Noah Feldman's Church State Solution

JB

In the courts, the arrangement that I'm proposing would entail abandoning the Lemon requirement that state action must have a secular purpose and secular effects, as well as O'Connor's idea that the state must not ''endorse'' religion. For these two tests, the courts should substitute the two guiding rules that historically lay at the core of our church-state experiment before legal secularism or values evangelicalism came on the scene: the state may neither coerce anyone in matters of religion nor expend its resources so as to support religious institutions and practices, whether generic or particular. These constitutional principles, reduced to their core, can be captured in a simple slogan: no coercion and no money. If no one is being coerced by the government, and if the government is not spending its money to build religious-themed monuments or support religious institutions and practices, the courts should hold that the Constitution is not violated.

Admittedly, this approach goes against the trends of the last several decades, which are for stricter regulation of public religious symbolism and more permissive authorization of government financing and support for religion. At first blush, then, the proposal may strike both sides of the current debate as mistaken, since it requires each to give up some victories in exchange for an alternative solution. Nonetheless this approach is not only faithful to our constitutional traditions; it also stands a chance of winning over secularists and evangelicals alike and beginning to close the rift between them.

I strongly believe we should rethink church state issues, and so I broadly support Feldman's larger goal of going beyond the current debate and looking at the issues from a new perspective. Nevertheless, I would offer a few (actually three) caveats to Feldman's proposed solution.

First, it has proven very difficult to come up with rules that keep religion out of government expenditures. That is because the concept of separation of church and state does not square easily with the existence of a wide range of government programs and benefits that are widely distributed across the population; constitutional scholars call this aspect of modern governance the "welfare state;" it applies to much more than welfare benefits narrowly conceived, and includes things like government contracting programs, licenses, employment decisions, public works, support for education and health, even basics like police and fire protection.

When the government refuses to extend benefits in an otherwise general program to religious organizations or institutions, religious groups feel that they are being singled out or punished for being religious. This happens in a wide variety of contexts ranging from voucher programs for private schools (can religious schools get vouchers if private secular schools can?), to charitable choice programs (can religious organizations be government contractors if non religious organizations can?) to government funds for restoration of landmark buildings (can money go to the Old North Church if it is still being used by a congregation who would like to use the funds to make the Church more comfortable for parishoners?)

The problem is that it is very hard to draw lines between support for religion and mere inclusion of religion in a general program. And perhaps more relevant to Feldman's key distinction between symbols and money, distribution issues often have symbolic overtones. Not only do religious groups feel slighted monetarily when they cannot enjoy government expenditures under these welfare state-style programs, they also feel insulted and alienated. On the other hand, if one adopts a position of strict neutrality, i.e., that government may not discriminate in a general program because a recipient is religious, then you have a position which is in some ways more solicitous of money going to religious institutions than doctrine currently allows. This is, in some ways, Justice Thomas's solution, and combined with Feldman's call for relaxation of the rules in government endorsement cases, it would give religious organizations both symbols *and* money.

Thus, Feldman needs to say much more about how he would enforce strict separationism in the welfare state (that is, the money) context. He can't mean neutrality in the sense now being demanded by religious conservatives. Does he mean a return to the Brennan era rules of the early 1970s? To really make his solution work he will have to spell out more of the details, which means, in effect, that he will have to solve many of conundrums that have divided constitutional scholars in this area for the past half century.

My second caveat is that it is by no means clear that "symbolic" religious displays are costless. Many religious displays involve comparatively minor expenditures. But once states and municipalities are freed from judicial oversight, they may find increasingly creative ways to spend their money to benefit the majority denomination in the locality. This is just the flip side of Feldman's point-- that money corrupts, and a free flow of money to religion corrupts freely.

