Divided by God

When does state action acknowledging the role of faith in our nation’s history become an illegal establishment or endorsement of religion? Where is the line between accommodations for religion that the First Amendment permits-even encourages-and prohibited special privileges for believers? And, when might judges’ efforts to reduce religious strife cause the very divisions they are intended to prevent? Three new books by prominent scholars explore these and other pressing questions.

The tone of Noah Feldman’s Divided by God is warm and his aims irenic. His starting point is the observation that “we are, increasingly, a nation divided by God....We all believe in religious liberty...[but] we cannot agree on what the relation between religion and government should be.” To this premise, Feldman adds an engaging account of the origins of the Religion Clause, the development of current church-state legal doctrine, and our persistent, evolving debates about the place of religious believers and commitments in politics and the public square.

Justice David Souter observed in one of the recent Ten Commandments cases that “the divisiveness of religion in current public life is inescapable.” Feldman agrees, but he also insists that the rival “camps” in the culture wars share the same goal. True, “legal secularists” see “religion as a matter of personal belief and choice largely irrelevant to government” and are “concerned that values derived from religion will divide us, not unite us.” “Values evangelicals,” on the other hand, “insist on the direct relevance of religious values to political life” and believe that “convergence on true, traditional values is the key to unity and strength.” The two groups, though, share the hope of “reconciling national unity with religious diversity.” While “values evangelicals think that the solution lies in finding and embracing traditional values which we can all share and without which we will never hold together,” the “legal secularists think that we can maintain our national unity only if we treat religion as a personal, private matter, separate from concerns of citizenship.”

Feldman contends that the reconciliation both groups seek is undermined by the Court’s misshapen Religion Clause doctrines. He argues that the framers’ aim was to protect the liberty of conscience by forbidding taxation and public spending in support of religious institutions; the Supreme Court, though, has permitted public funding of parochial schools and religious charities. At the same time, the contemporary Court aggressively polices, and often censors, public religious symbols and messages, even though the founding generation “did not think the state needed to be protected from the dangers of religious influence, nor were they particularly concerned with keeping religious symbolism out of the public square.”

In Feldman’s view, the way to unity-in-diversity is to flip things around: We should “permit and tolerate symbolic invocation of religious values and inclusive displays of religion while rigorously protecting the financial and organizational separation of religious institutions from institutions of government.” “Values evangelicals,” he states, “must recognize that government funding of religion will, in the long run, generate disunity, not unity.” At the same time, “legal secularists” must abandon their hostility to religious expression, arguments, and symbols in the public sphere.

If Divided by God is an invitation to reconciliation, Marci Hamilton’s God vs. the Gavel is more of a cri de coeur. And, if part of Feldman’s project is to correct legal secularists’ misguided fear of religious faith, Hamilton’s bracing argument is that Americans need to remove their “rose-colored glasses and come to terms with the necessity of making religious individuals and institutions accountable to the law so that they do not harm others.”

The first part of God vs. the Gavel is an indictment, charging that “religious entities” are often unjustifiably exempted from laws that protect people from harm. Hamilton contends that, because of the power of religious interests and our “romantic attitude toward religious individuals and institutions,” we have been too quick to “immunize” them from laws dealing with child neglect, discrimination, prison management, and land use. She accuses courts and lawmakers of failing to honor what she calls the “harm principle,” and of rolling over to protect the parochial interests of religion rather than the “public good.”

This is to say not that accommodations to religion are never warranted or wise, only that they should be critically and publicly debated, and enacted by legislatures rather than imposed by courts. The burden, though, should always be on religious entities “of proving that exempting them renders no harm.” Special treatment for religious parents who refuse to provide necessary medical care to children, for example, flunks Hamilton’s test; permitting churches to “discriminate” for religious reasons when hiring and training ministers usually does not. Her bottom line is that while “forbidding religious exemptions altogether would be tyranny, granting them as of right is anarchy.”

Winnifred Fallers Sullivan challenges us not only to take off our “rose-colored glasses,” but to throw in the towel, because religious freedom is “impossible.” More precisely, her point is that it is impossible fairly to enforce religious accommodation laws that determine persons’ rights and governments’ obligations in terms of religious motivation or belief. This is because the application of such laws requires public officials to decide what “counts as religion,” and invites them to define-and confine-religion in ways that serve the government’s needs but often distort and insult faith as it is lived and practiced.

