Charles Haynes, Philip Hamburger, and Cheryl Crazy Bull
Religious Liberty in America: The Legacy of Church and State

At the center of our history of church and state is a troublesome irony. What began as an attempt to guarantee religious tolerance in the new world has at various times been commandeered by the most chauvinistic movements America has known. In spite of this, religious liberty has survived as an American ideal—one which we continue to test.

We live in a world of increasing religious pluralism—diversity beyond the imagining of our nation’s founders—which suggests fresh nuance to the meaning of religious liberty. This much is clear: our modern conversation has few connections to the social, political, and religious impulses that led to the First Amendment.

Host Krista Tippett and her guests revisit the history and meaning of separation in thought-provoking and, at times, unsettling ways. Charles Haynes talks about his work in the American public school system—the arena in which our modern debates often center. Philip Hamburger describes his research into the surprising, and largely forgotten, origins of separation of church and state. And, Cheryl Crazy Bull speaks about the loss and reemergence of religious expression in tribal public life.

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Guests

is an author, educator, and director of the First Amendment Center’s educational program in schools.

is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He’s the author of Separation of Church and State and Is Administrative Law Unlawful?

is president of Northwest Indian College in Bellingham, Washington.

Transcript

January 15, 2004

KRISTA TIPPETT, HOST: This is Speaking of Faith, conversation about beliefs, meaning, ethics and ideas. I’m Krista Tippett.

Religion, or at least religious rhetoric, has staked its place in the 2004 presidential election. For the next two weeks on Speaking of Faith, we’ll step back from the sound bites and explore how America got to this point. Next week, we’ll present a conservative and a liberal view on what this election is telling us about the influence and substance of religion in American public life. Today, we’ll look at the larger principle of the separation of church and state. Some worry that this principle is threatened by a culture that seems to expect mandatory religious pronouncements from political candidates. The voices of this hour revisit the history and meaning of separation in thought-provoking and at times unsettling ways. At the center of our history of church and history is a troublesome irony.

As you’ll hear in this program, what began as an attempt to guarantee religious tolerance in the new world has at various times been commandeered by the most chauvinistic movements America has known. In spite of this, religious liberty has survived as an American ideal, one which we continue to test. Nowadays, some religious voices have grown intrusive in our public life; others suggest that the principle of separation has been taken to an extreme that diminishes the very liberty it was meant to protect. Presidential candidates may be making political currency out of religious faith, but in other sectors of American life, public expressions of faith remain suspect if not actually illegal.

This much is clear: Our modern conversation bears little resemblance to the social, political and religious dynamic that led to the First Amendment. We tend to focus on court cases often centering on questions such as religious displays in December, prayer in schools and the Pledge of Allegiance.

[Clip of children reciting the Pledge of Allegiance]

MS. TIPPETT: In this hour, we’ll speak with people who are revisiting America’s historic balancing act of religion and public life in novel ways. University of Chicago legal historian, Philip Hamburger, will describe his research into the surprising and largely-forgotten origin of separation of church and state. American-Indian educator Cheryl Crazy Bull speaks about the loss and re-emergence of religious expression in tribal public life. Also, Charles Haynes, director of education programs at the First Amendment Center. These are the 45 words we know as the First Amendment to the Constitution, which went into effect along with the rest of the Bill of Rights on December 15th, 1791.

READER: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the government for a redress of grievances.

MS. TIPPETT: The First Amendment is the constitutional guarantee of religious liberty. Its phrasing is broad. In fact, nowhere do the words “separation of church and state” appear. And in the years since the amendment was drafted, Americans have encountered no small amount of tension between the amendment’s two aims. On the one hand, avoiding officially sanctioned state religion; on the other hand, protecting religious freedom. In our times, the arena for the greatest conflict and the most litigation has arguably been the American public school system. My first guest, Charles Haynes, is a senior scholar at the First Amendment Center, who helps schools include religious education while maintaining allegiance to the First Amendment. Before public schools became what he calls the “religion-free zones of our age,” they were dominated by the Protestant beliefs and teachings of the larger culture. And Charles Haynes believes that both of these approaches represent failed models.

CHARLES HAYNES: The first model, of course, is the kind of sacred public school. And in our early history, in the founding of public schools, it was the case that they were Protestant-dominated. And, of course, most Americans were Protestant. So the tone and the values and even the tone of the exercises, religious exercises, were Protestant. That’s actually why we have a strong Roman Catholic school system in this country.

MS. TIPPETT: Right.

DR. HAYNES: Because many…

MS. TIPPETT: That is so important to point out. All right.

DR. HAYNES: Well, many Catholic parents could not in good conscience send their kids to what they perceived as Protestant schools. But that sacred public school model did not serve us as we entered the 20th century and we became more diverse religiously, the society became more secular.

MS. TIPPETT: Yes.

