Noah Feldman, will you marry me?
My favorite NYU Law professor, author of a handful of fabulous books (I would enthusiastically recommend After Jihad: American and the Struggle for Islamic Democracy and What We Owe Iraq: War and the Ethics of Nation Building) and one of the many reasons I would love to attend NYU Law, writes a fantastic piece for the NYTimes Magazine about finding a church-state solution.
Feldman points to the divide between what he calls “legal secularists” (me) and “values evangelicals” (Jerry Falwell). Feldman writes, “One school of thought contends that the right answers to questions of government policy must come from the wisdom of religious tradition.” These are the values evangelicals. “What all values evangelicals have in common is the goal of evangelizing for values: promoting a strong set of ideas about the best way to live your life and urging the government to adopt those values and encourage them wherever possible.”
And then, there are “those who see religion as a matter of personal belief and choice largely irrelevant to government and who are concerned that values derived from religion will divide us, not unite us. You might call those who hold this view ”legal secularists,” not because they are necessarily strongly secular in their personal worldviews — though many are — but because they argue that government should be secular and that the laws should make it so.”
So we start there. The legal secularists have a series of victories after WWII, when there was a greater consciousness of the marginalization of America’s Jewish population (and other religious minorities) in their exclusion from public Christian displays. As Feldman writes, “instead of attacking religion directly, as some antireligious secularists did earlier in the century with little success, organizations like Americans United for Separation of Church and State and the American Civil Liberties Union argued more narrowly that government ought to be secular in word, deed and intent.”
Religious groups like Falwell’s Moral Majority responded in kind, painting themselves as victims and helping to elect Regan as president.
But the values evangelicals did not succeed entirely in reversing the Supreme Court’s embrace of legal secularism. Throughout the 90’s, in a series of 5-4 decisions in which Justice Sandra Day O’Connor provided the swing vote, the Supreme Court refused to permit the government to take any symbolic action that might be seen to ”endorse” religion, thus preserving and even expanding the ban on school prayer. The other eight justices on the Rehnquist Court held that government financing and state-sponsored religious symbolism should be treated the same way: either both were permissible or both weren’t. But since those justices were split 4-4 on whether to allow more of each or less of both, O’Connor’s compromise — allowing some government financing of religion but no government endorsement of religious symbols — has been the law of the land for the last two decades.
Yeah. Fuck.
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