STUDIA IURIDICA XXX/1995 Franciszek LONGCHAMPS de BERIER CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL To Maria and Zygmunt Nagorski I. Man as a religious being, I. The need for separation, III. The metaphor of the wall, A. Germany, B. Switzerland, C. Israel, D. Mexico, IV. The minorities, V. The inevitability of change. I. MAN AS A RELIGIOUS BEING When the Framers decided to amend the American Constitution, adding the Bill of Rights, the very first freedom they guaranteed was the freedom of religion. The experience of intolerance and religious wars in the Old World taught them to appreciate this freedom in the New Land. Every attempt to deprive man of religion has failed, because people prefer to die rather than abandon something more important than life. Why is this liberty so important that it receives such a preference and such broad protection? There is only one answer: the protection is necessary, because man is a religious being and religious beliefs are an inseparable part of his entity. Mircea Eliade, one of the most highly regarded historians of reli- gions, studied this social phenomenon in all its manifestations — from the simplest primitive forms to the world-wide religions. He concluded in his fundamental work: “For the historian of religions, every manifestation of the sacred is important: every rite, every myth, every belief or divine figure reflects the experience of the sacred and hence implies the notion of being of meaning and of truth. As I observed on another occasion, ‘it is difficult to imagine how the human mind could function without a conviction that there is something irreducibly real in the world; and it is impossi- ble to imagine how consciousness could appear without conferring a meaning on man's impulses and experiences. Consciousness of real and meaningful world is intimately connected with the discovery of the sacred. Through experience of the sacred, the human mind has per- ceived the difference between what reveals itself as being real, power-62 FRANCISZEK LONGCHAMPS DE BERIER ful, rich, and meaningful and what lacks these qualities, that is, the chaotic and dangerous flux of things, their fortuitous and senseless appearances and disappearances’ (preface to The Quest: History and Meaning in Religion [1969]). In short, the ‘sacred’ is an element in the structure of consciousness and not a stage in the history of conscious- ness. On the most archaic levels of culture, living, considered as being human, is in itself a religious act, for food-getting, sexual life, and work have a sacramental value. In other words, to be — or, rather, to be- come — a man signifies being ‘religious’ (ibid.)"". He adds: "for continu- ous reading reveals above all the fundamental unity of religious phe- nomena and at the same time the inexhaustible newness of their ex- pressions.'? Human nature is the source of this incredible unity. But individuals are not the same, and communities differ one from another. It causes that the same things appear in different forms, new but at the same time unchanged. Studying human nature for the needs of his jurisprudential frame- work J.M. Finnis® discovered seven "basic goods": life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness and religion. Certainly besides them there are countless objectives and forms of good. Finnis suggests "that these other objectives and forms of good will be found, on analysis, to be ways or combinations of ways of pursuing (not always sensibly) and realizing (not always successful- ly) one of the seven basic forms of good, or some combination of them."* These seven basic aspects of one’s well-being are irreducible and inscribed in human nature. They are values in themselves. Religion differs from all the other values whose order "can be brought into human relations through collaboration, community, and friendship."* It plays a special role for the inner integrity and outer authenticity of a human being and answers all the questions arising beyond the six values or their combination. It may seem unimportant, but these answers are desired more than any other. This makes reli- gion unique among all the other basic goods. The same idea was set forth in the Bible. "Man shall not live by bread alone, but by every word of God."® Despite the fundamental idea of a personal God (theism), the Bible emphasizes an emptiness of hu- man life without interest in divinity. Sacrum is a part of man and has to supersede what is considered secular and godless. "Man in his pros- ' Eliade, A History of Religious Ideas, University of Chicago Press, 1978; preface [italics in the original] * Ibidem. ° Finis, Natural Law and Natural Rights, Oxford University Press, 1980, pp. 81-94. ‘Tbidem. * Thidem. *Dt8.3: Lk 4,4.CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 63 perity forfeits intelligence: he is like one with the cattle doomed to slaughter."” To become a man is to think and to ask questions. One of the first stages will be always about the order of the whole cosmos and its origin, and about a divinity. This is a religious idea. All the arguments come not only from studies of contemporary soci- eties, but also of their past. It has a greater value than sociological, psychological, or anthropological studies of the present world. Culture and tradition embrace wisdom and experience of all the generations before us, all those who were no different to us. Being religious is inscribed in human nature. It seems to be more significant and of greater relevance to our understanding of life than the concept of sexuality. Sexuality is a basic feature of man,® but his interests in this area do not endure the entire lifetime. The very young and old are religious, often more so than others, However, although sexuality can dim religion, it can never expel it altogether. For many people religion is more convincing than the reality of rea- son. Blaise Pascal noticed: "Men never do evil so completely and cheer- fully as when they do it from religious conviction." However, religious convictions can supersede reason, believers are not unreasonable. Religion requires consistency: a believer should follow his conviction and should accept all the consequences and re- sponsibility for the choice. It could be argued that believers do not always behave in compli- ance with what they believe is right. They conduct a "double life" keep- ing two different worlds separate: theory and practice with a wall be- tween them. The situation, in which life is not consistent with faith, is understandable from the human point of view. Our nature is not only religious, but also weak. Nevertheless, such behavior is unreasonable, although a believer knows that what he does is wrong and should be corrected. It is similar to a person aware of the detrimental effects of smoking, but who cannot refrain from the habit. As long as we discuss the fact that man is a religious being, two phenomena ought to be considered: atheism and agnosticism. Their existence suggests that a person can live comfortably without God, or even without any belief. Atheism (Gr. a- not + theos god) is "the belief that there is no God"® with or without the distinction that God is personal (theism) or not. The existence or nonexistence of God is a matter of faith. Atheism is the same kind of strong belief as any other act of will based on a leap of faith. 7 Ps 49,20. ® According to Finis, it is embraced by “life” ® A Dictionary of Philosophy, New York: Philosophical Library, 1983.64 FRANCISZEK LONGCHAMPS DE BERIER George H. Smith says "an atheist is not primarily a person who believes that god does not exist, rather he does not believe in the exis- tence of god." This former Greek understanding, which Michael Mar- tin" named positive atheism, differs from the latter one called negative atheism. "Clearly, positive atheism is a special case of negative athe- ism: someone who is a positive atheist is by necessity a negative athe- ist, but not conversely." In the broadest sense, negative atheism pre- sumes the absence of belief in any God or gods. There is no belief at all, nothing is based on any leap of faith, However, the broad negative atheism is based not on a positive act of will, but on a negative one, it does not mean that an atheist does not believe at all. In a vacuum created by the absence of God or gods he establishes another system of belief, Let me give examples of two consistent atheistic theories. Marxism reduced reality to monistic materialism. It found the way of development and "progress" in human creativity and omnipotence, which is expressed in the work of man. Man is his own savior and this salvation will be achieved in the future, in a cosmic classless society called communism, There are three points which are purely based on a leap of faith in the theory: monism, the saving power of human work, and the possibility of communism. '* The positivism of August Comte" proclaimed only a scientific ap- proach to human life. It found the maturity of man in scientific synthe- sis, Which could embrace the experience of sovial behavior. None the less, Comte, influenced by the love of Clotilde de Vaux, decided to add to his purely scientific sociology of the material world the idea of love to the human race, to all human beings. "Though he expanded his phi- losophy into a religion, Comte did not bring back either the God of the Christians or their theology. He did, however, draw the ideas of moral, hierarchical and sacramental discipline from the Catholic Church..." so becoming "the High Priest of the Religion of Humanity," as John Stuart Mill expressed it. Indeed, Comte considered his philosophical atheism insufficient and established a belief in social humanity. An agnostic in a person, who claims one cannot know whether God exists or not, because it is impossible to attain the knowledge of God.’