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Religion and the public square

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Since I keep hearing some of my students fret about the threat of ‘theocracy’ in this country, I thought maybe we should do a little political philosophy on the blog. 

I am no defender of George W. Bush (or the neo-cons), but a ‘tyrant’ or a ‘theocrat’ he is not.  What silliness, to be perfectly honest.  This is as ridiculous as those who suggest that Obama is a Muslim.  When I press these students to name a single policy as an example of our alleged move toward ‘theocracy’, they always come up silent.  But that hardly seems to stop them from repeating, diligently and with all the appropriate defiant anger, such silly claims.

So let’s revisit what the First Amendment says about religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There are two clauses that speak of religion, the Establishment Clause and the Free Exercise Clause.  Richard John Neuhaus, in a recent article on this that I will here parrot, writes that recent jurisprudence has severely deformed the real (original) meaning here.  He writes,

The deepest deformation is the subordinating of free exercise to no-establishment. Once we forget that no-establishment is a means and instrument in support of free exercise, it is a short step to talking about the supposed conflict or tension between the two provisions. And from there it is a short step to the claim, as it has been claimed in numerous court decisions, that the two parts of the religion clause are “pitted against one another” and must somehow be “balanced.” ’

As he points out, the consequence of this inverted understanding is that ‘whenever the government advances, religion must retreat’.  But since government is constantly advancing into more and more areas of our social and personal lives, it is suggested that believing Americans must surrender their faith in the ‘public square’.

How absurd.  When it is written that ‘Congress shall make no law’, it is clearly limiting government – not religion.  The purpose of the First Amendment religion clauses IS NOT to limit religion or even religion’s place in the public square.  The purpose of the clauses is to limit government from interfering with free (and open and public) religious expression.  Religious persons and churches are left perfectly free to try to influence the government, all that is restricted is the government’s ability to interfere with the lives of churches and individual believers.  Let me restate that, since this appears to be news to many secularists:  the Religion Clauses are not meant to protect government from religion, rather they are meant to protect religion from ‘the overweening ambitions of the modern state.’  (Note that this free expression, then, is protected and could be appealed to even in those areas of life where the government may find itself involved – such as education.)

This is, of course, an ‘originalist’ interpretation (rather like the interpretation Scalia encouraged in his recent talk here).  But it is also the most obvious – note that the entire First Amendment has the aim of limiting government’s power to interfere with free expression (of various sorts).   

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4 Comments

  1. Jon Adams says:

    “When I press these students to name a single policy as an example of our alleged move toward ‘theocracy’, they always come up silent.”

    I’ll bite, Kleiner.

    To preface, not all of my examples will be specific to the Bush administration, as I just need to show a “move towards ‘theocracy.'” Second, I don’t need to show that the US is a theocracy. Of course it is not. All I need to show is that our country–its people and its government–has theocratic tendencies.

    One of President Bush’s first actions as President was to aggressively expand “faith-based initiatives” that allow religious organizations to receive federal funds. The issue here isn’t so much that these faith-based groups receive federal funds–though that itself is controversial. Rather, the controversy is that Bush administration lifted important restrictions on how those groups could use that money. Historically, these faith-based groups would have to spend federal dollars on secular services, like charity. Now, with fewer restrictions, these faith-based groups can spend federal funds on proselytizing and are able to deny services to persons of different faiths.

    President Bush has stated that he feels that God speaks through him and that God told him to invade Iraq. On Iraq, Gov. Palin, Sen. Hatch and others have called our occupation of Iraq “the Lord’s work.”

    Polls find that atheists are the most distrusted minority in America. It’s no surprise that there is only one open non-believer in Congress. Politicians, too, trade in and exploit this prejudice. George H. W. Bush said that atheists should not be considered American citizens. The ever hypocritical Mitt Romney said that atheists do not belong in public office, all the while pleading with Americans not to deny him the Presidency because of his religious beliefs. And John McCain claims to believe (I sometimes wonder if he seriously thinks this) that the US is a “Christian nation.” If he does indeed believe this, then he hasn’t read the Treaty of Tripoli, which explicitly rejects the notion that we are a “Christian nation.”

