"Modest expectations"?: civic unity, religious pluralism, and conscience.

• Author: Garnett, Richard W.

DIVIDED BY GOD: AMERICA'S CHURCH-STATE PROBLEM--AND WHAT WE SHOULD DO ABOUT IT. By Noah Feldman. (1) Farrar, Straus & Giroux. 2005. Pp. 306. $25.00.

THE RIGHT TO BE WRONG: ENDING THE CULTURE WAR OVER RELIGION IN AMERICA. By Kevin Seamus Hasson. (2) Encounter Books. 2005. Pp. 176 + xii. $25.95.

America is divided, and religion is divisive. These two claims--usually asserted with both confidence and concern--are the drone notes sounding under much of what is said and written today about law, politics, religion, and culture. Contemporary America is so polarized, James Wilson quipped recently, that our country [is] deeply divided over whether our country is deeply divided." (4) We have all seen the maps and survey results that are said to reveal our "two Americas" (5): Red and Blue, Metro and Retro, (6) "United States of Canada" and "Jesusland." (7) We have all heard about the "culture wars" (8) pitting--in the words of one of our more clear-eyed social observers--"racist fascist knuckle-dragging NASCAR-obsessed cousin-marrying roadkill-eating tobacco-juice-dribbling gun-fondling religious fanatic rednecks" against "godless unpatriotic pierced-nose Volvo-driving France-loving left-wing communist latte-sucking tofu-chomping holistic-wacko neurotic vegan weenie perverts." (9) In "red America," we all know, "Saturday is for NASCAR and Sunday is for church. In blue America, Saturday is for the farmers' market ... and Sunday is for The New York Times." (10)

Now, many social scientists insist that these and similar diagnoses miss the mark. (11) Two commentators noted recently that it is actually "[t]he gap between the rhetoric and the reality of American cultural division"--and not the division itself--"that is perhaps the most fundamental feature of our cultural politics." (12) Yes, in America today there are bitter conflicts, cranky bloggers, hard-fought campaigns, deep-seated preferences and prejudices, and regional contrasts. But these could reasonably be regarded not so much as skirmishes in a boiling culture war as evidence that we are human beings, living in interesting times, confronted with hard questions. Maybe the story should be that--Michael Moore and Ann Coulter notwithstanding--most Americans, in most places, are purple-ish and, in the end, agree about most things. (13)

But even if it is true that the post-Bush v. Gore "Red v. Blue" thesis has had its day, the "religion is divisive" meme continues both to spread through and shape our conversations. (14) "We are," as Justice Sourer observed not long ago, "centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is"--he insisted--"inescapable." (15) Indeed, according to a prominent philosopher, Richard Dawkins, "[o]nly the willfully blind could fail to implicate the divisive force of religion in most, if not all, of the violent enmities in the world today." (16) Former Senator and Ambassador John Danforth (who is also an Episcopal priest) is not so harsh, but still warns that while, "[a]t its best, religion can be a uniting influence, ... in practice, nothing is more divisive." (17) Some might even think that Rev. Danforth is too sanguine, that--even "at its best"--religion is necessarily exclusionary and divisive, and that religion "by its very nature ... is incapable of producing ... unity" (18) because "political unity ... is actually antithetical to religion's entire reason for existing." (19)

Professor Noah Feldman concedes, and is concerned, that religion can be divisive and that America is Divided by God. Although, as he notes, the "overwhelming majority of Americans ... say they believe in God, ... a common understanding of how faith should inform nationhood ... no longer bring[s] Americans together" (p. 5). In fact, "no question divides Americans more fundamentally than that of the relation between religion and government" (p. 5). (20) Still, the end toward which Feldman's narrative, analysis, and prescriptions point is "reconciliation between the warring factions that define the church-state debate and ... much else in American politics" (p. 16).

Seamus Hasson's goals, in The Right to Be Wrong, are similarly irenic. His argument for "robust religious freedom for all" (p. 6) is based on "human nature" (p. 7)--i.e., "on the truth about each of us" (p. xii)--and is, at the same time, sensitive to the challenge of protecting the freedom of conscience in conditions of pluralism. (21) In Hasson's view, the surest path to the reconciliation he and Feldman seek is not the marginalization or privatization of religion--a course that is both "inhuman" and "self-defeating" (p. 5)--but the embrace of "an authentic pluralism that allows all faiths into the public square" (p. 130) and that both reflects and protects our "conscience-driven, fundamental need for religious search and expression" (pp. 123-24).