° Even so this claim is based on a specific leap of faith and, if real, re- \° Smith, Atheist: The Case Against God, Butfalo, N.Y.: Prometheus Books, 1979, p. 7 Wtalics in the original] 4 Martin, Atheism: A Philosophical Justification, Philadelphia: Temple University Press, 1990. “* Ibidem, p. 464. '° Miceli, the Goods of Atheism, New Rochelle, N.Y.: Arlington House, 1971, pp. 92-141 “Comte, Cours de Philosophie Positive, Societe Positiviste, 5 editions, Paris 1892-1894. © Miceli, p. 160. \ The Encyclopedia of Philosophy, New York: Macmillan, 1967CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 65 quires as strong a belief as atheism or theism. Others define agnosti- cism as a lack of belief in the existence of any god. This is compatible with negative atheism.'7 In summary, both atheism and agnosticism are acts of will and are based on a distinguishing leap of faith. Neither of them is an argument against a social phenomenon we describe as "religious man'.!° As history has shown, it is hopeless to try to deprive people of an important part of themselves. A new secular religion will replace the old. In the former USSR the promotion of "scientific ideology" was in- tended to replace religion, which was labeled "the opium of the peo- ple," something good only for those who are weak. The action was conducted in all spheres of life. At the same time, the totalitarian sys- tem produced a public godless cult, which had all the religious features. The communist party was an organization of an elite who declared the same philosophy of life. The centralized hierarchical "church" had its own highly regarded patriarch-the first secretary with lifelong tenure, and a perpetual governing synod-the politburo. General Assemblies were held every four years to decide about dogmas, the interpretation of holy scriptures-writings of prophets, and about the social teaching of humanism and altruism. The party had its theolo- gians, some of them called political officers serving in the army; reli- gion was taught at school.”° The system had its own celebrations of an- niversaries and holidays of obligation, pilgrimages to the main shrine on the Red Square and processions for May 1, November 7, and saints. ‘The hagiography embodied tearful stories about martyrs, who died for social justice and revolution, and about confessors like Felix Dzierzyn- ski, the founder and first chairman of CzK (later renamed NKVD, KGB). Pavlik Morozov was the patron of youth. He discovered his father’s counterrevolutionary plot and disclosed it, thereby causing his death. Holy statues and streets of prophets, saints and the apostle founder were in towns and villages all over the country. And millions, millions of devotees who sincerely believed in communism. The atheist state provided such a cult, by which it tried to fill the gap left by religions. It was relatively successful and after decades of repression of the "religiozchiki"", the Orthodox, Catholics, Jews, and Protestant denominations possessed only a small domain. But as the physical and legal restrictions are reduced, we observe a renaissance of Martin, p. 466, Certainly, the principle of reasonableness has to be applied also to both atheism and agnosticism. © Marx, Toward the Critique of Hegel's Philosophy of Right, in: Marx & Engels: Basic Writ- ings, edited by Lewis S. Feuer, New York: Doubleday, Anchor Books, 1956, p. 263. ® Scientific atheism, communism and materialist Marxism were mandatory subjects at all the universities of the USSR (also in Czechoslovakia). 21 Literally, those who are religious — ministers as well as ordinary believers.66 FRANCISZEK LONGCHAMPS DE BERIER religions. Millions of people seek their identity. Many now seek to be baptized. Muslims go on pilgrimage to Mecca. The same efforts were undertaken in Albania, "the first atheist state in the world." Fear and repression*® prevented the expression of reli- gious beliefs. Churches, synagogues and mosques of historical signifi- cance were all destroyed or converted into cinemas, youth clubs or other "cultural centers,"** Now religions form a common front to repair the damages of the past.?5 "Consciousness of this unity of the spiritual history is a recent dis- covery, which has not yet been sufficiently assimilated.'?* Although the fascination of reductionism, from Marx and Nietzsche to Freud, makes for further complication, the inscription of religion in human nature itself cannot be denied. Il, THE NEED FOR SEPARATION Given that man is a religious being, why is the separation of church and state sought? It seems to be the only way to establish and main- tain religious freedom. The important thing to acknowledge is "that the religious covenant under which the church exists and the political covenant under which the state is maintained can and should be dis- tinguished in.the mind of the citizen and that the institutions that derive from these covenants should be kept legally separate."?” Human societies very early realized that there is a fundamental difference be- tween political and spiritual life. Yet the answer to the above question has changed throughout the history. * Albania was proclaimed “the first atheist state in the world" in 1967. The 1976 Consti- tuUion of the Pcople’s Socialist Republic of Albania establishes atheism in article $7: "The slate recognizes no religion whatever and supports atheist propaganda for the purpose of inculcating the scientific materialist world outlook in people.” * arlicle 56: "The creation of any type of organization of a fascist, anti-democratic, reli- gious, and anti-socialist character is prohibited. Fascist, anti-democratic, religious, war- “mongering, and anti-socialist activities and propaganda [...] are prohibited." The Economist, Decembe’ 27, 1975: “But if religion has been killed, the impulse behind it has been carefully nurtured and trans- formed to other objects, Chief among them is Enver Hoxha, founder of the state and therefore an authority on virtually everything, It is difficult to convey the extent of this secular worship. ‘The year of Hoxha’s birth, 1908, is inscribed in white slones on hundreds of hills throughout Albania, Every factory, every institution, has what amounts to a shrine (o him, Even the hotels that cater to foreigners have a Hoxha corner, with photographs of him in every phase of his life [...] the cathedral of his cult is the gleaming white pyramid of the Enver Hoxha Muscum in Tirana in which there are glass reliquaries [...]" NaUonal Review, July 14, 1989. * Sce: The New York Times, March 27, 1992. * Eliade, Preface, p. XVI * Fey, A Protestant View: An Argument for Separation, p. 26, in: The Wall between Church and State, Chicago and London: University of Chicago Press, 1963CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 67 The world has witnessed many religious wars. Serious religious conflicts appeared with new religious ideas or with physical contacts between various denominations. The first of that kind was caused by Arianism in the fifth, Catharism and Albigensianism in the twelfth and the Reformation in the fifteenth centuries. The second one occurred petween Judaism and Christianity from the very inception of Christian- ity, and in the centuries of crusades. Various European countries became battlefields of religious wars. There are numerous examples. The political persecution under the banner of religion oppressed Jews in Spain. Religious oppression of Catholics endured for centuries in England, Wales, Scotland and Ire- Jand with a short break during the reign of Mary, when it was the An- glicans who were persecuted. France witnessed bloody wars between Catholics and Huguenots. The struggle between Protestants and Cath- olics was vehemently conducted in Germany, Belgium and the Nether- lands. A climate of intolerance reigned in the lands of Italy and in Ge- neva, where Calvin established his Protestant state. Anti-Semitic riots still take place throughout Europe. “These practices of the old world were transplanted to and began to thrive in the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or non-believers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many of the old-world practices and persecutions. Cath- olics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were pe- culiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particu- lar locality were persecuted because they steadfastly persisted in wor- shipping God only as their own consciences dictated."