Massachusetts Law Review

Law and Religion: A Critical Anthology, edited by Stephen M. Feldman (New York University Press, 2000), 483 pages.

History records many periods when the combined force of religion and politics chased reason into hiding. In the century just ended, however, the role of religion was typically more positive. The deity, of whatever type or description, was usually a constructive force for promoting social good. True, religion was sometimes at the root of political excesses (India and Pakistan at mid-century are a terrible example), but the greatest excesses needed no help at all from religious thought or doctrine. By and large, the modern deity was a benign and constructive force regardless of the fervor with which he or she was honored and worshiped by a particular sect.

As the century ended, things changed. Theocratic government in Iran was a portent. Then came the Taliban. Watching as they brandished the Koran to chase women out of schools, offices and professions, to regulate such trivialities as the length of men's facial hair, to prescribe dress codes, to impose severe punishments for minor religious offenses, and to justify destruction of "graven images" like the 1500-year-old Buddhas in Afghanistan's Bamiyan region gave observers the feeling that they were traveling backwards to the 13th century. More important, watching the Taliban's creation of a fiercely religious state was a powerful reminder of religion's destructive potential when combined with political authority and unchecked by countervailing forces.

The world watched with growing unease as the Taliban's particular brand of fundamentalism tightened its grip on the Afghan people. Unease suddenly turned to shock and horror on September 11 when Mohammed Atta and his cohorts drove Boeing jumbo jets into the Twin Towers of the World Trade Center. Not that Atta was a member of the Taliban or that the Taliban, as opposed to al-Qaeda, had set his terrible plan in motion. But from all appearances, Atta and his companions believed that a deity was sitting on their shoulders as they drove airplanes down the Hudson and turned on the final leg of their murderous route.

One does not need to understand Atta's motivation to appreciate the event's horrific impact, the enormity of which cannot possibly escape anyone who saw it, read about it or even heard of its occurrence. Still, evidence that Atta thought that a deity was in the cockpit with him adds measurably to the pall cast by the Towers' collapse. Perhaps above all, we think of ourselves as rational people who live and function in an essentially rational world, a world where we can largely count on sensible calculations of risk and reward to keep gunfire at bay. Indeed, for years the principal of mutual assured destruction relied entirely on nice calculations of that type to contain the destructive potential of nuclear weapons. If Atta launched his attack thinking that he was an instrument of divine intervention in world affairs, or even if he believed that the attack's unspeakable horrors were those the deity sanctioned, and if the Taliban's religious oppressions suggest that beliefs like Atta's are not the idiosyncratic aberrations of a few insane zealots, then preventing future terror is not a task for which reason, rationality or nice calculations are likely to be useful tools. We face instead a world in which someone's interpretation of divine will can trigger random and unpredictable events of devastating consequence.

The religious component of the present crisis provides an occasion for our own self-examination. To be sure, poisonous vapors of violence and repression effuse from the mixture of religion and politics in proportion to the heat provided by the smouldering fires of poverty, ignorance and profound lack of hope. Ours is a mature, stable and diverse society, hardly ready for capture by fanatics. Nevertheless, we are also more religious than any other Western industrialized nation.1 And, although committed almost reflexively to the principle that church and state are, and should be, separate, we have historically struggled uneasily to locate the proper boundaries between the two. Reaction to the Supreme Court's recent school-voucher opinion2 and the firestorm of public protest over the Ninth Circuit's "pledge of allegiance" decision3 are but two of the struggle's most recent manifestations. The religion-loaded abortion debate is, of course, another.

For those interested in the self-reflection, the twenty-two essays Professor Stephen M. Feldman has collected in Law and Religion, A Critical Anthology provide a thought-provoking point of departure. Feldman is a professor of law at the University of Tulsa and has previously written on church-state relations.4 In this volume, he has collected what he describes as a series of critical essays that contribute important viewpoints on the relation between state and religion and at the same time "call into question the most settled assumptions of the law and religion debates."5 The result is both stimulating and worth the navigational effort some of its dense prose requires.

The essays are grouped into five general topics, each dealing with a different facet of the relationship between law, religion and politics. Although decisions of the Supreme Court logically play a role in the contents of each section, only one is specifically devoted to religion and Supreme Court doctrine. The remaining topics explore the subject from different perspectives. Included in one is Feldman's "A Christian America and the Separation of Church and State" in which he discusses many of the themes he expressed in his earlier book. That essay is immediately followed, however, by one written by Mark A. Graber, a professor of government and politics at the University of Maryland, entitled "Jewish Voices and Religious Freedom," which criticizes many of Feldman's approaches while recognizing the value his analysis adds to the dialogue. Overall, the result is a balanced and thoughtful presentation of differing viewpoints.

