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Chapter Three Point Five Religious Neutrality Chapter Three Draft: Feb. 14, 2011 Please do not cite or quote Chapter Three The American Specification of Neutrality Secularism in the United States has never been a secularism of governmental religion-blindness.1 Rather, it is secularism of a religion-friendly kind, which aims at broad, nondenominational support for religion while remaining neutral among religious factions. Neutrality’s fluidity means that it can vary in both its conceptual scope and its field of application. Religious neutrality, for example, could mean neutrality among varieties of Protestantism, or varieties of Christianity, or varieties of monotheism, or something even broader and vaguer. Whatever conceptual scope is attributed to it, the obligation of neutrality could be held to apply only to judges, or to both judges and legislators, or to citizens when voting. In this chapter, I will examine the specific variety of neutrality that has been followed in American law. It has never stopped treating religion as a distinctive human good. That neutrality, however, has shifted over time, becoming vaguer and more inclusive. Modes of secularism Which specification of neutrality we actually adopt will depend on our substantive reasons for adopting neutrality in the first place. Bruce Ackerman (who capitalizes “Neutrality” because it is the master concept of his political theory) observes that “it would be a category mistake to imagine that there could be a Neutral justification for the practice of Neutral justification – for Neutrality makes no sense except as a part of the practice it constitutes.”2 It is not possible to be blind to an issue with respect to which one has resolved to remain neutral. Race 1 This has elicited protests from some scholars. Philip Kurland, Of Church and State and the Supreme Court, 29 U. Chi. L. Rev. 1 (1961); Mark Tushnet, “Of Church and State and the Supreme Court”: Kurland Revisited, 1989 Sup. Ct. Rev. 373. 2 Bruce Ackerman, What Is Neutral About Neutrality?, 93 Ethics 372, 387 (1983). 1 Religious Neutrality Chapter Three is an example. David Strauss observes that, because race does correlate with some other characteristics, a norm banning racial discrimination does not treat race as an irrelevant characteristic. Either people will notice the correlations and discriminate on that basis, or they will alter their usual patterns of generalizing about people and consciously exclude race from their decision making.3 Public secularism takes different forms in different regimes.4 France and Turkey, for example, aggressively strive to purge the public sphere of any trace of religion. The United States isn’t like that. The salient difference, Ahmet Kuru argues, is that in America, there was no danger that an old local monarchy would reestablish itself on a religious basis. Secular rationalists therefore did not, for the most part, become anticlerical or antireligious. Rather, they worked together with religious believers toward a regime of religious liberty acceptable to both.5 The aim could not be to eliminate alienation – that cannot be done - but to improvise strategies to cope with it. Bonnie Honig has observed the pervasiveness of the assumption “that the task of political theory is to resolve institutional questions, to get politics right, over, and done with, to free modern subjects and their sets of arrangements of political conflict and instability.”6 Honig argues, on the contrary, that “every politics has its remainders, that resistances are engendered by every settlement, even by those that are relatively enabling or empowering.”7 Because theorists who aim to settle political questions do not take responsibility for those who do not fit their mold, they tend to “adopt a not terribly democratic intolerance and derision for the other to whom their democratic institutions are supposed to be (indeed, claim to be) reaching out.”8 The proper response to alienation and even criminality, Honig argues, is “not . to deny or dissolve it or to reconcile ourselves to it 3 David Strauss, The Myth of Colorblindness, 1986 Sup. Ct. Rev. 99, 114. Strauss’s insight undermines the claim that affirmative action is especially morally problematic because it consciously takes account of race. A nondiscrimination norm does the same thing and has the same kind of costs. Id. 4 See Comparative Secularisms in a Global Age (Linell E. Cady & Elizabeth Shakman Hurd, eds. 2010); Elizabeth Shakman Hurd, The Politics of Secularism in International Relations (2008). 5 Ahmet T. Kuru, Secularism and State Policies Toward Religion: The United States, France, and Turkey (2009). 6 Bonnie Honig, Political Theory and the Displacement of Politics 2 (1993). 7 Id. at 3. 8 Id. at 6. 