** Thousands of people, mainly native Americans, had new beliefs imposed on them in both North and South America. It can be argued that religious intolerance is an intrinsic feature of various beliefs. Although persecution and war was common place, it was not usually a part of any given tenet. "Religious people have a notorious record for intolerance, despite the fact that most religious writings teach understanding and appreciation of the point of views of others, and despite the fact that most religions, at one time or another, have themselves suffered persecution and intolerance. We have a diffi- cult time learning history's lessons."”? The idea of separation surfaced very late and was a human act of wisdom derived from experience. ° Everson v. Board of Education, 880 U.S. 1,9-10 (1946) ® Maddox, Separation of Church and State, New York: Crossroads, 1987, p. 41 [emphasis added]68 FRANCISZEK LONGCHAMPS DE BERIER Arguments against the establishment of religion abound. Almost invariably throughout the history, when the altar supported the throne, it proved injurious to the altar. The institutional connections with a government, where it can significantly influence the religious affairs, is detrimental to any Church at least within the Christian tra- dition in two opposite ways: the first — in keeping a church secure and reducing its religious zeal, the second — in becoming an instrument of efficient oppression. ‘The establishment of religions could affect privileges and protection from the State. That happened for example, in England,*° Scotland,! Denmark, Sweden,** where the Church became one of the "arms" of the State, and its ministers were obliged to partake not only in reli- gious but in administrative services as well. The Churches gained a lot, but they were limited to a certain territory or nationality only, as in the case of the Greek Orthodox Church.** In many of those countries which decided to establish religion the traditional Church became un- able to cope with the surge of sects or of secularization/atheisation. The ministers became primarily public servants rather than religious leaders. The percentage of believers decreased dramatically, which inevitably led to the closure of many churches.*° The role of the chur- ches declined and, in many cases, was kept alive only through govern- mental funds. None the less, a broad governmental discretion in religious affairs often became a device of planned repression of the Church. This took place in Czechoslovakia, where the framers of the first constitution of 1920 did not decide to separate Church and State. When the commu- nists seized power after the coup d’état in 1948, they proclaimed a new constitution, which was a compilation of the old one, but of "a people's democratic character, a constitution leading to socialism." the Consti- tution of 1948 did not divorce Church from State as in other commu- nist countries: the 1936 Constitution of the USSR,“* the 1949 Consti- tution of the Hungarian People’s Republic,*” or the 1952 Constitution of People’s Republic of Poland.°* 8° 1558 Act of Supremacy, 1 Eliz. 1 ¢. 1 (1558) (the act restoring to the Crown jurisdiction over ecclesiastical and marital matters); The Act of 6 Ann c. 8 (1706 c. 8) (Church of England established by law). % 1707 Treaty of Union (Presbyterian National Church of Scotland). % The 1849 Constitution of Denmark, § 4 (Lutheran Church of Denmark. °° The 1974 Instrument of Government, Transitional Provisions 9 & 3 (Lutheran Church of Sweden). % The 1975/1986 Constitution of the Hellenic Republic, article 3. ® Eg, the Church of England decided (o sell a lot of its real estate. % article 124, the same text in the 1977 Constitution, article 52. ° article 54. article 82.CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL. 69 ‘Traditionally, relations between Church and State were very close in the territories of Czechoslovakia, which had belonged to the Austrian Empire for centuries. "Since the 18th century in the Czech lands the priests’ salaries were paid by the State as compensation for the seizure of the Church property by the State under the Habsburg Emperor Jo- seph II (1780-1790). The Czechoslovak state recognized and fulfilled this obligation."® Many priests took part in the political life of the re- public, they were members of the National Assembly or of the govern- ment. The clergy was extremely loyal to the State and did not attempt to conceal it.*° The 1948 Constitution guaranteed freedom of conscience, religious tolerance and freedom to practice, equality of all religions and of athe- ists before the law.*! "Everyone is entitled to avow, in private as well in public, any religious faith, or to be without confession at all."*? Never- theless, the lack of separation and a broad state discretion in ecclesi- astical matters was used by the new government to achieve its ulti- mate goal — the communist society free from "religious superstition." This could be achieved only by making Churches totally dependent on the communist rulers. The main obstacles were with the Catholic Church because of its international connections.“ First, priests’ salaries were curtailed or cut off without any official decision: the priests, therefore, were forced to depend for their subsis- tence on the proceeds of Church property and the contributions of the believers. The communists eliminated the Catholic press: when pub- lishing and printing houses were nationalized they either refused to print or prevented the allocation of the necessary printing paper. The government established its own newspaper for the "progressive clergy" and ordered compulsory subscription. Every priest was obliged to keep it in. special files to be produced at the request of state supervisors.“* * Chalupa, Situation of the Catholic Church in Czechoslovakia, Chicago: Czechoslovak For- eign Institute in Exile, 1959, p. 6. The subsidies cach year were about 700,000,000 crowns (§ 13,280,000) as of 1948. The information from Nemec, Church and State in Czechoslovakia, New York: Vantage Press, Inc., 1955, p. 270. *° Bg, letter of Joseph Beran, Archbishop of Prague, to the communist government, cited in: Nemec, pp. 284-237. “816, © Thidem [emphasis added]. «© Bxcerpts from the letter of Central Action Commitice to the Communist Party in Prague: "1) Correspondence between archbishops and bishops and the Vatican will in the future be carried out exclusively by the government. 2) The Czechoslovak Church and the Fvangelical Church will be proclaimed "national cbur- ches.” The properties of the Catholic Church will be confiscated and assigned in case of need in favor of the national churches. 3) Priests must be calumniated under whatever conditions, especially by hiring women for ‘this purpose (especially women from Catholic families are wanted for the purpose) [...]" Docu- ment in the Archive of the SS. Cyril and Methodius League, Fitzjohn Avenue, London, NW 8. “ Chalupa, supra note 89, p. 7.70 FRANCISZEK LONGCHAMPS DE BERIER In June 30, 1949, two new ministerial bills were issued, sub- sequently approved by the National Assembly. The first provided for obligatory civil marriages and constituted a violation of the modus vivendi between Czechoslovakia and the Holy See, under which mar- riages contracted under a Catholic priest enjoyed the same recognition as those contracted before civil authorities. The second contained a clause forbidding priests to read from the pulpit any pastoral letters or papal encyclicals, which might contain anything construable as references to that regime.‘* In October, the National Assembly approved two laws: one concern- ing economic support of Churches by the State, and the second estab- lishing a special State Office for Church Affairs.*° The former declared that property should be supervised by the State, which takes care of the material needs of all Churches regarding their execution of reli- gious tasks, maintenance of religious buildings, and payment of prie- sts’ salaries. The law gave the State a right to approve candidates for clerical offices, and an oath of loyalty to the people's democratic regime was established. "The vacant posts must be filled within thirty days. If this is not done, the government may take the necessary measures to secure the regular performance of the religious functions, church ad- ministration, or education of clergymen."