NAF Rethinks Church-State Separation



Not sure if I completely agree with Noah Feldman's proposal in the New York Times Magazine for resolving the church-state debate:
In the courts, the arrangement that I'm proposing would entail abandoning the Lemon requirement that state action must have a secular purpose and secular effects, as well as O'Connor's idea that the state must not 'endorse' religion. For these two tests, the courts should substitute the two guiding rules that historically lay at the core of our church-state experiment before legal secularism or values evangelicalism came on the scene: the state may neither coerce anyone in matters of religion nor expend its resources so as to support religious institutions and practices, whether generic or particular.
But, I find his analysis quite compelling and insightful:
The O'Connor compromise between values evangelicalism and legal secularism may be unsatisfactory, but the truth is that neither approach deserves to prevail. Both are self-contradictory: they fail precisely where they want to succeed, namely in reconciling religious diversity with unity. The values evangelicals want to find shared values, but that leads them to rely on the unexamined assumption that deep down, Americans agree on what matters. The trouble is that 'we' often do not agree...
Meanwhile, the legal secularists have a different problem. They claim that separating religion from government is necessary to ensure full inclusion of all citizens. The problem is that many citizens -- values evangelicals among them -- feel excluded by precisely this principle of keeping religion private. Keeping nondenominational prayer out of the public schools may protect religious minorities who might feel excluded; but it also sends a message of exclusion to those who believe such prayer would signal commitment to shared values. Increasingly, the symbolism of removing religion from the public sphere is experienced by values evangelicals as excluding them, no matter how much the legal secularists tell them that is not the intent.
and his crucial point obvious and relevant, even if constantly overlooked:
Just what is threatening to religious minorities about Christians celebrating the holiday or singing carols in school? What, exactly, is the harm in being wished Merry Christmas even if you're not celebrating? The state has not made Christianity relevant to citizenship nor has it spent taxpayers' money to advance the cause of the church. It has simply acknowledged the preferences of a majority. Some members of religious minorities may choose to spend December feeling bad that they are not part of the majority culture -- but they would have this same problem even if Christmas were not a national holiday, since Christmas would still be all around them. The answer is for them to strengthen their own identities and be proud of who they are, not to insist that the majority give up its own celebration to accommodate them...
Atheists will doubtless maintain that any public religion at all -- like 'under God' in the Pledge of Allegiance -- excludes them by endorsing the idea of religion generally. But this misses the point: it is an interpretive choice to feel excluded by other people's faiths, and the atheist, like any other dissenter from a majoritarian decision, can just as easily adhere to his own views while insisting on his full citizenship...
Ultimately, the nation may have more success generating loyalty from religiously diverse citizens by allowing inclusive governmental manifestations of religion than by banning them.
In the long run, this approach is more likely to focus our national debates on substance instead of procedure -- on what God or reason or whatever source of values teaches about human life and intimate choices, not about whether God belongs in the conversation at all.

Posted: Fri - July 22, 2005 at 03:29 PM        

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