Religion in Public Life: A Dilemma for Democracy.

• Author: Idleman, Scott C.

It is ironic, but not entirely surprising, that our constitutional jurisprudence of religion has substantially evolved to date without the serious influence of those, such as theologians and clergy, who are most learned in the nature and practice of religion. Although religious experts are occasionally summoned for testimonial purposes and courts occasionally advert to authoritative works on religion -- and while there are, to be sure, a handful of legal professionals who actually have formal training in religion -- by and large these are exceptions to the self-styled autonomy of the law. Indeed, despite suggestions to the contrary, law remains the lawyer's dominion, and the law of religion is no exception.(3)

It is precisely this context that makes Ronald Thiemann's Religion in Public Life: A Dilemma for Democracy all the more interesting and valuable a contribution to the field.(4) An ordained Lutheran minister and a theologian of genuine caliber, Thiemann poses in his book the familiar question: "What role should religion and religiously based moral convictions play within American public life?"(5) (p. 2) Weaving together a wide range of disciplines (from history to theology to law to political and moral philosophy), Thiemann ultimately responds to the inquiry by articulating both a reconceptualization of the First Amendment religion clauses and a revised theory of modern political liberalism. This revised theory, according to Thiemann, would exalt the central values of classical liberalism, yet comprehend public life not as a neutral forum, but as a process by which citizens search for relative commonality among competing visions of the good. And, together with his overhaul of First Amendment jurisprudence, it would provide "a principled way of thinking about religion in public life that will allow the courts, constitutional scholars, and legal practitioners to identify the situations that require separation and those in which cooperation is to be encouraged." (p. 66)

I

Religion in Public Life begins with the premise that built into the American constitutional order, consistent with James Madison's theologically grounded conception of religious liberty and manifest in the First Amendment religion clauses, are the core values of liberty, equality, and toleration. Effectively omitted from the founders, constitutional design, however, was an operative mechanism that would foster and sustain, over time, a citizenry who would embrace and actuate these values in the nation's public life. Madison's theory of political factionalization, for example, seems to negate any hope that the necessary virtue resides in the citizens themselves, while Madison's apparent faith that representative government would sustain these values is functionally deficient without some accompanying nonstructural theory of virtuous governance. (pp. 24-26) In short, says Thiemann, the founders bestowed upon us a blueprint for constitutional democracy that is "conceptually incomplete and thus politically flawed" (p. 26) -- a machine that would possibly, but not assuredly, go of itself.(6)

Central to this omission, he maintains, is the founders' specific failure to address the place of religion in public life, particularly the systematic role of religion, at the institutional and cultural level, in sustaining these core values. Until this century, as one might have predicted, this void was effectively filled by an "unofficial `established piety'" ... -- a quasi-Rousseauian civil religion drawn largely from the symbols and substance of American Protestant Christianity. (pp. 27-32) Yet, "[a]s Christianity began to decline in cultural influence and secularism and religious pluralism began to increase, the American civil piety lost its ability to shape civic virtue within the republic." (p. 32) In turn, this "fragmentation of American civil religion had a dual effect: it allowed the emergence of voices that had long lay silent under the stifling influence of the majority tradition, and it exposed the founders' failure to articulate a vision by which civic virtue could be nurtured in a truly diverse population." (pp. 32-33)

Thiemann's ultimate goal (and it is no modest endeavor) is once again to fill the void created by the framers, omission. Rather than pursue the reestablishment of a de facto civil religion, however, Thiemann advocates the recognition of the importance of social institutions, including religious communities and other public but nongovernmental associations, in sustaining the values of the liberal tradition (liberty, equality, and toleration) and contributing to meaningful political dialogue concerning the welfare of society. What is needed, he contends, is a revised liberal conception of constitutional democracy, one that welcomes the voices of those religious individuals and institutions committed to the fundamental values of democratic politics." (p. 90) Obstructing his ideal, however -- and from his perspective merely compounding the founders, error of omission -- are two related and rather formidable impediments: first, the Supreme Court's conceptualization and interpretation of the First Amendment religion clauses over the past half-century, and second, the modern liberal tenet that religious arguments, in order to further these core values, should be substantially if not totally excluded from the public discursive sphere.

II

On the constitutional front, Thiemann defines the problem as the Court's fixation on separation and neutrality, among others, as the governing motifs of its First Amendment religion jurisprudence. "The phrase the separation of church and state,' and its attendant metaphor a wall of separation between church and state,'" are, he contends, hopelessly cramped and misleading in their formulation. (pp. 42-43)

While the phrases identify one aspect of government's relation

to religion, they deflect our attention from other fundamental

features of the first amendment guarantees. By focusing on

religious and governmental institutions they obscure the essential

concern for individual freedom and equality that

undergirds both the "no establishment" and the "free exercise"

clause. By speaking of "church and state," they seduce us into

thinking of these complicated and textured organizations

(communities of faith and governmental agencies) in singular

and monolithic terms. By defining the relation between

religion and government with the simple word "separation," these

phrases conceal the variety of ways in which these two entities

interact, and the phrase consequently constrains our ability to

imagine new possibilities for their relationship.

(pp. 42-43) Moreover, the notion of "separation" is often quite helpful in the actual disposition of First Amendment controversies, as illustrated by the internally inconsistent body of Establishment Clause precedent, both before and especially after doctrinal articulation in Lemon v. Kurtzman.(7)

Thiemann also has little regard for the Court's other principal buzzwords of the religion clauses, particularly "neutrality" and "accommodation." Like separation, neutrality is a highly relative and elusive term -- Thiemann calls it a "protean concept" (p. 60) -- and indeed "[m]uch of the conceptual confusion surrounding the interpretation of the religion clauses has resulted the different, and often contradictory, construals of the meaning of neutrality." (p. 57) Even the notion of accommodation is vulnerable to broadly differing interpretations depending on the disposition of any particular interpreter. In short, argues Thiemann, "[t]he principle, `the separation of church and state,' and the associated concepts, accommodation and neutrality, have been subjected to such diverse and contradictory interpretations that they have been rendered virtually useless for the task of reconstructing a proper concept of the role of religion in public life." (p. 66)

Accordingly, Thiemann urges that the Court discard, in part in whole, the concepts of separation, neutrality, and accommodation as the reigning rhetorical commitments of First Amendment religion jurisprudence and that it move beyond the constraining concepts of "church" and "state" as the principal descriptors of the complex and variable relationship between religion and government. Additionally, the Court should no longer interpret the Establishment and Free Exercise Clauses independent of one another, but should instead seek an integrated interpretation grounded in those values -- liberty, equality, and toleration -- which gave rise to both clauses.(8) The Court should "ask not simply about the intentions of the framers of the Constitution but about the values they sought to inscribe in the text" and how "the historical and cultural changes of the past two hundred years affect the way we apply those values to our current policy problems. . . ." (p. 45)

Four principles, in particular, should guide this reformation of First Amendment...