The separation of church and state presumes a distinction that does not exist in the actual world
The state has increasingly assumed the role of arbiter of morals in Western democracies. On issues like abortion, same-sex marriage and assisted suicide, governments have enacted laws contrary to moral norms that until recently were part of a near-consensus. More intrusively, states may require citizens to act against their consciences. The state of California bans health insurance companies from offering employers coverage that limits or excludes abortion. And in the Province of Alberta in Canada, health care providers are not required to participate directly in medically assisted suicide (essentially legalized last year by the Supreme Court of Canada), but they must help refer patients to providers who will carry out the practice. A year ago, referring a patient for this purpose would constitute complicity in a crime. Today it is still complicity in an immoral procedure.
We can sympathize with legislators in a diverse society who must deal with issues in which the law conflicts with the ethical views of some citizens. (It is harder to have sympathy for officials who press citizens to act contrary to their consciences.) But any involvement of the state in moral issues raises the question: Are the public officials qualified to do this? Surveys show that politicians are not among the most trusted of people; they are rated on a par with used-car salesmen. Do we really want those who wield the coercive power of the state also to make moral judgments for us?
Of course, much of the involvement of government in ethical issues comes not from elected legislators but from judges, especially those on the highest courts in the United States and Canada. If they are going to be our arbiters of moral right and wrong, we need a different selection process for members. Let them pass a comprehensive examination at least as rigorous as one a doctoral candidate in ethics might undergo. Test them on Plato, Aristotle, Aquinas and more modern works, like Reinhold Niebuhr’s Nature and Destiny of Man. Require candidates not only to explain their ethical beliefs but also to show how these beliefs are based on fundamental principles, on what they take to be the meaning of life, on what they believe it means to be human. Without such a basis, moral beliefs are little more than “gut feelings,” and I have little reason to prefer someone else’s gut feelings to my own.
If the above suggestion seems outlandish, it is because we have wandered so far into an intellectual wilderness that it seems weird to require those about to assume supreme authority to demonstrate their competence to exercise that authority.
How have we come to this pass?
The Religious Challenge to State Authority
The ancient Greeks and Romans accepted a dominant role for the state in ethical matters. They did not share our clear distinction between moral law and civil law. For them, civil law was a stable reality; legislatures did not meet annually to issue new regulations for this or that profession or industry. Kings applied and perhaps interpreted the law, but they were not expected to be constantly changing it.
To be a good person was to a great extent to be a faithful follower of the law, which was, after all, a code of right conduct. For Aristotle, the law fostered moral virtue. Compel recalcitrant adults and the young to do what is right, and they should develop the virtues that will cause them to obey the law without external compulsion. Compulsion is for those who lack virtue.
A significant curb on the moral authority of the state arose in ancient Israel. There the concern was less to foster obedience to the king and more to get people to obey a higher and better authority. The leaders in this effort were not the kings, who were by and large a sorry lot when judged by the standards of the Mosaic law. It was the prophets, those who brought God’s message to bear on the present situation, who took the lead. So there was a separation between the ethical authorities and those who exercised coercive power.
This separation became even more distinct when Israel was conquered and was no longer led by kings, who at least nominally were subject to the Mosaic law. During the Babylonian exile the pagan leaders, though they could be sympathetic to the Israelites on one point or other, were hardly reliable conduits for the voice of God. Ezekiel, the great prophet during the Exile, insisted that while living under pagan rulers, Israelites would have to be individually responsible. To use our contemporary terms, they had to follow their consciences.
The first Christians were in the same situation that had prevailed in Judaism for several centuries. They constituted a small minority under pagan rulers, a minority that received moral teaching not from the state but from their religion. With Emperor Constantine, who became a Christian, the possibility arose for Christendom—a regime in which the state would embody Christianity. The Christian emperors were expected to exercise authority in matters of religion, as their pagan predecessors had done, but there was already a structure in place that exercised religious and moral authority for Christians.
