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Divided by God: America's Church-State Problem—and What We Should Do About It. By Feldman Noah. Farrar, Straus and Giroux2005. Pp.306. Paper. $11.90. ISBN: 0-374-53038-6.

Published online by Cambridge University Press:  24 April 2015

Abstract

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Review Essay
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Copyright © Center for the Study of Law and Religion at Emory University 2007

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References

1. See Feldman, Noah, After Jihad: America and the Struggle for Islamic Democracy (Farrar, Straus & Giroux 2003)Google Scholar. Feldman also took on a practical role in the early days of the United States occupation of Iraq as Senior Constitutional Advisor to the Coalition Provisional Authority. See also Feldman, Noah, What We Owe Iraq: War and the Ethics of Nation Building (Princeton U. Press 2004)Google Scholar.

2. “Congress shall make no law respecting an establishment of religion.” U.S. Const, amend. 1.

3. “This book sets out to address these crucial questions, turning to our history to understand the origins of today's controversies and exploring how we might chart a course for the future.” (7).

4. There are also hints of a third genre here: the rigorous nonfiction narrative perfected by such authors as Tracy Kidder and Jonathan Harr. Sometimes, indeed, the seams show; one can almost hear, at certain points, Feldman's editor asking him to add a telling anecdote here or some local color there to keep the general reader on board.

5. 330 U.S. 1 (1947).

6. Feldman rightly and convincingly points out that American religious pluralism is not only a fact, but a fact built into the nation's structure. To begin with, the original thirteen States had very different religious histories, and that diversity among the States made any single national establishment “impossible.” (26) More deeply, while Europeans could just assume that the “official state religion was the religion of the sovereign,” American notions of popular sovereignty “profoundly disturbed the old model: How could the state establish the religion of the sovereign if the sovereign people belonged to many faiths?” (10) This original structural pluralism was in turn renewed and enriched by successive waves of religious change, such as the Second Great Awakening, and the immigration of religious minorities, such as Catholics and Jews.

7. Feldman uses this observation to rebut the view that the First Amendment, in forbidding Congress from making “any law respecting an establishment of religion,” meant also to prohibit congressional interference widi existing State establishments.

8. See Cohen, Arthur, The Myth of the Judeo-Christian Tradition (Harper & Row 1970)Google Scholar; Neusner, Jacob, Jews and Christians: The Myth of a Common Tradition (Wipf & Stock 2003)Google Scholar; Marty, Martin E., A Judeo-Christian Looks at the Judeo-Christian Tradition, 103 Christian Century 858, 859 (10 8, 1986)Google Scholar; Thiemann, Ronald F., Religion and Legal Discourse: An Indirect Relation, A Response to Steven D. Smith, 81 Marq. L. Rev. 289, 293 (1998)Google Scholar. This is not to say, of course, that there cannot be useful dialogue and common purpose between Jews and Christians. See Christianity in Jewish Terms (Frymer-Kensky, Tikvaet al. eds., Westview 2002)Google Scholar.

9. See e.g. 9 (“The goal of reconciling national unity with religious diversity is the same, but the methods for doing it are deeply opposed”), 220 (“Legal secularism and values evangelicalism are both attempts to deal with the challenge of achieving national unity in the face of religious diversity.”).

10. Though Feldman does not mention it, this shared commitment was most dramatically demonstrated in the remarkable, across-the-board coalition backing the passage of the Religious Freedom Restoration Act in 1993. See Laycock, Douglas & Thomas, Oliver S., Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209, 210211, 210 n. 9 (1994)Google Scholar.

11. For some representative sources on both sides of these debates, see e.g. Ackerman, Bruce A., Social Justice in the Liberal State (Yale U. Press 1980)Google Scholar; Audi, Robert, Religious Commitment and Secular Reason (Cambridge U. Press 2000)CrossRefGoogle Scholar; Eberle, Christopher J., Religious Conviction in Liberal Politics (Cambridge U. Press 2002)CrossRefGoogle Scholar; Greenawalt, Kent, Religious Convictions and Political Choice (Oxford U. Press 1987) [hereinafter Greenawalt, Religious Convictions]Google Scholar; Greenawalt, Kent, Private Consciences and Public Reasons (Oxford U. Press 1995)CrossRefGoogle Scholar; Perry, Michael, Love and Power: The Role of Religion and Morality in American Politics (Oxford U. Press 1991)Google Scholar; Perry, Michael, Under God? Religious Faith and Liberal Democracy (Cambridge U. Press 2003)CrossRefGoogle Scholar; Peach, Lucinda, Legislating Morality: Pluralism and Religious Identity in Lawmaking (Oxford U. Press 2002)CrossRefGoogle Scholar; Rawls, John, Political Liberalism (Colum. U. Press 1993)Google Scholar; Rawls, John, The Idea of an Overlapping Consensus, 7 Oxford J. Leg. Stud. 1 (1987)CrossRefGoogle Scholar; Weithman, Paul J., Religion and the Obligations of Citizenship (Cambridge U. Press 2002)CrossRefGoogle Scholar; Dworkin, Ronald M., Liberalism, in Public and Private Morality 113 (Hampshire, Stewart ed., Cambridge U. Press 1978)CrossRefGoogle Scholar; Gaffney, Edward M., Politics Without Brackets on Religious Convictions: Michael Perry and Bruce Ackerman on Neutrality, 64 Tul. L. Rev. 1143, 11881194 (1989)Google Scholar; Larmore, Charles, Political Liberalism, 18 Political Theory 339 (1990)CrossRefGoogle Scholar; Laycock, Douglas, Freedom of Speech that is Both Religious and Political, 29 U.C. Davis L. Rev. 793 (1996)Google Scholar; Nagel, Thomas, Moral Conflict and Political Legitimacy, 16 Phil. & Pub. Affairs 215 (1987)Google Scholar; Raz, Joseph, Facing Diversity: The Case of Epistemic Abstinence, 19 Phil. & Pub. Affairs 3 (1990)Google Scholar; Rorty, Richard, Religion as Conversation-Stopper, 3 Common Knowledge 1 (1994)Google Scholar; Sandel, Michael J., Political Liberalism, 107 Harv. L. Rev. 1765 (1994)CrossRefGoogle Scholar; Waldrbn, Jeremy, Religious Contributions in Public Deliberation, 30 San Diego L. Rev. 817 (1993)Google Scholar. Significantly, many of the works just cited are more clearly directed to me political morality of responsible citizenship than to the specific constraints of the Establishment Clause.

