Problems often cannot be answered or resolved because the problem itself is never clearly recognized. Too often, attempts to formulate a problem preclude an answer. A classic example of this is the so-called problem of free will. The question of free will can never be resolved until it is recognized that because man is a secondary cause, i.e., he is not God, his will can only have a secondary, conditioned, and contingent freedom. Man is not free to decide the time of his birth nor his race or sex, nor can he choose to grow younger instead of older. At every point his life is circumscribed, and he himself is a consequence of many causes. God alone has absolute and primary freedom. When we recognize that man is a secondary cause and not capable of an absolute or primary free will, then it is possible for us to define secondary freedom and to understand the nature of man’s will. Until then, the problem of free will cannot be defined or understood because it has not been formulated for understanding and resolution.
The same is true of the so-called problem of church and state. The term refers to a tension within society which is very real and which has long troubled most nations. The tension is particularly strong in the twentieth century and requires attention and resolution. However, the term “church and state” simply serves to obscure rather than present the problem. This fact has been too seldom recognized, although Wilson calls attention to it in part:
“When defined in this fashion it is apparent that in one respect the phrase ‘Church and State’ is unfortunate because its connotations are excessively formalistic. It suggests that there is one spiritual authority structure confronting a single temporal authority structure. There have been periods in western history when such a model would have been a plausible description of the existing pattern and certainly useful for purposes of analysis. In fact the colonial period of our history exhibits attempts to realize classical kinds of relationships between a single spiritual authority structure - and a single temporal authority - the Colonial State. But our colonial period also illustrates how different sorts of ingredients in American society, i.e., ethnic diversity and evangelical separatism worked to outmode classical Church-State patterns.” 1
“It ought to be equally obvious that there is no single authority structure to embody the temporal life of America - i.e., a single state is no more an empirical reality than a single church. Like religious pluralism governmental pluralism involves on one level simply the multiplicity for authorities which possess overlapping jurisdictions within our society. Thus federal, state, county and local governments are juxtaposed and all contribute to the structuring of the common life. Sometimes they are mutually reinforcing; on other occasions they counterbalance each other. ....Accordingly the term ‘Church and State’ breaks down completely if the attempt is made to use it in a traditional fashion.” 2
There is more than a little merit to Wilson’s contention. “Church and State” no longer is a valid phrase for the description of the problem. At one point, disagreement with Wilson is possible; increasingly, as the U.S. Supreme Court asserts the jurisdiction of federal decisions for every local branch of civil government, it becomes possible to speak of the state at least as a unity.
Wilson’s historical summary of the six phases of the problem is a good one, although his analysis of the most recent phase, since World War I, can be seriously argued. The development can be simplified to three basic phases: first, there was, in the colonial period, a policy of establishment. A single church, or sometimes more than one denomination in a state, was established and financially supported by the state. The second phase began also in the colonial period, the disestablishment of churches and the establishment of Christianity as a religion (i.e., a religious rather than an ecclesiastical establishment). The United States was held to be a Christian nation, with no church given any legal status over another. The third phase, which developed rapidly after World War I but began after the Civil War, insists on an ostensible neutrality of the state towards religion with religious liberty for the churches. Wilson’s documentation of the history of the American development is an able one, but it tends to overlook the basic issue.
The medieval formulation of the problem is still with us, and to view the tension in traditional “Church-State” terms, as Wilson does, is to miss the contemporary problem and to revert to a now obsolete imperial papal debate. The papacy and the empire, as well as the papacy in conflict with the nations, sought to institutionalize the problem. Both parties were agreed that a Christian order was a necessity. True, individual rulers at times were hostile to such an order, and Frederick II clearly had a non-Christian order in mind, but for the most part, the issue was not a Christian versus a pagan order, but who should have predominance and priority in the control and maintenance of a Christian social order. This, historically, is the “Church-State” problem. Increasingly, the “Church-State” problem in this sense is either marginal, irrelevant, or non-existent in the modern era. First, the state is less concerned with furthering a Christian social order and is often hostile to it. In brief, the state has simply walked away from this historic problem of Christendom. Second, less and less is there a single church in any Western country claiming the right of establishment. In some countries where an established church exists, there is no support for that church from tax funds, and no legal recognition of Christian order in the courts, while a control remains over the appointment of bishops and other church officers. In no historic sense is the ancient struggle between Church and State for priority in a social order a problem in modern society. Third, there is no agreement on either the ecclesiastical or civil fronts that a Christian social order is the necessary one. Very often, there is a general assent to a claimed and supposed “neutrality” on the part of the state. Fourth, increasingly, religious liberty is being replaced by religious toleration. The difference is very important. Religious liberty has meant, historically, the freedom of the church and of the believer in his worship from state control and jurisdiction. It has meant that the state cannot interfere in a sphere where it has no authority nor jurisdiction any more than it can interfere with the internal affairs of a foreign power. Religious toleration has meant that the state claims the right to govern and control religion and to declare which church or which religion has the right to exist. Religious toleration places the power in the hands of the state. The original constitutional pattern was religious liberty, not toleration. It should be added, moreover, that the original constitutional settlement did not propose a “separation of Church and State,” although that phrase is increasingly used by the courts to sum up the constitutional position. 3 Because all the states had their own religious settlements or establishments, the First Amendment simply barred Congress or the Federal Government from entering into an area where jurisdiction was reserved to the states. The states had the right to make such establishments or settlements as they or their subordinate bodies, the counties and cities, chose to make. Only after the Fourteenth Amendment was interpreted by the Supreme Court to apply to all states was there a denial of the power of the states to make such establishments. 4 To return to the so-called problem of “Church and State,” there is no possibility of any resolution of the basic issue until the question is properly formulated. To speak of a church and state problem is to foreclose any solution.