DR. HAYNES: And it fell apart. And that really leads to the second model, which also emerges in the 20th century, where public schools become increasingly religion-free zones, where somehow people understood the First Amendment to mean, when it comes to religion, just leave it out and ignore it, and that that somehow is the way we should resolve this difficult issue. So by the time we get to the Supreme Court decisions, the curriculum really is — is devoid of religion, and then after those decisions, increasingly, the administrators, textbook publishers are concerned and afraid to deal with religion.

MS. TIPPETT: OK. So I want you to tell me what you think the First Amendment is all about and also answer the question for me really in terms of your passion again: Why should religion be included in the public school education at all? Couldn’t it be left to the home and places of worship and —and have this as its separate sphere? Why not?

DR. HAYNES: Well, I think that it’s a widespread misunderstanding in the United States that somehow religion should be or is purely a private matter. For most religious people, that’s impossible. Religion infuses their life.

MS. TIPPETT: Right.

DR. HAYNES: It’s part of what people do every day in politics, in school, everywhere. So I don’t think that it can be a purely private matter or left at home. But the question is when we bring our religion into the public square of America or the public schools, how do we do it and how do we encounter one another who have different beliefs or people who have no religious affiliation? The solution is to find the civic ground rules and principles that allow people to express their faith, to live their faith and in the public arena, but to do so without, first of all, using the government, the engine of government to impose it on anyone else, and secondly, respecting the rights of others to be different, to choose as matters of faith and practice their faith openly and freely.

MS. TIPPETT: But still, you know, I want you to tell me why — why that matters.

DR. HAYNES: No one really can be educated in the world today unless they understand something about religion or religions and the role of religion in our world and our society. I mean, we are a nation of hundreds and hundreds of different religious expressions. Religion played a role in almost everything that happened in the United States and in the world, and for people not to understand that and learn about that is not only poor education, it’s dangerous because it cuts us off from one another.

MS. TIPPETT: Here’s a list of questions that’s taking religion seriously across the curriculum. And you said these are questions any thoughtful person might ask: What does justice require of me and of my country? When am I obligated to sacrifice my own good for that of someone else? What are the deepest sources of joy in my life? How did the world begin? What sense can we make of suffering and death? Is there a God and how do I know any of this? That’s a pretty compelling list of questions.

DR. HAYNES: Yes. I think these are the core human questions, and I think all students have these questions and should have them, and they should understand how they are answered in various ways. In other words, it’s not the role of the government or the public schools to tell students how to answer all of these questions of meaning, but it is the role of the public school to educate students about how to ask these questions and how to understand how others have answered them through history and in today’s world.

MS. TIPPETT: First Amendment scholar and educator Charles Haynes. Since 9/11, religious diversity has become a focus of our public life. I asked Charles Haynes how this is affecting his work to cultivate the spirit of the First Amendment in American public schools.

DR. HAYNES: I think that 9/11 did bring to the surface a great many issues that Americans had really chosen to ignore for the most part. The country is exploding with religious diversity, and I don’t think that that was really on the agenda in public schools. Many other kinds of diversity have been addressed in public schools like multicultural education…

MS. TIPPETT: Mm-hmm.

DR. HAYNES: …and so forth. But interestingly enough, these efforts to address our diversity in public schools, including multicultural education, pretty much ignored religion. So after 9/11, I think many people in education and perhaps many other Americans, I think, understand better that we need to teach about the various traditions and experiences. We cannot live with each other in the United States, much less deal with the rest of the world, unless we address some of the most important issues in human life, which are, of course, religious commitments.

MS. TIPPETT: Only then — I mean, Maria Montessori believed that children have a very strong religious intuition. You can imagine that if you exposed them to that kind of education, it can also be a very powerful time for them to be opening up to others.

DR. HAYNES: But the most important part of the work that we try to encourage in schools is that the first step for them in dealing with religious issues is to have a civic framework within which they address these issues.

MS. TIPPETT: What does that mean for a six-year-old?

DR. HAYNES: Well, it means everything. I mean, the first 16 words of the First Amendment — Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof — just in those 16 words, we have the most extraordinary, the boldest and most successful experiment of religious liberty the world has ever seen. And in those 16 words, although we may disagree on how to apply them and how much separation or how little, Americans generally have made a compact with one another that that’s our commitment, to living with the differences. We will have no government establishment in religion. We will protect the free exercise or people of all faiths and people who have no religious preference. So that’s the framework and the ground rules, and these ground rules have to be explicit in the public school. We can’t just take for granted that somehow we all know what that means.

MS. TIPPETT: Historically and just practically in everyday life, it’s easy for there to be tension between the two component parts of that — those first 16 words not establishing religion and not denigrating religion, in — in your words.

DR. HAYNES: Well, the reason there’s apparent tension is because Americans have forgotten that these two principles have no establishment in free exercise. They’re supposed to work together…

MS. TIPPETT: Yeah.