Sullivan’s striking, intriguing claim builds on an account of her experience as an expert witness in Warner v. Boca Raton, a Florida case involving a local cemetery’s regulations, the state’s religious-exemption law, and a variety of religiously motivated “nonconforming grave decorations” (statues, crosses, Stars of David, candles, fences, plantings, etc.). To avoid being required to accommodate these renegade displays, the government’s aim is to depict them as reflecting mere personal tastes or idiosyncratic preferences, rather than the orthodox dictates of an established religion. This strategy is, to Sullivan, both predictable and understandable; courts cannot enforce religious-exemption laws without examining and defining religion. She wonders, though, if it is “possible to do this without setting up a legal hierarchy of religious orthodoxy.”

Sullivan is convinced that our religious-freedom laws only recognize, and therefore only protect, religion that is private, voluntary, individual, textual, and believed rather than religion that is “public, coercive, communal, oral, and enacted.” It turns out that “drawing a line around what counts as religion and what does not is not as easy as periodically recommitting ourselves politically to religious freedom.” The answer, she concludes, is to give up on protecting religiously motivated conduct as such, and instead to focus on enforcing “equality” across the board.

Each author’s arguments fall short in places, but each makes an important contribution to our conversation about the nature of religious freedom. Feldman is generous and fair-minded, so it might seem a bit churlish to wonder if, in the end, it is he, and not the Court, who has things backwards. Feldman’s proposed solution-“no coercion, and no money”-owes much to the dubious claim that school-voucher programs “create conflict and division” and are more threatening to “national unity” than are official, “inclusive” endorsements of religion. To shore up this claim, Feldman endorses the common but unconvincing claims that educational choice and religious schools do not “promote a common national project” but instead “generate balkanized values.” In fact, though, recent research by Notre Dame’s David Campbell, David Sikkink, and others indicates that there is every reason to think that the kind of religious schools that participate in choice programs are at least as successful at forming other-regarding, engaged, and tolerant citizens as are the public schools, whose ability to “promote a common national project” Feldman fails to question.

At the same time, while Feldman’s critique of the “legal secularist” program is powerful, it is hard to agree with him that, given cultural realities, an increase in public displays of religious symbols is a recipe for less division. That said, as I have argued in these pages, “there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from [division]” and, in any event, “judicial squeamishness toward messy politics is hardly a reliable constitutional benchmark” (“Keep It to Yourself,” August 13, 2004).

Hamilton is on solid ground when she argues that the Religion Clause, properly understood, rarely requires (though it permits, and even encourages) exemptions from generally applicable laws, and that the task of accommodating religion is one that legislatures are probably better able to perform than courts. But she seems to want it both ways: She careens back and forth, now castigating courts for usurping the legislators’ role and constitutionalizing unjustified exemptions for religious entities, next excoriating lawmakers for enacting accommodations that, in her view, violate the “harm principle.”

It is also a weakness of God vs. the Gavel that, although Hamilton (quite appropriately) insists that exemptions for religiously motivated conduct should serve the “public good,” she never defines or unpacks that crucial term. In the words of Vatican II’s Gaudium et spes, the “common good” is well understood not merely as the good of the state, or as the greatest utility for the greatest number, but as the “sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment.” And, it is not at all unreasonable for legislators to conclude that accommodating religion is one of those conditions, and that even if it is not cost-free-and, remember, our constitutional commitment to fundamental freedoms is not cost-free-it is still worth it.

Finally, Sullivan is right to remind us that government efforts to protect religious freedom can, through the constraining definitions they employ and the boundaries they impose, subtly reshape and domesticate religious faith. She correctly highlights the fact that administering religious exemptions, while at the same time taking seriously the state’s interests, is made all the more challenging by the fact that religion has been privatized, decentralized, and individualized. But the religious freedom our Constitution aims to safeguard is about more than crafting and enforcing legislative exemptions from general laws. That accommodations-like, of course, efforts to protect “equality”-are messy means not that religious freedom is “impossible,” only that it is challenging. These three books will both inspire us and help us meet that challenge.

Published in the 2005-11-18 issue: 

Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

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