Reciprocity, the Religion Clauses and Equal Citizenship

There are many wise things in this post from Bill Stuntz. I'll quote one of them:

Take the people who want symbols of their faith on government property, and put them in a society where passionate atheism is the majority view. Suppose all those passionate atheists want to put up monuments in every courthouse and state capitol saying that there is no God, that all good law consists of human wisdom and nothing more. Would my fellow believers like that state of affairs? I don't think so. I know I wouldn't like it. It would make me feel, just a little, like a stranger in my own home, someone who doesn't belong. It would be a tiny reminder that other people with beliefs hostile to mine own this country, and that I'm here at their sufferance. I wouldn't like that at all.

If that's right, then turning around and doing the same thing to people who don't believe what I do when my crowd is in the majority is wrong. Not wrong by the measure of the First Amendment or some legal theory or secular philosophy, but wrong by the measure of "do as you would be done by."

Bill makes his argument from morality, not from law. I will make an argument about the law. Bill's argument about morality and reciprocity also articulates a basic principle of equality.

In a previous post, I criticized Justice Scalia's views about the Establishment Clause as justifying second class citizenship for religious minorities. I speak in this way because I have always believed that at the heart of the jurisprudence of the religion clauses is the problem of securing equal citizenship in a country whose citizens have very different and sometimes contradictory beliefs about religion. The goal of the religion clauses is twofold-- first, to preserve religious conscience, and second, to ensure equal citizenship for all persons regardless of their religious beliefs.

There is something else worth quoting in Bill's post:

Twenty-first century America is a land full of legal rights, and lawyers to make the most of them. The most Christian thing to do in a place like that is to make the least of them. Somewhere, sometime I'd like to hear that my fellow believers, when given the opportunity to erect some watered-down monument or display, said: "Thank you, but no. I don't want to exercise my rights." That would communicate more Christian faith than all the monuments and plaques and graduation prayers put together.

Then the Supreme Court could quit wasting its time on these cases (and, given the way the Supreme Court works, start wasting its time on something else). There are plenty of issues worth fighting about in America's courtrooms and legislative hallways. This isn't one of them.

Bill argues that religious believers should not demand all the legal rights that they might have. I think the same reasoning applies to secularists. Even if secularists are within their rights in preventing some religiously motivated displays, they should forebear from challenging some of them. In many cases, if not most, they should let sleeping dogs lie. That is not because there is nothing inappropriate about these displays. That's Justice Scalia's answer. It is because even if there is something inappropriate, litigation is not always the best solution. Bill is right: some battles are not worth fighting.

Frankly, I'm disturbed by litigation about creches and public displays of religion. I think most of these displays violate the Establishment Clause, but I also think that every such victory by secularists in these cases divides and polarizes the country further, and gives a platform to demagoguery.

Commitment to equal citizenship is not simply about demanding your rights; it is also about not demanding your rights sometimes and learning to get along with other people and make compromises. Being committed to equal citizenship requires that you recognize that people who disagree with you are equal citizens too, and that no matter how differently you see things, and how strongly you disagree, you are working toward a common enterprise.