DR. HAYNES: …in service of one liberty, religious liberty or freedom of conscience, more broadly, for every single human being.

MS. TIPPETT: I think that public schools as laboratories for democracy is a wonderful idea because I sense you coming out in your writing and in speaking with you personally is, `Yes, this is fraught with problems and challenges and even dangers, but it’s too important not to try, not to work to get it right.’

DR. HAYNES: That’s right. I mean, the administrators and teachers often tell me, you know, `These are difficult issues, we could get sued, we’re afraid to deal with religion.’ And my argument with them is, `Yes, it is risky to tackle these issues. There’s no question. But the greater risk is not to do it. If we ignore these issues, we create far greater problems for ourselves.’ First of all, it didn’t work. Ignoring religion has led to innumerable lawsuits. It’s also led to a flight from public education by many religious parents who feel that their public schools fairly or unfairly are hostile to their faith. So it doesn’t work to ignore it.

MS. TIPPETT: You know, you talked about the December dilemma.

DR. HAYNES: Right.

MS. TIPPETT: And how in this country we are so tortured about what to do in December and either ignoring Christmas, which is ridiculous, or throwing in lots of civic token acknowledgment of Christmas and other religious observances.

DR. HAYNES: Well, the December dilemma is in some ways a symbolic story for all of us in America of how poorly we’ve dealt with these issues historically in the United States.

MS. TIPPETT: Mm-hmm.

DR. HAYNES: So that we would come to December and have fights perennially, and still in many communities, we still have fights over what to do about religion, as though that were the only month religion matters. And — but I think that the good news is that many communities and schools have finally begun to get beyond that problem and to say, `Look, if we really focus on teaching about religions throughout the year appropriately and we — in elementary schools, for example — choose holidays that are important for kids to know something about, then we are really beginning to reframe the December dilemma debate and talk about what is a good education, what should kids understand and learn.’ And when December hits, those schools really are teaching something about what Christians actually believe…

MS. TIPPETT: Right.

DR. HAYNES: …rather than celebrating the shopping mall Christmas or ignoring it all as though it didn’t exist. They’re actually doing something educational. And, fortunately, I think if we do this right, Judaism will finally get a real hearing in the curriculum rather than be stuck in…

MS. TIPPETT: Yeah.

DR. HAYNES: …in December and with Hanukkah which is a…

MS. TIPPETT: The other holiday.

DR. HAYNES: …minor Jewish holiday and is made into a sort of Jewish Christmas in order traditionally for schools to continue doing what they want to do with Christmas. A serious treatment of Judaism would be to teach kids something about Passover for younger kids. It may be Yom Kippur for older kids. That’s where we are finally, I think, beginning to rethink what we did. For many years, we simply did these vestiges, really, of the sacred public school, and we never really addressed how to get religion right.

MS. TIPPETT: Charles Haynes is senior scholar and director of education programs at the First Amendment Center. His books include Taking Religion Seriously Across the Curriculum and Religion in American Public Life: Living with Our Deepest Differences. I’m Krista Tippett and this is Speaking of Faith.

Today, “Religious Liberty In America: The legacy of church and state.” Most Americans understand separation of church and state as a core American value. In fact, the words “separation of church and state” never appear in the United States Constitution. Their inclusion in the American lexicon was a gradual process and was only solidified in the 20th century. When my next guest, University of Chicago law professor Philip Hamburger began to research his ground-breaking book entitled Separation of Church and State, he discovered a history many Americans have forgotten or never been taught, one that challenges some of our most basic modern assumptions.

PHILIP HAMBURGER: I got into this utterly by accident. I was really the last thing I had planned to do. One afternoon, I was just skimming through some 18th century sermons, which are a wonderful source of knowledge about 18th century culture and politics. And I kept on coming across some strange references to separation of religion and government or separation sometimes of church and state, and that struck me as rather odd. Most particularly strange was that these sermons were not advocating separation of church and state. They were actually accusing others of holding this pernicious view.

MS. TIPPETT: As it turns out, in the earliest days of our country’s history, to say that someone supported the separation of church and state was to make a slanderous accusation. So before we get back to Philip Hamburger, a little history is in order. The virtue we now call separation of church and state is not born of a passion to disentangle religion from public life but to rid the country of officially-sanctioned state churches. This movement was known as disestablishment. For example, the Anglican Church was the state or established church in Virginia and the Congregationalists enjoyed that status in Massachusetts. These religious majorities received financial support from the state and wielded significant political power, including the power to enforce religious uniformity and punish dissenters. Dissenters were usually other Christian denominations, newer traditions like Baptists or Quakers.

And even these dissenters did not want to remove religion from state affairs but simply to increase their own power and influence. Thomas Jefferson is known in our day as the father of the separation of church and state. Jefferson was a free thinker in matters of religion who prided himself on his initiative over religious liberty. Among his most famous contributions was his Virginia statute for religious freedom, which in 1786 disestablished the Anglican Church in Virginia and prohibited harassment on the basis of religion. Then in 1802, as president, he wrote a now-famous letter in response to a letter he had received from some Connecticut Baptists.