What then is the basic problem? Not only is every church a religious institution, but every state or social order is a religious establishment. Every state is a law order, and every law order represents an enacted morality, with procedures for the enforcement of that morality. Every morality represents a form of theological order, i.e., is an aspect and expression of a religion. The church thus is not the only religious institution; the state also is a religious institution. More often than the church, the state has been the central religious institution of most civilizations through the centuries. The war between the Roman Empire and the early church was a religious warfare, a struggle between two claimants who represented rival religions and wanted to order society in terms of their faith. 5 The claims of each faith were total claims, as all religious claims are. Thus, American Puritans held that the Bible is “the revealed truth and the source of all reason and morality.” 6 Similarly, humanists today believe that the affirmation of the autonomy of man and his mind constitutes the source of all true reason and morality.
To return to the basic problem today, the real issue is not between church and state, but is simply this: the state as a religious establishment has progressively disestablished Christianity as its law foundation, and, while professing neutrality, has in fact established humanism as the religion of the state. When the religion of a people changes, its laws inevitably reflect that change and conform themselves to the new faith and the new morality. 7 There has been deception on the part of the courts, by their profession of religious neutrality, as they have substituted one religion for another, humanism for Christianity. The basic reason, however, has been the theological collapse of the churches, and this has been true of all of them. In the dominant evangelical circles, this collapse came first. Hudson has referred to this as “the deeper malady,. . . .the theological erosion which had taken place during the nineteenth century.” In evangelicalism, “Doctrinal definitions tended to be neglected in the stress that was placed upon ‘heart religion’ and the ‘conversion experience’.” 8 This theological collapse led to the untenable belief in religious neutralism and to the surrender of Christian schools for statist education. As a result, humanism became the established religion of state and school, and, by infiltration, of the churches as well.
As a result, in most countries today, and no less in the United States, humanism is the established religion of the state and is progressively the source of legal revisionism. Humanism is also the established religion of schools and most churches, and most of society. Christianity is quite logically progressively excluded from state, school and church and has a weak and scarcely tenable position in modern life. It probably lacks extensive and organized persecution in most countries because orthodox Christianity has become progressively weaker and less and less relevant.
Any revival of Christian strength will thus precipitate major conflict, in that it will constitute a threat to the humanistic establishment. In recent years, few have feared the church, because the church has been impotent and itself an ally of humanism. There are evidences now that this may change.
1. John F. Wilson: Church and State in American History, p. ix. Englewood, N.J.: D. C. Heath and Company, 1965.
2. Ibid., p. x.
3. For evidence of this, see John J. McGrath, editor: Church and State in American Law: Cases and Materials, Milwaukee: The Bruce Publishing Company, 1962.
4. See Irving Brant, The Bill of Rights, in Wilson, op. cit., pp. 85.
5. See Ethelbert Stauffer: Christ and the Caesars, Philadelphia: Westminster Press, 1955; R. J. Rushdoony: The Foundations of Social Order, Nutley, New Jersey: Presbyterian and Reformed Publishing Company, 1968.
6. Edwin Powers: Crime and Punishment in Early Massachusetts, 1620-1692, pp. 101, 109. Boston: Beacon Press, 1966.
7. See Sir Patrick Devlin: The Enforcement of Morals London: Oxford University Press, 1959.
8. Winthrop Hudson, The Passing of the Protestant Era in America, in Wilson, op. cit., p. 147.