In the present context, perhaps the most interesting portion of the book is entitled "Religion and the Public Square." That section contains five essays, each of which examines the degree to which public policy, and debate on public policy, ought to contain frankly religious doctrine. None of the five proposes changing judicial decisions regarding separation of church and state. Instead, each considers the extent to which, separation of church and state presumed, debate and decision-making can nevertheless take account of religious doctrine or teaching.

At one end of the spectrum is Richard John Neuhaus, a Catholic priest, president of the Institute on Religion and Public Life and the editor-in-chief of First Things, the institute's monthly publication. For Neuhaus, "[t]he great problem today is not the threat that religion poses to public life, but the threat that the state, presuming to embody public life, poses to religion."6 The extreme separationists whose views currently dominate, he argues, take no alarm at religious expression that is unlikely to affect public policy.7 Instead, they focus on religious expression with the potential to have an effect on public discourse and in the process show that their real concern is not so much with religion as it is with majority will.8 While recognizing that a basic principle underlying our democracy is protection against the "dangers of raw majoritarianism,"9 Neuhaus believes that the primary safeguard against a religiously overreaching majority lies in religion itself. "[W]e do not kill one another over our disagreements about the will of God," he argues, "because we believe that it is the will of God that we should not kill one another over our disagreements about the will of God. Christians and Jews did not always believe that but, with very few exceptions, we in this country have come to believe it. It is among the truths that we hold."10

For William P. Marshall, Kenan Professor of Law at the University of North Carolina, Chapel Hill, the will of God is an insufficiently certain barrier against the deleterious effects of religious intolerance. For him, "the primary argument in favor of limiting religion's role in the public square stems from the manner in which religion and its followers may, at times, interact."11 Marshall believes that "[r]eligion and humanity have a potentially dangerous symbiotic relationship. Humanity . . . [among other things] wants . . . to be relieved of the burden of its own conscience."12 To respond effectively to that need, "religion must proclaim its infallibility and universality. It must be dogmatic and authoritarian; if it were to express self-doubt, it would no longer possess the claim to certainty that makes it attractive."13 Religion's attractive dogmatism, in turn, makes it unlikely that believers will be "open to discussing competing belief systems."14 On the contrary, they are "likely to treat the public square as a battleground rather than as a forum for debate."15 In the end, Marshall believes that "[f]ervent beliefs fueled by suppressed fear are easily transformed into movements of intolerance, repression, hate, and persecution."16 That transformative potential, plus the fact that our pluralistic society makes exclusively or even predominantly religious argument unpersuasive and culturally unacceptable, is a "substantial reason[] for exercising caution with respect to religious involvement in the public square."17

Marshall's argument is supported, albeit from a different direction, by Robert Audi, distinguished professor of philosophy at the University of Nebraska, Lincoln. "Where religious convictions are a basis of a disagreement," he argues, "it is, other things being equal, less likely that the disputants can achieve resolution or even peacefully agree to disagree. If God's will is felt to be clear, there may seem to be only one way to view the issue."18 He therefore advocates what he calls the "principle of secular rationale."19 While it is impossible for a religious person to banish religious thought entirely from his decision-making process, those who participate in public debate should nevertheless feel an obligation to avoid arguing any position "that restricts human conduct unless [they have], and [are] willing to offer, adequate secular reason" for the advocated position.20 "A secular reason," he asserts "is roughly one whose normative force does not . . . depend on the existence of God or on theological considerations."21 An adequate secular reason is one that, by itself and apart from religious considerations, sufficiently motivates the person to urge the position he or she advocates.22 That does not, he explains, mean that a religious impulse cannot be a motivating force. Indeed, religious reasons may be more important to the advocate than the secular. Audi's principle of secular rationale does mean, however, that the secular reasons, considered by themselves, must be sufficient to motivate the advocate's endorsement of the position even when stripped of any religious connection.23

That framework is essentially congruent with the position urged by Michael J. Perry, who holds the University Distinguished Chair in Law at Wake Forest University. He observes that "[i]n a society as overwhelmingly religious as the United States, we do present and discuss - and we should present and discuss - religiously based moral arguments in our public culture."24 In his view, the reasons most frequently given for banishing such argument from public debate, i.e., that religious arguments are inherently divisive and do not permit the kind of "critical distance essential to truly deliberative debate,"25 cannot withstand critical scrutiny. As he puts it, "[r]eligious discourse about the difficult moral issues that engage and divide . . . citizens of liberal democratic societies is not necessarily more monologic (or otherwise problematic) than resolutely secular discourse about those issues."26 Moreover, "[t]he proposition that every human being is sacred is a fundamental part of the Fourteenth Amendment to the Constitution of the United States. The Constitution not only does not forbid government, in making political choices, to rely on the proposition, it forbids government to rely on the contrary proposition."27 To Perry, that proposition, even if widely embraced as a matter of secular morality, is inherently religious in nature. 28 When the time comes to make choices, however, Perry states that each of us should be "exceedingly wary"29 unless a persuasive secular argument brings us to the conclusion our religious judgments suggest.30 He holds that view, not because of an innate preference for secular reasoning, but because of the enormous difficulty of determining with precision the contours of divine will and revelation, "including what God might have revealed about the requirements of human well-being."31