    The Bush administration has packed the courts with men and women who disavow any notion of separation of church and state–men and women like Roy Moore. Roy Moore was an Alabama Supreme Court Justice (in)famous for erecting the Ten Commandments in the Alabama Supreme Court building. When ordered by higher courts to remove the monument, Moore refused. Congress was complicit in this. They passed a bill to prevent that any federal funds go to the removal of the Ten Commandments display.

    The Religious Right wields tremendous political power. They have brought issues like abortion, stem-cell research, and gay rights to ascendancy. And while secular cases can be made against abortion, stem-cell research, and gay rights, what matters is that the opposition to these issues is so obviously faith-based. Your average pro-lifer, for example, does not attribute his opposition to abortion to Aristotle. Rather, he makes appeals to religious authorities, like the Bible.

    The intelligent design movement, too, is a threat to secular society. I think ID is little more than creationism in a cheap tuxedo.

    I’m sure I could think of more examples, but I was only asked to provide one anyway.

    Note that not all of these examples of theocratic tendencies are necessarily unconstitutional. For example, if a person’s opposition to gay rights hinges on hateful verses in the Bible–fine. That person’s belief is protected by the First Amendment. Other actions that lend government endorsement to certain religious beliefs are unconstitutional, though.

    About the establishment clause and free exercise: Yes, these principles sometimes come in conflict–military chaplains come to mind. But I don’t think it’s fair to say that secularists always champion the establishment clause at the expense of free exercise. Free exercise must be guaranteed in the public square. Where free exercise ceases to be free, however, is in the governmental sphere:

    From the ACLU:

    “Religion is pervasive in the public square in the United States – and it is constitutionally protected. The ACLU has long defended individuals, families, and religious communities who wish to manifest their religion in public…No other industrialized democracy has as much religion in the public square as does the United States. Some people, however, mistakenly use the word “public” when they really mean “governmental.”

    “…the Religion Clauses are not meant to protect government from religion, rather they are meant to protect religion from ‘the overweening ambitions of the modern state.’”

    It is certainly true that a driving force–maybe even the primary force–behind the separation of church and state was to protect religion from the corrosive nature of politics. That’s how the separation of church and state was sold to the American people, at least. But it is also true that founders like Jefferson and Madison shared a disdain for organized religion and sought to curb its influence in politics–not the public square, but politics. First Amendment scholar Philip Hamburger makes the argument that the separation of church and state first became an idea during the election of 1800’s when the Federalist clergy were using their influence to oppose the election of Jefferson and the Republicans.

    All that said, I’m not sure we fundamentally disagree on the First Amendment. I support free exercise in the public square. But we may quibble over what constitutes a government endorsement or over where to draw the line between the public square and the governmental sphere.

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  2. Kleiner says:

    The faith-based initiatives are the most common example brought up (they are, I might point out, supported by Obama, who I understand actually wants to expand the program). Maybe this is all in the eye of the beholder, but I would not call any of your examples instances or examples of underlying ‘theocratic tendencies’. None of your examples are examples of governance where God is thought to be the ‘supreme ruler’ (the definition of theocracy). They might be examples of where individuals think religion can inform public life (taken in a broad sense to include governance), but they fall very short of anything like ‘establishment’. In other words, they are examples of people living out their beliefs in the public square. I call that democracy.

    Again, the issue here is what is meant by the “wall of separation” (itself just a metaphor that Jefferson used, only later enshrined in law by justices who reject originalism). When you say that the Bush administration has appointed people hostile to this notion what you are really saying, to my mind, is that he has appointed people who are hostile to non-originalist readings of what the religion clauses really mean in the first place. You cite the ACLU, but I think they are just wrong on what ‘separation’ entails. I am finding myself increasingly attracted to originalism and, as best as I can tell, the ACLU is about as un-originalist a group of legal scholars as one could find.