It would take volumes to unravel the often adversarial relations between church and state in Europe after Constantine and through the Middle Ages. But there was now the possibility of a convergence between moral authority and coercive power. Popes and bishops often tried to keep their hands clean by turning punitive measures over to civil authorities; but so long as the state could be expected to do what the church wanted, the effect was to combine moral teaching with coercive power, with some of the most unseemly results in the history of Christianity. This was not the church sent forth by the Savior with the warning that the disciples would be sheep among wolves, with no other weapons than the Holy Spirit and the word of God.
The Foundation of Democracy
At the time of the Protestant Reformation, the alliance between church and state was causing major problems. Calvinists and Lutherans objected to being ruled by Catholics, who might enact laws violating Protestant consciences. Catholics had similar objections to living under Protestant regimes. The result was a series of religious wars. One solution was suggested by the principle cuius regio eius religio (“whatever your region, this is your religion”). That is, if you are a Lutheran living in Bavaria, either become a Catholic or move to Brandenburg. A parallel solution was available for Catholics in Brandenburg.
Another solution, with which we have been living in Western democracies for generations, has been called the separation of church and state. But if that phrase is taken to mean that the state will deal only with issues that that have no religious implications, and the church will deal only with issues that have no secular legal implications, it presumes a distinction that does not exist in the actual world. On the important issues with which the state deals—war and peace, unjust discrimination, protection from crime, care of the weak and helpless and so on—Christianity and Judaism propose principles that have practical moral implications.
A more nuanced understanding would admit that the state must deal with many issues that have religious implications, but it must exclude religious considerations when enacting laws. The theory is that it is religious differences which cause unmanageable divisions, so the state must operate on the basis of reason only. Since all people possess reason, it is a unifying agent.
Again, the theory does not hold in the actual world. The great tyrannies of the 20th century that caused the most misery and death were Bolshevik Russia, Nazism and Maoism. All three firmly rejected religion. Trying to exclude religion did not bring about peace and tranquility.
The system, or perhaps it is only a practice, that has allowed Western democracies to operate in relative internal peace is more complicated than the phrase “separation of church and state” suggests. Its basis is the agreement that while citizens may work to achieve (or prevent) a particular law, all will accept the outcome of the political process—at least in the limited sense that they will not violently oppose it.
This acquiescence in the results of the political process makes no sense unless certain conditions are observed. The first is that the state not violate individual conscience. The ancient Greeks and Romans apparently did not worry about individual conscience, but within the Judaeo-Christian tradition it has a sacred quality. It is the voice of God, although normally that voice is discerned indirectly. The command of God trumps edicts issued by the state.
Our secular world has retained some respect for conscience, but the original source of that respect has become obscured. You cannot honestly agree to accept the decrees of the state if you are bound in conscience to disobey some of them; my agreement to accept state laws must presume that they will not coerce me to act against my conscience. This coercion may take various forms: imprisonment, heavy fines, loss of employment or of privileges accorded to other citizens among them.
If the state persists in demanding that certain of its citizens act contrary to their consciences, the only response short of violence is disobedience. If the law goes against the consciences of a considerable portion of the population, it should meet massive civil disobedience. When governments have lost all sense of the sacredness of conscience and believe that the religious commitment of citizens is weak, only then will they presume to pass laws that violate consciences.
What of those cases, such as allowing abortion, when the state may not command particular individuals to act against their moral judgment but does enact laws that go contrary to deeply held moral beliefs of many citizens? Such instances are unavoidable in a nation that lacks a strong moral consensus. Even in such cases, reason requires that officials tread extremely carefully. They must recognize that many of their subjects follow authorities that they believe are more competent, more time-tested and more truthful than the state. Officials should ask themselves: Am I qualified to make the moral judgments that will underlie my decisions? That brings us to back to that fundamental issue—competence.
The Contemporary Problem
The English historian Christopher Dawson believed that so long as Western society held to the Judeo-Christian ethical tradition, there was enough consensus for citizens to live together in relative harmony and take part in the complex process of making and enforcing laws. If religious faith fades, the ethical beliefs that it engendered will persist for some time, but they are gradually eroded and the imperfect but powerful ethical consensus that undergirds peaceful coexistence disappears. Dawson thought that this point had arrived with the appearance of state absolutism in the 20th century, first with the Bolsheviks and then with Fascism.