2 Religious Neutrality Chapter Three but to politicize it, to engage the fact that we are implicated in it, indeed, constituted by it, too.”9 In America, as new minorities have emerged or immigrated, they have in time managed to renegotiate the terms of religious pluralism and disestablishment. One of the benefits of democratic contestation is that it makes the size of the remainder matter. The history of American disestablishment is a history of neutralities that shifted over time in order to cope with newly emergent remainders. The American mode From the beginning, American secularism has aimed at favoring religion as such while abstracting away from the most salient religious divisions. In this chapter, I will trace its evolution and show how it reached its present, very abstract specification. That specification, I will show, is a logical extension of the type of neutrality that American law has aspired to from the beginning. Scholars of the early history of American church-state relations have tended to fall into two polemical factions, the conservatives who want closer church-state relations and the liberals who want an even broader separation than is now required. “Each side claims,” Douglas Laycock observes, “that it won the late twentieth century culture wars and took over the government – two hundred years ago.”10 Both sides are united in their unhappiness with the status quo. Each has its own proof-texts. Conservatives note the references to God in the Declaration of Independence, the overtly religious elements in Madison’s defense of religious liberty, and the long history of public prayers and ceremonial acknowledgements of religion. Liberals observe the absence of any reference to God in the Constitution, Jefferson’s refusal to issue Thanksgiving proclamations, his letter to the Danbury Baptists describing “a wall of separation between Church and State,” and the 1796 Treaty of Peace and Friendship with the ruler of Tripoli, declaring that the United States government “is not in any sense founded on the Christian religion.” Both sides are right.11 There has been a public religion in America, but it has evolved. “Each of the establishment experiences, such as the establishment of 9 Id. at 11. 10 Douglas Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313, 314 (1996). 11 Kuru observes this at 77-78. 3 Religious Neutrality Chapter Three Protestant denominations in several states prior to 1833, the semiestablishment of nondenominational Protestantism in the nineteenth century, and the establishment of monotheism in the 1950s, was more inclusionary that the previous form.”12 Failure to appreciate the fluidity of neutrality, we saw in the last chapter, produces a sclerotic view of the range of options. If these consist solely of religion- blindness on the one hand or full government competence to adjudicate all matters religious on the other, then American practice will indeed seem incomprehensible, since it has never embraced either of these models. If, however, it is understood that neutrality comes in manifold different forms, then we can begin to appreciate the specific attractions, in historical context, of the various forms of neutrality that have prevailed at different times. We can also think more clearly about what form of neutrality is appropriate for us, right now. Generic Protestantism At the time of the American founding, nearly everyone was Protestant, and the law reflected this. This was not understood to amount to establishment. On the contrary, virtually every church that came to America in the seventeenth and early eighteenth centuries was, in one way or another, a dissenting church.13 Sophisticated thinkers of that time, Thomas Curry observes, did not oppose a particular religion to religion in general in the sense of Protestantism, Catholicism, Judaism, or any other faith. Rather, they opposed a particular Protestant denomination to Protestantism in general, which latter they did not equate with an establishment. [T]he notion of prayer and worship based on the Bible that was accepted by all Protestants did not amount to a general establishment, but constituted an essential foundation of civilization. Such others as Catholics or Jews did not impinge sufficiently on their lives to challenge 14 that assumption. 12 Id. at 78. 13 Will Herberg, Protestant, Catholic, Jew: An Essay in American Religious Sociology 99 (1960). 14 THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT 123-24 (1986); see also id. at 218, 221; Barry Alan Shain, Eighteenth-Century Religious Liberty: The Founding Generation’s Protestant-Derived Understanding, in The Oxford Handbook of Church and State in the United States 42 (Derek H. Davis, ed. 2010); Douglas 4 Religious Neutrality Chapter Three The Protestantism of the time was sufficiently ecumenical that often, when there were official references to God in public pronouncements, they did not mention Christ or any specifically Christian doctrines. There were even public ceremonies that conspicuously included Jews.15 The level of abstraction varied from one regime to another, depending on the level of religious diversity that was present. Diversity was at a maximum at the federal level, but it increased in the states, and as it did, the common denominator was increasingly watered down.
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