    Your point that atheists are so mistrusted and that the ‘religious right’ is so politically powerful is irrelevant to the point about establishment. Neuhaus writes, ‘What is this religion that is viewed as constitutionally suspect? It is the individually and communally expressed opinion of a free people. To say that government should not be responsive to religion is to say that government should not be responsive to the opinion of the people. Again, the argument of extreme separationism is, in effect, an argument against democratic governance.’

    You are a member of a minority group. Thankfully, we have protections that ensure (not always perfectly) that you will not be robbed of equal opportunity, due process, and other basic rights just because you hold views outside of the mainstream. But too often I think the gripe is this (I don’t know that you would say this): ‘I don’t like these policies because I disagree with them, their motivation, and their consequences but since they have been democratically chosen my only recourse is to call them unconstitutational’.
    My response to such a gripe is this: Tough shit. Democracy is government by the majority of the people (with some minority protections). If you are in the minority you won’t often get your way. If you don’t like it, then work harder in the battleground of ideas. (This is how I feel living in Utah. I don’t like some of the liquor laws and other such things, but I don’t think the mere fact that these laws are religiously motivated by LDS voters and legislators makes then unconstitutional. What to do about it? – joke about it among friends, vote, and work to change public opinion.)

    There probably is, as you say, common ground here. We’d quibble over what counts as ‘establishment’ and whether expression in the ‘public square’ includes public policy and governance. Here is what I would say:
    There is really no such thing as a belief system without assumptions. Every person in the world has beliefs about what is good, true, and beautiful – and no one in the world could defend those views in a ‘perfectly rational way’. Now I rather suspect that the founders would have never imagined (and would hate the idea of) how much our government now involves itself in daily life (social welfare, education, art, etc etc). But once government does involve itself in those areas of public and private life, it must do so according to what the government determines to be the good, true, and beautiful. In a democracy, the government’s determination of the good/true/beautiful is just the will of the people. How can we include some people’s view of the good/true/beautiful but not others? In other words, surely the establishment clause does not entail that the only people who can have their will be done in governance are those whose beliefs about the good/true/beautiful are in no way determined by religious conviction.

    I suppose we could argue over whose assumptions are bigger leaps, and whose assumptions are more ‘rational’. But I don’t think we could come up with a principled way of including some assumptions but excluding others. Anyway, none of this matters from the point of view of constitutionality. The constitution does not limit free expression and voting to secular expressions. Instead a democracy says, ‘Come one, come all. Bring your beliefs about the good (with all their assumptions, be those assumptions religious or otherwise). Bring them to the table, bring them to the battleground of ideas and politics’.

    There is no constitutional protection that a set of ideas will survive. There is no constitutional guarantee that secular humanism must survive. If the majority will of the American people is that intelligent design be taught in schools, then it should be taught in schools – even if it is bad science. Americans are free, as it turns out, to be stupid. They are free to be atheists, theists, Catholics, Satanists, whatever they like, and the public expression of those views should have no real restraint from the government.
    Here is the main point — In fact, it is only natural that these expressions would influence and impact government (unless you think everyone should check their assumptions at the door other than you). Since public policy turns on questions of the good, true and beautiful, it is only natural in a democratic society that religious people will bring religious convictions about the good, true and beautiful to the political table. To deny them that is, quite simply, secularist elitism that is fundamentally anti-democratic. (One might think, by the way, that elitism is justified and that democracy is a really lousy form of government for precisely these reasons).

    One more note: The fact that many Americans point to their Bibles instead of to philosophical arguments when they oppose gay marriage in no way invalidates their public expression (including their vote and their voice in policy making). If someone wants to vote or legislate based on some kooky idea that if polygamy were legalized we would all turn green, then go ahead (if someone gets elected on that platform, then it is the will of the people). Either way, taken in a general sense this is hardly a phenomenon distinctive to the ‘religious right’, I don’t think most secularists are that much better off. For every uninformed member of the ‘religious right’ there is an uninformed member of the ‘secular left’, who supports gay marriage out of a blind faith in something like ‘tolerance’. (I’m not here passing judgment on which side of the debate is right here, just pointing out that there are plenty of illiterate people on both sides).
    Point is this – just because someone’s vote/legislation does not pass some secular rationality test does not make it an attempt at ‘establishment’. In fact, to insist that religious assumptions be kept entirely out of governance is to establish another set of assumptions (secularist ones).