For his part, John H. Garvey, now the dean of the Boston College Law School and author of the section's final essay, argues that there is nothing wrong with taking "positions on questions of public policy when the belief that underlies them had its origin in an exercise of religious authority."32 Indeed, a public official cannot "centrifuge his beliefs and separate the religious element. . . . We cannot ask him to act without reliance on his religious convictions, because he probably has no idea what he would do in that case. It would be like asking him how he would decide if he were someone else."33 What we can require, Garvey maintains, is that the public official refrain from acting simply out of a desire to conform his conduct to church doctrine.34 If he understands church doctrine and its application to a specific question of public policy and if he agrees with that application, then he should be permitted to act accordingly.35 His permission to do so flows from the principle that many questions involving moral decision-making cannot be answered "on the basis of shared premises and publicly accessible reasons. So everyone who thinks about the question[s] . . . will have to rely on some 'private' or 'personal' grounds. Only a society actually hostile to religion would want to treat it worse than other kinds of 'personal' reasons."36 If the advocate does not understand, or does not agree with, the religious basis for church doctrine, however, he cannot give the church a proxy and act in accordance with religious dictates because of a belief "that the church has a lower error rate than he does" on questions that have a moral component.37 Instead his obligation is to recuse himself or, if that is impossible, to resign.38

As stated and as this discussion reveals, tracking the highly nuanced argument these essays contain is sometimes a struggle. But the effort required is well worth it. The most ardent separationists cannot escape the heavily religious nature of our society. At the same time, the most fervid conjoiners cannot escape deep-seated cultural belief, and its supporting layer of legal doctrine, that church and state are separate and should forever be. Feldman's collection helps us to continue thinking critically and openly about the tension between the two extremes and reasoning collectively about the role of religious faith in public affairs. In a society as deeply religious as ours, that critical thinking, and the open dialog by which it is accompanied, is our surest and most durable safeguard against the descent into madness we have so recently witnessed elsewhere.

End-notes

1. Law and Religion: A Critical Anthology 2 (Stephen M. Feldman ed., 2000).[back]

2. Zelman v. Simmons-Harris, - U.S. -, 122 S. Ct. 2460 (2002). [back]

3. Newdow v. US Congress, 292 F.3d 597 (9th Cir. 2002). [back]

4. See generally Please Don't Wish me a Merry Christmas: A Critical History of the Separation of Church and State (New York University Press 1997).[back]

5. Law and Religion: A Critical Anthology, supra note 1, at 4.[back]

6. Richard John Neuhaus, A New Order of Religious Freedom, in Law and Religion: A Critical Anthology, supra note 1, 89, 95.[back]

7. Id. at 91. [back]

8. Id. [back]

9. Id.[back]

10. Id. at 92.[back]

11. William P. Marshall, The Other Side of Religion, in Law and Religion: A Critical Anthology, supra note 1, 96, 98.[back]

12. Id. at 101.[back]

13. Id.[back]

14. Id. at 104.[back]

15. Id. at 105.[back]

16. Id.[back]

17. Id.[back]

18. Robert Audi, The Place of Religious Argument in a Free and Democratic Society, in Law and Religion: A Critical Anthology, supra note 1, 69, 78.[back]

19. Id.[back]

20. Id. at 78-79.[back]

21. Id. at 79. [back]

22. Id. [back]

23. Id. at 81.[back]

24. Michael J. Perry, Liberal Democracy and Religious Morality, in Law and Religion: A Critical Anthology, supra note 1, 115, 118.[back]

25. Id. at 117.[back]

26. Id. at 118.[back]

27. Id. at 124.[back]

28. Id. at 124-25.[back]

29. Id. at 125.[back]

30. Id. at 125-26.[back]

31. Id. at 127.[back]

32. John H. Garvey, The Pope's Submarine, in Law and Religion: A Critical Anthology, supra note 1, 149, 163.[back]

33. Id.[back]

34. See id. at 166.[back]

35. See id. at 163.[back]

36. Id. at 164.[back]

37. Id. at 165.[back]

38. Id. at 166.[back]