*” This provision opened the way not only to the approved candidates, but to the imposition of the governmental ones. The latter defined the purpose of the Government Bureau for Church Affairs as taking care "that church life and religious life devel- op in accordance with the constitution and the principles of the people’s democratic order and thus secure for everyone the right of freedom of religion based upon the principles of religious tolerance and equal rights for all denominations as guaranteed by the Constitu- tion."** Within its jurisdiction there were all matters of Church and religion; thus the office became a powerful agency to fight with Churches,*® Everything that followed was the natural consequence of the regula- tion, The first step was the removal of bishops from their posts in dio- “ Nemec, supra note 39, p. 255 “The Law of October 14, 1949, Establishing the Government Bureau for Church Affairs (No. 217 of 1949, Coll. promulgated on October 17, 1949) and the Law of October 14, 1949, to Provide Economic Security to Churches and Religious Association through the Government. (No. 218 of 1949, promulgated on October 17, 1949), in: Nemec, supra note 39, pp. 335-341 “87.3, “52. “© The struggle was important for any communist government, therefore such offices were created everywhere in the Eastern Block. In Poland, the northern neighbor, the head of Office for Religious Affairs was a member of cabinet. The Office was the forth important agency after the Ministry of Foreign Affairs, of Interior and of the Defence.CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 7 ceses and their replacement by priests from the group of Catholics collaborating with the communists. In January 1950, the government nominated a new "bishop" a person excommunicated by the Pope. Many bishops were removed by administrative means for a "negative attitude towards the laws concerning the Church." The trials against higher Church dignitaries started and the sentences were 10, 18, 20, 25 years or life-long imprisonment with very high fines. Members of various orders were arrested. Their cloisters and monasteries were closed, and changed into theaters, courtrooms, colleges, museums, police headquarters etc. Concentration camps were created, where priests and monks had "the opportunity to devote themselves to a pu- rely religious mission." Nuns were replaced in hospitals, many were sent into forced labor camps for women. Priests under 35 were as- signed to the army, older ones into Camps of Forced Labor. All denomi- national schools were liquidated as well as theological faculties and seminaries. Those students who did not apply for admission to new governmental schools and seminaries were sent to work in uranium mines.°° In three years from the moment the communists seized power, the dissolution of the Czechoslovak Catholic Church was an accomplished fact. I do not suggest that this was only because the Church was not separated from the State. Certainly, it could have been done, but not so rapidly and successfully. The communist government violated free- dom of religion and freedom of speech." The constitutional provision that guaranteed religious tolerance was a dead letter. How was it achieved? The clauses of the 1948 Constitution were very general and a mechanism of safeguards did not exist. The absence of the separa- tion clause gave a legal mechanism to oppress the Churches, and that mechanism was used.** Separation seems to be the best way to provide for a free church in a free state. The lack of it tends to destroy government and degrade religion. III. THE METAPHOR OF THE WALL Thomas Jefferson’s metaphor enjoys widespread popularity. Mr. Justice Black, writing for the Court in the Everson and MacCollum © Chalupa, supra note 39, pp. 19-29, the citation from the official news release of the Czechoslovak Press Bureau. St They eliminated the Catholic press; interdicted pastoral letters and arrested priests who read them publicly; the police confiscated a mimeograph in the Archbishop's palace. % By contrast the oppression was not so dramatic in Poland, where the separation was a constitutional fact. Only the Primate was imprisoned for about three years, and there was one significant show-irial. The hierarchy was not removed and the government could not impose its own bishops.72 FRANCISZEK LONGCHAMPS DE BERIER cases, speaks resolutely of "a wall between Church and State which must be kept high and impregnable." This striking metaphor, with its comforting connotation of certainty and security, seems to occupy a central or dominant position in the dialogue on church and state. How- ever, only closer examination can show its accuracy. "The wall" is neither a new nor a one-sided idea of describing rela- tions between church and state. Martin Luther writing an address to the Christian Nobility of the German Nation described "the Romanists" as those who “very cleverly built three walls around themselves. Hith- erto they have protected themselves by three walls in such a way that no one has been able to reform them.” The very first of them is be- tween the spiritual estate of "the pope, bishop, priest, and monks" and temporal one of "princes, lords, artisans, and farmers." Therefore, he described the separation of the spiritual and temporal powers in this way for the first time. In America, the same metaphor was used by Roger Williams, the Quaker-turned-Baptist-turned-Seeker, the founder of Rhode Island and the patron saint of those who feared the corruption of religion from any touch of politics. He uttered it when he talked about "the hedge or wall of separation between the garden of the church and the wilderness of the world." Half a century later John Locke wrote in the same vein: "[T]he care of souls cannot belong to the civil magistrate, because his power con- sists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be accept- able to God.""* Both the ideals of Roger Williams and the Lockian tradition guided the founders of American democracy. In all probability they were known to Thomas Jefferson, who repeated the metaphor in the famous passage: “Believing with you that religion is a matter which lies solely be- tween man and God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, — I contemplate with sovereign rever- ® Bverson v. Board of Education, 330 U.S. 1,16,18 (1947); MacCollum v. Board of Educa- tion, $33 U.S. 208, 212 (1948) * Luther, To the Christian Nobility of the German Nation Concerning the Reform of the Christian Estate (1520), translated by Ch.M. Jacobs, revised by J. Atkinson, in: Luther's Work 44, Philadelphia: Fortes Press, 1958, pp. 115-281, pp. 127-128. % "Roger Williams: Prophet of Freedom," 28 Church & State 4-5 (1975); see: Menendez, Classics of Religious Liberty, Silver Spring, MD.: American United Research Foundation, 1978, pp. 1- * Locke, Letter Concerning Toleration. in: the People Shall Judge (1949), pp. 126-127; see: ‘The Wall between Church and State, Chicago and London: The University of Chicago Press, 1963, pp. 36-37.CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 73 ence 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 separa- tion between Church and State."*” It has to be remembered that Jefferson wrote these words in a pri- vate letter in reply to an address to him by a committee of the Danbury Baptist Association. Therefore, his opinion cannot be a source of legal interpretation, which helps to give a plain understanding of the practi- cal consequences of the Establishment Clause. On the contrary, the form of the Clause as recorded in the Constitution was agreed to on an opposite rationale: the Virginian model of religious neutrality and the Massachusetts establishment of a state church. The letter was cited for the first time by the decision in Reynold in 1879.°° The Supreme Court paid attention to it about one hundred years after the letter was writ- ten. Sixty eight years later, Mr. Justice Black speaking for the Court used the metaphor in Everson (1947) and again in MacCollum (1948).°° ‘The conclusion is worth noting. The wall-of-separation is not an original invention of Thomas Jefferson. He did not even popularize it, because it remained in his papers for several decades before "the dis- covery." It was rather Justice Hugo Black and the Court authorities that introduced the metaphor to the interpretation of the Establish- ment Clause. The question still remains whether the meaning of the wall should be expounded according to the Jeffersonian understanding or to that of the Court. A highly regarded specialist of church-state relations elaborates on the metaphor. “The term wall, as Jefferson used it, means a distinction, a limita- tion, a definition of fields of competence and authority. The separation is not between people, dividing them into religious or ideological ghet- tos between which there can be no communication. It is primarily an idea in the mind of the citizen as he distinguishes between his obliga~ tions in separate fields. It clarifies rather than confuses thought, and it encourages rather than discourages dialogue between citizens. It is a line between two orders of experience, between absolutes on one side and relativities on the other, between the deep issues of faith and the practical issues of politics. It separates two realms of authority, each of which functions best when the two are distinguished."