    By the way, Neuhaus’ book ‘The Naked Public Square’ (published way back in the mid 80s), remains one of the most thoughtful arguments on this issue. For anyone interested in the intersection of religion and politics (no matter what side you land on), it is a must read.

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  3. Jon Adams says:

    “The faith-based initiatives are the most common example brought up (they are, I might point out, supported by Obama, who I understand actually wants to expand the program).”

    Yes and no. Obama wants to expand faith-based organizations only in the sense that he wants to better utilize them. That is, he will grant them more federal funds. However, Obama’s plan departs from Bush’s policy is significant ways:

    Faith based groups cannot use federal funds to proselytize or provide religious sectarian instruction. They cannot discriminate against nonmembers in providing services. They must remain open to all and cannot practice religious discrimination against the populations they serve. They must comply with federal anti-discrimination laws. They can only use taxpayer dollars on secular programs and initiatives. And they have to be able to demonstrate efficacy in their services.

    So Obama is just reigning in the faith-based initiative policy within constitutional bounds.

    “None of your examples are examples of governance where God is thought to be the ‘supreme ruler’ (the definition of theocracy).”

    You’ve erected a straw man then, because few atheists would argue that we live in an actual, definitional theocracy. What’s more, you didn’t ask for evidence that we are a theocracy; you asked for evidence of a “move toward theocracy.”

    “[Your] examples fall very short of anything like ‘establishment’. In other words, they are examples of people living out their beliefs in the public square. I call that democracy.”

    Again, I feel its a constitutional right to have one’s faith inform one’s beliefs. The act of voting one’s convictions is indeed democracy. When people (or representatives) vote to legislate their religious beliefs, the act itself (voting) is democratic. The consequence, however, is an “establishment of religion.” For example, the Islamic revolution in Iran in 1979 was democratic, but the resulting Islamic Republic was anything but.

    A better example, perhaps: In the early 1950s, Eisenhower signed legislation that adopted the phrase “In God We Trust” as a national motto. It was a popular bill and people had every constitutional right to support it. That fact doesn’t make the bill any less unconstitutional, though.

    I guess the reason I cited instances where faith informs beliefs/actions as evidence of a move toward theocracy is because this demonstrates that millions of people make appeals to an authority above civil authority: God. And when these people vote in accordance with their religious beliefs, the gap between civil law and religious law closes–the government becomes indistinguishable from a theocracy.

    I did also mention examples of establishments of religion. In my opinion, these include teaching creationism in school, constructing religious displays for religious purposes on government property, and using federal funds for religious ends (ie, faith-based initiatives).

    “Again, the issue here is what is meant by the “wall of separation” (itself just a metaphor that Jefferson used, only later enshrined in law by justices who reject originalism).”

    Today’s manifestations of a separation of church and state (Lemon test, etc.) may be different than the separation manifest in our nation’s infancy, but the principle of separation remains more or less the same.

    James Madison, the author of the First Amendment, prohibited more than just the establishment of a state church like the Church of England when he wrote the establishment clause. Madison was wary of the government even endorsing religious beliefs. In fact, Madison argued against having Congressional Chaplains on the grounds that this would constitute “establishment”!

    “Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U.S. forbids everything like an establishment of a national religion.”–James Madison

    Madison also called for a “total separation” between church and state and a “mutual independence,” which shows that the wall of separation was a two-way wall: government could not interfere with religion; religion could not interfere with government.

    Again, this is the author of the First Amendment! How’s that for an originalist interpretation?

    “But too often I think the gripe is this (I don’t know that you would say this): ‘I don’t like these policies because I disagree with them and their motivation, and since they have been democratically chosen my only recourse is to call them unconstitutational’.”

    That or maybe those policies are actually unconstitutional ha ha.

    “In other words, surely the establishment clause does not entail that the only people who can have their will be done in governance are those whose beliefs about the good/true/beautiful are in no way determined by religious conviction.”

