Church and State in the United States: Competing Conceptions and Historic Changes

This article, originally written for a French audience, attempts to explain the American law of church and state from the ground up, assuming no background information. Basic legal provisions are explained. The relevant American history is periodized in three alignments of religious conflict: Protestant-Protestant, Protestant-Catholic, and religious-secular. Some frequently heard concepts are explained, distinguished, and related to each other-separation, voluntarism, equality, formal and substantive neutrality, liberty, toleration, and state action. Finally, the principal disputes over religious liberty are assessed in three broad areas-funding of religiously affiliated activities, religious speech (with and without government sponsorship), and regulation of religious practice. These disputes are reviewed in historical, political, and doctrinal terms, with brief comparisons to the substantially different French solutions to the same problems.

This article, originally written for a French audience and published in French, attempts to explain the American law of church and state from the ground up, assuming no background information of any kind. That turned out to be a useful exercise; explaining the underlying assumptions we generally take for granted revealed insights and connections previously overlooked. I hope English-speaking readers will also find it useful.

Except for rewriting the introduction and updating the treatment of the most recent developments, I have changed very little from the version I submitted to the French translators. I retain the comparisons of what I know in depth on the American side to what I think I understand superficially on the French side. I am pleased to report that my cautious observations on French law in this article passed through the hands of French editors without provoking argument or corrections. But no reader should make the mistake of thinking me an expert on the French system.

It is revealing to compare how two modern democratic societies, each proclaiming its commitment to liberty and equality, have come to fundamentally different resolutions of these issues on nearly every point. France and the United States share a commitment to religious liberty. But different histories and different distributions of religious opinion have led to different understandings of what religious liberty means in practice.

The one-word label for the French system is laïcité; American scholars were invited to Paris to explain the American conception of laïcité. But I am not sure there is a relevant American conception of laïcité. To fully understand laïcité, I suspect that one must be immersed in French law and French social and political practice. In French-English dictionaries, laïcité is often omitted; when it appears, it is commonly translated as “secularism.” This is probably a simplification, but let us accept it as a starting point. Many Americans would say that the United States has a secular government, or that it aspires to have a secular government. A minority of Americans would like to see a wholly secular society. But no one in the United States would use a word like “secularism” to summarize the American understanding of church-state relations.

There is no widely accepted single word to summarize the American system. Several such words have been suggested, but none of them is universally accepted. Probably the nearest equivalent in American usage is “separation of church and state,” often shortened to “separation.” This is a troublesome phrase even before translation; Americans dispute its meaning, and even dispute whether it describes one of our governing principles. But separation of church and state is probably the most common phrase for summarizing American church-state relations; again, let us accept it as a starting point.

Separation of church and state requires that government be separated from religion, and thus that government itself be secular. Separation means that government is not to sponsor religion, and also, although this point gets less emphasis in the rhetoric of separation, government is not to interfere with religion. Many religious believers support separation in part because they believe that religion will flourish best without government sponsorship, and that all sponsorship is a form of interference. So separation need not lead to secularism in civil society. To the contrary, many Americans believe that separation is one important reason why religious faith persists in the United States to a far greater extent than in most other industrialized democracies. Separation does not imply that religion is best kept out of public view, or even that private religious expression should be kept out of government institutions. I do not know the French system well enough to be sure, but I think that any correspondence between separation and laïcité is very inexact.

Other attempts to summarize the American system are that religion must be voluntary, and that government must be neutral as between religions and as between religion and religious disbelief. Each of these principles has applications that are highly controversial in the United States. Americans dispute the meaning of neutrality just as they dispute the meaning of separation. And of course, all such explanations are mere paraphrases of the operative language of the numerous constitutional and statutory provisions protecting religious liberty.

There may be no simple explanations of our system to citizens familiar with the French system, and no clearly equivalent words or phrases in our two languages for the central concepts. My only course is to explain the American system as simply and clearly as I can, with emphasis on answers to specific practical questions. I will necessarily have to generalize in places and omit important variations.

Keep in mind that on many important issues of religious liberty, there are at least two sides in the United States, with intense and sustained political and legal conflict. Our adversarial legal system, and our active system of judicial review of the constitutional validity of government practices, often enable the opposing sides in political and even religious arguments to translate their claims into legal arguments. At different times in American history, very different understandings of religious liberty have prevailed. The American conception of church-state relations is disputed, and it changes over time.