READER: To a committee of the Danbury Baptist Association in the state of Connecticut. Gentlemen: Believing with you that religion is a matter which lies solely between man and his god that he owes account to none other than his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between church and state. I reciprocate your kind prayers for the protection and blessing of the common father and creator of man and tender you for yourselves and your religious association assurances of my high respect and esteem. Signed: Thomas Jefferson, January 1st, 1802.

MS. TIPPETT: It was not until a 1947 Supreme Court case that Jefferson’s phrase, “the wall of separation between church and state,” was enshrined in American constitutional law. In its day, Jefferson’s letter was largely ignored. Disestablishment might have been the end of the story, but then another dynamic took center stage in America’s church/state fixation. A popular movement, not driven by a passion for religious liberty, but by raw religious chauvinism. Beginning in the mid-19th century, around the time the last state church was disestablished, there was a white Anglo-Saxon Protestant backlash against Roman Catholics, many of them new immigrants.

Protestants who composed this country’s unrivaled majority took up the banner of church/state separation as a means to keep Catholics out of public life, to prevent them from holding public office or even becoming public school teachers. They claimed the Catholics held an overriding allegiance to the Roman Church and its government by the pope. This prejudice had a place in American culture well into the 20th century. Consider these lines from a sermon preached at the Cathedral of Saint John the Divine in New York City on December 17, 1911.

READER: We must fight for the Constitution with its checks and balances, the bulwark of our freedom. We must fight to keep church and state forever separated. We must fight for our public schools, against the machinations of an Italian hierarchy that is today endeavoring to undermine and destroy them, before it is too late and the hordes of Europe and Asia have engulfed us. Let us arise and fight for Anglo-Saxon freedom and Anglo-Saxon discipline, for Almighty God who is still for us.

MS. TIPPETT: Here again is University of Chicago legal historian Philip Hamburger on his research into the separation of church and state.

MR. HAMBURGER: Oddly enough, it’s through a popular slogan and in fact through rather prejudice politics that this phrase becomes a constitutional principle.

MS. TIPPETT: OK, and they’re in that part of the story, and now we’re moving into the 19th century, right?

MR. HAMBURGER: Mm-hmm.

MS. TIPPETT: You remind us, and Americans has such a short historical memory of things we don’t want to remember in our history, anti-Catholicism, which is almost impossible to imagine to the degree that this existed. I mean, that in 1830 Catholic churches were burned down by Protestants.

MR. HAMBURGER: It is. It is odd. It was a complete surprise to me, and I must say that this history has quite changed my view of the development of American law. I had tended to think that it was a general trend towards progress. I now have some doubts. Yes, it was in the 1840s when large numbers of Catholic, particularly Irish Catholics, had come to this country. They encountered a fair degree of prejudice from Protestants. Not all Protestants, but certainly many. And in some cities, Protestants organized into paternal organizations, nativist organizations, and they viewed themselves as being native-born, unlike the foreign-born Catholics. And the nativists at time became so intense in their animosities that they end up burning down churches and in some cities going so far as to engage in full-scale riots destroying Catholic neighborhoods. In Philadelphia, at one point, the militia is so outnumbered that it actually loses to the mob even though the militia has cannons and ends up firing them outside the portals of churches. It’s really quite impressive.

MS. TIPPETT: So there was Protestant mobs in the City of Brotherly Love.

MR. HAMBURGER: The anti-Catholic Protestants often turned to the phrase separation of church and state because for them it captured their vision of religious liberty, namely a freedom not only from government, but perhaps also from the church.

MS. TIPPETT: The Catholic Church?

MR. HAMBURGER: Yes, the Catholic Church.

MS. TIPPETT: So they didn’t see their ecclesiastical structure as threatening?

MR. HAMBURGER: No, and that’s one of the curious parts of the story, isn’t it? Many Protestants assumed that they acted as individuals, whereas Catholics, I thought, were subservient to the pope.

MS. TIPPETT: You can see that at one-in-the-same time people, Americans, a couple of centuries ago, or even 150 years ago, they could have — they could have very strongly promoted separation of church and state and at the same time have the absolute confidence that Christianity and faith were going to infuse people in institutions. So…

MR. HAMBURGER: Quite.

MS. TIPPETT: Right?

MR. HAMBURGER: Yes. And that’s the benefit of being a member of the majority, isn’t it?

MS. TIPPETT: Yeah.

MR. HAMBURGER: One enjoys a majority when it doesn’t really have to worry about institutional ties or Christianity, when a member minority sort of becomes a much more important saving issue, doesn’t it?