°° In that context, Mr. Justice Black's remarks that the wall "must be kept high and impregnable" are troublesome. First, it is difficult to 57 Writings of Thomas Jefferson, Monticello Edition, Vol. 16, pp. 281-282. % Reynold v. United States, 98 U.S. 145, 163 (1879), © See: Supra note 53. © Rey, A Protestant View: An Argument For Separation, in: The Wall between Church and State, supra nole 56, pp. 37-3874 FRANCISZEK LONGCHAMPS DE BERIER explain the words "high and impregnable" and the reason why they were used to interpret the wall-of-separation metaphor. In Board of Education v. Allen® the Court upheld the New York statute, which re- quired local public school boards to lend textbooks, designed for use in public schools, to all school children in the district. That also meant that students in religious schools received the books. Justices Black, Douglas and Fortas disagreed with the Court that schools pursue two goals, religious instruction and secular education. The Justices explai- ned their dissent saying that the wall should be left high and impreg- nable. It indicates that, at least for them, the wall meant something else than what Jefferson had had in mind. They introduced their own idea of strict prohibition of interaction between the state and a religious denomination under the old "label". The new meaning was apparently accurate, because "a wall" suggests something rigorously separating, However, the Court did not accept this absolutization and noted: "our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense." Therefore, the understanding of the metaphor, which has a tendency of preventing any connection between church and state in all respects, is a personal choice of certain Justices. Secondly, keeping up the wall is problematic. Certainly, the framers did not think about these relations in a rigorous way. They decided to introduce a healthy official distance-between religion and the govern- ment they envisioned, which "rest{s] on the belief that a union of gov- ernment and religion tends to destroy government and to degrade reli- gion."** Nevertheless, they kept alive their own religious commitments®* and they did not intend to prevent religion from having influence on the society.°° Additionally, all US history shows the "keeping" of the wall "high and impregnable" was neither practical nor desired.*” It was * 992 US. 256 (1968) ® Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) © Rive cases, besides Everson and MacCollum, describe the wall as "high and impregna- ble,” but solely in dissenting opinions. © Engel v. Vitale, 870 U.S. 421, 431 (1962). “© Maddox, Separation of Church and State, New York: Crossroads, 1987, p. 61 “ Stanmayer, Clear and Present Danger, 1983, p. 90. ©" “There are many ‘aids’ (o religion in this country at all levels of government. To mention but a few at the federal level, one might begin with observing that the very First congress which wrote the First Amendment provided for chaplains in both Houses and in the armed services. There is compulsory chapel at the service academies, and religious services are held in federal hospitals and prisons. The president issues religious proclamations. The Bible is used for the administration of oaths. N.Y.A. and W.P.A. funds were available to parochial schools during the depression. Velerans receiving money under the 'G.L" Bill of 1944 could attend denominational schools, to which payments were made directly by the government. During World War Tl, federal money was contributed to denominational schools for the train ing of nurses. The Hospital Survey and Construction Act of 1946 specifically made moneyCHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 78 rather required to define in all respects the ways in which there shall be union or dependency of one on the other. Otherwise there would be alienation between the state and religions: churches would not even pay property taxes, municipalities would not protect religious groups and their property from fire. Prayers in the legislature and presidential appeals to the Almighty® would be unconstitutional as well as the Pledge of Allegiance "One nation under God," the motto "In God We Trust” on every coin and dollar bill, "so help me God" in courtrooms or opening of each session with the invocation "God save the United States and this Honorable Court." Benjamin Cardozo writes "[mletaphors in law are to be narrowly watched, for starting as a device to liberate thought, they end often by enslaving it."°° That precisely happened with the wall-of-separation. Mr. Justice Black took the Jeffersonian metaphor too "seriously" and expounded it misshaping in an unacceptable way. He created an ideal- istic but dubious wall, which was incompatible with the reality. Howev- er, although some aspects of life can be described by allegories or im- ages, it is nonsense to convert life into Mr. Justice Black's deviated metaphor. Life is not a metaphor. The reality is more complicated, therefore I would advise caution with "the wall,” even to the extent of abandoning it completely. The wall-of-separation became an ideological label. Whoever uses it attaches his own interpretation. Therefore, everybody speaks with the same words, but having various meanings in mind. This false propa- ganda of "magic" words is the antithesis of communication. It blurs the truth and militates against the public good in the name of purely paro- chial interests. Having said this, it is essential to depict the way of achieving a healthy and reasonable relationship between church and state, ac- ceptable to all. That does not mean that it will necessarily be accepted by all, but at least by those who acknowledge the principle of reason- ableness. Then, the two extreme points must be considered. The first is when the state establishes a church. Then, the state is institutionally involved in the church, and substantially influences religious affairs. In the second, a secular state calls for total separation. It tries to break any existing ties with denominations and prohibits them from operat- available to non-public hospitals [...] Religious organizations are exempt from the federal income tax and are granted postal privileges. Up to defined limils — 15 per cent of the ad- justed gross income of individuals and 5 per cent of the net incomeof corporations — contri- butions to religious organizations are deductible for federal (ax purposes. There are no limits to the deductibility of gifts and bequests (o religious institutions made under the federal gift and estate tax laws." Fellman, The limits of Freedom, 1959, pp. 40-41 “© Lynch v. Donelly, 465 U.S. 668, 675-676 (1984) nn. 2, 3. © Berkey v. Third Ave. Ry, 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926).76 FRANCISZEK LONGCHAMPS DE BERIER ing beyond the very private activities of their members. Obviously, neither of these arrangements is advantageous, or realistic. Neither can guide any legal arrangement, which intends to go beyond the realms of pure theory. Certainly, Americans do not want religion to take over the engines of government, as has happened in places like Iran. Separation is the best way yet devised to ensure a free church in a free state.”° Unfortu- nately, although the United States has avoided the establishment of a religion, its legal thought was seduced by the distorted wall-of-separ- ation doctrine, which tends to the second extreme position. This dan- gerous situation was introduced by the Supreme Court in the late 1940s. Although the highly curved line of cases shows that the idea cannot be totally incarnated, its influence on the authors of the Lemon test”! is obvious. The strict separation proclaimed by the test responds neither to the needs of citizens-believers, nor to the political interests of the government. This became clear in the fall of 1983, when the US Senate unexpectedly passed the legislation that cleared the way for the President to appoint an ambassador to the Holy See. The Republican President's nominee was confirmed by the Democratic Senate in spite of serious protests around the country. These days, the group of people convinced about the necessity of achange in the legal arrangement of relations between church and state grows rapidly embracing the majority of society. The test should be reshaped and liberalized. The new "line" has to be drawn in a way satisfactory for all, but without any influence of simplified metaphors and slogans of political and ideological propaganda. I am convinced that in detailing the new arrangement it would be advantageous to take a look at a few examples of countries which shape the relations between church and state keeping the separation, but in a different manner to that of the United States. A. Germany ‘The Basic Law of Germany, which is a federal state as well, incorpo- rated several articles of the Weimar Constitution of August 11, 1919,” relating to religious affairs. In relation to them, the Federal Republic of Germany introduced many regulations that correspond to those of the % See: Maddox, supra note 65, pp. 10-14. 