Separation of Church and State - Two Models

Much of the world is ablaze, occasionally literally, with disputes over the role of religion in the public square. This debate is occurring with the greatest force in two places: the West, where there is now a well-established tradition of, in American terms, a “separation of church and state,” and the Islamic world, where religious strictures as the template for the law is often taken as given. The Western world now takes separation as almost a religious principle in itself, but it turns out that there are two models of such separation, one of which works better in achieving most of the aims of separation that we should be concerned about.

The first approach can be called the open-access model. In it, public funds, facilities and so on are offered to all religions on equal terms, and to any religious expression on the same terms as any other form of expression. Christians can put up a manger on a public square at Christmas time if they want, as long as Muslims or Hindus or atheists are allowed to do the same with their own expressions, and as long as the park is open to nonreligious messages as well. Similarly, any public funding of private education (rare still in the U.S., but common in many other countries) must be provided to parents who put their children in religious schools on the same terms as those who wish to put their children in non-religious ones. In 2003 the U.S. Supreme Court upheld this approach by only a 5-4 margin; because Sandra Day O’Connor was in the majority, her replacement by Samuel Alito, a well-known supporter of the open-access model, will not affect this result. On the other hand, the Florida Supreme Court has ruled that that state’s voucher program violates the Florida Constitution, although for reasons having little to do with church and state.

The alternative approach is the sterilization model, in which the public square and government operations must be scrubbed free of every trace of religious expression. This approach is very popular in some European countries. France, for example, prohibits ostentatious displays of religious symbols in its public schools, in a move targeted primarily at female Islamic head coverings. Turkey too prevents the wearing of such garb in public universities or by employees in government offices.

The two approaches result from a completely different conception of the problem. In Europe, with its tradition of religious wars, the concern is that one denomination will gain control of the state. Religion itself is now arguably seen in largely secular Europe as a toxic idea from a bygone age, from whose inevitable excesses the rest of society must be protected. The increasing number of Muslims in France who stubbornly cling to their religious traditions in a country whose Christians have abandoned theirs is something that baffles many French authorities and elites, and so implicitly the sterilization model is about protecting a post-religious world from the legacies of a bygone and more primitive era. If people insist, they may send their children to private schools, go to mosque and church and so on, but no religious observance is to be permitted in any institution entangled in any way with the state, because excessive belief itself is the problem.

In the open-access model religious expression is just another type of expression, and the state should not discriminate against it. It is true that when the park service has to clean and oversee the manger (or when a valedictorian offers a prayer at graduation), the nonbeliever (or the believer in something different) has to pay for that, and that violates his beliefs. But that’s true of any public expression one might disagree with. If there is a big public march in favor of affirmative action, which I might oppose, then the overtime paid to the police to protect the marchers and therefore enable them to spread their message comes out of my wallet, and so I too am forced to subsidize a disagreeable message, even though it has nothing to do with religious belief. The open-access model says treat religious speech and thought like any other speech and thought. Religious beliefs should compete on the same terms as other types of belief, as long as the state does not favor particular religious beliefs (by, for example, providing vouchers for attendance at Catholic but not Jewish schools).

The open-access model is superior for two reasons. The first is that the sterilization model requires that religious believers be excluded from public services available to nonbelievers. The price of being an observant Muslim girl in France is that you are prevented from attending public school, with all of the opportunities it is presumably supposed to offer. This is, it seems to me, simply discrimination.

But the second reason is more practical. Start from the premise that free speech, broadly speaking, is to be protected. The reason is because it represents competition – a more competitive auto market leads to better and cheaper autos and hence enhanced social welfare, and a more competitive market for ideas leads to better (i.e., truer) ideas and hence enhanced social welfare. This is presumably as true as religious ideas as for any other. But the sterilization model is a subsidy, in two ways. It subsidizes nonreligious belief at the expense of religious belief, and arguably within the realm of types of religious belief subsidizes nonbelief at the expense of all other types of belief. A person who wished to advocate greater public expenditures on the poor for explicitly nonreligious reasons, for example, would have greater access to the public square than someone who advocated it on the basis of the Gospels or the Koran. (Ironically, many European governments engage in the opposite kind of activity on the one hand even as they militantly suppress public entanglement with religious expression. For historical reasons these countries subsidize state churches, for example. This is no better than the systematic purging of religious expression from the public square.)

In general discriminatory public subsidy, in the economic way of thinking is bad for at least two reasons. First, it distorts resource use, giving the subsidized activity an artificial advantage. Individuals will have less opportunity to evaluate the truth of religious than nonreligious ideas. Second, it leads to rent-seeking – to the currying of favor by special-interest groups via lobbying for ever more privileges. For example, nonbelievers, having first achieved the special privilege of, say, squashing religious but not other kinds of expression in public schools, might insist on ever and ever greater restrictions on public religious advocacy, which would lead to society consisting of ever more nonbelievers. This is arguably a contributing factor, although surely not the only one, to declining religious observance in much of Europe. (Turkey, with its hardline sterilization policies, is unsurprisingly one of the most secular Muslim countries.)

How does this work in practice? Just recently a high court in Italy issued a ruling indicating that the crucifixes that have long been present in Italian classrooms should stay there, even though the most common form of Catholicism in Italy is the lapsed variety. The open-access model indicates that they should not be there, because other forms of religious expression do not receive such privileges. On the other hand, one occasionally reads in American schools about students who want to do school reports about Jesus but whose teachers prohibit them from doing so on spurious church-state grounds. Sometimes sterilization reaches absurd proportions. Agape Press reports that an elementary student in Tennessee was forbidden by a teacher from reading the Bible at recess. The school argued, correctly, that recess was still school time and hence subject to school rules, but so what? The open-access model argues that if any student is allowed to read any book, then a Christian student must be allowed to read his scriptures.

So too Cal State-San Bernardino has denied recognition to a Christian student group that denies membership to homosexuals and non-Christians, arguing that it violates university anti-discrimination rules. But Christianity (and indeed advocacy of any kind of discrimination) is an idea, and for some Christian denominations acknowledgement that homosexuality is a sin is a core part of their beliefs; to deny them to right to express that belief on the same terms that other groups express theirs is suppression of a particular type of speech. For a university of all places (and a state university at that) to have nondiscrimination trump free expression is disturbing. It seems to me that it is impossible to believe in free speech, in state engagement at all with the subsidy of the expression of ideas (via the construction of public schools, enabling public demonstrations and so on) and the sterilization model at the same time.