 1:7I Comments ( ptional): MO~ I Religion and Law: Separate or Equal? Cory S. Stott Spring, 2003 1 Law helps to give society the structure, the gestalt, it needs to maintain inner cohesion; law fights against anarchy. Religion helps to give society the faith it needs to face the future; religion fights against decadence. These are two dimensions of social relations-as well as of human nature­ which are in tension with each other: law through its stability limits the future; religion through its sense of the holy challenges all existing social structures. Yet each is a dimension of the other ... ' There are times when one is tempted to wonder whether the Establishment Clause's rule against faVOring particular religions has so permeated the legal scholars' mind-set that we have lost the ability to draw the connections between the great theologians and our scheme of government. .. Whatever the cause, it is a striking omission.2 Introduction The idea that religion and law are and should be entirely separate in nature and function pervades Western society and ideology. As the Western model of separation begins to spread to India, Turkey, and other non-Western nations, there is increasing pressure to examine the Christian theological and philosophical roots of the separationist mystique, especially with reference to the dangers of cultural imperialism. Scholars speak of the problems inherent in the imposition of one culture's paradigms on another. Abdullahi An-Na'im comments that "the majority of Muslims believe in an Islamic state.,,3 He further contends that "for Muslims, freedom to practice their faith includes the right to seize control of the state in order to 'enforce the will of God. ",4 Even in the United States, cases dealing with religion demonstrate a wide variety of positions, and are a mainstay of the judicial system. For example, the current debate about whether the phrase "under God" should remain in the pledge of allegiance is a reminder of the pervasiveness and potential divisiveness of the issue. 'Marty, Martin E. ''The Widening Gyres of Religion and Law." Law and Religion: A Critical Anthology. Ed. Stephen Feldman. p. 28. Quoting Harold Berman from a 1983 lecture. 2 Hamilton, Marci A. ''The Reverend John Witherspoon and the Constitutional Convention." Law and Religion: A Critical Anthology. p. 54. 3 An-Na'im, Abdullahi Ahmed. "Religious Persecution in the Middle East and Sudan." Religious Persecution as a U.S. Policy Issue: Proceedings ofa Consultation held at Trinity College, Hartford, September 26- 27, 1999. p. 26. 4 Ibid, p. 26. An-Na'im is speaking about the difficulty of universal application with regard to IRFA, but the point is equally valid in this context. 2 Conversations about legal issues affecting religion are frequently framed in religious rhetoric. Winnifred Sullivan speaks of "Anti-Catholicism" by the Supreme Court. She contends that the Court has hesitated to support Catholic schools, while allowing Amish students to be exempt from mandatory high school attendance in Wisconsin v. Yoder, 406 U.S. 205 (1972).5 Similarly, Stephen Feldman argues that the Supreme Court interprets the First Amendment according to Christianity. The Court, he writes, "emphasizes that the first amendment protects the individual's freedom of conscience, which is grounded firmly on Protestant and New Testament theology.,,6 The issue, he later states, reflects an emphasis on belief rather than works based on Protestantism's stress on orthodoxy rather than orthopraxy.? With the American penchant for Protestantism in mind, I will consider the Lutheran, Calvinist, and Constitutional influence on what Winnifred Sullivan has termed the "Accomodationist" and Jeffersonian "Separationist" perspectives.8 Finally, with special attention to the views of Harold J. Berman, who has published extensively on religion and law, I will consider the possible pitfalls of ensuring the unbroken continuity of Jefferson's veritable Hadrian's Wall of Separation.9 While there are undoubtedly advantages to distinguishing between the realms of church and state, one must investigate the provenance of the belief in the sanctity of separation. Furthermore, scholars aware of the mutual imbrications of law and religion should question the pervasive idea that the wall of separation is beneficial in every cultural context. One must be wary of cultural imperialism, in this case through the imposition of a legal separation of religion 5 Sullivan, Winnifred F. Paying the Words Extra: Religious Discourse in the Supreme Court of the United States. p.63. Feldman, Stephen. Please Don't Wish Me a Merry Christmas. p. 261. 7 ibid, pp. 263-266. 8 Sullivan, Winnifred F. Paying the Words Extra: Religious Discourse in the Supreme Court of the United States. fP.77-78. .. IbId, p. XXII. Sulhvan references the Jeffersoman Idea of a "wall" of separation. 3 and state, as it may pave the way for oppression and exploitation. Though written in an African context, the work of Ngugi wa Thiong'o gives universal insight into the dangers of cultural imperialism through the imposition of systems of law. In a section entitled "Kimathi on Law as a Tool of Oppression," he quotes: JUDGE: Kimathi, I may remind you that we are in a court of law. KIMATHl: An imperialist court of law ... JUDGE: ...We are here to deal fairly with you, to see that justice is done. Even handed justice. KIMATHl: I will not plead to a law in which we had no part in the making. JUDGE: Law is law. The rule of law is the basis of every civilized community. Justice is justice. KAMATHl: Whose law? Whose justice? JUDGE: There is only one law, one justice ... No society can be without laws to protect property ... I mean protect our lives ...Civilization .. .Investment ... Christianity ... Order ...There's no liberty without law and order. KAMATHI: There is no order and law without liberty. Chain my legs, Chain my hands, Chain my soul, and you cry, law and justice? And the law of the people bids me: Unchain my hands, Unchain my legs, Unchain my soul! 10 Idealistic historians will argue that America's founding was rooted in a desire for religious liberty. They will recount the travails of the Pilgrims bravely traversing the Atlantic in search of freedom from the Anglican union of church and state in what those transoceanic voyagers might have termed an unholy marriage. However, they will conveniently disregard the assertion that "the overriding goal for eighteenth-century colonial Americans strikingly resembled that of the early Puritans: to create and maintain 'a Christian civilization.",ll To fully 10 Thiong'o, Ngugi wa. Barrel ofa Pen: Resistance to Repression in Neo-Colonial Kenya. pp. 5-6. He references one of his earlier works, The Trial of Dedan Kimathi, written with Micere Mugo. 11 Feldman, Stephen. Please Don't Wish Me a Merry Christmas. p. 142 with endnote 117 referencing Handy. 4 comprehend the innate Western character of the separationist paradigm, one must realize and understand its continuous historical lineage. Romulus and Remus It will be argued in this essay that theological ideas directly, if surreptitiously, inform the American conception of church and state. While a great deal of attention has been given to individual thinkers' contributions, comparatively little has focused on a shared repertoire of ideas that cut across denominational lines, but share an historical and philosophical lineage. The Reformed theology of Martin Luther and his views on the proper roles of church and state have had a demonstrable effect on the American legal system and culture. However, to fully understand Luther's theology of separation, one must follow the thread of continuity further back in church history to Augustine and the Roman Empire. At the same time as Christianity struggled to gain legitimacy and then authority within the Roman Empire, Augustine was formulating an early theology of separation. It is not clear whether or not Augustine had determined to articulate this doctrine. It certainly would not have been out of place at the time, given the recent excommunication of Emperor Theodosius I by Ambrose, the bishop of Milan, for his role in ordering a massacre. The Emperor was forced to travel to Milan to regain his ability to receive the sacraments and thus salvation in the afterlife. As Feldman notes, "regardless of [his] specific intentions when writing The City of God, his symbolic division of the heavenly and earthly cities has grounded the subsequent development of the doctrine of the separation of church and state.,,12 Feldman further recounts the evolution of Christianity's integration into the government of the Roman Empire and the effects of the ultimate official endorsement of Christianity by the Roman Emperors when "Christianity sealed its political triumph" in the Edict of Emperors 5 Gratian, Valentinian II.