12. See e.g. Bd. of Educ. v. Mergens, 496 U.S. 226, 249 (1990) (plurality); Harris v. MacRae, 448 U.S. 297, 319-320(1980).

13. See e.g. Dow, David R., The Establishment Clause Argument for Choice, 20 Golden Gate U. L. Rev. 479 (1990)Google Scholar; Law, Sylvia A., Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 10251027 (1984)CrossRefGoogle Scholar; Tribe, Laurence, The Supreme Court's 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 2125 (1973)Google Scholar. Professor Tribe famously retracted his argument, commenting in his treatise that his earlier view, among other problems, gave “too little weight to the value of allowing religious groups freely to express their convictions in the political process.” Tribe, Laurence, American Constitutional Law, vol. 2, § 15-10, at 1350 (2d ed., Foundation Press 1988)Google Scholar [hereinafter Tribe, American Constitutional Law 2d ed.]. See infra n. 16 (discussing and citing Tribe's views). See also Tribe, Laurence, Abortion: The Clash of Absolutes 116 (W.W. Norton & Co. 1990)Google Scholar.

14. Particularly significant here is Harris in which the Court upheld the Hyde Amendment restricting federal funding of abortions under Medicaid. While it might not be surprising that the majority in Harris rejected the Establishment Clause challenge to the legislation, Harris, 448 U.S. at 319-320, it is notable that none of the four dissenting opinions, authored by Justices Brennan, Marshall, Blackmun, and Stevens—all strict separationists—even raised the Establishment Clause argument at all. Justice Stevens has in another context objected on Establishment Clause grounds to a statute restricting abortion. Webster v. Reproductive Health Serv., 492 U.S. 490, 566-567 (1989) (Stevens, J., concurring in part and dissenting in part). Even Stevens, however, whose views of the Religion Clauses might in any event be described as idiosyncratic, emphasized that

I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, or on the fact that the legislators who voted to enact it may have been motivated by religious considerations. Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths, serves no identifiable secular purpose. That fact alone compels a conclusion that the statute violates the Establishment Clause.

Id. (citations omitted).

15. 435 U.S. 618 (1978).

16. Significantly, it was Justice Brennan who famously observed in McDaniel that the mere fact that a purpose of the Establishment Clause is to reduce or eliminate religious divisiveness or strife, does not place religious discussion, association, or political participation in a status less preferred than rights of discussion, association, and political participation generally.

Id. at 640 (Brennan & Marshall, J.J., concurring in judgment). The Justice then went on to quote Laurence Tribe's observation, which comes as close as one can to conventional wisdom on the matter, that

American courts have not thought the separation of church and state to require that religion be totally oblivious to government or politics; church and religious groups in the United States have long exerted powerful political pressures on state and national legislatures, on subjects as diverse as slavery, war, gambling, drinking, prostitution, marriage, and education. To view such religious activity as suspect, or to regard its political results as automatically tainted, might be inconsistent with first amendment freedoms of religious and political expression—and might not even succeed in keeping religious controversy out of public life, given the “political ruptures caused by the alienation of segments of the religious community.”

Id. at 641, n. 25 (quoting Laurence Tribe, American Constitutional Law § 14-12, at 866-867 (Foundation Press 1978) (footnotes omitted)). Professor Tribe reiterated and expanded on these views in the second edition of his treatise. See Tribe, American Constitutional Law 2d ed., supra n. 13, at § 14-14.

17. See Gaffney, Edward McGlynn Jr., On Ending the War on Drugs, 31 Val. U. L. Rev. xvii, xxiixxiii (1997)Google Scholar:

It is not a mistake to insist that legislation should have a valid secular purpose. But this requirement of secularity in governmental policy means that public policies must be shaped to provide for die general welfare of the nation or the local community. It is a misunderstanding of secularity to extend this requirement into an anti-religious ideology of secularism that would exclude religious voices from the conversations or debates that precede the formation of secular policies.

(footnotes omitted).

18. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

19. See Mergens, 496 U.S. at 249 (plurality)

Even if some legislators were motivated by a conviction that religious speech in particular was valuable and worthy of protection, that alone would not invalidate the Act, because what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law.

(emphasis in original). For a fine treatment, see Breedlove, Scott W. & Salzmann, Victoria S., The Devil Made Me Do It: The Irrelevance of Legislative Motivation Under the Establishment Clause, 53 Baylor L. Rev. 419 (2001)Google Scholar.

20. Edwards v. Aguillard, 482 U.S. 578 (1987).

21. McCreary Co. v. ACLU, 545 U.S. 844 (2005).

22. McConnell, Michael, Religious Freedom at the Crossroads, 59 U. Chi. L. Rev. 115, 145 (1992)CrossRefGoogle Scholar. Even the most decidedly separationist of the Justices presently sitting on the current Supreme Court have agreed that, though the purpose prong of the Lemon test “serves an important function,” it will by itself “rarely be determinative.” McCreary Co., 545 U.S. at 859 ((Souter, J., joined by Stevens, O'Connor, Ginsburg & Breyer, J.J., plurality opinion) (quoting Wallace v. Jaffree, All U.S. 38, 75 (1985) (O'Connor, J., concurring in judgment)). This would not be true if the inquiry into purpose had a larger mission of banning any legislation motivated by religious views.

