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May 06, 2006

Government and Religion

Steven Shiffrin: May 6, 2006

On Prawfsblog, Rick Garnett takes the view that: “I certainly share Marty [Lederman]’s (and
Madison's) concern about religious faith being reduced to a convenient means for achieving the government's ‘secular’ ends.  That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be ‘profoundly disturbing’ -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that ‘religious transformation [and]  faith’ are good (when freely embraced).” 

It is not clear to me that an announcement by government that religious faith is good without any accompanying action is unconstitutional though I think we would have a better Constitution if it were.

I think it might well be constitutional because it is constitutional for the government to put “In God We Trust on the Coins,” to say “God Save the United States and This Honorable Court,” and to issue a Pledge of Allegiance “Under God.” I think these practices affirm religion over non-religion and monotheism over non-monotheism. And I think that claims that the motto, the prayer, and the Pledge are non-religious lack integrity. I argue this in The Pluralistic Foundations of the Religion Clauses, 90 Cornell L.Rev. 95 (2004). Michael Perry also argues this in a forthcoming article in
St.Thomas and I believe he has also expressed the view in print previously as well.

I think a government statement to the effect that religion is good might cross a line in it that might be encouraging religion, and that is unconstitutional. I certainly do not think that government is entitled under the Establishment Clause to proselytize (thus intelligent design can not be taught in the schools) and it is not entitled to say what God has to say about any subject (it should be inappropriate for government to post versions of the Ten Commandments).

Whatever its constitutionality, I would find it disturbing for government to announce that religious faith is good, let alone to act on it. First, I think government neutrality on this subject is more respectful of citizens who disagree. I do not believe that a person’s religion or lack of it should have any bearing on their relationship to the state. Statements like these including “In God We Trust” mark out two classes of citizens: those who do not trust in God are not part of the “We.” They are marked as outsiders. Just as important, I do not trust government to help religion. I believe that close ties with government have hurt the Church in Europe. The Church made the horrible mistake of thinking that close ties with monarchs, Vichy France, Salazar, Franco, Mussolini, and the like would be good for the Church. This not only interfered with the kind of witnessing that was called for. It put the Church on the wrong side of history in the eyes of millions of Europeans.

Close ties with government risk alliances with corruption and dependency. I do not maintain that phrases like In God We Trust have hurt religion much (though it has robbed the phrase of spirituality, and has married religion with money at the same time it asserts a theological proposition), but it is hard for me to imagine that they help. It may be that demagogic politicians might try to curry favor by saying that In God We Trust needs to be put on the currency or to forge alliances with merchants in highlighting Christmas – a special form of blasphemy. But I believe religion can get along quite well (I am sure Rick does too) without government announcements that religious faith is good.

There is a special irony here. Religious conservatives ordinarily are suspicious of government in a broad swath of areas, but they seem comfortable with government promoting religion (I have no basis to assume that Rick is part of this irony). I am genuinely curious as to why.


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Posted by: D.A. Ridgely

First, I am happy to see that Mr. Garnett's prose style is every bit as convoluted as mine.

Second, I appreciate Mr. Shiffrin cleanly distinguishing between what the Constitution might require and what he believes it should require.

Third, I agree that the motto, the prayer, and the Pledge, though held to be constitutional, nonetheless affirm religion over non-religion and monotheism over non-monotheism and that those holdings were therefore, in my opinion, incorrect. I do not agree with his perhaps gratuitous conclusion that teaching Intelligent Design is per se proselytizing and therefore unconstitutional, though I acknowledge that it has so far been pretextually exactly that. Well, the answer to all of that is to eliminate government schools, but that is a different topic.

Fourth, when he speaks of "the Church" I assume he means the Roman Catholic church, but his observation regarding corruption and especially dependency holds more or less equally in Germany with the Lutheran Evangelical Church and in Great Britain with the Anglican Communion. Ironically, establishment has been a principal factor in the decline of Christianity in Europe.

Fifth and finally, I don’t know that it is true that religious conservatives ordinarily are suspicious of government in a broad swath of areas. I would say they tend to be social conservatives who are entirely comfortable with government in some areas but not in others and differ with liberals in that regard only in the fact that their lists differ. Jonah Goldberg once made the useful distinction between anti-state conservatives and anti-left conservatives. Social conservatives in general and religious conservatives in particular tend to be the latter sort.

Posted by: D.A. Ridgely | May 7, 2006 12:29:20 PM

Posted by: Steve Shiffrin

On the intelligent design point, I think that teaching that God exists is proselytizing. The most common form of ID maintains that the best explanation for the existence of some part of nature is an intelligent designer. Although, as Kent Greenawalt has argued, this would logically be consistent with polytheism, monotheism, or an alien from another planet, I believe that children who are taught this will reasonably believe they are being taught that the existence of God is the best explanation for the existence of at least a part of nature. I do not believe the state can constitutionally do this (I consider this to be proselytizing, perhaps I am working with the wrong concept). I do think the state can teach about the intelligent design controversy. Moreover, I think the state can teach scientific claims critical of evolution (more typically, about the limits of evolution). Indeed, I think those claims should be taught in biology class and refuted or affirmed whatever religion this helps or hurts (Greenawalt has also written well on this). But I do not think that government can teach that the best explanation of the data is an intelligent designer

Posted by: Steve Shiffrin | May 8, 2006 8:37:37 AM

Posted by: johnt

"Close ties with government risk alliances with corruption and dependency". I have to remember that. Or is it's use purely singular? No matter for now but maybe I can find some future usuage for it.
Dreadful it is that millions of agnostics and atheists have been driven to the underground barter economy rather than being contaminated by our religious currency but they seem to be holding up rather well in spite of this subtle persecution.
From time immemorial government has been in the affirmation business, usualy to affirm it's own power but secondarily to affirm the power and privilege of those who can crawl, bully, or bribe their way closest to the throne. Needless to say it's all for our own good.
If to affirm is to choose and in politics, to take sides, it's safe to say that the tide has turned over the years. Secularism, with it's gentle and moderate tolerance, has advanced considerably, aided by a mugging of the 1st Amendment, which like the rest of the Constitution, is now alive.
I note a distinction in Mr Shiffrin's post between religion and monotheism. All to the good as the two are not joined at the hip and the distinction opens doors for further consideration. But not today.

Posted by: johnt | May 8, 2006 10:19:38 AM

Posted by: LPFabulous

"I certainly do not think that government is entitled under the Establishment Clause to proselytize (thus intelligent design can not be taught in the schools)"

This statement sort of distills all of the horrible poverty of modern Establishment Clause jurisprudence. Surely the EC was never intended to prevent local school boards from teaching students about God, but now that it's just another "living" amendment, we are more than capable of perverting it beyond all recognition.

Never mind that no one ever seemed bothered by the fact that, say, Maryland established Catholicism as the official religion of the state. It would take a brilliant and shimmering 20th century mind to read "privileges and immunities" or "due process of law" and spin this kind of nonsense out of whole cloth.

Posted by: LPFabulous | May 10, 2006 3:12:45 AM

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