What does the Separation of Church and State really mean?

A Fourth of July Reflection

There’s a reason why American ancestors considered a healthy separation of church and state. The historical collusion of politics and religion has proven more damaging than beneficial to humanity more times than records show. This separation’s philosophical and jurisprudential principle intends to keep a respectful distance between these two powerful institutions to promote freedom of religion while preventing the government establishment from favoring a particular religion and interfering in matters of doctrine, discipline, and spiritual practices.

The separation of church and state didn’t intend to create a bubble wherein religious institutions would set aside some of the universal principles of law and order, like Civil Rights, that inform and direct the life of our nation to establish their own. Christian denominations, for example, abide by their own bodies of laws and regulations set by their respective ecclesiastical authorities. Better known as Canon Law in the Catholic, Orthodox, Eastern, Anglican, and Episcopal churches, and referred to in other terms such as Church Constitution or Discipline in other Christian denominations, these church laws and regulations inform and direct the life and order of Christian institutions and their members with the specific purpose of expanding their particular mission and protecting their respective organizations.

The First Amendment of the Bill of Rights and this nation’s ancestors intended a healthy institutional separation of church and state.

“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.”

Thomas Jefferson’s words to the Danbury Baptists don’t imply complete segregation of the institutional church from the nation’s legal and regulatory framework, however.

Unintended consequences

The uncovering of sexual abuse of children and vulnerable women has been ravaging the Catholic Church for the past 30 years. Records showed that the perpetrators were simply moved from parish to parish and sent to mandatory retreats and counseling. They were never reported to civil authorities for criminal prosecution despite the many allegations against them from different parishes. Why did the Catholic Church shield such monsters from the consequences of their criminal acts? Sadly, the answer is Canon Law.

Over a year ago, The New York Times reported on Pope Francis’ widely publicized meeting with Bishops from all over the world. The Pope demanded that Bishops take action against abusive clergy and be more proactive in believing and protecting members of the Catholic Church. According to Nicholas Cafardi, a prominent canon lawyer, the Pope fell short in taking the initiative of changing Church Law himself. Thus, Bishops need to keep hiring canon lawyers to find a way to comply with the Pope’s demand.

The problem is not as simple as one would think. The neighborhood church looks a lot different from the institutional church. One resembles a caring and supportive community of faith and presence. The other sometimes resembles a merciless corporation willing to go against its own faith’s principles to protect or advance its interests.

Another unintended consequence of the mistaken application of the principle and jurisprudence of the separation of church and state is that clergy and employees of religious institutions are not protected by the same laws and regulations as everybody else in this country. Labor laws don’t apply to church employees, for example, when they’re under church regulations. The IRS considers clergy as a dual category, employed and self-employed. That has some interesting considerations. One consideration is that clergy can’t collect unemployment because of the category of self-employed. Another consideration is that clergy are exempt from paying taxes for Social Security and Medicare, but they’re not entitled to these benefits in retirement either unless they pay the 15.3% tax of their gross salary from their own pocket. In addition, clergy have to add their housing benefit to their salary to be allowed to pay taxes for Social Security and Medicare.

Justice, believe it or not, can also be an elusive right in religious institutions. Clergy, employees, and members of these institutions are sometimes mistreated, abused, and fired or expelled despite church laws and regulations. There are no Civil Rights in this jurisprudential bubble.

Is that what our nation’s ancestors meant by the separation of church and state?

Assuming that religious institutions are entitled to anything that “the free exercise of thereof” possible means is utterly dangerous, as history keeps pointing out.