This "wall" separating church and state is not, in my opinion, some impenetrable shield forever separating God from country. Instead, I believe the wall of separation between church and state is best understood when compared to a human cell. The semi-permeable membrane of our cells allows for the fluid (but also controlled) movement of material between the outside and inside of the cell. Such is the case with the separation of church and state in America. When one looks at history, the semi-permeable nature of the church/state wall becomes self-evident. There has simply been too much fluid movement (usually controlled movement) between the worlds of religion and government for us to call this division an actual wall.
Over the years, supporters of the "Christian Nation" thesis, along with their more secular opponents, have appealed to various forms of evidence to support their respective camp. One of those forms of evidence has been Supreme Court cases from the past. Today I want to take a deep dive into my favorite Supreme Court case, which regularly seems to pop up in "Christian Nation" apologetic material, and I believe best supports my view of the church/state wall actually behaving more like the human cell.
In his will, Girard wished for the City of Philadelphia to establish an orphanage/college for "poor male white orphans." In addition, Girard's will carried a clause which called for the complete ban on the Bible and Bible readings in the orphanage, along with a ban on every type of religious minister:
I enjoin and require that no ecclesiastic, missionary, or minister of any sect whatsoever, shall ever hold or exercise any station or duty whatever in the said college; nor shall any such person ever be admitted for any purpose, or as a visitor, within the premises appropriated to the purposes of the said college.On the surface Girard's request for a ban on religious ministers and the Bible itself seems incredibly judgmental and capricious. This is an understandable conclusion, especially when we discover that Girard was somewhat hostile to religion throughout his life. Before passing judgement, however, there is some important historical context we should consider.
The Bible Wars: Catholics v. Protestants
The 19th century was a period of extreme growth in the United States. The swell of European immigrants, particularly large numbers of Irish Catholics, during the 19th century, sparked a fire of anti-Catholic sentiment that consumed large segments of the American populace to include Philadelphia. During the first decades of the 19th century, Catholic churches and clergy grew at an exponential rate. Protestants reacted by inciting discord within their ranks. Catholics responded to this growing disapproval of their faith by mounting an attack of their own. The strife that ensued divided American Christians on fundamental doctrinal issues. In addition, this division caused both Protestant and Catholic adherents to double down on their faith. All of this tension proved to be the ideal breeding ground for paranoia and conspiracy that captured the minds of even some of America's best and brightest. For example, Samuel F. B. Morse, inventor of the telegraph and head of the American Protestant Union, argued that Catholic immigrants were part of a plot (on the part of the Pope) to convert America and lay the groundwork for the Catholic domination of the New World.
This Protestant/Catholic battle eventually found its way into America's schools. In Philadelphia these schools were controlled by the Protestant majority, who insisted that their religious views take center stage as part of the regular school curriculum. Catholics tried to respond to this action by establishing schools of their own, where Catholic beliefs could be taught and practiced without opposition. This effort proved to be extremely limited in its impact, since the church could only establish a very limited number of schools. As a consequence, most Catholic students, who wanted an education, were required to attend schools dominated by Protestant teachings.
One of the most divisive aspects of this conflict came in the form of the Bible. Since Protestants dominated Philadelphia, they naturally wanted their children to grow up reading the King James Version (KJV) of the Bible. As a result, the KJV was the standard religious text of the overwhelming majority of schools in the region. Naturally, Catholics opposed the KJV and demanded that their children be allowed to read from the Douay Bible. Bishop Francis Patrick Kenrick, who served as the third Bishop of Philadelphia, wrote to Philadelphia school authorities on this problem, stating:
Teachers shall read and cause to be read, The Bible; by which is understood the version published by command of King James. To this regulation we are forced to object, inasmuch as Catholic children are led to view as authoritative [the King James Version] which is rejected by the Church....We do not ask you to adopt the Catholic version for general use; but we feel warranted in claiming that our conscientious scruples to recognize or use the other, be respected....The consciences of Catholics are also embarrassed by the mode of opening and closing the School exercises which... is by the singing of some hymn, or by prayer. It is not consistent with the laws and discipline of the Catholic Church for her members to unite in religious exercises with those who are not of their communion.Catholics were quick to point out that their taxes were being used to support Protestant schools that taught Protestant beliefs from Protestant scripture; an injustice they simply couldn't stomach. Eventually these Catholic protests found their way to the sympathetic ear of William Henry Seward (the same W.H. Seward who would one day serve as Secretary of State to Abraham Lincoln) who stated:
The children of foreigners, found in great numbers in our populous cities and towns, and in the vicinity of our public works, are too often deprived of the advantages of our system of public education, in consequence of prejudices arising from differences of language or religion...I do not hesitate, therefore, to recommend the establishment of schools in which they may be instructed by teachers speaking the same language with themselves and professing the same faith.To make a long story short, this division between Catholics and Protestants eventually led to violence. In what is known as the Philadelphia Bible Riots, citizens of Philadelphia (overwhelmingly Protestant) took up arms and attacked predominantly Irish Catholic neighborhoods, resulting in bloodshed. Eventually military force was required to quell the rioters. Ultimately these riots were the culmination of a decade-long feud between Protestants and Catholics over a number of social issues. The battle over the Bible was the final tipping point that sparked violence.