23. See Tushnet, Mark, Religion in Politics, 89 Colum. L. Rev. 1131, 11341135 (1989)CrossRefGoogle Scholar (reviewing Greenawalt, Religious Convictions, supra n. 11). For my own short take on the role of religious arguments in legal discourse, and the relationship of that question to the American experiment in separation of religion and state, see Dane, Perry, Spirited Debate: A Comment on Edward Foley's Jurisprudence and Theology, 66 Fordham L. Rev. 1213 (1998)Google Scholar.

24. The “endorsement” test is even more vulnerable to attack from the strict separationist side of the debate. As Carl Esbeck has pointed out,

Separationism focuses primarily on patrolling the boundary between church and state regardless of whether an individual (the reasonable, objective observer or otherwise) either resents or welcomes the government's sponsorship of religious symbols. … Justice O'Connor's no-endorsement test … weakens separationism by concentrating on the psychological reaction of an “objective observer,” rather than on policing the boundary between the institutions of church and state.

Esbeck, Carl H., A Restatement of the Supreme Court's Law of Religious Freedom: Coherence, Conflict, or Chaos?, 70 Notre Dame L. Rev. 581, 631–32 (1995)Google Scholar.

25. The Court has already made clear mat genuinely and clearly private religious speech deserves the same nonpreferential access to the public square as other speech. See e.g. Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 759-763 (1995).

26. See Murphy v. Bilbray, 782 F. Supp. 1420, 1438 (S.D. Cal. 1991) (holding that the “Mount Soiedad cross” violated “No Preference” clause of the California Constitution), aff'd sub nom. Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir. 1993), enforced by, Paulson v. City of S.D. 2006 U.S. Dist. LEXIS 44740 (S.D. Cal. May 3, 2006), stay pending appeal granted sub nom., San Diegansfor the Mt. Soiedad Natl. War Meml. v. Paulson, 126 S. Ct. 2856 (Kennedy, Cir. J. 2006); see also Pub. L. No. 109-272, 120 Stat. 770 (2006) (transferring title of “Mount Soiedad Veterans Memorial,” including controversial cross, to federal government, and authorizing just compensation); Archibold, Randall C., Bush Signs Law to Save War Memorial Cross, N.Y. Times A14 (08 15, 2006)Google Scholar.

27. “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” Engel v. Vitale, 370 U.S. 421, 422 (1962).

28. See generally Bellah, Robert N., Civil Religion in America, 96 Daedalus 21 (Winter 1967)Google Scholar; Mirsky, Yehuda, Civil Religion and the Establishment Clause, 95 Yale L.J. 1237 (1986)CrossRefGoogle Scholar.

29. Marsh v. Chambers, 463 U.S. 783, 810-811 (1983) (Brennan & Marshal, J.J., dissenting) (internal quotation omitted).

30. See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp.2d 707 (M.D. Pa. 2005).

31. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

32. See Roemer v. Bd. of Public Works, 426 U.S. 736, 755-759 (1976) (quoting Hunt v. McNair, 413 U.S. 734, 743 (1973)).

33. Consider, for example, that the mission of Catholic hospitals, according to the United States Conference of Catholic Bishops, necessarily reflects Jesus' “concern for the sick,” “bears witness to the truth that, for those who are in Christ, suffering and death are the birth pangs of the new creation,” and is constrained by specific religious prohibitions on practices such as abortion, contraception, and any form of fertility treatment that bypasses the sexual union of husband and wife. See United States Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services 4, 5 (4th ed., U.S. Conf. Cath. Bishops 2001)Google ScholarPubMed. Whether the presence of such governing principles means that Catholic hospitals “rely on faith to accomplish their goal” (247) is, at the least, an interesting and difficult question.

34. Thus, in Engel, Douglas wrote:

The point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the federal and state levels is presently honeycombed with such financing. Nevertheless, I think it is an unconstitutional undertaking whatever form it takes … . In New York the teacher who leads in prayer is on the public payroll;… [o]nly a bare fraction of the teacher's time is given to reciting this short 22-word prayer.… Yet,… no matter how briefly the prayer is said,… the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution. … I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads. Yet once government finances a religious exercise it inserts a divisive influence into our communities.

370 U.S. 421, 437, 441-442 (1962) (Douglas, J., concurring) (footnotes omitted). Similarly, in Schempp, the case striking down official Bible-reading in the public schools, Douglas wrote:

These regimes violate the Establishment Clause in two different ways. In each case the State is conducting a religious exercise; and, as the Court holds, that cannot be done without violating the “neutrality” required of the State by the balance of power between individual, church and state that has been struck by the First Amendment. But the Establishment Clause is not limited to precluding the State itself from conducting religious exercises. It also forbids the State to employ its facilities or funds in a way that gives any church, or all churches, greater strength in our society than it would have by relying on its members alone. Thus, the present regimes must fall under that clause for the additional reason that public funds, though small in amount, are being used to promote a religious exercise. Through the mechanism of the State, all of the people are being required to finance a religious exercise mat only some of the people want and that violates the sensibilities of others.

Abington Sch. Dist. v. Schempp, 374 U.S. 203, 229 (1963) (Douglas, J., concurring).

35. This is a completely unrigorous corollary of the famous Priest/Klein hypothesis that, regardless of whether any given set of legal rules is pro-plaintiff or pro-defendant, plaintiffs and defendants will, all other things being equal, still continue each to win about 50% of the cases that go to trial. See Priest, George L. & Klein, Benjamin, The Selection of Disputes for Litigation, 13 J. Leg. Stud. 1 (1984)CrossRefGoogle Scholar.

