OCTOBER 9, 2003
The New Freedom of Public Religion
John Witte, Jr.
Thomas Jefferson's metaphor of "a wall of separation between church and state" has become for many the source and summary of American religious freedom. Indeed, many within and beyond these borders think Jefferson's words are enshrined in the First Amendment itself. It is often disconcerting for readers to discover that the First Amendment has much more restrained and ambiguous language: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
"Metaphors in law are to be narrowly watched," Justice Benjamin Cardozo once warned, "for starting as devices to liberate thought, they end often by enslaving it." So it has been with the metaphor of a wall of separation. This metaphor has held popular imagination so firmly that many of us have not noticed that separation of church and state is no longer the law of the land.
In a long series of cases over the past fifteen years, the Supreme Court has abandoned much of its earlier separationism, and reversed several of its harshest cases on this point. The Court has upheld government policies that support the public access and activities of religious groups -- so long as these religious groups are voluntarily convened, and so long as non-religious groups are treated the same way. So, to name a few of these, church-affiliated pregnancy counseling centers could be funded as part of a broader federal family counseling program. Religious groups could gain equal access to public facilities, forums, and funds that were already opened to other civic groups. And religious schools were just as entitled to participate in a state-sponsored school voucher program as other private schools.
The Supreme Court has defended these holdings on wide-ranging constitutional grounds, and it has not yet settled on a consistent new logic. One consistent teaching of these recent cases, however, is that public religion must be as free as private religion. Not because the religious groups in these cases are really non-religious. Not because their public activities are really non-sectarian. And not because their public expressions are really part of the cultural mainstream. To the contrary, these public groups and activities deserve to be free, just because they are religious, just because they engage in sectarian practices, just because they sometimes take their stands above, beyond, and against the cultural mainstream. They provide leaven and leverage for the polity to improve.
A second teaching of these cases is that the freedom of public religion sometimes requires the support of the state. Today's state is not the distant, quiet sovereign of Jefferson's day from whom separation was both natural and easy. Today's state is an intensely active sovereign from whom complete separation is impossible. Few religious bodies can now avoid contact with the modern welfare state's pervasive network of education, charity, welfare, child care, health care, family, construction, zoning, workplace, taxation, security, and other regulations. Both confrontation and cooperation with the modern welfare state are almost inevitable for any religion. When a state's regulation imposes too heavy a burden on a particular religion, the free exercise clause provides a pathway to relief. When a state's appropriation imparts too generous a benefit to particular religions alone, the establishment clause provides a pathway to dissent. But when a general government scheme provides public religious groups and activities with the same benefits afforded to all other eligible recipients, constitutional objections are now rarely availing.
A third teaching of these cases is that freedom of public religion also requires freedom from public religion. Government must strike a balance between coercion and freedom. The state cannot coerce citizens to participate in religious ceremonies and subsidies that they find odious. But the state cannot prevent citizens from participation in public ceremonies and programs just because they are religious. It is one thing to outlaw Christian prayers and broadcasted Bible readings from the public school; after all, students are compelled to be there. It is quite another thing to ban moments of silence and private religious speech in these same public schools. It is one thing to bar direct tax support for religious education, quite another thing to bar tax deductions for parents who choose to educate their children in religious schools. It is one thing to outlaw governmental prescriptions of prayers, ceremonies, and symbols in public forums, quite another thing to outlaw governmental accommodations of private prayers, ceremonies, and symbols in these same public forums.
A final teaching of these cases is that freedom of public religion is no longer tantamount to establishment of a common religion. Government support of a common civil religion might have been defensible in earlier times of religious homogeneity. It is no longer defensible in modern times of religious pluralism. Today, our public religion must thus be a collection of particular religions, not the combination of religious particulars. It must be a process of open religious discourse, not a product of ecumenical distillation. All religious voices, visions, and values must be heard and deliberated in the public square. All peaceable public religious services and activities must be given a chance to come forth and compete, in all their denominational particularity.
Some conservative Protestants and Catholics today have seized on this new insight better than most. Their recent rise to prominence in the public square and in the political process should not be met with hyperbolic name-calling, glib talk of censorship, or reflexive incantation of Jefferson's mythical wall of separation. The rise of the Christian right should be met with the equally strong rise of the Christian left, of the Christian middle, and of sundry Jewish, Muslim, Hindu, Buddhist, and other religious groups who test and contest its premises, prescriptions, and policies. That is how a healthy democracy works.
The real challenge of the Christian right is not to the integrity of American politics but to the apathy of American religions. It is a challenge for peoples of all faiths, and of no faiths, to take their place in the marketplace.
John Witte, Jr. is Jonas Robitscher Professor of Law, Director of the Law and Religion Program, and Director of the Center for the Interdisciplinary Study of Religion at Emory University in Atlanta.
Also in October at the Divinity School:
From October 21 to 23, the Divinity School brings together a group of Jewish, Christian, and Islamic scholars -- philosophers, theologians, ethicists and legal thinkers -- for the 2003 D.R. Sharpe Lectures entitled Humanity before God: Contemporary Faces of Jewish, Christian, and Islamic Ethics. The aim of the conference is to examine anew the shared ways in which the three monotheistic faiths in the Abrahamic tradition conceive the idea of humanity before God, and how each contributes to contemporary understandings of fundamental claims about the inalienable sanctity and dignity of human life. In multiple ways, the idea of humanity before God is informed by certain central narrative figurations of the creation of humanity within the Torah and the Qur'an. With a view toward these narratives, the conference will explore several crucial dimensions of the idea of humanity before God within the Abrahamic traditions and in relation to our contemporary situation. Events begin on the afternoon of Tuesday, October 21 with an opening keynote lecture at 4 pm by Hilary Putnam, Cogan University Professor (Emeritus) at Harvard University. The conference ends on Thursday afternoon with a closing keynote address at 2 pm by Seyyed Hossein Nasr, University Professor at George Washington University. The conference is free and open to the public, but pre-registration is strongly encouraged. For more information, go to the conference website at http://sharpelectures.uchicago.edu. Stay tuned for upcoming Sightings columns on topics related to the conference.