DigitalCommons@NYLS Articles & Chapters Faculty Scholarship 1993 A Critique of Religion as Politics in the Public Sphere Ruti Teitel New York Law School Follow this and additional works at: https://digitalcommons.nyls.edu/fac_articles_chapters Part of the Constitutional Law Commons, and the Religion Law Commons Recommended Citation 78 Cornell L. Rev. 747 (1992-1993) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. A CRITIQUE OF RELIGION AS POLITICS IN THE PUBLIC SPHERE Ruti Teitel t TABLE OF CONTENTS Introduction . 7 48 I. THE CALL FROM POLITICS •••.••.•••••••••••..••••••••• 750 A. Epistemology and Lawmaking ...................... 750 B. Of Beliefs and Conversation . 752 C. Of Fragmentation and Consensus . 754 II. THE CALL FROM RELIGION •.••.•••••••.•••.•••••••••••• 756 A. The Original Separation Model . 7 56 B. Three Antinomies of Separation . 759 C. The New Engagement . 760 D. The Retreat from the Original Model . 762 E. Of Fragmentation and Consensus . 763 III. RELIGION, POLITICS, AND CONSTITUTIONAL LAW • • . • . • • • 766 A. The Original Neutrality Principle . 766 B. The New Neutrality: Religion as Politics ........... 768 1. In Legislative Decisionmaking . 768 2. In Individual Decisionmaking and Free Exercise Clause Doctrine......................................... 773 3. Employment Division v. Smith and Religion as Politics.......................................... 774 C. Religion as Politics and the Analogy to Political Speech ............................................ 777 IV. THE DISCOURSE MODEL • . • • . • • • . • • . • • . • • . • • . • • • • • • . 780 A. The Call to Conversation . 780 B. The Commitment to Conversation . 781 C. The Commitment to Equality of Access . 782 D. Of Duty and of Civility . 783 t Associate Professor of Law, New York Law School. J.D. 1980, Cornell Law School. For their helpful comments on a prior draft, my gratitude goes to Steven Aren­ son, Peter Berkowitz, Saul Berman, Paul Kahn, Michel Rosenfeld, Tony Sebok, Richard Shenvin, Gary Simson, Michael Sinclair, Jonathan Stein, and Harry Wellington. I am grateful to the American Association of Law Schools Law and Religion Panel, which afforded me the opportunity to present portions of this Article at the session enti­ tled "Making New the Religion Clauses of the Bill of Rights," Jan. 6, 1992, San Antonio, Texas. I am also thankful to New York Law School's Harlan Fellowship Program, which facilitated valuable discussions in 1990 with Michael Perry, Kent Greenawalt, and Ste­ phen Carter concerning religion and politics. Camille Broussard and Leo D' Alessandro provided helpful research assistance. 747 748 CORNELL LAW REVIEW [Vol. 78:747 E. Engagement Towards Moral Consensus and a Critique . 784 1. Ecumenical Politics . 784 2. Fallibilism, Conversion, and Consensus . 786 V. THE DISCOURSE MODEL AND SECTARIAN POLITICS. • • . • 787 A. The Theological Problem . 787 B. Engagement in the Abortion Rights Debate . 789 C. Ecumenical or Sectarian Politics. 790 I. A Paradox About Engagement . 791 VI. AN ALTERNATIVE MODEL: ENGAGEMENT AS REPRESENTATION IN THE PUBLIC SPHERE •••••....••.•.• 792 A. What Does the Public Sphere Signify?.............. 793 B. The Public Sphere as Representational . 793 C. Public Displays . 794 D. Public Schools..................................... 798 I. The Private or the Public Sphere. 80 I E. The Supreme Court . 802 Vil. REPRESENTATION IN THE PUBLIC SPHERE AND RELIGIOUS EQ.UALITY . • . • . • • . • . • . • • • . • . • . • . • . • • • • • . 805 A. Why Equal Access? ................................ 805 I. What is Equal Access? . 806 2. Equality of Access: Religfon as Politics . 807 B. Equality of Access and Preferential Representations 809 C. Syncretic Representations ......................... 812 I. Selective Representations .......................... 815 VIII. EPILOGUE: THE PART OF RELIGION AND POLITICS IN OUR CONSTITUTIONAL DEMOCRACY •.•...•.....••......• 817 INTRODUCTION In political and legal academic communities, as well as many religious communities, there is a movement towards a greater inter­ mingling of politics and religion. This Article analyzes the move­ ment's call for greater engagement of religion in politics and raises the profound consequences of this trend. 