36. See generally Goldberg, Michelle, Kingdom Coming: The Rise of Christian Nationalism (W.W. Norton 2006)Google Scholar; Juergensmeyer, Mark, Christian Violence in America, 558 Annals 88 (1998)Google Scholar. These ideologies have manifested in several overlapping religious movements, including “Christian Nationalism,” “Dominion Theology” or “Christian Reconstructionism.” Some observers have tried to paint a particularly stark, frightening, picture of the role of these movements in the contemporary culture wars. See e.g. Rudin, James, The Baptizing of America: The Religious Right's Plans for the Rest of Us (Thunder's Mouth Press 2006)Google Scholar. Feldman might be closer to the mark when he implies that their direct influence is more peripheral. (233) Nevertheless, as one scholar has noted, even if

Christian Reconstructionists are but a tiny fringe of the Christian Right,… their arguments are increasingly incorporated in mainstream writing[.]… This does not mean that many Christian Right activists advocate stoning incorrigible children, but it does indicate how serious discussions are taking place among Christian Right activists of how to go about restructuring society to conform with biblical law.

Wilcox, Clyde, Onward Christian Soldiers? The Religious Right in American Politics 128 (2d ed., Westview Press 2000)Google Scholar. Tellingly, Feldman begins his book with a short teaser focusing on Judge Roy Moore's effort to install a monument to the Ten Commandments in the lobby of the Alabama Supreme Court building. (3-4) He does not explain, however, that for Moore himself, if not for all his supporters, the Ten Commandments monument did not just articulate a broad acknowledgment of traditional values or “Judeo-Christian” religious heritage, but a very specific, self-described Christian, political agenda. See Goldberg, supra, at 25-26, 37.

I do need to stress here, though, that, as I emphasize later in this review, infra Part III.E, that “conservative” religious views do not necessarily entail “values evangelicalism” in either its moderate or more radical forms. To the contrary, there is still very much present among Christian conservatives (though perhaps not the “Christian right” as a specific, brand-named, political trend) a powerful counter-meology that is considerably more skeptical, on religious grounds, of the desirability of strong links between the state and a specific religious tradition.

37. See Smith, Christian, American Evangelicalism: Embattled and Thriving (U. Chi. Press 1998)Google Scholar.

38. For a broader discussion, see e.g. Finke, Roger & Stark, Rodney, The Churching of America 1776-1990 (2d ed., Rutgers U. Press 2005)Google Scholar. Only 17% of Americans formally affiliated with a religious group in 1776; the proportion in 1980 was 62%. Id. at 23 fig. 1.2. See generally The Secularization Debate (Swatos, William H. Jr. & Olson, Daniel eds., Rowman & Littlefield 2000)Google Scholar.

39. See Luckmann, Thomas, The Invisible Religion (Macmillan 1967)Google Scholar; Wuthrow, Robert, The Restructuring of American Religion (Princeton U. Press 1988)Google Scholar; see also Smith, Steven D., The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. Pa. L. Rev. 149, 169180 (1991)CrossRefGoogle Scholar.

40. See Casanova, Jose, Public Religions in the Modern World 67 (U. Chi. Press 1994)Google Scholar; Wilson, Bryan, Secularization: The Inherited Model, in The Sacred in a Secular Age: Toward Revision in the Scientific Study of Religion 9, 1215 (Hammond, Phillip E. ed., U. Cal. Press 1985)Google Scholar.

41. See Chaves, Mark, Secularization as Declining Religious Authority, 72 Soc. Forces 749 (1994)CrossRefGoogle Scholar.

42. Two important collections of essays on these themes are The Secularization of the Academy (Marsden, George M. & Longfield, Bradley J. eds., Oxford U. Press 1992)Google Scholar and The Secular Revolution: Power, Interests, and Conflict in the Secularization of American Public Life (Smith, Christian ed., U. Cal. Press 2003)CrossRefGoogle Scholar.

43. See Stark, Rodney & Bainbridge, William Sims, The Future of Religion: Secularization, Revival, and Cult Formation (U. Cal. Press 1985)Google Scholar.

44. See e.g. Taylor, Charles, Modern Social Imaginaries (Duke U. Press 2004)Google Scholar; Rieff, Philip, Sacred Order/Social Order: My Life Among the Deathworks (U. Va. Press 2006)Google Scholar; Gauchet, Marcel, The Disenchantment of the World (Burge, Oscar trans., Princeton U. Press 1997)Google Scholar.

45. The religious atmosphere of the country was the first thing that struck me on arrival in the United States. … In France I had seen the spirits of religion and of freedom almost always marching in opposite directions. In America I found them intimately linked together in joint reign over the same land. My longing to understand the reason for this phenomenon increased daily. To find this out, I questioned the faithful of all communions; I particularly sought the society of clergymen, who are the depositaries of the various creeds and have a personal interest in their survival.… I expressed my astonishment and revealed my doubts to each of them; I found that they all agreed with each other except about details; all thought that the main reason for the quiet sway of religion over their country was the complete separation of church and state. I have no hesitation in stating that throughout my stay in America I met nobody, lay or cleric, who did not agree about that.

de Tocqueville, Alexis, Democracy in America 271272 (Mayer, J.P. & Lerner, Max eds., Lawrence, George trans., Harper & Row 1966)Google Scholar.

46. See e.g. Martin, David, Revived Dogma and New Cult, 111 Daedalus 53, 54 (1982)Google Scholar:

The icy thinness of religion in the cold airs of Northwest Europe and in the vapors of Protestant England is highly significant, because it represents a fundamental difference in the Protestant world between North America and the original exporting countries. In all those countries with stable monarchies and Protestant state churches, [religious] institutional vitality is low. In North America, lacking either monarchy or state church, it is high.

(footnote omitted).

