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Wednesday, July 27, 2005

A Few Words on "Divided By God"

I promised yesterday a mini-review of Noah Feldman's recent book, Divided By God: America's Church-State Problem -- And What We Should Do About It.  Like a number of other readers, I am more convinced by what lies on the left side of the hyphen in the title than on the right, although the "what we should do about it" part ultimately makes up only a small part of the book.  Still, I am not sure Feldman would have published it but for the concluding chapter (and certainly not with Farrar, Straus & Giroux), so I think one can be forgiven for focusing on it a little.

I don't have the book in front of me and so won't go into it at length; please pardon me for any consequent crudeness in my discussion.  As I suggested, it's a very fine history of church-state issues in America, and serves a valuable function of setting out the ways in which coalitions have formed and shifted, coalescing around different shades of ideas.  In short, it suggests that the debate has been a moving target, both in terms of the constituencies on either side and the nature of their respective views.  It certainly makes clear the centrality of immigration to this evolving process.  And I agree with that portion of Feldman's conclusion that suggests that religious views ought to be welcome in the marketplace of ideas, including political debate and decision-making, although my sense is this idea has become less controversial in the legal academy over the last 20 years.

In his conclusion, Feldman argues (in a crude nutshell) that in order to resolve the church-state impasse, the Court should more or less completely reverse itself.  On the one hand, legal secularists should surrender on the issue of whether the Constitution permits “public manifestations of religion,” allowing greater use of religious language in such matters as the Pledge of Allegiance, as long as the state does not act coercively.  On the other side, values evangelicals should accept a constitutional rule forbidding the use of any government money to support religious institutions, even if the money is distributed on a neutral basis, as with school vouchers.  In short, “no coercion and no money” should be the slogan of a reshaped church-state law.

I have some problems with this conclusion -- after the jump....

I have two fundamental problems with Feldman's conclusion.  The first is that it is difficult to tell whether Feldman's solution is as radical as it sounds.  If he means what he says, it would signal a significant change on both sides of the equation -- symbolic support and funding.  But if one reads the book carefully -- and again, it's not before me as I write -- it seems to me there is at least some evidence that his proposal would maintain a lot of the decisions striking down public symbolic support for religion, and might not sweep as broadly as he threatens on the funding side of the equation either.  I think this tendency in his book is probably more preservative of current law on the symbolism side than on the funding side, but there are some indications that more of the status quo would be maintained on both sides than his slogan would suggest.  If this is so, one might question either whether there is any need to rethink the doctrine if the law is going to remain more or less the same, or whether he might convince people to sign on to his solution without understanding the precise nature of the deal he's proposing.  I don't mean to accuse him of bad faith, as it's quite clear this is a fair and thoughtful book.  But I think he would have been well served to be far more specific about what practices stay or go under his proposed settlement of the church-state debate. 

Assume, though, that he means what he says and that he really would change current law in both the symbolism and funding areas.  I have some problems with this.  The first, quite bluntly, is that I find myself more or less sympathetic to some version of the current settlement -- in which religious speech linked in some ways (whether by endorsement, coercion, etc.) to the state is greatly circumscribed, religious speech in public fora is broadly and presumptively permitted, and religious institutions are broadly entitled to equal access to funding and participation in the public sphere.  Feldman does not convince me this settlement is wrong.  Second, he suggests that his proposal is valuable because it will reduce religious strife.  I think he is mistaken about this.  Indeed, I don't want to personify myself as the classic reasonable man, but I find I would be upset by both aspects of his solution: by the privileging of state-supported religious speech and the diminution of equal access to funding for religious institutions.  I simply don't think either side would be satisfied by the proposal he makes.  To the contrary, I think one of the lessons of his book is that, given the perennial nature of the debate on church-state issues, changing the compromise simply resituates the debate elsewhere, in slightly different terms.

I thus agree with Rick, who questions Feldman on the funding side of the equation.  (See here.)  But (perhaps unlike Rick, who had less to say about this aspect of the proposal) I also disagree with Feldman on the symbolic speech side.  Again, much turns on what, precisely, Feldman would or would not change in current law.  But I think he is too glib in saying that the kinds of injuries involved in such issues are really just "an interpretive choice to feel excluded by the fact of other people's faith."  There may be circumstances in which this is true, but there may be others in which the feeling of exclusion is both reflexive and quite appropriate -- is, in fact, the right interpretation.  (In thinking about this as I read the book, I found myself thinking back to footnote 1 of the Santa Fe Independent School District v. Doe case.  There's a reason Doe is a "Doe" here, and it doesn't just turn on interpretive choice.)

As I said above, I think lots of folks already agree with Feldman that religious views ought to be welcome in the public/political sphere, so this aspect of his proposal should be uncontroversial -- but I don't think this assertion inevitably leads to the deal he proposes.  Thus, although I am sympathetic to this aspect of his argument, I just don't think it's much of a player in his discussion.  Really, the meat of the work in the conclusion lies in the symbolic/funding areas, and I was not convinced on these parts of his argument.  However, as I said at the outset, that's just one chapter of an otherwise valuable book.

Posted by Paul Horwitz on July 27, 2005 at 05:21 PM in Books, First Amendment, Religion | Permalink


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I haven't read the book and won't get a chance until I return to the sanctity of the law school library next month, but could you give us a hint as to how Feldman envisions conceptualizing "funding"? That is, if he wants to strike down tuition vouchers in elementary schools, does he also want to strike down federal financial aid to the extent students use it to attend institutions like Calvin College? Like Notre Dame? Like Georgetown?

Similarly, does Feldman envision making it unconstitutional to provide certain services on a neutral basis-- like school buses to any school, public or private? What about property tax exemptions? What about fire protection?

I understand that he probably doesn't confront each question head on, and I really will read the book soon, but it might make any discussion in this comment thread much more useful if you can give a rough idea of what Feldman seems to have in mind. My guess would be that he wants to strike down elementary school tuition vouchers as well as federal financial aid to religious colleges, but leave the rest. Yes?

Posted by: Will Baude | Jul 27, 2005 7:31:19 PM

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