One Nation Under God: Can we please both church and state in a pluralistic society?

Many people think the adage about rendering to Caesar what belongs to Caesar and to God what belongs to God pertains primarily to the separation of church and state. Yet the statement arose from a trick question posed to Jesus about religious liberty. In his time, the Romans imposed a head tax of one denarius on every man, woman and slave aged 14 to 60, and it had to be paid in the Roman coinage. Deeply religious Jews opposed using a coin that pictured the emperor Tiberius and contained the title Caesar, Divini Augusti Filius Augustus Pontifex, which means “August Son of the Divine Augustus, High Priest.” For them this represented a kind of idolatry, which compromised their monotheism. So they refused to pay the tax on religious grounds.

The Herodians and Pharisees set the question to Jesus as a trap. If he sided with the religious conscientious objectors, Jesus would lose the support of the Herodians, lackeys of the Romans, and of the Roman governor who might see the response as sedition. If Jesus allowed the payment, he would be seen by nationalists and conscientious objectors as a collaborator. But Jesus sidesteps this trap with the clever retort, “Repay to Caesar what belongs to Caesar and to God what belongs to God.” Jesus refrains from clarifying what belongs to each, advising the questioners to render to Caesar that on which his face appears. Jesus also insists that there are things of God that Caesar cannot touch, saying in effect: pay as much attention to God’s things as to Caesar’s.

These days, few citizens assume that religious liberty is principally a gift to them derived from the good graces of the state. Rather, as the U.S. Declaration of Independence puts it, religious liberty is an inalienable right from the Creator. We honor the First Amendment principle that government not establish or define religion or impede its free exercise. The First Amendment is an act of epistemic humility, in that the state admits it has no competency to adjudicate on matters religious. If the establishment clause reminds religious groups that they have no legitimate mandate to impose their religious truths on the pluralist majority, the free-exercise clause shows that the metaphor of a so-called wall of separation cuts both ways.

A History of Persecution

U.S. Catholics have had good reason to treasure the First Amendment. They were once persecuted or held as second-class citizens in colonies that had religious establishments. Their attempt to gain religious liberty from English persecution by starting the Crown Colony of Maryland, where they extended religious liberty to others, was undercut when a new majority established there the Church of England. The papal emissaries sent to Paris to confer with Benjamin Franklin about the appointment of a bishop for the United States were astounded to learn that the government did not regulate, control or try to influence the choice. Despite the denial of their religious rights by Know-Nothing, nativist, anti-immigrant and anti-Catholic forces (and the burning of Catholic churches and the killing of Catholics in Philadelphia in the 1840s) and despite the societal forces in 1928 and 1960 that tried—against Article 6 of the Constitution—to keep a Catholic from being elected president, the Constitution has protected Catholic liberty. And when Catholics fought an attempt in Oregon to forbid students from attending religious schools, the Supreme Court protected their rights (Pierce v. Society of Sisters) in 1925.

One could expect Catholics to be supportive of the religious liberty of other minorities—Jews, Muslims and Mormons. Recently, when a group of prominent Catholics issued a statement condemning anti-Mormon bigotry in the current presidential election, one signatory was the great grandson of the former governor of New York State and Catholic presidential nominee Al Smith.

An American Jesuit scholar, John Courtney Murray, was the principal architect of the Second Vatican Council’s decree “Declaration on Religious Freedom,” which was subtitled “On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious.” The ground for religious freedom, the document asserts, is that persons “should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion.” It notes that “all people are bound to seek the truth,” but that obligation rests “upon the human conscience” and that “the truth cannot impose itself except by virtue of its own truth.” The document goes on to state: “The human person has a right to religious freedom. This freedom means that all are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.”

Even for those we think in error, the right to religious freedom exists unimpeded. As the decree states, no one should “be forced to act in a manner contrary to his conscience. Nor, on the other hand, is he to be restrained from acting in accordance with his conscience…. The act of faith is of its very nature a free act.” Not even God coerces faith. “Religious communities,” the document continues, “also have the right not to be hindered in their public teaching and witness to their faith.” The document cautions, however, that they should “refrain from any manner of action which might seem to carry a hint of coercion or of a kind of persuasion that would be dishonorable or unworthy.” It also says, “It comes within the meaning of religious freedom that religious communities should not be prohibited from freely undertaking to show the special value of their doctrine in what concerns the organization of society and the inspiration of the whole of human activity.” Finally, religious communities have the right “to establish educational, cultural, charitable and social organizations under the impulse of their own religious sense.”

Not everyone would agree with this Catholic construal of religious liberty. Nor does everyone agree on a single interpretation of the establishment and free-exercise clauses in the Bill of Rights, although most Americans accept them. Is the establishment clause a function of the free-exercise clause, or does it take the indispensably primary role? Can government accommodate the religious sensibilities of a majority by a kind of “civil religion,” which allows acknowledgement of “under God” in the Pledge of Allegiance and “in God we trust” on U.S. coinage? Remember that the U.S. Court of Appeals for the Ninth Circuit, in California, tried to rule the phrase “under God” in our Pledge of Allegiance unconstitutional; others have tried to stop the hiring of chaplains in the U.S. military and Congress. Some would disjoin the religion clauses from the other clauses of the First Amendment about freedom of speech and assembly and try to privatize religious liberty. They would not let religious groups show through public argument how their view has relevance to wider societal activities. These interpreters hide behind Jefferson’s metaphor of a “wall of separation” and forget his injunction that “all men should be free to profess and by argument to maintain their opinions in matters of religion and the same should in no wise diminish, enlarge or affect their civic capacities.”