7 "Every analysis in this area must begin with consideration of cumulative criteria devel- oped by the Court over many years. Three such tests may be gleaned from our cases. First. the statute must have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen; finally, the statute must not foster "an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-618 (1971). % article 140 incorporates into the Basic Law Articles 136, 187, 188, 189, 141CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL, 77 Constitution of the United States. There is no establishment of a state church (Article 137.1). Freedom of religion and free exercise thereof is guaranteed (Article 4) as well as freedom from the coerced performance of any religious act (Article 136.2). The Basic Law acknowledges the fundamental importance of religious freedom, giving it special constitu- tional protection. It indicates that religious expression cannot be re- duced to an aspect of some other right such a speech (Article 50), as- sociation (Article 9), or personal inviolability (Article 2).”° Neither civil nor political rights can depend on religious beliefs, nor can eligibility for public office be determined by creed (Article 136.2). A compulsory religious oath is prohibited (Article 136.4). The Federal Constitutional Court (Bundesverfassungsgerichi) has been interpreting to extend the right of free exercise not only to Chris- tian churches, but also to religious creeds and ideological associations as well. It is interesting also that these associations, which have the purpose of cultivating a philosophical ideology, are granted the same legal status as religious bodies (Article 137.7). As a result the State remains religiously and ideologically neutral, but without mention of "separation" by the Basic Law. The central idea of neutrality is identi- fied as non-intervention, non-identification, equality, and cooperation. Non-intervention demands the state’s disentanglement from religious organizations in order to preserve their autonomy. Non-identification constrains the state from taking sides in religious conflicts and from endorsing any religion or ideology. Equality requires, at the level of the institutional church, that denominations share equally in the distribu- tion of public benefits and burdens. Finally, cooperation implies ac- commodation or joint action in various fields of activity. The practice of non-intervention, so similar to the American doctrine of neutrality, has one basic assumption. It cannot be exaggerated into an absolute non- -concern, when it might have the effect of inadvertently favoring anti- -religious outlooks and thereby becoming an unacceptable type of pas- sive intervention.”* Therefore, the German model is not separation in the French or American sense. However, it is worth noting that such a status quo was worked out in a country which witnessed more reli- gious strife than France and the New World together. ‘There are four main areas of the legal arrangement, where the feder- al state is neutrally involved in religious affairs: a) maintenance of religious schools, b) teaching of religion in public schools,”* ™ Kommers, The Constitutional Jurisprudence of Federal Republic of Germany, Durham Duke University Press, 1989, pp. 442-443 ™ Rumpelkammer Case (1968) 24 BVerfGE 236, in: supra note 73, pp. 445-446. *S Kommers, supra note 73, pp. 472-473 referring (o an unpublished papers of Durham, Religion and the Public Schools: Constitutional Analysis in Germany and the United States. ”* See: Helmreich, Religious Education in German Schools, Cambridge: Harvard University Press, 1959.78 FRANCISZEK LONGCHAMPS DE BERIER c) recognition of churches as "corporate bodies under public law", d) authorizing the "bodies" to tax their members. There are three kinds of elementary and secondary school in Germa- ny: confessional, interdenominational and secular. All of them are public and all are fully financed by the government. The wholly non- -religious programs are provided in secular schools. The interdenomi- national school, which is Christian-oriented, serves students of all denominations, The preference for public schools is unambiguous in the German educational system, although Article 7 guarantees the right to estab- lish private schools. The Federal Constitutional Court ruled that when a state permits a private school to operate upon the request of the parents, it must provide for its minimal existence.’” Religion is taught in public schools and this fact is relatively non- -controversial (Article 7.3). Consequently, even in secular schools, religious education classes often take place, and are taught on a volun- tary basis by persons who are not regular members of the teaching staff. Usually, the alternative classes of philosophy, ethics, or history of art are provided for those students who do not take religious in- structions. The Court emphasizes that the system affirms Christianity within the context of secular disciplines. It refers to the recognition of Chris- tianity as a formative cultural and educational factor, which has devel- oped in western civilization, but it does not refer to the truth of the belief. However, the legislature cannot limit a school’s educational goals to those belonging to Christian denominations.”* It should be added that freedom of religion, like freedom of the press, is an institutional as well as an individual right. The churches direct the program of religious instruction under the general supervi- sion of the state. The Jewish community is involved in this coopera- tion, and recently North Rhine-Westphalia, with the support of the Turkish government, introduced special Islamic classes for Muslim children attending public schools.”® This step was taken even over the objection of German mainline churches and private Islamic schools, whose teachers demand the exclusive right to instruct students in the Koran. The Federal State recognizes churches as "corporate bodies under public law" (Article 137.5). As a result the churches receive the status of legal bodies. Any religious organization shall be granted such a right upon application if its constitution and the number of its members offer an assurance of permanency. Also associations "whose purpose is 77 78 BVerfGE 40 (1987). * 41 BVerfGE 29 (1975). ” Frankfurler Rundschau, July 21, 1988.CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 79 the cultivation of a philosophical ideology shall have the same status as religious bodies" (Article 137.7). The most striking cooperation between government and church remains in the area of levying taxes. This very special sovereign privi- lege is exercised in favor of religious denominations and substantially differs from the collecting of contributions from parishioners. Religious societies are able to impose fees and contribution requirements with- out state interference, when the church tax is a common concern of both church and state. Article 137.6 provides that religious bodies, which are corporate bodies under public law, "shall be entitled to levy taxes in accordance with the state law on the basis of civil taxation lists." Thus, the state is obliged to establish conditions for the levying of taxes with the possibility of compulsory collection. The state makes its apparatus available to the church for the collection of taxes and the state regulation is necessary to administer the tax. Consequently, the levying of the church tax is a subject to judicial review.®° The constitu- tional validity of the church tax is not questioned. The primary recipients of the tax are Catholic and Protestant (Re- formed and Evangelical) churches as well as the relatively small Jewish community. Nevertheless, any other religious group or association which obtain the status of "corporate body under public law" benefits from the constitutional policy. The church finance offices can collect tax directly, but most churches delegate this function to their respec- tive state governments. They usually collect it as a surcharge (8 to 10 per cent) on the assessed income tax of resident individuals whose names appear on baptismal records. The procedure is the same as with income tax, where the employer withholds and remits the church tax to a state revenue office. The state distributes the funds to the church- es in amounts proportionate to their total membership.