MS. TIPPETT: University of Chicago law professor Philip Hamburger. As he studied the origins of the principle of separation of church and state, he uncovered an unseemingly unlikely key player, the Ku Klux Klan. In the early 20th century, the Klan was one of the most prominent anti-Catholic, pro-separation forces in America. In the 1920s, it boasted five million members across the country. This Ku Klux Klan oath of allegiance from that era is both racist and distinctly in favor of separation.

READER: I swear that I will most zealously and valiantly shield and preserve by any and all justifiable means and methods the sacred constitutional rights and privileges of free public schools, free speech, free press, separation of church and state, liberty, white supremacy, just laws and the pursuit of happiness.

MS. TIPPETT: The most shocking part of the story that you tell is the implication of the Ku Klux Klan in the solidification of the principal separation of church and state. Did you know that before you began doing your research?

MR. HAMBURGER: No, not at all. I didn’t know much about any of this, really. And I confess, I was quite astonished. And yet oddly enough, once one thinks about it, it makes perfectly good sense. In fact, there’s nothing unusual about the Klan, it’s just yet another nativist organization which therefore advocates nativist anti-Catholic perspectives including separation of church and state.

MS. TIPPETT: But it is shocking because of the associations that we now have with the Klan. Can you remember the first time that you stumbled across this and started to realize that this was a factor?

MR. HAMBURGER: I actually do not recall that. The more I pursue it, of course, the creepier it is. And we often think of the Klan as an organization of persons profoundly ignorant, uneducated and perhaps just in the South. But of course, the Klan was a fully American organization which crossed most state boundaries. There was the Roger Williams Klan in Rhode Island, and in the Northwest, they would actually win political elections. They would dominate 1924 Democratic convention, so this is hardly a hidden organization. Although they espouse secrecy, they were actually quite public in many regards. But, of course, the Klan is a religious organization and the way it combines Klan ritual and Christianity is really quite perverse but fascinating.

MS. TIPPETT: And you have said that among their concerns and their values, nothing was perhaps more important than separation of church and state.

MR. HAMBURGER: Yes, which is not to say, of course, that many of them were not racist. On the other hand, many were actually less concerned with race than with religion.

MS. TIPPETT: I guess I need to push this point. Why — why did they care so much? What was in it for them, the separation of church and state?

MR. HAMBURGER: Well, the cynical perspective would simply be that separation of church and state is a principle in which one can exclude Catholics from various jobs in government including jobs as teachers in public schools. And certainly when the Klan becomes powerful in Birmingham, Alabama, as in cities across the nation, they try to get rid of Catholic teachers and they vote out Catholic officials and often would boycott the Catholic businesses. However, I think that’s too limited a perspective. It strikes me that most people are quite sincere and idealistic, even Klansmen and Klanswomen. And it just so happens their ideals were things like separation of church and state. Now, why does this appeal to them as an ideal? Viewing themselves as Protestants and Americans, as individuals who are uninhibited by anything but loyalty to government and to God, they fear ecclesiastical organizations as potential threats to their own mental liberty.

MS. TIPPETT: You mentioned Hugo Black, who became an associate justice of the Supreme Court and was a Klansman, and who in fact wrote the opinions for the majority in 1947 in the New Jersey case, which, as you say, finally…

MR. HAMBURGER: Yes, in 1947, in the case Emerson vs. the Board of Education, Hugo Black wrote for the court that the First Amendment created a separation of church and state. And that was the first time that the Supreme Court had made separation of church and state a measure of its establishment clause jurisprudence. It never alluded to the phrase earlier, but in 1947, in Hugo Black’s opinion, it becomes the standard for the establishment clause in the United States.

MS. TIPPETT: So it’s really very recently that it was constitutional “right,” the way we understand it now.

MR. HAMBURGER: Yes, and in some ways, the history of separation of church and state illustrates how an idea that once was held by just a few Americans then becomes popular through rather intense prejudices. And being celebrated as an American ideal, many other Americans, some of whom were not prejudiced but simply want to be fully American and have American ideals, end up attaching themselves to this phrase and the assumption that it is an American constitutional right. And then justices of the Supreme Court, having been brought up in a culture in which anti-Catholicism and above all, separationism, is celebrated as an American ideal, end up adopting the phrase as part of the constitutional jurisprudence. In a curious way, it’s an illustration of a living Constitution, but not necessarily at its best, and it raises very awkward questions about how a court can adopt phrases as constitutional standards that are not in the Constitution.

MS. TIPPETT: University of Chicago law professor Philip Hamburger, author of the book “Separation of Church and State.” After a short break, we’ll hear more from him. Also, Northwest Indian College president Cheryl Crazy Bull on the troubled American legacy of persecution of native religious practice. I’m Krista Tippett. Stay with us.

ANNOUNCER: Audio cassettes and transcripts are available by calling 1(800) 777-TEXT or by visiting our website at speakingoffaith.org. Speaking of Faith is produced by Minnesota Public Radio and distributed by PRI.

