The State of the Church-State Debate

Has Noah Feldman come up with a feasible compromise?

Book cover.

Defying a 2003 federal district court’s order to remove the 2-ton statue of the Ten Commandments he had placed in front of his courthouse, Roy Moore, chief justice of the Alabama Supreme Court, became a hero to a group of embattled conservative Christians willing to defy the law to show their support for the idea that the United State is a Christian nation. Others, especially those who insist on a strong separation of church and state, viewed Moore as the embodiment of all those forces in American Christianity who would use government to impose their views on everyone else. Noah Feldman’s Divided by God begins with the Moore contretemps to make the point that Americans are so deeply divided over religion’s proper place in the public square that a radically new proposal is needed to bridge the gap. Feldman believes he has come up with a compromise: His solution is to accord evangelicals the right to have their symbols displayed in public while giving their opponents the right to deny governmental funding to religious organizations.

Yet Roy Moore never really divided Americans. The demonstrators who congregated at his courthouse were small in number and soon disappeared from sight. A marginal figure, Moore will be cited by future historians, if they recall him at all, as someone who called forth the demons of religious rancor only to be met with yawns. As the Moore incident suggests, our divisions over God are in fact not as intractable as Feldman proclaims them to be. This ought to make his compromise more acceptable, yet, oddly, his way out of the problem may be more difficult to realize than he imagines.

It is a shame Feldman chose to begin and end with Roy Moore, for the bulk of his book offers a history of America’s church-state relations that undercuts both those who insist that the nation was born with pronounced religious principles as well as those who read today’s commitment to a sharp distinction between church and state back into 18th-century life. Secularism as we understand it today does not explain the First Amendment’s endorsement of separation of church and state, Feldman astutely points out, because secularism was all but unknown to the founders. They were not defending individual liberty against religion as much as they were defending one religion against another. Guided by a Protestant conviction that faith is stronger when adopted out of conscience (in contrast to the Catholic reliance upon governmental endorsement), America’s founders wanted to protect religion from government more than the other way around.

Conflicts between Protestants and Catholics dominated 19th-century debates over religion’s role in American public life as well, especially those involving schools. Nearly everyone agreed that teaching morality was an essential task of the schools, but since morality is so closely linked to religion, how could the schools insist on the common moral principles all children should learn without endorsing one religion over another? After protracted, sometimes violent, debate over which Bible should be read and what books should be assigned, a solution was found: Feldman calls it “non-sectarian Christianity.” Catholics were denied public funds for their own schools, but they could either pay for parochial schools privately or send their children to public schools that, under the pressure of increasing numbers of Irish and Italian voters, shifted their focus from narrowly Protestant teachings to a generic Christianity including both Protestants and Catholics (and, a bit later, Mormons as well).

With the development of modern science, all America’s religions faced an increasing challenge from secularism, a term coined in the 1840s by a British freethinker, Jacob Holyoake, but that did not enter common American usage until the 1880s and 1890s. Non-believers such as Robert Ingersoll lectured around the country pointing out the foibles of religion, while scientists and university presidents endorsed the priority of reason over faith. Ultimately secularism reached its assumed triumph in 1925 when Clarence Darrow bested William Jennings Bryan at the Scopes trial, immortalized for generations after by the play and movie Inherit the Wind.

Except that Darrow did not win the case at hand; Bryan did. Not only was Scopes found guilty, but Darrow’s secularism never recovered, and conservative Christianity began its long march into the American presidency. This is not what we usually think about these matters; the world is supposed to have become more oriented to science as it has become more modern, yet the United States has seemed to take the opposite path. Feldman’s account of how this happened is the high point of his book. Indeed, his history frames his solution for the way out of America’s current church-state problems.

Persuaded that American religiosity was simply too strong to be challenged directly, opponents of religion’s role in the public sphere retreated from Darrow-like strong secularism into what Feldman calls “legal secularism.” Legal secularism does not presume the absence of God. Instead, it takes no position on theological issues at all; its only tenet is that laws should be neutral between religions and between religion and non-religion. Judges, not legislatures or popular referenda, are called upon to interpret what separation of church and state means. And judges love it, no one more than former U. S. Supreme Court Justice Sandra Day O’Connor, who used her swing vote to decide, pretty much on her own, what would be permissible and what forbidden.