Now let us return to the story of Stephen Girard and his fortune. Keeping in mind the fierce division between Catholics and Protestants at the time of his death one can understand why Girard felt that a Bible/minister free orphanage might be advantageous. It wasn't that Girard disapproved of a particular creed or denomination. Instead Girard likely felt disdain for the violence and hostility he saw in his community because of religious intolerance. From Girard's will:
I enjoin and require that no ecclesiastic, missionary, or minister of any sect whatsoever, shall ever hold or exercise any station or duty whatever in the said college; nor shall any such person ever be admitted for any purpose, or as a visitor, within the premises appropriated to the purposes of the said college.
In making this restriction, I do not mean to cast any reflection upon any sect or person whatsoever; but, as there is such a multitude of sects, and such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans, who are to derive advantage from this bequest, free from the excitement which clashing doctrines and sectarian controversy are so apt to produce; my desire is, that all the instructors and teachers in the college shall take pains to instil into the minds of the scholars the purest principles of morality, so that, on their entrance into active life, they may, from inclination and habit, evince benevolence towards their fellow-creatures, and a love of truth, sobriety, and industry, adopting at the same time such religious tenets as their matured reason may enable them to prefer.Enter the Supreme Court
As is the case with most who leave a large fortune, the extended relatives of Girard, some still residing in France, wanted a piece of the pie. The argument became intense enough that eventually the Supreme Court chose to deal with the matter. The Girard family hired attorney Daniel Webster, former Senator and Secretary of State to Presidents Harrison and Tyler, while Horace Binney represented the City of Philadelphia.
The case essentially centered on two key issues: first, could the Corporation of the City of Philadelphia take real property and act as trust in the same manner as a private individual? The second issue dealt with whether or not Girard's will violated the laws of Pennsylvania, particularly as it related to the issue of ministers being banned from the college. In other words, did Girard's will create an institution (the orphanage) that was specifically hostile to the Christian faith?
Daniel Webster focused most of his energies on this second issue. In his mind, Girard's will did violate Pennsylvania law and common law because it suggested that sectarian differences within Christianity meant the entire Christian institution was a waste. Webster stated:
[T]his objection to the multitude and differences of sects is but the old story—the old infidel argument. It is notorious that there are certain great religious truths which are admitted and believed by all Christians. All believe in the existence of a God. All believe in the immortality of the soul. All believe in the responsibility, in another world, for our conduct in this. All believe in the divine authority of the New Testament...And cannot all these great truths be taught to children without their minds being perplexed with clashing doctrines and sectarian controversies? Most certainly they can.Webster's defense of Christianity favored Protestant, Catholic and everyone in between, and his defense of all ministers took on an almost patriotic feel:
Sir, I take it upon myself to say, that in no country in the world, upon either continent, can there be found a body of ministers of the gospel who perform so much service to man, in such a full spirit of self-denial, under so little encouragement from government of any kind, and under circumstances, always much straitened and often distressed, as the ministers of the gospel in the United States, of all denominations!Webster then took his attack to Girard himself:
No fault can be found with Girard for wishing a marble college to bear his name, but it is not valuable unless it has a fragrance of Christianity about it. The reasons which the testator gives are objectionable and derogatory to Christianity; they assume that a difference of opinion upon some religious tenets is of more importance than a Christian education.Binney's rebuttal was to predictably point out that the differences between denominations were there for a reason. It would be utter foolishness to assume that representatives of these different sects would not favor their own beliefs:
If any clergyman was to be admitted, he would of course teach the doctrines of his own church. No two sects would agree. Some would adopt one part of the Bible, some another. If they agreed as to what was to be left out as apocryphal, they would differ about the translation of the rest. The Protestant would not receive the Douay Bible. See the difficulties that exist in New York about the introduction of the Bible as a school-book.In the end, the court ruled in favor of Girard (or better put, the City of Philadelphia). The Supreme Court stated that a corporation could in fact receive real property willed to its trust and effectively execute the terms of a will as easily as a private individual. On the issue of Girard's will violating Pennsylvania and common law, Justice Joseph Story, writing for the court, stated:
It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania. But this proposition is to be received with its appropriate qualifications, and in connection with the bill of rights of that state, as found in its constitution of government. The constitution of 1790, (and the like provision will, in substance, be found in the constitution of 1776, and in the existing constitution of 1838,) expressly declares, "That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishments or modes of worship." Language more comprehensive for the complete protection of every variety of religious opinion could scarcely be used; and it must have been intended to extend equally to all sects, whether they believed in Christianity or not, and whether they were Jews or infidels.