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MS. TIPPETT: Welcome back to Speaking of Faith, conversation about belief, meaning, ethics and ideas. I’m Krista Tippett. Today, “Religious Liberty In America: the legacy of church and state.” I’m in conversation with University of Chicago law professor, Philip Hamburger. His research challenges commonly-accepted understandings of the origins of separation of church and state. I asked him how his discoveries have caused him to reflect differently on our public life today.

MR. HAMBURGER: If one thinks of religion as a sort of unrealistic expectations about purity and transcendence, what’s happened in this country, perhaps, is that the intensity of feeling that once was apparent so much in religion becomes, in the course of American history, refocused on this world and therefore on government and on individuals. And whether it’s more dangerous to have unrealistic aspirations that are focused on the next world or on this world, I confess it’s not altogether clear to me. But it may be dangerous either way.

MS. TIPPETT: I think that in our popular imagination, we think that it is perhaps nonreligious people or anti-secular impulses that work to preserve this principle.

MR. HAMBURGER: The story that I want to tell is how separation of church and state becomes a constitutional principle in this country, and that story is not nearly a story about atheism or about the ACLU, about secular demands for separation of church and state. In fact, separation of church and state becomes a popular constitutional ideal through the efforts of Protestants, Protestants seeking separation against the Catholic Church. And so it’s only really been in the 20th century, especially since the mid-20th century that the secularist perspective actually has the political clout that we now perceive it to have.

MS. TIPPETT: Mm-hmm. You also note the danger — you know, let’s say in our time there is something of a backlash against the separation of church and state, the way it’s being imposed among religious people, perhaps the same kinds of people who have been fighting for it a couple hundred years ago, and they experience it in some ways to diminish their religious liberty. And — and you do also acknowledge that that is a danger of interpreting this too narrowly.

MR. HAMBURGER: Yeah. I think many Protestants, when seeking separation of church and state, didn’t fully anticipate what would happen. They thought that they were going to get a Protestant separation of church and state. The separation of church and state did separate the Catholic Church but not the Protestants from government, and after 1948 and especially after the early 1950s, many Protestants who had previously supported separation of church and state begin to reconsider their position and realize that perhaps they hadn’t thought this through as carefully as perhaps they should have.

MS. TIPPETT: Well, they couldn’t have understood how our culture would change.

MR. HAMBURGER: Yeah, perhaps they should have though. It’s enthusiasms which led them to adopt a principle not in the Constitution that should in itself have been enough of a warning that perhaps this was a mistake.

MS. TIPPETT: Do you, with the perspective you now have and really as a historian, believe that there has been a loss of faith to our public life or that problems are posed with the way this principle has come down and evolved and is now imposed?

MR. HAMBURGER: Well, there are a number of problems. First, it leaves, to some discomfort amongst religious individuals and organizations, about participating in public life as religious individuals because, of course, they’re afraid that they’ll be accused of violating a separation of church and state. And in fact, many religious individuals, believing separation is a constitutional principle, are afraid lest by participating as Christians in public life, they will end up violating their own sense of what the Constitution requires. And it leads to an odd chilling effect, an odd sort of self-censorship, and sometimes, of course, a fair amount of public opprobrium Now, whether one ought to bring one’s religion into public discussion is altogether a different issue. But that one has the right to do so surely is OK.

MS. TIPPETT: Mm-hmm.

MR. HAMBURGER: On the other side, it seems to me that it also affects the actions of government because, of course, government distributes a fair amount of money to groups, some of which have more or less religious points of view. And separation of church and state is a principle that would require the government essentially to discriminate against religious groups, and what’s more, to inquire into the religion of recipients, which is, of course, precisely the sort of discrimination and entanglement that many advocates of separation of church and state say that they do not want.

MS. TIPPETT: Mm-hmm.

MR. HAMBURGER: So, in fact, the principle of separation of church and state has profound effects both on individuals who are religious and groups that are religious in a way that they participate in public life and, of course, on the government and the way it interacts with citizens who, in effect, might be deprived of their rights under law simply on account of their religious beliefs, which is, in fact, the last thing that Jefferson, at least when writing in the 18th century, had wanted.

MS. TIPPETT: Philip Hamburger is John P. Wilson, professor of law at the University of Chicago. I’m Krista Tippett and this is Speaking of Faith.

Today, we’re exploring uncommon approaches to the history and meaning of religious liberty in this country. We live in a world of increasing religious pluralism, a diversity beyond the imagining of our nation’s founders. As we set out to take a broad historical view of religious liberty for this program, we decided to look at an example of profound religious difference from the earliest American history. In the new world, colonizers routinely persecuted the native peoples of this country for their religious beliefs. Now however, tribal religions are at the center of public life for many American Indians. My next guest, Cheryl Crazy Bull, is a member of the Lakota Nation and president of Northwest Indian College in Bellingham, Washington.

