The Proper State is Secular
THE PROPER STATE IS SECULAR
BY
DAVID ARTHUR WALTERS
An elected chief justice of Alabama recently refused to obey a judicial order to remove a two and one-half ton granite shrine to the Decalogue that he had surreptitiously slipped into the courthouse rotunda around midnight one night. The reason he gave for disobeying the positive law of his peers was that true American law has its origin in his god, hence he declared that the federal judge and his colleagues on the state supreme court had violated god's law by placing themselves above god and above the law. After all, the First Table of the Law establishing Hebrew theocracy, as edited for the shrine, explicitly stated, "I am the Lord thy God, Thou shalt have no god before me," or the like. The Hebrew god has been revamped by Christians; therefore it was said that American law is Christian law. "I will never deny the God upon whom our laws and country depend," said the Alabama chief justice. At the time of this writing, he is suspended for disobeying the secular law upheld by the Catholic governor and the Baptist attorney general, somewhat to their embarrassment - they reportedly had condoned the insertion of the shrine into the rotunda after the fact. The governor himself acknowledged that, "God is the basis our legal system."
Of course every American citizen knows about the separation of church and state fought for by the founding fathers and mothers of this great state of ours. And almost every "schoolboy" in my grammar school knew about the religious liberty and multiplication of faiths resulting from that separation - indeed, the United States was world-famous for it. Religion was at its lowest ebb during and just after the War for American Independence. Of course the first three presidents were "Deists" or at least embraced the notions of Deism. Deists worship the deity directly, with works. Many good Christians considered Deism to be a form of atheism - Jefferson in particular was roundly cursed as an atheist. As far as the Catholics were concerned at the time, all Protestants were atheists. The hateful bigotry was too much for many people - they swore off of religion forever. Many people had come to America to make their fortunes on Earth and cared less about heaven. With the separation of church and state and the disestablishment of colonial religion, a sort of spiritual vacuum arose. But the competition of revivalism worked to fill the vacuum with a proliferation of cults and sects, something Europe marveled at as its odd groups emigrated to American to take advantage of religious liberty and the democracy that implies even for the irreligious.
Therefore our ears perk up when we hear political authorities stating that our democratic state, constituting equality under law, is not only a religious institution but is a Christian one at that, and that the ultimate author of law is not the people who are sometimes said to be the voice of god, but is rather a jealous, fulminating Judeo-Christian god with less than a hand of secular laws. The more abstract Judeo-Christian god is an infinite god unknown to most intelligent inquirers, a god who cannot be called to testify, legislate, or judge, but one who apparently directly reveals divine will to privileged judges and politicians that they may rightly interpret the written and common law after reading Jewish and Christian scripture - incidentally, democratic Americans preferred to have their laws in writing although the federalist judges clung to the English common law.
The American Revolution is obviously not over. We are still struggling with the retrograde parochial tradition for which the tribal god, husband of Israel, and his mythical legislator, Moses, is the monotheistic, monarchical model for Christians. Christianity asserted the universal yet it could not make a clean break from cultish law to universal faith. It could not yet take up a new gospel, the glad tidings of a strange god of distributed love instead of the hate-based love of the tribe or nation; and that is why it is still waiting for the Stranger to appear again.
However that may be, the proper state, the living state, is not a static or dead state ruled by dead kings, dead gods, dead stones, dead letters. The proper state is present in the world as a living secular state. Yes, legal institutions evolved from religious institutions, and, in a manner of speaking, the judicial branch of our state is a "priesthood." Yes, state secularism is a sort of "religion" and it has its political "theology." It is the religion of political liberty that fosters religious liberty and freedom of conscience and protects a multiplicity of faiths, including faith in materialism, providing that all corporations, no matter how radical or irrational their membership's beliefs, abide by the rule of law. The German historian Heinrich von Treitschke made this interesting observation about Americans over a century ago:
"The 'voluntary system' of America treats the Church exactly as it treats every chess- or dancing-club. In the law-courts the clergy are on the same level as a railway director; the churches are places of public assembly merely; the State asks no rights of supervision over them, and allows them to exist upon the same footing as other private associations. This is all in accordance with the American Constitution, under which the State is more a free association than a compelling authority.... In America... the voluntary system is possible.... In Europe it would be a total contradiction of historical tradition.... Our ancient Church in Europe could never be treated like this or that club."
Treitschke believed that the early English sectarians of the American colonies fostered plurality of correlative politics and religion; he was apparently unware that the opposite was the case: the sectarians tried to set up theocracies - "Zions" and "Israels" - to protect their aristocratic interest in land and political power; it was the resistance to their efforts and the availability of other places to go, coupled with the need for trade between the colonies, that resulted in the spread of religious "toleration" and plurality. The emphasis on commerce as the modus operandi was so strong that the coin was stamped with the name "God" and virtually became the god most worshipped. Ironically, Trietschke credits the religious zeal of the voluntary American system with offsetting the money-grubbers who were "leading a life unworthy of a human being for six days on end, keep the seventh after the fashion of the ghastly English Sabbath, as a day of completely unintelligent repose." He goes on however to deplore the "religious hatreds and jealousies" of the sects, "which would be unbearable to us Germans." Treitschke was a premier propagandist for the German world-power state; we regret that he did not see that our sectarian religious hatreds and jealousies fostered by our political pluralism was much to our benefit rather than to our detriment.
The foregoing does not serve to deny or to repudiate the contributions of Christians to the American legal system. Nevertheless, judges who claim the law for their very own religion should be chastened for their arrogance, and they should impeached if they use religion to abuse their office, for they raise themselves above the law. They ignore the history of the law not only prior to the birth of their christ but thereafter as well. Such a narrow claim is an insult to Jews, Greeks, Romans, Barbarians, Pagans. And let us not forget the Native Americans or American Indians whose ways were intently studied while they were being murdered and run off the land. In fact the Jesuits among the Indians in Canada said that, notwithstanding the practice of torture and their natural religion, the Indians were far more civilized than Europeans and that they should not consort with whites lest they be corrupted.
And much more since then was contributed by way of legislation and the philosophy of law by many other people of diverse persuasions. Indeed, in view of the fact that our law is the living law of all human beings subject to themselves as the sovereign people, the effort to define it as particularly "Christian" attempts to kill the law and flirts with sedition. And that gives me occasion to conclude that the United States of American is not a Christian state although the majority of its citizens are Christians. Whether those Christians really believe their god exists or are simply lying to appear to be good, whether they are really atheists or not is their business.
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