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Thursday, Jul. 05, 2001

A few days after President Bush flew into Ljubljana, Slovenia, to meet with Vladimir Putin, I had the pleasure, by coincidence, of participating in a conference on church-state relations in Ljubljana. It was an international gathering of experts in the midst of fascinating times for church-state relations in that country.

The nominal subject of the two-day series of presentations was church-state relations and property. (There is a long-simmering dispute between church and state in Slovenia over property that, in the past, belonged to the Roman Catholic Church, with important lessons for the U.S., which I will discuss in a future column.) But the conference also offered me a new perspective on the role of the United States' church-state relations, as they appear abroad.

It seems that, for years, this country has been sending messages on church/state issues that it never intended to send — and that at times conflict with the rhetoric of religious liberty–a product of free exercise and disestablishment–in this country.

The Church/State Messages the U.S. Sends to the World

A strong component of religious experience is intensely private, but there is nothing private about church-state relations. They are fought out through politics, the courts, and through the diplomatic channels of the globe.

Thus, the United States devotes a good deal of time–most of it well spent–to chastising those around the globe who suppress religious liberty. China has been in its sights lately, but Cuba and some Middle Eastern countries get opprobrious treatment as well. These intentionally sent messages, however, are coupled with some we may not have intended to convey.

Like us or not, admiring or otherwise, the world watches the United States' church-state relations. In breaks between talks at the conference, questions from professors from Slovenia and elsewhere in Europe made me realize how exposed the United States' church-state situation is to the world. The dirty little secrets we like to pretend are just a "part of politics" serve as examples — ones that might need amendment so that they do not undermine constitutional principles held dear.

What the European Professors Had to Say About Our Application of James Madison's Theory

For example, two professors came to me after my talk, in which I discussed James Madison's devotion to the concept of separation of church and state. They thought that Madison's theory was all well and good, but they believed that it was obsolete; the United States, they claimed, had long ago decided to adopt an established church. Our actions, they said, speak louder than our words.

As I shook my head vigorously, thinking we had a language barrier between us, they pulled out their prime proof: legislative chaplains — that is, chaplains who recite a prayer before the opening of a state or federal legislative. And not just any legislative chaplains, they pointed out, but a preponderance, a dominance of Protestant legislative chaplains since the beginning of the country. Didn't that prove, they said, that this country has an established church, no matter how we try to argue otherwise? Isn't this a "Christian" country? Moreover, they continued, as I opened my mouth to attempt to finesse the point, the United States Supreme Court expressly upheld legislative chaplains in a "very famous case," Marsh v. Chambers.

Marsh v. Chambers?, I thought to myself. That is such a small case in the constellation of our religion jurisprudence. At least from a stateside perspective. Sure, the Court held that the presence of legislative chaplains does not violate the Establishment Clause, but the Court emphasized that is because having such chaplains is a long-held practice, a type of "ceremonial deism." In any case, having such chaplains really does not make much difference; the legislators aren't there to hear the prayer. And, if they are, they aren't paying attention. Even if they were, it would never be coercive because they are adults. Chaplains were like the "In God We Trust" motto on the coins, containing a religious element, but surely not "real" establishment.

Their point was hard to deny: we had opened the door to establishing a church, the Protestant church, in this country. This seemingly inconsequential case, which is reasoned away by the Supreme Court and most religion theorists, stands as an example to the world of the establishment of religion. It brings a tarnish, obviously, to the claims by the United States that it is the home of diversity and the haven for pluralism.

A Shrug for the Smith Case

One highly perceptive scholar came up to me to ask about the "peyote case," Employment Division v. Smith — in which the Court held that religious organizations are subject to neutral, generally applicable laws, and as a result, Native American religious ceremonies are not exempt from laws against peyote use. Another told me, matter of factly, that the application of such laws to religious entities had been accepted in Europe for many years.

Rather than being disturbed by Smith, as my previous interlocutors had been by Marsh v. Chambers, these western European professor were surprised that Smith's holding had even been controversial. Smith's principle that religious organizations are subject to neutral, generally applicable laws evoked a universal shrug. Of course a religious organization can't permit harm to come to children just because of the adults' beliefs. Of course a religious day care center ought to have to abide by the same fire and safety rules required for all other day care centers.

When I told them these were live issues in the United States, I received, probably deserved, that special European look that marvels at the adolescent American culture. Who is the leader here, I wondered?

Keen Interest in Faith-Based Initiatives, Little Election Interest

Another asked about the Religious Freedom Restoration Act, and a number asked about the federal government's decision to fund religious good works, through "faith-based initiatives." Not a single person, strikingly, asked about the "election crisis" — a dramatic contrast to the situation here, where coverage of the end of the Supreme Court Term is still mired in Bush v. Gore.

Rather, the Slovenians were still chewing over Marsh v. Chambers, which was decided in 1983, and Smith, decided in 1990. And they were now deciding what our funding of faith-based organizations means — not what we say it means, but what they see it means in practice.

Two European scholars informed me that to them, it was absolutely uncontroversial that religious institutions should be able to receive government funding to do social services. Those services are not really religious, they explained; they are secular by nature. Caring for the sick or the needy is caring for the sick or the needy, period.

They spoke from experience; European countries have been funding faith-based organizations for decades. And that experience has convinced them that such work is secular, and presents no church/state issue. Standing on foreign soil, it occurred to me that we had much more than Madison to test the faith-based organizations hypothesis–there is a whole world of experience across the Atlantic.

If government funding for faith-based initiatives does mean secularization, as it seems to in Europe, then two consequences may follow. First, those arguing for such funding to cure secularization might need to re-think their strategy. Second, those opposed need to examine the European experience to fully understand the new structure of power that results when religion and politics are mixed with federal money.

That takes us back to my foreign colleagues' insistence that there is an established church in the United States. If the United States were ever to prove to the world that there is tolerance for religious diversity in this country, the faith-based organizations program will test the limits of such pluralism. Watch where the money flows (i.e., the actions) to comprehend what the Europeans will understand we mean, regardless of what we say.

Marci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is She has frequently written on church/state issues for this site, in columns that may be found in the archive of her pieces.

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