CHERYL CRAZY BULL: I was always a very religious person. When I was a young girl, I was the kind of person who got up on my own on Sunday morning and went to church. And when I was an adult, I had the opportunity actually to become involved with my native traditional practices. So I sort of feel that I’m both a person who’s involved with mostly my native traditional practices, but I still have some Christianity.

MS. TIPPETT: Faith and religion run throughout Cheryl Crazy Bull’s sense of calling as an educator, and, she says, they are at the center of public tribal life.

MS. CRAZY BULL: You know, I was thinking about that as an issue, and I thought to myself that tribal people, we would be ashamed of any leader that we had that did not have, I guess, what would be called faith or spiritual belief, spiritual practice. We probably wouldn’t even elect, for example, an elected leader who did not have that because it’s so much apart of who we are as people. And it doesn’t even occur to us to separate it the way American society has sort of said you can’t have anything prayerful, you know, in your daily lives. We wouldn’t even consider that. It would be, you know, real shameful to do that.

MS. TIPPETT: Tell me some of the ways that — that that turns up that might strike someone who walked into the way you live. You know, ways in which spiritual practice or spiritual ideas are part and parcel of public life.

MS. CRAZY BULL: I think that tribal leaders look a lot to the guidance of spiritual leaders and elders to give them advice on decisions or issues that come up in their communities. I think that’s one way. I think that if you attend any kind of native function or if you work in a native organization, there’s a lot of prayerful experiences or there might be music, there might be drumming, there could be other kinds of ceremonial things that are just part of your normal daily life, and people don’t really think anything of it.

MS. TIPPETT: You know, on the one hand you’re painting a picture of a community in which the public leaders are expected to have spiritual lives and spiritual integrity, and that — that works.

MS. CRAZY BULL: Well, I guess I don’t want to give the impression that there isn’t tension present.

MS. TIPPETT: Mm-hmm.

MS. CRAZY BULL: I remember several years ago having this experience of going to a re-burial of some bones that had been found during a construction activity on my reservation and a medicine man was invited. And so we had the ceremony where he did the re-burial. And then when he was done, a man who was involved with one of the evangelical churches got up and started preaching and — and praying. And I remember being offended that here he was, a person doing this, when in fact the bones that we had just buried were from ancestors who would have had no inkling, probably, of what Christianity even was. So it’s not like it’s perfect. There’s not an intolerance of that person getting up and praying. Nobody went up to him and got mad and said, `Don’t do that anymore.’ People just stood there and accepted it and when it was over it was over.

MS. TIPPETT: And how does this function — you are now the president of a college.

MS. CRAZY BULL: Mm-hmm.

MS. TIPPETT: And I’d be curious about how this functions in the life of an educational institution, which as I understand it is also really core part of the larger community — larger tribal community.

MS. CRAZY BULL: Yeah. Well, it’s certainly part of the everyday life here, and when I was hired, although people didn’t come out and directly ask me questions, you know, about my beliefs, I know that those came out in the conversation and that that was part of their comfort level with me.

MS. TIPPETT: Right. You didn’t try to suppress that as part of who you are.

MS. CRAZY BULL: Because that’s who I am.

MS. TIPPETT: You’re listening to a conversation with Northwest Indian College President Cheryl Crazy Bull. You’ve said that in the last 20,30 years, this has become a stronger part of — of native life. And — and tell me why. What’s changed?

MS. CRAZY BULL: Well, tribal people have attributed it to that sort of rise from the civil rights movement. You know , that there was a reclaiming of native rights since, I suppose, the mid-’60s. There was an Indian Religious Freedom Act passed, there were changes to Indian governance and educations laws in Congress that sort of gave tribes the opportunity to run their own institutions, operate their own programs. And I think along with that then was this revitalization and tribal identity, cultural identity. And that, of course, naturally took along with it religious beliefs. I shouldn’t say beliefs, but it brought out the opportunity for people to reclaim religious practices that perhaps has not been out in the public as much. And many tribal people will — across the country in all the meetings, different conferences, things that I’ve attended — people often talk about those in their tribes who sort of kept their religion intact, and in many instances actually sort of hid them from the government or hid them from the churches and so that they wouldn’t get lost and taken away. And I even see up here among the Coast Salish peoples. I, last week, attended a meeting at one of the tribes where they brought out a song that they had not had in years, that somebody had and came and shared with them, that it was one of their tribal songs. And it’s their river song, and so they actually, you know, brought that song back out because somebody had kept it. So you get to see those kinds of things happen, and there’s a lot of that kind of religious sort of revitalization going on.

MS. TIPPETT: It’s just so interesting because it might sound counterintuitive, you know, I think the way Americans have — came to think, in the last century, anyways, that when you get more rights and more freedom that religion sort of assumes its rightful place somewhere on the sidelines, maybe. And — and what you’re describing is exactly the opposite.