    Again, people can vote their religious convictions. Not all policies informed by religion constitute “establishment.” If those policies serve a secular function and do not primarily advance a religious belief, then they are kosher.

    You later ask why it’s right that uninformed members of the secular left can blindly support gay marriage, but when uniformed religious members oppose it, it constitutes “establishment.” Well, first off, I’m not sure that opposing gay marriage constitutes any kind of establishment. Because, again, people have the right to vote their conscience–be it a religious or secular one. I get your point, though. I think…

    You seem to ask why it is that a government can make laws respecting an establishment of, say, liberal governance, but not an establishment of religion. They’re both just philosophies, no? I think the reason the framers singled out religion is obvious enough, though–it’s such a personal and potentially incendiary issue. People value their religious beliefs over other beliefs and so, consequently, religious beliefs are privileged and protected above other beliefs.

    “There is no constitutional guarantee that ‘secularism’ must survive. If the majority will of the American people is that intelligent design be taught in schools, then it should be taught in schools – even if it is bad science.”

    Depends on your interpretation of the establishment clause. On my interpretation, secularism is guaranteed by the Constitution and teaching ID in public schools likely violates the establishment clause.

    Thanks for the book recommendation. I’ve heard of “The Naked Public Square,” but never sought it out. I will now. Here’s my recommendation: “The Secular Conscience: Why Belief Belongs in Public Life.” (http://www.amazon.com/Secular-Conscience-Belief-Belongs-Public/dp/1591026040)

    It’s a great book and relevant to this discussion. I had the opportunity to meet the author this summer. He argues from a secular perspective that matters of conscience are fit subjects for public discussion. In some respects, he may agree more with you than me.

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  4. Kleiner says:

    I don’t think we are just quibbling, we clearly disagree on what is meant by separation and what is meant by establishment.

    Secularism is an ISM you know. Your justification for why it cannot violate establishment clauses is that it is different from religion in that religion is ‘such a personal and potentially incendiary issue’. But, one might ask: (1) Is secularism not also deeply personal? (2) Isn’t it obvious that secular humanism (read the Humanist Manifesto of 1933 (?)) is deeply incendiary? (3) That religious convictions are deeply personal and potentially incendiary does not mean that they are not also public. By sociological fact, it will be impossible for this country to come up with a public consensus on public policies that touch questions of the good, true and beautiful unless religion is invited to the table (since, as a matter of fact, the vast majority of Americans are religious).

    By the way, right now the wall is one way, not two way. This is because government continues to insert itself into more and more aspects of private and public life (value laden aspects of life, like sex education, art, education, marriage, etc). Not only that, government cannot seem to stay out of value laden issues that depend on ultimate claims about what is good. On your interpretation of the establishment clause, religiously informed morality (about both proximate and ultimate goods) has to yield every time. What takes its place is secularISM. But let’s not pretend that secularism does not have metaphysical commitments (most secularists I know have an almost religious devotion materialism, and they never argue for it). While ID might be cover for theism, natural selection is all too often taught as cover for materialism and atheism (I know it was in my high school and college). In other words, you enshrine secularism’s ultimate principles (which cannot be empirically verified, by the way) and insist that religiously informed ultimate views are excluded.

    On your interpretation of the establishment clause your moral views (and their metaphysical commitments) are not only establish-able but are the only game in town. How very convenient for you. Of course, in insisting on this you deny the vast majority of Americans the ability to participate (on pain of bifurcating themselves) in the the civic discourse regarding public policy (which must then be wholly secular).

    It is hard to ignore that, right under the surface, is a presumption by many secularists (perhaps not Jon) that they have ‘perfectly rational’ beliefs (held, we are to think, in an obviously less ‘personal and incendiary’ way) while everyone else is ‘deluded’. In the face of such delusion, we must have legislation from the bench since the American public is too stupid (or at least their world-views are too ‘tainted’ by religion) to be trusted with value questions (this was Scalia’s whole argument). Again, to refuse religiously informed beliefs when government inserts itself into value questions (the secularist agenda) is actually just an elitist anti-democratic agenda.

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