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.
Moving on from O’Connor (Sandra, how could you retire?!), Feldman asserts that both the values evangelicals and the legal secularists offer incomplete and flawed positions. “The values evangelicals want to find shared values, but that leads them to rely on the unexamined assumption that deep down, Americans agree on what matters. The trouble is that ”we” often do not agree.”
Even a joint commitment to ”the culture of life” turns out to be very thin. Catholics and conservative Protestants may agree broadly on abortion and euthanasia; but what about capital punishment, which Pope John Paul II condemned as an immoral usurpation of God’s authority to determine life and death but which many evangelical Christians support as biblically mandated? To reach consensus, the values evangelicals have to water down the ”values” they say they accept to the point where they would mean nothing at all. They are left either acknowledging disagreement about values or else falling into a kind of relativism (I’m O.K., you’re O.K.) that is inconsistent with the very goal of standing for something rather than nothing.
And religious secularists run into a different problem: “They claim that separating religion from government is necessary to ensure full inclusion of all citizens. The problem is that many citizens — values evangelicals among them — feel excluded by precisely this principle of keeping religion private.”
So what’s the solution? Feldman things he knows: “Despite the gravity of the problem, I believe there is an answer. Put simply, it is this: offer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities.”
From this logic, it follows that a moment of silence to begin the school day should not be invalidated just because it is intended to let children pray if they wish. Though it will never be easy to determine when schoolchildren are being coerced by peer pressure, at least some older students at optional events like a Friday-night football game surely are not being forced to pray when others are doing so voluntarily. Intelligent-design theory, itself a product of the ill-advised demand that religion disguise itself in secular garb, should be opposed on the educational ground that it is poor science, not on the constitutional reasoning, which some secularists have advanced, that it is a cover for religious creationism. If its advocates can persuade a local school board to put it in the curriculum, the courts need not strike it down as an establishment of religion. On the other hand, charitable choice, which permits billions of dollars in federal money to support faith-based organizations, should not be a vehicle for allowing government to pay for programs that treat alcoholics by counseling them to accept Christ. Schools that teach that Shariah (or Jewish rabbinic law or canon law) is the ultimate source of values should not be supported by tuition vouchers.
Read the whole thing. And buy the book.