*! The money is used not only for religious purposes, but, as has been the practice for centuries, to operate and maintain schools, hospitals, nursing homes, orphanages and various charitable organizations. ‘The tax applies only to natural persons™ and is limited to the fixed percentage of taxable income. State law may not impose a church tax upon a third person not belonging to a certain church. That was a matter of controversy in cases of mixed marriage, especially when only one spouse worked professionally. The Federal Constitutional Court invalidated the Baden-Wurttemberg statute imposing taxes on employ- ces, who are not church members, but only their wives belong to the church.®* The same happened in the Bremen case, where the Court *° Church Construction Tax Case, 19 BVerfGE 206, 217-218 (1968) ® Spolts, The Churches and Politics in Germany, Middletown, Conn: Wesleyan University Press, 1973, pp. 193-199. ® Church Construction Tax Case, 19 BVerfGE 206 (1968), (holding) "© Mixed Marriage Church Tax Case I, 19 BVerfGE 226 (1965), Mixed Marriage Church Tax Case Il, 19 BVerfGE 242 (1968).80 FRANCISZEK LONGCHAMPS DE BERIER, struck down the law according to which a salaried non-church member was required to pay on behalf of his non-salaried spouse who was a church member. The Court invalidated the law basing the church tax on half the income of both spouses in a marriage, where only one spouse belonged to the church.®? ‘The state is bound by ideological and religious neutrality, meaning that the state is not permitted to confer on a religious society any sov- ereign authority over individuals who are not among its members.°* But it cannot also decide who is a member, therefore any person whose name appears on a church registry is automatically subject to the tax. An individual who wants to be relieved of the tax must formally with- draw from his church.*” The constitutional system of the Federal Republic of Germany pro- vides the separation between church and state, although this word is never used, The modus vivendi established by liberal law and public practice ensured free churches in a free state, and prevented the cre- ation of a state church or a church state. Certainly, the relations can- not be described by "the wall" metaphor in its literal sense. It is hotly disputed among German scholars whether they can be described as "coordination" or rather as "cooperation". Nevertheless, the principle of religious and ideological neutrality is central to the constitutional sys- tem. The principle has one additional advantage: it does not create a "secular" fiction, which is set against the religious reality. Neutrality as a lack of religious determination provides tolerance: freedom of religion as well as freedom from religion. Therefore, the state can operate on behalf of the citizens helping them to exercise their faith, to perform various social actions for the community, and preserve the heredity of moral and cultural values, At the same time the government is not substantially involved in religious affairs, remaining unattached to any church. B, Switzerland Switzerland was created as a federal state in 1848. The Federal Constitution, which was influenced by the American model and begins "In the Name of God the Almighty," was framed in 1874. It is still in force, although many changes were introduced during the Kulturkampf, when provisions about freedom of belief and conscience were inserted. However, there is no official separation between church and state, the °* Bremen Church Tax Case, 19 BVeriGE 248 (1968). ® Split Income Church Tax Case, 19BVerfGE 268 (1965). ®° Church Construction Tax Case I, al 216. *” Every year approximately 175,000 people withdraw from churches, overwhelmingly for financtal reasons.CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 81 entire Federal system is built on a basis which secures religious peace. Thus, although there is no federal church established, most of the cantons recognize that one or several churches are those of the majori- ty of their inhabitants. The so-called "union" often means only friendly relations and cooperation between the government and the church in matters of common concern. Some cantons are divided into two parts, each with its own legislature and its own particular church-state relations, Most of the Protestant cantons have a state church, the or- ganization of which is governed exclusively by the state law.** The federal State was built on a broad compromise and consensus, among often religiously hostile cantons. The maintenance of confes- sional peace serves not only the prevention of conflicts, but also the petrification of the domination of a certain church within the borders of acanton. The framers of the US Constitution from Massachusetts and New Hampshire had the very same intention in mind. Unlike in Germany, the state does not collect taxes for churches. Nobody is obliged to pay taxes, which serve purposes of cult,°° but the use of tax money by churches to fulfill their social and other activities, which serve the public good, do not come under this restriction. As aresult, the large sums which are spent on aid to church-related schools are not generally disputed. Nevertheless, cantons themselves can require the levying of taxes as occurs in Geneva and Neuchatel. ‘These cantons merely lend their taxing agencies to churches and allow their parishioners to make their contributions through the tax collec- tor. In cantons like Vaud, people are compelled to pay taxes into the general fund of the state, which provides a budget for the national church. Nevertheless, there is no compulsion, because every individual is free to resign form his church, thus divesting himself of the respon- sibility of making contributions to its maintenance.” Besides, the fed- eral court has intervened to prevent the collection of taxes from an unwilling donor not belonging to a religious community.” The legal system permits cantons to provide for religious instruction in their schools, but no child is compelled to take courses in religion against the wishes of his parents or guardians.°* Therefore, teaching of © O'Brien, Church and State in Switzerland: A Comparative Study, 49 Va.L-Rev., 904, 906 (1963), ® Stockli, Church-State and School in Switzeriand and in the United States, Berne: Herbert Lang & Co, Ltd., 1970, p. 27: % Article 49 § 6: "No person may be compelled to pay (axes the proceeds of which arc specifically appropriated in payment of the purely religious expenses of any religious commu- nity of which he is not a member.” % Hughes, The Federal Constitution of Switzcrland 62 (1954) ® [1880] IV Arrets du Tribunal Federal 505. ® OBiern, supra nole 88, p. 920.82 FRANCISZEK LONGCHAMPS DE BERIER religion in public schools is not a hotly discussed issue; on the con- trary, the status quo is accepted and seem to work well. William O'Brien comments on the advantages of the system. His remarks are equally true for the situation in Germany. "In Switzerland, the ministers appear to be less engrossed in materi- al activities than their counterparts in America, They have more time to be shepherds of their flocks and need devote little energy to con- ducting carnivals, raffles, and bingo games. One hears few "money sermons" from Swiss pulpits. It might also be suggested that a Swiss minister is likely to be much less inclined to trim his doctrine to satis- fy the desires of a leading contributor. In general, his attempt to estab- lish the proper rapport with his parishioners are perhaps less embar- rassed, inasmuch as his support and that of his church does not de- pend upon the contributions given by those for whom he is a spiritual guide."