2 Notre Dame Professors Weigh In

SOUTH BEND, Indiana, JULY 01, 2005 (Zenit) - Given the cultural and historical particularities of the United States and Europe, it is hard to say that one model of church-state relations is "better" than another.

So say Paolo Carozza and Richard Garnett, both professors at Notre Dame Law School. In this joint interview, they shared with us how countries on both sides of the Atlantic could benefit from a sustained exchange about religious liberty and the range of possible ways to uphold it.

Q: Before he was elected Pope, Cardinal Ratzinger spoke admiringly of the U.S. system of separation of church and state, as opposed to European models that seem openly antagonistic toward religion, especially Christianity. Do you share his view?

Garnett: As Cardinal Ratzinger -- now Pope Benedict XVI -- recognized, there is much to admire in the American approach to religious-freedom questions. Properly understood and reasonably implemented, the church-state arrangements set up by the U.S. Constitution are, in my judgment, good for religion -- or, more precisely, for religious freedom.

That said, these same arrangements have too often been misunderstood. In many cases, and in the work of many scholars, the Constitution's declaration that Congress "shall make no law … respecting an establishment of religion" has been inaccurately converted into an ahistorical rule that there is and must be not merely independence of religious institutions from government, but a high and impregnable "wall of separation" between religion and the public square.

In fact, however, our Constitution "separates" church and state primarily and fundamentally by disabling the state: Government may not establish a church, not because religion is unworthy, but to protect religious faith and freedom.

Put differently, the Constitution protects religious freedom by prohibiting state "establishments" and by protecting "free exercise." It is a set of constraints on government; it does nothing to constrain or regulate the worship and faith of citizens.

Carozza: I also agree with Cardinal Ratzinger's comment in broad outline. But just as Professor Garnett emphasizes the need to see the American side of that comparison with some nuance that captures both the virtues and the shortcomings of U.S. law in theory and practice, so too do we need to be attentive to the complexity of the European models.

There are many very important divergences among the European states on the question of religious freedom. In quite a few of them, the relationship of church and state has in some specific contexts been more accommodating to the public presence of religious believers than in the United States.

For instance, several of the European constitutional systems permit religion to be taught in public schools and permit, or even require, the state to fund private religiously affiliated schools; they support religious communities and their works through public taxation and expenditures; or they involve the state in cultural activities together with religious communities in ways that might be considered unconstitutional in the United States.

Even in France, which we routinely point to as an example of a very rigid model of separation, the state owns and cares for vast amounts of property that is dedicated to religious uses -- something that I do not think would be possible under the American constitutional scheme.

At the same time, there have been a number of recent examples in Europe suggesting that those systems could profit from re-examining their basic constitutional assumptions about the place of religion, and that they could in particular benefit from being attentive to the American understanding of the relationship of religion to freedom.

In short, those of us on each side of the Atlantic can look across the ocean to learn from different models, but we must try to understand them in their specific cultural, historical and political contexts, not merely in the abstract.

Q: What are some key advantages or disadvantages you see in the U.S. model of church and state? Has the pendulum swung too far one way or the other?

Carozza: As I mentioned earlier, one of the principal advantages that I see in the American approach to church-state relations is its emphasis on the relationship between religion and freedom -- both the freedom of individuals and the freedom of smaller communities within the overall political society.

Implicit in that is a greater space for those communities, united by religious commitments, to generate culture, to take initiative and to construct a common life. A more equality based and statist approach, which characterizes many of the European systems, risks losing sight of the way that an authentically ...