In response to the judicial victories of legal secularism, conservative Christians also changed their tactics from those employed in the Scopes era. Instead of arguing on behalf of their own faith, they claimed to defend all faiths. Conservative Protestants no longer attack Catholics and discriminate against Jews; on the contrary, they embrace Catholics and Jews who agree with them on abortion or other moral issues. Feldman calls these voters “values evangelicals.” Uniting them all is the conviction that legal secularism can never be neutral between religion and non-religion; by keeping faith out of the public square, courts side against those who believe that a God who has no public presence is not a God at all.

Are the values evangelicals right? Strong secularists, in a backward sort of way, argue that they are. In politics there are always winners and losers, they point out, and because of the separation of church and state, believers lose. Some defenders of conservative Christianity like this conclusion as well; liberal society, they argue, is inevitably hostile to religion, and liberals who want to cripple religion are therefore to be praised for their honesty. Feldman, to his credit, rejects this kind of extremism in favor of a middle road.

To find that road, Feldman proposes that Americans bring their history to bear on what ails them now. Religion has always played a symbolic role in our public life. It did, for example, in the generic Christianity that once united Catholics and Protestants and then again in the invented Judeo-Christian tradition that brought in those who followed the Hebrew Bible. Let it do so once more, Feldman concludes. No one is really harmed when Americans wish each other “Merry Christmas” instead of “Happy Holidays.”

At the same time, Feldman continues, we ought to revitalize separation of church and state as the Framers understood it. To guarantee freedom of conscience, no one should be compelled to pay for a quasi-establishment of religion, such as public funding for a faith-based charity or subsidies to religious schools. Legal secularists win on questions of money, while values evangelicals win on questions of symbols.

Does Feldman’s Solomonic gesture have a chance? Many reviewers of Feldman’s book have concluded that it does not. Evangelicals are not going to settle for half a loaf, while secularists worry that any breaching of the wall of separation will result in its crumbling. I am not persuaded. The United States survived the 1960s and the chasm between Richard Nixon and Abbie Hoffman *. It ought to be able to get over crèches, the Ten Commandments, and school vouchers.

The problem with Feldman’s compromise lies elsewhere. Offered as a non-biased solution to church-state conflicts, Feldman’s proposal, like separation of church and state itself, is biased against some religions and in favor of others. It may make sense to allow symbolic displays of religion, but some religions are very symbolic while others are not. Catholics, for example, venerate statues of saints **, which conservative Protestants generally view as a form of idolatry. If your religion does not place a premium on public symbolism, you gain little when government agrees to favor those religions that do.

Along the same lines, banishing funding for religious institutions hurts those religions that are institutional more than those that are not. Mainline religions typically have strong congregations and attach importance to denominations, while evangelicalism flourishes among believers who join unaffiliated churches, switch faiths frequently, find Jesus without the help of clergy, and, in the extreme case, home-church their souls as they home-school their kids. Since government funding of religions, with the exception of vouchers, goes to institutions rather than individuals, banning such funding favors religions that downplay strong organizational ties as opposed to those, including Catholics with their hospitals and Lutherans with their social service agencies that build strong organizational ties.

The problem is not that Americans are divided by God; nearly all American religious believers are influenced by a pervasive, and unifying, American culture. The problem is that no principled solution to America’s church-state problem is possible, for any legal remedy favors some and not others. Still, it is vitally important to bring history and reason to bear on these matters, which Noah Feldman has certainly done. Divided by God is audacious, clear-minded, free of cant, and reasonable. If those qualities cannot help us find better ways to live together, we really are in trouble. Richard Rorty once described religion as a conversation stopper. Noah Feldman proves how important it is to keep the conversation going.

Correction, Aug. 2, 2005: In the original version of this article, Alan Wolfe misspelled Abbie Hoffman’s name. Return to the corrected sentence. Also, this piece originally claimed that Catholics “worship” statues of saints. The more accurate and inoffensive term is venerate. Return to that correction here.