China's bishops and church-state separation

(Re-posted from the University of Chicago Law Faculty Blog):

Although its government likes to claim otherwise, and hopes we won't notice, meaningful religious freedom does not exist in China. Quite the contrary: As the United States Commission on Religious Freedom stated, in its 2006 Annual Report, “The Chinese government continues to engage in systematic and egregious violations of freedom of religion or belief." And so, it was probably more disappointing than surprising when the government-controlled puppet-church, the "Chinese Patriotic Catholic Association," last November purported to ordain a new bishop for Catholics in the Xuzhou Diocese, about 400 miles south of Beijing.

Why should we care? Is there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries  - the Holy See and the People's Republic - picks Chinese bishops?

Yes, there is.

First, the Catholic Church's resistance to China's efforts to control the flock by picking the shepherds is a reminder that free and independent non-state institutions - for example, political parties, labor unions, social clubs, and churches - are essential to the development and survival of civil society and political freedom. It might not be easy to appreciate, given how used we've become to thinking of "the Vatican" as hide-bound and authoritarian, but the Holy See is waging a crucial fight for freedom. What's more, China's heavy-handed hostility to independent institutions highlights the importance, and real meaning, of the "separation of church and state."

Thomas Jefferson's famous image of a "wall of separation" between church and state does not appear in the text of our Constitution. Still, the idea of church-state "separation" is at the heart of how we Americans think about religious freedom. Indeed, as Columbia University’s Professor Philip Hamburger has observed, the "wall of separation" metaphor is, for most of us, "more familiar than the words of the First Amendment itself."

And so, while we probably cringed, we probably also nodded, when former president George H.W. Bush recalled being shot down over the South Pacific in World War II and spoke of the "fundamental values" that sustained him during the ordeal: "Mother and Dad and the strength I got from them, and God and faith - and the separation of church and state."

Unfortunately, the "separation of church and state" is widely misunderstood, by critics and defenders alike. Activists and litigants deploy the idea as a slogan, as a mantra or mandate for a faith-free public square. In some quarters, "separation" serves as a rallying cry, not for the distinctiveness and freedom of religious institutions, but for the marginalization and privatization of religious faith. And, of course, such distortions can trigger misguided overreactions, as when former congresswoman Katherine Harris of Florida announced last August that the separation of church and state is a "lie we have been told" to keep religious believers out of politics and public life.

But here is where we can learn from the persecution of the churches in China. It is precisely by failing to respect the "separation of church and state," and by trying to co-opt and domesticate what the government regards as a dangerous rival, that China is trampling on religious freedom. In a way, China and the Holy See are replaying one of the oldest and most fundamental religious-liberty scripts. Today, many regard church-state "separation" as a reaction to church control of government. In fact, though, it was for a millennium the ambition of kings to expand their power, and keep down their rivals, by controlling the church and its affairs. And, by resisting, the medieval church affirmed the foundational and still-fundamental principle that the state and its power are limited.

It should not have raised eyebrows, then, when Pope Benedict XVI recently emphasized a point that he has made often and forcefully in his writings: The "distinction between what belongs to Caesar and what belongs to God" - in other words, "the distinction between Church and State" - is not anti-religious, but is, in fact, "fundamental to Christianity." As the famous American Jesuit, John Courtney Murray, once wrote, separation is not secularism but is instead a "means, a technique, (and) a policy to implement the principle of religious freedom."

The struggle for the churches' freedom in China reminds us that what the "separation of church and state" calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not so much to prevent religious believers from addressing political questions, to block laws that reflect moral commitments, or to tear down Ten Commandments monuments. Instead, "separation" refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing - neither controlling nor controlled by the state. This freedom limits the state and so safeguards the freedom and consciences of all -  believers and non-believers alike.