Recently, The New York Times ran a series of articles about newly perceived threats to religious liberty. A Sikh commentator noted ways by which wearing a turban has been discriminated against: Title VII of the Civil Rights Act was interpreted to mean that employers can segregate their Sikh employees from customers. Others have tried to keep Muslims from building their mosques. In the series, Michael W. McConnell, a former federal judge and First Amendment specialist, was quoted as saying, “Whatever its source, any effort to confine religious people and their ideas to an innocuous ceremonial role in public life is a threat to religious liberty and to American democracy.” Anyone who has studied the history of the First Amendment knows that it involves seeking a balance that everyone can live with.

No Easy Solution

Only the naïve would expect any easy consensus on interpreting the religion clauses. Is religious liberty just one freedom among others, one that can be easily traded off if there is a conflict of rights? Or was the Supreme Court correct when it claimed, in two important cases (Sherbert v. Werner, 1963, and Wisconsin v. Yoder, 1980), that religious liberty is privileged among rights and that the government must show a “compelling” public interest to override it for some other right, and must do so in a way least restrictive or burdensome to religion? These two cases feed some contemporary claims regarding new threats to religious liberty.

Catholic and other religious voices claimed religious discrimination when courts decided that the adoption and foster-child agencies of Catholic Charities must accommodate same-sex couples in Illinois (the agencies had been willing to refer such couples to other adoption groups). A judge ruled that “no group has a constitutional right to a government contract,” thus dismissing any religious liberty claims. The chief counsel of the U.S. Conference of Catholic Bishops rejoined: “It is true that the church does not have a First Amendment right to a government contract, but it does have a First Amendment right not to be excluded from a contract based on its religious beliefs.”

Similar complaints were raised when the Department of Health and Human Services rescinded a contract with Catholic Relief Services for the care of victims of sex trafficking. Although outside evaluators considered their work superior to that of those who won the contract, C.R.S. would not directly provide abortion services, which made the organization ineligible for the contract. Recently, many Catholic leaders protested a proposed federal mandate that church institutions provide insurance for employees that covers contraception, sterilization and access to abortifacient pills. They claim that mandates violate their religious freedom to follow their consciences on matters of abortion and contraception.

These two issues raise vexing issues of religious liberty. Will a justice of the peace whose conscience opposes same-sex marriage be forced to perform such marriages, even if other justices of the peace are available and willing to do so? Such a decision was made recently in the Netherlands. In some U.S. states, nurses and doctors who believe abortion is wrongful killing must assist with the procedure or risk losing their professional license. Vanderbilt University banned Christian groups from meeting on campus because their bylaws would disqualify an atheist from membership.

Not every general law precludes some religious exemptions, of course; Jews and Christians were exempt from Prohibition, under the rubric of their religious liturgies. Similarly, religious pacifists are not bound to military conscription out of respect for religious liberty. On the vexing issues of abortion and same-sex marriage, society must try to accommodate the claimed rights of some with the religious exemptions of others who do not accept the morality of what is allowed by law. Overturning religious liberty rights should always demand that government show a substantial legal and social burden in order to disallow religious exemptions. Whatever one may think about the adoption of same-sex marriage in New York, care was given—as it was not in other states—to protect the religious exemptions of those who oppose the practice.

Our social world has become so intertwined and complicated that general laws, which do not take into consideration religious liberty, may still impinge on it. In 2006, when the House of Representatives passed a law making it a crime to aid or abet an illegal immigrant, the law was so far-reaching that a church offering shelter, meals or other pastoral outreach to such immigrants would be subject to severe criminal penalty. The Senate did not pass the law. Perhaps it did not because Cardinal Roger Mahony of Los Angeles publicly instructed his priests and other diocesan pastoral workers not to cooperate with it if it passed. He claimed, rightly, that it would infringe on part of any church’s reason for being—caring for those in need.

Nor is it only religious people who feel the sting of new arguments about religious liberty. An army soldier is working to get atheist chaplains into the armed services, claiming that the present arrangement violates the establishment clause because it prefers religion. Proposals are circulating in the legislature of the State of Washington that envision mandated abortion coverage in the insurance provisions of all employers. We face another conflict of “claimed” rights, but the religious conscience must strenuously resist being coerced into moral evils by governmental ukases. No one should be naïve. Religious civil disobedience may grow, if the government attempts to force religious believers to betray their consciences. An issue on the horizon involves extensions of assisted suicide laws, as they exist in Oregon. Will any nurse or doctor be forced to cooperate?

There is no magic bullet to solve complicated religious liberty cases. But some kinds of legislative efforts might require religious Americans to choose: compromise their faith, or be forced into a privatized religion that betrays the more public dictates of their faith or engage in civil disobedience. Our society needs more careful discussion and vigilance on the issue of what belongs to Caesar and what belongs to God if all of us, religious or not, are to live together and work for the common good of all.