MS. CRAZY BULL: Oh, yeah. I think it just released it, like liberated your practice and it became something that was acceptable and present, and institutions could no longer tell you no. I mean, they actually — there are actually there is so much evidence that native religious practices were literally banned by the federal government, by the churches. Churches issued statements, you know, saying that you couldn’t do certain kinds of religious things. And people on my reservation told stories of, you know, hiding, their religious practices from the priest. And I think native people sort of feel like, you know, we have every right to just sort of bring this out in the open and have it be who we are because for so long we didn’t get to. And people, you know, literally got killed for their religious beliefs.

MS. TIPPETT: And you know, that is so antithetical to the spirit of even the core values that gave rights of separation of church and state. I mean, it was really all about religious liberty.

MS. CRAZY BULL: Yeah. Isn’t it interesting?

MS. TIPPETT: Yes.

MS. CRAZY BULL: Yeah, I think that’s so interesting. But yeah.

MS. TIPPETT: And sad.

MS. CRAZY BULL: Yeah, it is sad because it’s really created that climate of intolerance. Personally, I don’t agree with a lot of the policy and the work of President Bush, but I would be the first to say that he has every right to be guided by his faith. I admire his — his willingness to have it be part of who he is as a human being. You know, I really think a lot about, what was the intent when these issues came up, particularly around prayer in public institutions? And it appeared that that arose out of fear.

MS. TIPPETT: Mm-hmm.

MS. CRAZY BULL: And that with the people who started and wrote the Constitution, they did that out of fear of oppressive experiences that people had had before. And I don’t know how you can overcome that today because we seem as a society to be so fear-based and I — I frequently think about that because I don’t think that as native communities, although we have so many really horrific issues in our communities and so many challenges that we have to face, I don’t think fear of God or fear of religion is one of them. And I really thought about that, especially in thinking about this conversation. I thought — well, I actually got afraid. I thought, `Gee, what if I, you know, talk about these things and then somebody says, “Gee, those public institutions — because we are federally-funded —better stop that.”‘ And that would just like cut to the quick of who we are. If anything would kill us off, it would be that.

MS. TIPPETT: Cheryl Crazy Bull is the president of Northwest Indian College and a member of the Lakota Nation. Earlier in this hour, you heard University of Chicago law professor Philip Hamburger and Charles Haynes of the First Amendment Center. In diverse ways, these voices remind us that the virtue of church/state separation, which Americans so cherish, was solidified in our history in large part by prejudice. It was a way for a religious majority to limit the public voice of others. Ironically, some of the same religious traditions that once championed separation of church and state, now feel disenfranchised by the more secular interpretation this principle has assumed in recent years. But there is a new irony in our time, and it is a hopeful one. As we banished religion from the public sphere in the last century, we also avoided grappling with religious differences. At best, the unavoidable religious pluralism of the present might reawaken this country’s original regard for religious expression as one vital element among many in our common life. All of this, however, begs the question of why American politicians of the 21st century feel compelled to make pronouncements — even token ones — of religious piety.

Next week, we’ll explore a liberal and a conservative view of what has happened in the last few decades in our political life in particular. What do the ways in which religion is infusing the 2004 election reveal about the current role of religion in American public life?

We’d love to hear your reflections on this program and the subject of church/state separation. Please write to us at mail@speakingoffaith.org. You can also contact us and submit reflections through our website, speakingoffaith.org. While you’re there, you’ll find book and music lists, relevant links and complete audio of this program as well as our previous programs.

You can also call Minnesota Public Radio at 1 (800) 228-7123. This program was produced by Brian Newhouse and Kate Moos. Our technical director is Mitch Hanley with assistance this time from Michael DiMark. Our web producer is Trent Gilliss, associate producer, Judy Stone-Nunneley. Marge Ostroushko is the managing producer of Speaking of Faith. Executive producer is Bill Buzenberg.

And I’m Krista Tippett. Please join us again next week for religion and politics, a look at religious rhetoric and ideas in the 2004 presidential race.

Books + Music

Recommended Reading

Author: Jean Bethke Elshtain, Charles C. Haynes, Azizah Y. al-Hibri
Publisher: W. W. Norton & Company
Binding: Paperback, (224)Pages
Author: Philip Hamburger
Publisher: Harvard University Press
Binding: Hardcover, (528)Pages
Author: Warren Nord, Charles Haynes
Publisher: Association for Supervision & Curriculum Development
Binding: Paperback, (221)Pages
Author: Charles C. Haynes, Oliver Thomas
Publisher: First Amendment Center
Binding: Spiral-bound, (308)Pages

Music Played

Artist: TELEMANN / GEORG PHILIPP
Label: Alliance
Artist:
Label: Decca

About the Image

Patty Anton, an American who is a practicing Muslim, attends a rally in support of religious freedom in 2010 in New York City.

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