47. Some scholars, including the sociologist Rodney Stark, have tried to explain this dynamic using the tools of rational-actor analysis sometimes referred to as the “new paradigm” in empirical religious studies. See Stark, Rodney & Finke, Roger, Acts of Faith: Explaining the Human Side of Religion (U. Cal. Press 2000)Google Scholar. In this view, separation of church and state helps maintain a free “market” in religion, with many of the same benefits as free markets in other contexts, and also facilitates a degree of “tension” between religious communities and the broader society that is important to sustaining religious commitment and group cohesion.

48. Cf. Smith, James K.A., Introducing Radical Orthodoxy: Mapping a Post-secular Theology (Baker Academic 2004)Google Scholar [hereinafter Smith, Radical Orthodoxy]. As Smith puts it,

In the United States, the march of the secular finds its expression in the persistent project to neutralize the public sphere, hoping to keep this pristine space unpolluted by the prejudices of concrete religious faith. The religious response to this has been the confused “Constantinian” project of the Religious Right, which has sought to colonize the public and political spheres by Christian morality (or the morality supposedly disclosed by “natural law”)…. [T]his kind of theological response to secular modernity actually ends up operating on the basis of modernity.

Id. at 31-32 (emphasis in original).

49. See generally Berg, Thomas C., Religious Liberty in America at the End of the Century, 16 J.L. & Religion 187 (2001)CrossRefGoogle Scholar; Conkle, Daniel O., The Path of American Religious Liberty: From the Original Theology to Formal Neutrality and an Uncertain Future, 75 Ind. L.J. 1 (2000)Google Scholar; Geddicks, Frederick Mark, The Improbability of Religion Clause Theory, 27 Seton Hall L. Rev. 1233 (1997)Google Scholar. For Feldman's own discussion of this move, and the opening it gave to values evangelical arguments, see pp. 205-206. See also Feldman, Noah, From Liberty to Equality: The Transformation of the Establishment Clause, 90 Cal. L. Rev. 673 (2002)CrossRefGoogle Scholar.

50. See e.g. Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Pinette, 515 U.S. 753.

51. See e.g. Zelman, 536 U.S. 639; Mitchell v. Helms, 530 U.S. 793 (2000); Rosenberger v. Rector & Visitors of U. of Va., 515 U.S. 819 (1995).

52. See Emp. Div. v. Smith, 494 U.S. 872 (1990). For important discussions and criticisms of the Court's reliance on a notion of formal neutrality in the free exercise context, see e.g. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 561-577 (1993) (Souter, J., concurring in part & concurring in the judgment); Brownstein, Alan, Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality, 18 J.L. & Pol. 119 (2002)Google Scholar; Daniel O. Conkle, supra n. 49; Laycock, Douglas, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990)Google Scholar.

53. See Dane, Perry, “Omalous” Autonomy, 2004 BYU L. Rev. 1715Google Scholar.

54. See supra Part II.B.

55. As one commentator has acutely observed,

Putting it crudely, … liberals [] send devout Christians two messages: “you're idiots” and “you're entitled to toleration.”…. No wonder, [then], that issues surrounding evolution, creation science, school prayer, and the like have been so hotly contested. In the ban that keeps creation science and prayer out of the public schools, some see evenhanded liberal toleration[;] … Others see the ban as an official proclamation that secular humanism is better than Christianity.

This context illuminates a splendid irony of our day. Conservatives like to gnash their teeth about the inanities of so-called identity politics, which they see as a creature of the rabid left: gays, lesbians, feminists, members of allegedly benighted minority groups, all battle for public recognition as dignified equals. But shouldn't we see the campaigns for creation science and the like as identity politics, too? Aren't they symbolic campaigns for social status pursued by Christians who worry that they are becoming or already have become second-class citizens in a polity presided over by smug secular humanists?

Herzog, Don, Liberalism Stumbles in Tennessee, 96 Mich. L. Rev. 1898, 1908 (1998)Google Scholar (reviewing Larson, Edward J., Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion (Basic Books 1997))Google Scholar.

56. This convergence on the issue of the relation of religion and the state is, of course, only a small part of a larger coalition whose effect on American politics and policy has been profound. See e.g. Urban, Hugh B., America, Left Behind: Bush, the Neoconservatives, and Evangelical Christian Fiction, 8 J. Religion & Socy. (2006), http://moses.creighton.edu/JRS/2006/2006-2.htmlGoogle Scholar (accessed Apr. 16, 2007).

57. It might also be worth a footnote to observe that, while Feldman rightly emphasizes the role that some Jews, concerned about their place in American society, played in the development of strict separationism as a legal strategy, (170) and the extent to which part of the “elite appeal of legal secularism was the implicit suggestion that the religious minorities most in need of protection were Jews,” (183) the Jewish presence among neoconservatives represents, if nothing else, another fascinating, alternative strategy for coping with minority status and cultural angst. For one account, see Friedman, Murray, The Neoconservative Revolution: Jewish Intellectuals and the Shaping of Public Policy (Cambridge U. Press 2005)CrossRefGoogle Scholar.

58. Kristol, Irving, The Neoconservative Persuasion, vol. 8, issue 47, The Wkly. Stand. (08 25, 2003)Google Scholar.

The unbeliever so afraid of the disruptive implications of atheism that he becomes a pro-religious political conservative has, of course, been a stock figure since at least the dawn of modernity. For a recent study of one fascinating example, see Stewart, Matthew, The Courtier and the Heretic: Leibniz, Spinoza, and the Fate of God in the Modern World (W.W. Norton & Co. 2006)Google Scholar.

Much more admirable, to my mind at least, is the religious skeptic who understands and even celebrates religion's own disruptive, counter-cultural, implications. See e.g. Connolly, William E., Why I Am Not a Secularist (U. Minn. Press 1999)Google Scholar.

59. For one thorough, if polemical, account of these ideas and motivations, see Drury, Shadia B., Leo Strauss and the American Right (St. Martin's Press 1997)Google Scholar. Whether Strauss himself would actually agree with the conclusions of his neoconservative “Straussian” followers is entirely beyond the scope of this essay. For a different view of Strauss, which reads him as a friend of liberalism, see Smith, Steven B., Reading Leo Strauss: Politics, Philosophy, Judaism (U. Chi. Press 2006)CrossRefGoogle Scholar.

