49 La. L. Rev. (1989)
"Separation of church and state" is right up there with Mom, apple pie, and baseball in American iconography. If everyone agrees on separation of church and state, why does the relationship between religion and public life so vex, excite, and confound us? Part of the reason is that church-state separation, although it is the historical achievement of societies decisively shaped by a Christianity that was itself decisively shaped by Judaism, is a commodious concept.
But "separation of church and state" is not contentless, and our conclusive agreement on it, I submit, provides a valuable common frame of reference in an otherwise discordant or "pluralistic" aspect of our life together. Americans do more than agree on "separation." They intuitively appreciate that "separation" is also the precondition of religious freedom. And religious freedom, which is usefully defined as political authority permitting (in the words of the Fourth Gospel) "the spirit to roam where it wills," is near-universally acclaimed a good thing and a distinctive feature of the American regime. Anything that sounds less than unequivocally "separationist" betrays religious liberty, because the commonly-held conclusion is that to preserve religion in America we must keep Christianity at bay, as walled-off from public life as possible. Thus the accepted ideal is Richard Neuhaus' "naked public square," one from which religious discourse has effectively been evicted.
My view is that the Enlightenment or "liberal" (in its contemporary incarnation) project is an idea whose time has passed. Our time demands a rethinking of the "problem" of church and state and its "solution." The Enlightenment attempt to keep a concrete political society going without religious or other commitments to objective value has not and is not working.
The post-Enlightenment world may, however, never come because its price seems to be "separation" and therefore religious liberty. But what if the opposite were true? What if an invigorated, taut church-state separation was instead the new linchpin? That is the case I propose to make by examining church autonomy in our constitutional order. This should be the flagship issue of church and state, the litmus test of a regime's commitment to genuine spiritual freedom, and one whose proper basic handling is obvious in a separationist tradition. Instead it is the least developed, most confused of our church-state analyses, both in the law and in informed commentary, suggesting that the consensus sequence has badly deformed our traditional commitment to separation. My focus is on fundamentals, where mistakes engender increasingly ill effects all the way down the analytical line. I conclude that separation makes religious liberty possible but argue that the Judaeo-Christian tradition makes separation possible. The inversion of the popular sequence is total: to preserve religious liberty we must, in some decisive way, keep Christianity in the public arena.
Gerard V. Bradley,
Forum Juridicum: Church Autonomy in the Constitutional Order - The End of Church and State?,
49 La. L. Rev. (1989).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/634