Is an omission to provide for instruction in Christianity in any scheme of school or college education a fatal defect, which avoids it according to the law of Pennsylvania? If the instruction provided for is incomplete and imperfect, is it equally fatal? These questions are propounded, because we are not aware that any thing exists in the constitution or laws of Pennsylvania, or the judicial decisions of its tribunals, which would justify us in pronouncing that such defects would be so fatal. Let us take the case of a charitable donation to teach poor orphans reading, writing, arithmetic, geography, and navigation, and excluding all other studies and instruction; would the donation be void, as a charity in Pennsylvania, as being deemed derogatory to Christianity?...It has hitherto been thought sufficient, if he does not require any thing to be taught inconsistent with Christianity.
Looking to the objection therefore in a mere juridical view, which is the only one in which we are at liberty to consider it, we are satisfied that there is nothing in the devise establishing the college, or in the regulations and restrictions contained therein, which are inconsistent with the Christian religion, or are opposed to any known policy of the state of Pennsylvania. (my emphasis).In short, the court ruled that though Girard's will specifically forbade ministers of all denominations from teaching or even visiting the orphanage/college, it did not attack or persecute the Christian religion. In other words, the court recognized that the wall of separation between church and state was not some absolute, impenetrable barrier but instead the semi-permeable membrane I mentioned above. The court was quick to point out that Christianity was not only a part of American heritage but was also a part of the common law of Pennsylvania. At the same time, the court was just as quick to defend Girard's will on the grounds that no Christian discrimination had been made by his ban on Christian ministers. The Church/State cell membrane allowed the stream of Christian belief to seep into the American cell but prevented favoring specific sectarian parasites, thus protecting the delicate American cell from becoming cancerous.
It should come as no surprise to those familiar with the arguments of both the Christian Nation apologists and their secularist opponents why this case would resonate with their respective opinions. Christian Nation advocates like David Barton and Robert Jeffress are quick to site the words of Justice Story, who in his ruling called America a "Christian country" and proclaimed Christianity to be a part of common law. On the flip side, skeptics love to remind everyone that the court ultimately ruled in favor of Girard, upholding the orphanage's planned ban on Christian ministers. But in their quest to out-quote the opposition both sides reveal the fundamental flaws of their respective positions.
The truth of the matter is Supreme Court decisions don't happen in a vacuum. There are many influences that determine the outcome of a case. Even though the court ultimately upheld Girard, they did not establish a precedent that outlawed religion entirely. Instead the court discriminated on what it allowed to cross the semi-permeable church/state cell membrane. As one historian put it, "Vidal was the Supreme Court's very first case dealing with the role of religion in the public schools, and it laid the foundation for an accommodationist view of the religion clauses."
Simply put, Vidal v. Girard illustrates just how complex the issue of religion and government, church and state can become. For me personally, it underscores the importance that both religion and government have in our fine American republic. The semi-permeable church/state barrier is one that we need to protect, for it is very delicate. Allowing ourselves to stray too far into the "Christian Nation" or secularist camps could yield terrible consequences and destroy this beautiful barrier that has protected both religion and government for almost three centuries.