When I was in high school, two of my classmates were ultra-conservative religious types. One was a Mormon and the other was the member of a small, fundamentalist sect. The two inevitably took the same side in any political discussion and came to see each other as allies in classroom debates about virtually any political issue, from abortion to homosexuality to tax policy. A fellow Catholic classmate and I often noted, with no small bit of satisfaction, the irony that, even while these two had each other's backs in political discussions, they each believed that the other was going to burn in hell when he died.  What my classmate and I believed in high school may not have been an accurate reflection of Mormon theology about the afterlife (see, e.g., this article), but the alliance between my two conservative classmates was clearly rooted more in political expediency than in theological affinity.   (Thanks to Gene O'Grady for correcting my misunderstanding of Mormon theology in the comments.) 

I've often thought about my two classmates when I consider the stability of the coalition of sorts that has emerged in recent years between conservative Catholics and evangelical Christians in this country. Rooted as it is in the politics of abortion and homosexuality, it strikes me that it is, at base, no more than a marriage of convenience, or as John Rawls might say, a "mere modus vivendi."

After all, many hard core fundamentalists have long considered the Pope to be the Whore of Babylon. And, of course, there's the issue of evangelicals proselytizing in Catholic countries. Consider this comment from the president of the International Mission Board of the Southern Baptist Convention explaining why his group continues aggressively to seek converts in Catholic countries:

Why would we invest such efforts in Catholic countries? The answer isquite simple: It is because they are lost, Rankin said. The peoplemay be identified as cultural Christians since that is theirsocio-religious profile, but most of them do not have a personalrelationship with Jesus Christ.... They, too, deserve an opportunity tohear, understand and respond to the life-changing message of theGospel. They cannot be ignored in our commitment that all peoples wouldknow our Lord Jesus Christ.

That's hardly the foundation for a lasting friendship.

The problem with modus vivendi, as Rawls points out, is that they have a tendency to last only until one party gets the upper hand. How might the fragility of this coalition of the orthodox rise to the surface? One way would be if conservatives actually got their wish and the Supreme Court interpreted the Establishment Clause to permit more of the sorts of state-sponsored, faith-based programs described in today's New York Times:

Life was different in Unit E at the state prison outside Newton, Iowa.

The toilets and sinks white porcelain ones, like at home were ina separate bathroom with partitions for privacy. In many Iowa prisons,metal toilet-and-sink combinations squat beside the bunks, to be usedwithout privacy, a few feet from cell-mates.

The cells in Unit E had real wooden doors and doorknobs, with locks.More books and computers were available, and inmates were kept busywith classes, chores, music practice and discussions. There wereoccasional movies and events with live bands and real-world food, likepizza or sandwiches from Subway. Best of all, there were opportunitiesto see loved ones in an environment quieter and more intimate than thetypical visiting rooms.

But the only way an inmate could qualify for this kinder mutation ofprison life was to enter an intensely religious rehabilitation programand satisfy the evangelical Christians running it that he was makingacceptable spiritual progress. The program which grew from a projectstarted in 1997 at a Texas prison with the support of George W. Bush,who was governor at the time says on its Web site that it seeks tocure prisoners by identifying sin as the root of their problems andshowing inmates how God can heal them permanently, if they turn fromtheir sinful past.

One Roman Catholic inmate, Michael A. Bauer, left the program aftera year, mostly because he felt the program staff and volunteers werehostile toward his faith.

My No. 1 reason for leaving the program was that I personally feltspiritually crushed, he testified at a court hearing last year. Ijust didnt feel good about where I was and what was going on.

This strikes me as one of those "be careful what you wish for" stories. It may be the case that, as was recently discussed on this site, the language of the separation of Church and State was historically rooted in anti-Catholic sentiment, as Philip Hamburger has argued. But the dubious origins of the discourse of "separation" does not mean that, as a substantive matter, the consequences of separation of Church and State are not as good for Church as they are for the State.

UPDATE: I want to make clear that I'm not at all committed to the most extreme legal understanding of separation of Church and State. My point is that there are reasons to support some of the conclusions reached under the separationist logic, notwithstanding the historical connections Hamburger points out between the origins of the rhetoric of separation and anti-Catholicism. Once the power of the state is permitted to enter too far into the domain of religion, or vice versa, some predictable things start to happen. I fully agree with those who would argue that there ought to be more room for faith in the public sphere, but that's a far cry from the program described in the NY Times today -- state-subsidized proselytizing of a literally captive audience, which seems to me to be exactly the sort of thing that would be likely to generate the kinds of intra-religious conflicts I'm describing. My view on the Establishment Clause is vaguely along the lines of Douglas Laycock's neutrality position, and, while that tends to allow more "establishment" than the typical ACLU member would appreciate, I think it's hard to square with straight-up state funding for a program in which Catholic inmates can be browbeaten by evangelicals in order to receive more comfortable cells.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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