To be sure, Feldman emphasizes that he would not allow government to "spend[] its money to build religious-themed monuments." But government endorsement of religion can take other forms, particularly in the educational context, for example in curriculum development. Perhaps more to the point, the ban on expenditures for religious monuments overlooks how truly clever governments can be when they seek to please favored constituencies. If the government can spend money on public buildings, why can't it include a little religious endorsement in them as long as it doesn't spend too much money doing so? For example, suppose the government is spending money on a multimillion dollar court house. Can it put a large copy of the Ten Commandments on the building if the cost is relatively small? Is this a large expenditure on a religious monument (forbidden) or a relatively small expenditure on a large project with secular purposes (presumably permissible). Suppose that the government creates a very expensive war memorial and includes a huge cross or other religious symbolism prominently displayed on the monument. Since the government was going to build the war memorial anyway, should we say that this is a large expenditure on a religious monument-- and therefore forbidden-- or a large expenditure on a war monument that has some incidental extra expenditure on religious symbolism, and therefore is permissible. (In fact it may cost no more to include religious symbols like a cross on the monument than it does to include secular alternatives, in which case the cost attributed to religion in the monument is effectively zero). Feldman probably needs to spell out in more detail how the doctrine of "no money for religion" would work in these sorts of situations.

My third and final caveat is that Feldman may understate the degree to which relaxation of judicial restraints on sectarian public symbolism would defuse religious conflict. It might increase religious conflict, particularly if governments can be more overtly sectarian in their endorsements as opposed to blandly nondenominational.

The problem is that conflicts over religious symbols are key elements of status politics. People fight over symbols to show who has greater status in the community, that is to say, whose beliefs are considered normal and mainstream, which is another way of saying who counts. The difficulty is that status conflicts tend to be zero-sum in the short run-- if I have more status, you have less-- and that is what makes them particularly bitter and divisive. Feldman thinks that fights about money (as opposed to fights about symbols) tend to be zero-sum. This is, I think, wrong. Government can always raise more money through the tax system and it can spread it around among many different denominations. The real zero sum fights are about comparative social status; those tend to be fights about symbols, and particularly about government endorsement of certain symbols.

Feldman's argument is that if we let those he calls "values evangelicals" have their moments of silence, their creationism in the schools and their creches, they will be mollified and less antagonistic because they will feel appropriately respected. Put in status terms, their social status will be raised. The question is whether this increase in status will cause other groups to feel that their comparative status has been lowered, and whether these groups will then become increasingly militant, so that the benefits to democracy and social peace turn out to be illusory. (This issue of comparative social status, I should point out, is separate from the issue of coercion that Feldman is primarily concerned with.)

Perhaps Feldman is banking on the fact that contemporary secularists will turn out to be milquetoasts. Once government engages in more overt disiplays of religiosity, secularists will get used to it because they are not being coerced into doing anything. Certainly the social movement energy in the last thirty or so years has been on the side of values evangelicals. But things change, and Feldman may have picked exactly the wrong moment to discomfit secularists. Feldman is surely correct that many values evangelicals currently are unhappy and feel slighted, but it takes (at least) two sides to make a status conflict.

There is no guarantee that allowing values evangelicals to increase their comparative social status through creches, school prayer and creationism in the schools will mollify religious social movements; to the contrary, it may energize them further, so that they demand ever greater tribute, ever greater signs that their views are mainstream and dominant. After all, we are dealing with the most powerful social movements in American society; once judicial restraints are thrown off, why should they not flex their muscles in the public square? From one perspective, they would be foolish not to take as much as they can get. Obviously, this is not Feldman's desire, but one needs to have an argument for thinking that this won't happen.

In this context, it is worth noting that the more sectarian we allow public symbols of religion to become, the more status conflicts will arise between different religious groups, rather than simply between secularists and values evangelicals. (Consider as an example a legislative prayer that ends by thanking Jesus Christ, our Lord and Savior, or a municipality erecting a large cross to honor America's Christian heritage). For this reason, it is unclear whether Feldman means to relax judicial scrutiny of government displays of religion generally or only blandly "non-denominational" displays. If the latter, his solution would, perhaps ironically, put him in the same ballpark as Justice Scalia in the McCreary case. Thus, Feldman needs to flesh out exactly how denominational or nondenominational government endorsement could be. It is a tricky business: The more sectarian government endorsement can be, the more likely it is that his solution will buy neither social peace nor egalitarian democracy. And the more strictly he requires that government displays be non-denominational, the more he falls into the some of the difficulties of Scalia's position.