1 The departure from the prevailing separation model of church and state toward an accept­ ance of substantial religious representation in public life will ulti­ mately threaten religious equality and pluralism. This Article suggests that, despite the varying strands of the new trend towards greater religious participation in public life, there is a convergence upon a unitary framework. This Article de- I See infra parts I, II. 1993] RELIGION AS POLITICS 749 scribes and critiques the nature and the framework of this develop­ ment toward increased religious representation. Scholars have discussed the trends in political philosophy, the­ ology, and law as independent phenomena.2 There has not been concurrent consideration of these three seemingly discrete bodies of scholarship, as well as the related First Amendment Religion Clause jurisprudence. This Article analyzes the three leading argu­ ments from political theory, theology, and law for the treatment of religion as politics in the public domain. 3 It considers the underly­ ing momentum for the religion and politics debate and explores the implications of these arguments. This Article then examines the prevailing model for religious public participation. A greater role for religion in public life is erro­ neously premised on a vision of the public domain as a forum for conversation. This is a reductive conception both of religious ex­ pression and of public life, and it elides the actual impact of reli­ gious engagement in public life. The model is further analyzed by examining public participation, which demonstrates the limited ap­ plicability of the discourse model. This Article also offers an alternative view of the contemporary religion and politics debate. Engagement in public life may be bet­ ter understood as a forum for representation or recognition in na­ tional culture. Viewed this way, controversies ostensibly over the invocation of religious norms in public discourse are revealed to be struggles over the representation of religion in our public institu­ tions and culture. Properly understood as a dispute over represen­ tation, the question of greater engagement in the public realm requires asking by what principle should religious values be por­ trayed in the public domain? Part 1 of this Article identifies the political momentum towards a rethinking of the role of religious engagement. Part II describes the parallel momentum from a number of faith communities. Part Ill analyzes the constitutional doctrine relating to the religion and 2 See, e.g., KENT GREENAWALT, RELIGIOUS CONVICTIONS AND PoLmCAL CHOICE (1988) [hereinafter GREENAWALT, RELIGIOUS CONVICTIONS] (from the political perspec­ tive); A.JAMES REICHLEY, RELIGION IN AMERICAN PUBLIC LIFE (1985) (from the theologi­ cal perspective); Symposium, Religion in Public Life: Access, Accommodation, and Accountability, 60 GEO. WASH. L. REV. 599 (1992) (from the legal perspective). 3 The three bases are from the political, the religious, and the legal communities. From contemporary political theory, the justification for change derives from the recent acknowledgement of the breakdown in the possibility of rational or value-neutral polit­ ical deliberations, and an attendant rethinking of the role religion might play in public processes. From religion, the argument derives from the contemporary breakdown in the theological understanding of separate private and public arenas of action. From law, the jurisprudence demonstrates a development toward limiting and simplifying the doc­ trine of religious liberty that reflects special treatment of religious claims. 750 CORNELL LAW REVIEW [Vol. 78:747 politics debate. This Part shows how developments in First Amend­ ment Religion Clause jurisprudence support the recent turu to en­ gagement. Part IV proposes that the engagement model is patterned on theories of political participation and conceived as dia­ logical. The central elements of this model are delineated and criti­ qued. The engagement model raises serious equality issues by preferring religions committed to public participation. In Parts V, VI, and VII, the discourse model is critiqued by analyzing instances of actual public participation. Rather than functioning as a place for discourse, the public sphere signifies a place for cultural representa­ tion. Properly understood as a struggle for representation, the de­ bate over religious engagement holds profound implications for the protection of our religious equality and pluralism. I THE CALL FROM POLITICS A. Epistemology and Lawmaking The recent debate on the role of religion in public life has led to a demand for reconsidering the separation model as a vehicle for individual and societal decisionmaking. The separation model is grounded in a principle of separation of religious convictions from political decisionmaking.4 Under this model, an individual's reli­ gious convictions are expected to remain private and divorced from his or her political decisionmaking, which are publicly grounded in reason. 5 This conception of separation at the individual level paral- 4 It is primarily a liberal political principle. Nevertheless in