60. For a recent journalistic account, see Suarez, Ray, The Holy Vote: The Politics of Faith in America (Rayo 2006)Google Scholar.

The careful reader might wonder how I can emphasize the subordination of the religious to the political here after having, only a few pages ago, noted the influence among values evangelicals of movements that seek explicitly to subordinate the state to their very specific religious agenda. The simple answer is that political and ideological trends are often complex, multi-faceted, and paradoxical.

61. See Madison, James, Memorial and Remonstrance Against Religious Assessments, in James Madison: Writings 29, 32 (Rakove, Jack N. ed., Lib. Am. 1999)Google Scholar.

62. Some Christian conservatives have, of course, themselves come to this conclusion. See infra Part III.E.

63. Emphasizing the religious dimension of the separationist impulse is, of course, by now a commonplace. See e.g. Smith, Elwyn A., Religious Liberty in the United States: The Development of Church-State Thought Since the Revolutionary Era 1526 (Augsburg Fortress Publishers 1972)Google Scholar; Eberle, Edward J., Roger Williams' Gift: Religious Freedom in America, 4 Roger Williams U. L. Rev. 425, 427 (1999)Google Scholar. For a good account of the particularly complex brew of traditions that helped frame the original church-state debate, see Witte, John Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 Notre Dame L. Rev. 371, 377 (1996)Google Scholar.

64. The differences I have in mind, though, would still fit comfortably within the outer bounds of what I earlier called “the broad heritage of Establishment Clause doctrine since Everson.” See supra Part III.

65. Feldman particularly relies here on several “revisionist” accounts, including that of Philip Hamburger, though he disagrees with the revisionists on several other important points. (24-26).

66. For an important study that emphasizes this point, see Hall, Timothy L., Separating Church and State: Roger Williams and Religious Liberty (U. Ill. Press 1998)Google Scholar. Another helpful treatment of Williams and his theological and political views in the context of the religious conversation of his times is Davis, James Calvin, The Moral Theology of Roger Williams: Christian Conviction and Public Ethics (Westminster John Knox Press 2004)Google Scholar.

67. See Dane, Spirited Debate, supra n. 23, at 1223-1224, 1224 n. 38.

68. See e.g. U.S. v. Quilty, 541 F.2d 172 (7th Cir. 1976); Greenberg v. Commr., 73 Tax 806 (1980). Even in a more specific Free Exercise context, the courts have consistently rejected, for better or worse, the claim that persons could avoid paying otherwise-applicable taxes on the basis of a religious objection. See U.S. v. Lee, 455 U.S. 252 (1982); see also McKee v. Co. Ramsey, 316 N.W.2d 555, 556 (Minn. 1982) (per curiam) (rejecting the argument mat state and local governments violated taxpayers' freedom of religion, as well as the Establishment Clause, by “compelling them to pay property taxes, a small portion of which tax money is used to fund sterilization, contraception and state-authorized abortion.”).

69. He famously told his son, “I cannot believe. But I can't not believe either.” Black, Hugo Jr., My Father: A Remembrance 172 (Random House 1975)Google Scholar. Justice Black rarely attended church in Washington. Id. When he did, it was a Unitarian church. Newman, Roger K., Hugo Black: A Biography 521 (Pantheon Books 1994)Google Scholar.

70. Id. at 522-523. See Engel, 370 U.S. at 432.

71. Newman, supra n. 69, at 523.

72. Id. at 524. The text that Black had in mind is part of the Sermon on the Mount:

And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly. But when ye pray, use not vain repetitions, as the heathen do: for they think that they shall be heard for their much speaking. Be not ye therefore like unto them: for your Father knoweth what things ye have need of, before ye ask him.

Matt 6:5-8 (all Biblical citations are taken from the King James Version).

73. Engel, 370 U.S. at 431.

74. Schempp, 374 U.S. at 226.

75. Id. at 259-260 (quoting Freund, Paul Abraham, The Supreme Court of the United States 84 (World Publishing Co. 1961) (footnote omitted))Google Scholar.

76. See e.g. Co. of Alleghany v. Am. Civ. Liberties Union, 492 U.S. 573, 645 (1989) (Brennan, J., dissenting):

The uncritical acceptance of a message of religious pluralism also ignores the extent to which even that message may offend. Many religious faiths are hostile to each other, and indeed, refuse even to participate in ecumenical services designed to demonstrate the very pluralism Justices Blackmun and O'Connor extol. To lump the ritual objects and holidays of religions together without regard to their attitudes toward such inclusiveness, or to decide which religions should be excluded because of the possibility of offense, is not a benign or beneficent celebration of pluralism: it is instead an interference in religious matters precluded by the Establishment Clause.;

Lynch v. Donnelly, 465 U.S. 668, 711-712 (1984) (Brennan, J., dissenting):

The essence of the creche's symbolic purpose and effect is to prompt the observer to experience a sense of simple awe and wonder appropriate to the contemplation of one of the central elements of Christian dogma—that God sent His Son into the world to be a Messiah. Contrary to the Court's suggestion, the creche is far from a mere representation of a “particular historic religious event.” It is, instead, best understood as a mystical re-creation of an event that lies at the heart of Christian faith. To suggest, as the Court does, that such a symbol is merely “traditional” and therefore no different from Santa's house or reindeer is not only offensive to those for whom the creche has profound significance, but insulting to those who insist for religious or personal reasons that the story of Christ is in no sense a part of “history” nor an unavoidable element of our national “heritage.”