Feldman is a prominent and prolific young legal scholar who has written extensively about religious freedom, church-state relations, and the challenges posed by radical Islam and post-invasion Iraq. (22) Hasson is the founder and chairman of the interfaith Becket Fund for Religious Liberty and a longtime happy warrior for religious freedom in the courts of law and public opinion. (23) Both authors are experienced and engaging big-media commentators. Feldman's book was excerpted for the cover story of The New York Times Magazine, and Hasson's work for Muslim free-exercise claimants has led to talk-show appearances on Al-Jazeera. Certainly, the two authors have their disagreements: Hasson, for example, has argued for school-voucher programs while Feldman believes they are inconsistent with the "American tradition of institutionally separated church and state" (p. 244). Feldman does not share Hasson's sympathy for the argument that the First Amendment's establishment clause ought not to constrain state and local governments. (24)

That said, these books are, in many ways, consonant and complementary. Neither book wades far into the weeds of parsing precedents and the Court's multi-part tests, though each author flags the doctrines and cases that are implicated by his arguments. (In brief, Feldman's focus is on what the establishment clause should permit or prohibit, while Hasson is more concerned with what the free exercise clause ought to require). Each author hopes for, and holds out the promise of, a less rancorous civil society, but neither pins that hope on a public square scrubbed clean by judges of religious expression, symbols, and activity. (25) Both Hasson and Feldman build their narrative around the development of and frictions between two misguided camps ("Park Rangers" and "Pilgrims" for Hasson, "values evangelicals" and "legal secularists" for Feldman), whose mistakes might mark the way through and beyond the culture wars. And, both put the freedom of conscience at the heart of their arguments about religious liberty, state action, and the common good. (26)

I.

Divided by God features a diagnosis, two camps, three principles, a proposal, and a hope. Feldman's diagnosis, in a nutshell, has two parts: First, "[w]e are, increasingly, a nation divided by God. Although we all believe in religious liberty and almost no one wants an officially established religion, we cannot agree on what the relation between religion and government should be" (p. 235). (27) Feldman's point is not simply that people's religious belief and church attendance are, increasingly, good predictors of how they will vote. (28) He is interested not so much in how we vote, or in why we vote the way we do, but in our disagreements about the place of religious commitments and expression in civil and political life.

The second part of his diagnosis has to do with constitutional doctrine and the Supreme Court's precedents. Put simply, the Court has things backwards and is making things worse. That is, Feldman thinks that the Justices have contributed to our divisions, and turned our nation's Founding-era commitments upside down, by allowing public-funding programs that Feldman believes are divisive and burden dissenters' consciences while aggressively policing public religious expression, symbols, and displays. At the center of this book, then, is the "irony" that neither side of the God-line is getting what they really--or, at least, should--want. Those whom Feldman describes as "legal secularists" have, in recent decades, "failed to hold the line on the ban of government funding for religion, the cornerstone of early legal secularism and indeed of the American tradition of the separation of government institutions from the institutional church"; on the other side, "[v]alues evangelicals have simultaneously found themselves frustrated in the symbolic sphere about which they care most, and the loss of which inspired them to action in the first place" (p. 218). The Court permits public funding of religious schools in cases like Zelman v. Simmons-Harris (29) and Mitchell v. Helms (30) but disapproves public religious symbols in cases like County of Allegheny v. A CLU (31) and McCreary County v. ACLU. (32) In so doing, the Court pleases no one--and betrays America's basic commitments.

Much of the narrative in Divided by God traces the formation of and symbiotic relationship between two camps that "correspond[] to what today are the two most prominent approaches to the proper relation of religion and government" (p. 7). "Values evangelicals" are those who "insist on the direct relevance of religious values to political life" (p. 7) and believe that "[c]onvergence on true, traditional values is the key to [national] unity and strength" (p. 8). "Legal secularists," on the other hand, are "concerned that values derived from religion will divide us" and think that "government should be secular and that the laws should make it so" (p. 8). Despite their differences, though, it...