It has occurred in our time and not only in someone else’s country. Differences of opinion on ethical questions have become so acute that many people have grave misgivings about the direction in which governments and courts are leading us.
The problem is not only that the ethical beliefs of our citizens are increasingly diverse. A troubling number of politicians and judges are making moral decisions with no articulated basis at all. A recent development in the Canadian Province of Alberta is typical. The minister of education has proposed a law (not yet implemented) to which both secular and Catholic schools are expected to conform, stating that the sole and sufficient condition for determining the gender of a student is her or his perception of his or her gender identity. If individuals with bodies of one sex identify as members of the opposite sex, then they have the right to be treated as members of that sex. Further, students who identify as transgender are tended to by school personnel without notifying their parents. When a dispute broke out at a Catholic school about how to deal with the issue, the minister threatened to place the school under the direct governance of the provincial Department of Education.
But the minister’s proposal does not provide argumentation in support of its ethical positions. It does not even go into the scientific basis for its stand. Specialists have argued that except for cases where there are chromosomal or serious hormonal abnormalities, there is evidence that going along with a child’s self-identification as belonging to a gender contrary to her or his bodily structure is likely to cause more harm than good. (See a recent article by Dr. Blaine Achen and Dr. Theodore Fenske of the faculty of medicine of the University of Alberta: “A Medical Response to Alberta Education’s ‘Gender Diversity Guidelines and Best Practices.’”)The unsupported assumption of competence by government authorities apparently is not confined to the area of ethics.
It seems likely that the minister declined to give any satisfactory arguments for his position because he did not see the need for them. It is a common enough phenomenon. When a stance on some issue has gained support from a number of people who are considered enlightened (usually because they are sympathetic to some group’s insistent demands), then for many the matter is settled. It is a sort of “gut feeling.” Any further ratiocination on the issue is less an argument from principle than a justification of a position already arrived at on the basis of this feeling.
Serious ethical discourse begins with the realization that my gut feeling about an issue may be very different from yours. This fact has led some to conclude that there is no objective basis for ethics. But the logic of this position is that might makes right because we are bound by no code that transcends our own desires. That way lies chaos and with it endless conflict, unless a despot rescues us by enforcing order.
The alternative is to use our minds to begin from solid starting points and demonstrate, definitively or as very likely, that a particular ethical position is valid or invalid. Many contemporaries seem to avoid this stark choice by simply following their gut feelings and deciding that those who disagree with them are hopeless troglodytes.
Is There a Solution?
If we are going to use reason as our ally, a first step is to require those with whom we disagree to give the rational basis for their positions. We also have to make sure our own arguments have a cogent rational basis. Our arguments against physician-assisted suicide, for example, have often focused on the slippery slope argument (allow this practice now, and in time the grounds for the practice will widen). This argument has a factual basis, but it looks like a rear-guard action designed to cover an eventual withdrawal from the battle. If you cannot show that regardless of the consequences, it is wrong to put people to death on the basis that their lives are not living, then the slippery slope is not only unavoidable but is also logical. Instead, we should insist that the advocates of assisted suicide give their criteria for deciding that some lives are not worth living and that they must be ready to defend those criteria.
To change people’s thinking will be difficult. The Catholic Church, however, is well positioned to help bring about such a change. We have a tradition of principled argumentation in ethics, a tradition that has been neglected to some extent recently and needs to be recovered. The Catholic Church in North America also has an impressive number of educational institutions, from kindergarten to graduate schools. The challenge is to mobilize an array of potential resources. This will mean convincing a great many people that such mobilization is necessary, including the hierarchy, clergy, deans of theology in seminaries, graduate faculties, publishing houses and whoever is responsible for teaching people how to think logically and critically.
Perhaps we could appoint Gilbert Keith Chesterton to be the heavenly patron of this effort, he whose Father Brown was able to unmask a man posing as a priest because the latter had no respect for reason.