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Wednesday, November 23, 2005

Religion, Division, and the Constitution

It's time for shamelessness:  I have posted a new paper, "Religion, Division, and the Constitution," on SSRN (it's forthcoming in the Georgetown Law Journal).  Here is the abstract:

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could “excessive[ly]” – and, therefore, unconstitutionally – “entangle” government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their “divisive political potential.” Chief Justice Burger asserted also, and more fundamentally, that “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” And from this Hobbesian premise about the “inten[t]” animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our “normal political process” from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good.

This Article provides a close and critical examination of the argument that observations or predictions of “political division along religious lines” should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this “political division” argument.

The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is “religiously based social conflict” – or, as the Court put it in Lemon, “political . . . divisiveness on religious lines”? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the “principle” it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally?

Working through these questions, I am mindful of John Courtney Murray’s warning that we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity,” and also of his observations that “pluralism [is] the native condition of American society” and the unity toward which Americans have aspired is a “unity of a limited order.” Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.

Posted by Rick Garnett on November 23, 2005 at 10:57 AM | Permalink


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I argue that although government can't favor the nonreligious or show hostility toward the religious; nevertheless, the government can prefer the secular over the non-secularOne thing that's been troubling me recently is that the words "secular" and "atheist" seem to be used interchangably, particularly where government is concerned. Even if we allow that government can (should, even) prefer neutrality towards religion, the secular over the non-secular, is there not a danger that a government that tries to take the secular road will in fact in doing so proceed under atheist assumptions? Can government meaningfully act secular without becoming atheist in the process?

Posted by: Simon | Nov 25, 2005 4:29:09 PM

I have always thought that Breyer's point failed to deal with an obvious counter-argument, which I wish the majority had raised -- that the strong-secularism of the ANTI-voucher group creates more divisiveness, while the "go your own way" approach DEFUSES division.

That is, IF we are forced to go to school, and IF those schools enforce one philosophical orthodoxy, then everyone will fight over what that one orthodoxy is. Or, at a minimum, people will fight over self-expression within the one public school. Headscarves in French schools, Christian T-shirts in public schools, student-led prayer after class, etc. And does the secular preference allow non-neutral censorship of religious views, e.g., when every kid in 3rd grade is told to share "ANY story" with the class, but some Biblical story like David and Goliath is vetoed?

So there is divisiveness aplenty. When we all have to ride the same bus, everyone wants the steering wheel.

But let everyone drive their own car, and that control-squabble is eliminated.

Vouchers are the solo-car approach. Allowing neutral, equal-access vouchers lets everyone go their own way, and get their own flavor of religion or secularism. That can still allow for a common curriculum enforced by underlying regulation. That seems much LESS divisive, as everyone need not squabble for their fair share, as it's automatic. We can all send our kids to different places, and get along quite fine in our shared spaces in the public square.

Now, some may say that the latter has problems, too, and maybe they're right. But on the empirical question of what causes more division, I think there's a strong case that the forced-sharing is inherently more divisive.

Think colleges. The state schools have culture war battles, while in the private schools, those battles exist, but are lessened by the availability of different schools.

Meanwhile, Cleveland has not exploded in wars of religion.

Posted by: just me | Nov 23, 2005 3:47:48 PM

Hi Paul. You are right about my take on the Breyer and CJ opinions on Zelman. And, I'll look forward to your "Right to Prefer the Secular" piece. I'm not entirely sure that we disagree -- or, at least, that we disagree entirely. But we'll see!

Posted by: Rick Garnett | Nov 23, 2005 1:32:01 PM

Rick, very interesting.

I guess you are no fan of Justice Breyer's Zelman dissent, which Justice Souter alluded to in his own dissent when he said that, "it is enough to say that the intensity of the expectable friction can be gauged by realizing that the scramble for money will energize not only contending sectarians, but taxpayers who take their liberty of conscience seriously. Religious teaching at taxpayer
expense simply cannot be cordoned from taxpayer politics, and every major religion currently espouses social positions that provoke intense opposition." Rather, you adhere to the majority view in fn. 7 where Chief Justice Rehnquist talks of the fact that, "Justice BREYER . . .raise[s] the invisible specters of 'divisiveness' and 'religious strife' to find the program unconstitutional."

With all due respect (and I am a fan of your blogging) I couldn't disagree more. I am currently writing an article on the "Government's Right to Prefer The Secular," a take-off on language that Scalia used in his dissent in McCreary County regarding ""France [being] ... [a] secular ... Republic." I think, based on history, context, and current realities that the United States is more like France than countries which have religion at the center of their polity. From this, I argue that although government can't favor the nonreligious or show hostility toward the religious; nevertheless, the government can prefer the secular over the non-secular, one reason being the divisiveness caused by religion playing too large a role in the public sector. I guess in this regard, I am not saying that people cannot talk freely about religion, but that government should remain as apathetic as possible.

I'll be sure to send you a draft when I have it. Meantime, can I assume I can get your upcoming Georgetown piece on SSRN? Paul

Posted by: Paul M. Secunda | Nov 23, 2005 12:46:55 PM

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