** On the lower level, the German system differs from its Swiss coun- terpart, where the cantons establish state churches and are institu- tionally involved in religious affairs. Nevertheless, the federal state is neutral in both countries and is effective in securing confessional peace. The consistent Massachusetts model, abandoned in the United States, works satisfactorily in Switzerland. However, the effects of that legal arrangement on the federal level are strikingly similar to those in Germany, especially in the area of tax collection and religious instruc- tion in schools. Both federations are wealthy and prosperous coun- tries, which cannot be described as clerical, even if the state is allowed to coordinate and supply churches. It proves that the wall is not neces- sary to provide healthy relations between the government and religion. ‘The proof is convincing here — in Switzerland and Germany — as the constitutional systems have the capability to accommodate effectively diverse beliefs, which for centuries were in perpetual antagonism. But for that reason many scholars have problems with drawing a clear line between manifestations of the religious covenant and those of the polit- ical one. In both countries there is no doubt about what is allowed in practice and what interferes not only with freedom of religion but with freedom from religion as well. The scheme is not simple, though it has one main advantage: it iunctions according to the will of all citizens. C. Israel In Israel, the absence of the constitution means that religious au- thority is not clearly defined. Yet Israel has no official state religion. Ben-Gurion, the founder of the State, in his letter to the ultra-Ortho- dox Agudat Yisrael party promised that the future state would put °* Ibidem,CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 83 personal status under the jurisdiction of religious law, declare the Sabbath an official day of rest, and support religious education. It became the status quo. The discussion about whether there is a separation of church and state in Israel is on-going amongst the scholars.” The situation is complicated by the special character of Judaism. Halakha, those norms which have been accepted as binding by Rabbinical Orthodox Judaism, is predominantly legalistic and establishes a coercive order demanding obedience to its precepts. Although belief is usually the main component of religion, Halakha is in favor of the use of coercion in order to achieve the desired behavior, even in relation to a person who denies principles of faith. The idea of coercion is strengthened by the principle of collective responsibility, especially im regard to the privilege of living in the Holy Land.°° Additionally, Judaism does not function in an ecclesiastical framework. The principal organizations struggling to attain the aims of religion are the religious parties, who are represented in the Knesset.°” The State of Israel, guided by principles of tolerance and equality between religions, did not accept the unity with the Jewish religion. It considers itself above religion,”* therefore Judaism has not been be- stowed preference over other religions and communities. It is not "the religion of the state." The state recognized freedom of religion, which is also viewed as freedom from religion. The Supreme Court explained that "freedom of religion does not mean to do everything which religion permits, but freedom to fulfill what religion commands."** Consequently, the organi- zation of the religious community is regulated to a varying degree by the law with regard to Jews, Muslims, and Druzes. Religious services are financed by the Government.1°° There is no established religion in the ordinary sense in Israel. How- ever, the state regulates the matters of religion, grants legal authority to religious organs and gives effect to certain religious provisions. Izhak Englard points to the main principles of the existing order that shows relations between religion and government: ° See: Jewish Law in Ancient and Moder Israel, prepared by H. Cohm, Ktav Publishing. House, Inc, 1971, pp. 168-224. © Englard, The Relationship between Religion and State in Israel, in: Jewish Law in An- cient and Modern Israel, supra note 95, pp. 168-189, 171 ® Wbider, p. 177. © See: Goldman, Religious Issues in Israel's Political Life (Jerusalem, 1964), p. 52 ct sa. © Milkam v. Sharia Judge of Akko (1954), 8 P.D. 910, 919. The same argument can be made in favor of the Tunisian regulation, which allows only monogamic marriages: the Koran recommends having one wife, but prohibits more than four. ¥° Rubinstein, Law and Religion in Israel, in: Jewish Law in Ancient and Modern Israel, supra note 95, pp. 190-224, 199-209.84 FRANCISZEK LONGCHAMPS DE BERIER "a, The State recognizes the jurisdiction of religious courts: matters of marriage and divorce of Jews in Israel, citizens of or residents in the State, are within the exclusive jurisdiction of rabbinical courts. These courts decide according to the Halakha. "b. In certain other matters of personal status the provisions of the Halakha are binding and are applied even in the civil courts. "c. The State gives powers to the Chief Rabbinate and prescribes the organization and composition of this institution, which is supported by state funds." "d. On the local level the State gives powers to Religious Councils, prescribes their organization and takes care of their budgets. "e. The State attends to religious education and there is a network of State Religious Schools. "f. The state maintains a Ministry of Religion which has a budget in its disposal for further religious needs. "g. The State has enacted laws with a religious background concern- ing the Sabbath and Holidays, and dietary laws. “h. The army has established a chaplaincy, vested with the authori- ty, within the framework of the army." The Supreme Court monitors whether the state infringes on reli- gious affairs beyond the limits of law. The Court invalidated the admin- istrative order of a municipal authority, which prohibited granting a license to a butcher who sells pork in his shop. Municipalities have no concern themselves with preserving tenets of religion, therefore the practice was found illegal.'°* Yet the Court has held that the Road Traf- fic Controller may order the closing of sections of streets adjoining the main synagogues during the hours of prayer.'** Therefore, the authori- ties can assist and facilitate denominations securing freedom of exer- cising even if it causes some inconveniences to others. ‘The religious law sponsored by Agudat Yisrael forbidding buses from leaving their stations until the end of Sabbath was passed in the Knes- set. It is an example of legislation enacted through exercise of religion. The new bills are now prepared: one will ban "provocative" advertise- ments, another will restrict the sale of pork to Christian areas only, and limit the number of hospitals that can authorize abortions.’ All of them are legitimate political actions, which comply with the religious convictions of social groups, and submitted to the democratic process. °! The two Chief Rabbis are equal in status and salary to the President of the State and its judges. 18 Englard, supra note 96, pp. 178-179. 109 aksel v. Mayor of Netanya (1954) 16 P.D. 1524. 1°" League for Prevention of Religious Coercion v. Council of Jerusalem Municipality (1962) 16 P.D. 2655. 45-The Jerusalem Report, Jan. 16, 1992, pp. 7-12.CHURCH-STATE RELATIONS: SEPARATION WITHOUT THE WALL 85 It seems clear, the State of Israel can be criticized for an excessive governmental entanglement with religion. Even so, it provides religious harmony in the Holy Land of Judaism, Christianity and Islam. There is no establishment of religion in Israel, although Judaism has consider- able influence on the state as the religion of the majority of its citizens. ‘The same is true in all Islamic countries, and states with an over- whelming Catholic majority like those in Latin America. ‘The Israeli legal system demonstrates how groups of citizens can proceed participating in public life to provide for themselves free exer- cise of religion. The example indicates that religious requirements can be diverse from those that Christianity is accustomed to. None the less, religious freedom must not be limited only to Christians. The confessional needs of Jews, Muslims and all the others can differ, but should be accommodated in a way acceptable to them, if these people are to be regarded as members of society. There should be something more than mere non-intervention of the state. Easy silence for some citizens is blasphemy for others. The deep influence of the religion of the majority is natural and perfectly legitimate, but in order to be considered just, the rights of minorities must be protected. D. Mexico ‘Times of change have come not ‘only for the United States. Mexico also witnessed a significant reform at the beginning of 1992. The Constitution of the United Mexican States framed February 5, 1917, was the first and the most famous socialist constitution in the world. It was also deeply influenced by anti-religious sentiment and created a high and impregnable wall, which not only separated, but discriminated against religious denominations. The substantial change of all the "religious" provisions came into force on March 28, 1992.'°° ‘The amendment abolished many restrictions against religion, gave ministers of cults, as ordinary citizens, the right to vote, recognized religious associations, which had no judicial personality before, opened the way for foreigners to become ministers in Mexico etc. Wearing of clerical clothes publicly is not penalized any more. ‘The Constitution of 1917 never employed the word "separation." Article 130, as amended, starts: "[t]he historic principle of separation between state and churches determined the provisions contained in the article." The formulation of the sentence'” makes clear, as we have al- 2°" Decree Amending Articles 3, 5, 24, 27, 10, and XVII transitory of he Constitution of the United Mexican States 107 1{ has to be reminded that the usage of certain words is essential for civil law systems, because of fixed meaning altached to them,