(footnotes & internal citations omitted); id. at 726 (Blackmun & Stevens, J.J., dissenting)

Not only does the Court's resolution of this controversy make light of our precedents, but also, ironically, the majority does an injustice to the creche and the message it manifests. While certain persons, including the Mayor of Pawtucket, undertook a crusade to “keep Christ in Christmas,” the Court today has declared that presence virtually irrelevant. The majority urges that the display, “with or without a creche,” “recalls the religious nature of the Holiday,” and “engenders a friendly community spirit of goodwill in keeping with the season.” …. The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part. The city has its victory—but it is a Pyrrhic one indeed.

(footnotes & internal citations omitted); Marsh v. Chambers, 463 U.S. 783, 804, 810 (1983) (Brennan & Marshall, J.J., dissenting) (one purpose of the constitutional principles of religious separation and neutrality “is to prevent the trivialization and degradation of religion by too close an attachment to the organs of government.”

We have [] recognized that government cannot, without adopting a decidedly anti-religious point of view, be forbidden to recognize the religious beliefs and practices of the American people as an aspect of our history and culture…. [C]ertainly, the text of Abraham Lincoln's Second Inaugural Address which is inscribed on a wall of the Lincoln Memorial need not be purged of its profound theological content. The practice of offering invocations at legislative sessions cannot, however, simply be dismissed as “a tolerable acknowledgment of beliefs widely held among the people of this country.” “Prayer is religion in act.” “Praying means to take hold of a word, the end, so to speak, of a line that leads to God.”… [Members] of the clergy who offer invocations at legislative sessions are not museum pieces put on display once a day for the edification of the legislature. Rather, they are engaged by the legislature to lead it—as a body—in an act of religious worship. If upholding the practice requires denial of this fact, I suspect that many supporters of legislative prayer would feel that they had been handed a pyrrhic victory.

(footnotes & internal citations omitted)); I should disclose here that I was Justice Brennan's clerk during the October 1982 term and worked on Marsh v. Chambers.

77. Cf. Hall, supra n. 66, at 164 (observing that the “curious alliance between Separatist pietism and enlightenment that wrested religious liberty from the grasp of religious establishment has deteriorated with age”).

78. See id.

79. See supra nn. 45-47 (discussing work of Tocqueville, Martin & Stark).

80. For a useful account of these and other issues, see Budziszewski, J., Evangelicals in the Public Square: Four Formative Voices on Political Thought and Action (Baker Academic 2006)Google Scholar.

81. See generally Smith, Christian, Christian America? What Evangelicals Really Want (U. Cal. Press 2000)Google Scholar [hereinafter Smith, Christian America]. A recent study of “mega-churches,” most of them evangelical or Pentecostal, released by Hartford Seminary's Hartford Institute for Religion Research and the Cooperative Congregations Study Partnership, emphasizes that, while their members would generally label themselves as politically “conservative,” neither they nor the churches themselves are particularly active in politics. See Thumma, Scott, Travis, Dave & Bird, Warren, Megachurches Today 2005: Summary of Research Findings 7, http://hirr.hartsem.edu/megachurch/megastoday2005summaryreport.pdf (accessed Apr. 16, 2007)Google Scholar.

82. One of the most eye-opening results in Christian Smith's study of evangelical Christian attitudes is that, while “many” of the evangelicals interviewed did hope that America could again be the “Christian nation” they believe it once was, when one

refrains from projecting Christian Right discourse onto the speech of ordinary evangelicals, one notices a tremendous variety of meanings attached to the phrase “Christian America,” many of which have little if anything to do with organizing a Christian control of American culture and society. …

The meaning that evangelicals most frequently gave to the idea that America was once a Christian nation was that it was founded by people who sought religious liberty and worked to establish religious freedom. …

A … striking implication of this definition is the importance it places on religious pluralism and toleration.… Perhaps ironically, this meaning of “Christian America” functions more to bolster liberal toleration man religious dominion.

Smith, Christian America, supra n. 82, at 25-27 (emphasis in original, footnote omitted). Smith's finding is, of course, consistent with Feldman's astute observation that values evangelicals share with legal secularists a commitment to “freedom of conscience and religious liberty.” (228) But it hammers home both the depth of that commitment and the degree to which it helps define, and does not merely frame, at least some evangelicals' religious vision for the nation.

83. See e.g. Goldstein, Laurie, Disowning Conservative Politics is Costly for an Evangelical Pastor, N.Y. Times (07 30, 2006)Google Scholar.

84. See e.g. Balmer, Randall, Thy Kingdom Come: How the Religious Right Distorts the Faith and Threatens America: An Evangelical's Lament (Basic Books 2006)Google Scholar; Boyd, Gregory A., The Myth of a Christian Nation: How the Quest for Political Power Is Destroying the Church (Zondervan 2005)Google Scholar. For more general evangelical critiques of the religious right, see e.g. Wallis, Jim, God's Politics: Why the Right Gets It Wrong and the Left Doesn't Get It (Harper Collins 2005)Google Scholar.

