E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.