Balkinization  

Saturday, March 02, 2013

Defending American Religious Neutrality

Andrew Koppelman



The American law of freedom of religion is in trouble, because growing numbers of critics, including a near-majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality.  My new book, Defending American Religious Neutrality, defends the claim, which unfortunately has become an audacious one, that American religious neutrality is coherent and attractive. 

Two factions dominate contemporary discussion of these issues in American law.  One, whom I’ll call the radical secularists, tend to regard the law of the religion clauses as a flawed attempt to achieve neutrality across all controversial conceptions of the good – flawed because it is satisfied with something less than the complete eradication of religion from public life.  The other, whom I’ll call the religious traditionalists, think that any claim of neutrality is a fraud, and that law necessarily involves some substantive commitments.  They claim that there is thus nothing wrong with frank state endorsement of religious propositions: if the state is inevitably going to take sides, why not this one?  One side regards religion as toxic and valueless; the other is untroubled by the state’s embrace of an official religion.  Neither sees much value in the way American law actually functions.

Yet America has been unusually successful in dealing with religious diversity.  The civil peace that the United States has almost effortlessly achieved has been beyond the capacities of many other generally well-functioning democracies, such as France, Germany, and Italy.  Even if the American law of religious liberty were entirely incoherent, it might still be an attractive approach to this perennial human problem.  There is, however, a deep logic to the law that its critics have not understood.

Prominent scholars of religion ridiculed President-elect Dwight Eisenhower’s 1952 declaration:  “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.”  Eisenhower nonetheless revealed a deep insight into the character of American neutrality. 

     Contrary to the radical secularists, First Amendment doctrine treats religion as a good thing.  It insists, however – and here it parts company with the religious traditionalists - that religion’s goodness be understood at a high enough level of abstraction that the state takes no position on any live religious dispute.  It holds that religion’s value is best honored by prohibiting the state from trying to answer religious questions.

American religious neutrality has over time become more vague as America has become more religiously diverse, so that today (with the exception of a few grandfathered practices) the state may not even affirm the existence of God.  This kind of neutrality is not the kind of neutrality toward all conceptions of the good that many liberal political theorists have advocated, but it is the best response to the enormous variety of religious views in modern America.  It is faithful to the belief, held by the leading framers of the First Amendment, that religion can be corrupted by state support.

Many aspects of present American law in this area are puzzling.  Some kinds of official religion are clearly impermissible, such as official prayers and Bible reading in public schools.  Laws such as a ban on the teaching of evolution are struck down because they lack a secular purpose.  Yet at the same time, “In God We Trust” appears on the currency, legislative sessions begin with prayers, judicial proceedings begin with “God save the United States and this Honorable Court,” Christmas is an official holiday, and, of course, the words “under God” appear in the Pledge of Allegiance.  Old manifestations of official religion are tolerated, while new ones are enjoined by the courts:  the Supreme Court held in 2005 that an official Ten Commandments display is unconstitutional if it was erected recently, but not if it has been around for decades.  There is confusion about faith-based social services, public financing of religious schools, and the teaching of “intelligent design.” 

All this, I argue, makes sense.  The key is understanding the precise level of abstraction at which American law is neutral toward religion.

The book’s introduction, in slightly modified form, has just appeared in the Pepperdine Law Review (with smart comments by Richard Garnett and Chad Flanders), and is available here.




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