85. Some representative writings, in addition to the sources arbitrarily cited elsewhere in this section, include Radical Orthodoxy: A New Theology (Milbank, John, Pickstock, Catherine & Ward, Graham eds., Routledge 1999)CrossRefGoogle Scholar; The Nature of Confession: Evangelicals & Postliberals in Conversation (Lindbeck, George A., Okholm, Dennis L. & Phillips, Timothy R. eds., InterVarsity Press 1996)Google Scholar; Why Narrative? Readings in Narrative Theology (Hauerwas, Stanley & Jones, L. Gregory eds., W.B. Eerdmans 1989)Google Scholar; Gibbs, Eddie & Bolger, Ryan K., Emerging Churches: Creating Christian Community in Postmodern Cultures (Baker Academic 2005)Google Scholar; Harink, Douglas, Paul Among the Postliberals (Brazos 2003)Google Scholar; Hauerwas, Stanley, A Better Hope: Resources for a Church Confronting Capitalism, Democracy and Postmodernity (Brazos 2000)Google Scholar; Hauerwas, Stanley, A Community of Character (U. Notre Dame Press 1981)Google Scholar; Hauerwas, Stanley, After Christendom? How the Church Is to Behave If Freedom, Justice, and a Christian Nation Are Bad Ideas (Abingdon Press 1991)Google Scholar; Hauerwas, Stanley, Christian Existence Today: Essays on Church, World, and Living in Between (Brazos Press 1988)Google Scholar; Hauerwas, Stanley, Dispatches from the Front: Theological Engagements with the Secular (Duke U. Press 1994)Google Scholar; Hauerwas, Stanley, In Good Company: The Church as Polis (U. Notre Dame Press 1995)Google Scholar; Hauerwas, Stanley, Unleashing the Scripture: Freeing the Bible from Captivity to America (Abingdon Press 1993)Google Scholar; Lindbeck, George A., The Church in a Postliberal Age (Buckley, James J. ed., W.B. Eerdmans 2006)Google Scholar; Lindbeck, George A., The Nature of Doctrine: Religion and Theology in a Postliberal Age (Westminster 1984)Google Scholar; McLaren, Brian D., A Generous Orthodoxy: Why I Am a Missional, Evangelical, Post/Protestant, Liberal/Conservative, Mystical/Poetic, Biblical, Charismatic/Contemplative, Fundamentalist/Calvinist, Anabaptist/Anglican, Methodist, Catholic, Green, Incarnational, Depressed-yet-Hopeful, Emergent, Unfinished CHRISTIAN (Zondervan 2006)Google Scholar; Murphy, Nancey, Anglo-American Postmodernity: Philosophical Perspective on Science, Religion, and Ethics (Westview Press 1997)Google Scholar; Murphy, Nancey, Beyond Liberalism and Fundamentalism: How Modern and Postmodern Philosophy Set the Theological Agenda (Trinity Press Intl. 1996)Google Scholar; Nineham, Dennis, The Use and Abuse of the Bible: A Study of the Bible in an Age of Rapid Cultural Change (Macmillan 1976)Google Scholar; Pecknold, C.C., Transforming Postliberal Theology (T. & T. Clark Publishers 2005)Google Scholar; Raschke, Carl A., The Next Reformation: Why Evangelicals Must Embrace Postmodernity (Baker Academic 2004)Google Scholar; Yoder, John Howard, The Politics of Jesus (2d ed., W.B. Eerdmans 1994)Google Scholar.

86. The demise of the Constantinian world view, the gradual decline of the notion that the church needs some sort of surrounding “Christian” culture to prop it up and mold its young, is not a death to lament. It is an opportunity to celebrate. The decline of the Constantinian synthesis between the Church and the world means that we American Christians are at last free to be faithful in a way that makes being a Christian today an exciting adventure. …

The reason we Christians must forever be letting go of our Constantinian assertions is that we are forever forgetting how decisive, how eschatological, is the event of Christ. …

We argue that the political task of the Christians is to be the church rather than to transform the world.…

Political theologies, whether of the left or of the right, want to maintain Christendom, wherein the church justifies itself as a helpful, if sometimes complaining, prop for the state.

Hauerwas, Stanley & Willimon, William H., Resident Aliens: Life in the Christian Colony 18, 29, 38 (Abingdon Press 1989)Google Scholar.

87. The younger evangelicals [are] keenly aware that they live in a post-Constantinian world, a world where the church and state are separate. This knowledge has led them to reject the religious political solutions to our culture wars offered by both the right and the left. The efforts of both the right and the left to lobby moral legislation was and continues to be a colossal failure.…

The goal of being the soul of the world is to be “salt” and “light”—a transforming presence. How is that accomplished? The common answer among the younger evangelicals is to return to a theology of the church as the “embodied presence” of Jesus Christ.

Webber, Robert E., The Younger Evangelicals: Facing the Challenge of the New World 230 (Baker Books 2002)Google Scholar.

88. For a general survey of postmodern theology, in a principally Christian context, see The Cambridge Companion to Postmodern Theology (Vanhoozer, Kevin J. ed., Cambridge U. Press 2003)CrossRefGoogle Scholar. For an introduction to Jewish postmodern thought, see Interpreting Judaism in a Postmodern Age (Kepnes, Steven ed., N.Y. U. Press 1996)Google Scholar.

For my own efforts, in the context of a jurisprudence of Jewish law, to try for a bit of constructive postmodernism, see Dane, Perry, The Yoke of Heaven, The Question of Sinai, and the Life of Law, 44 U. Toronto L.J. 353 (1994)CrossRefGoogle Scholar; Dane, Perry, The Oral Law and the Jurisprudence of a Text-less Text, vol. 2, issue 2S'vara: J. Phil., L. & Judaism 11 (1991)Google Scholar.

89. For one discussion of the debate between “revisionist” or “public” theology, on the one hand, and “postliberal” or postmodern theology, on the other, see Placher, William C., Unapologetic Theology: A Christian Voice in a Pluralistic Conversation 154174 (Westminster/John Knox Press 1989)Google Scholar.

90. Not only is there no common deontological code for humanity, but there is also no universal human virtue. Rather, in a situation of postlapsarian pluralism, there are only concrete, determinate, story-constituted communities that narrate a particular telos and for the habits (i.e., virtues) necessary for pursuing that telos. According to the Christian narrative, there is only one authentic telos: “You have made us for yourself, and our hearts are restless until they rest in You.” Therefore, the only authentic ethic is that informed by God's revelation in Christ, and the only authentic practice is that nourished by the community of the Spirit.

James K.A. Smith, Radical Orthodoxy, supra n. 48, at 242-243.

91. Cf. McGrath, Mister, The Twilight of Atheism: The Rise and Fall of Disbelief in the Modern World (Doubleday 2004)Google Scholar.