Requiem for the establishment clause.

• Author: Sullivan, Winnifred Fallers
• Position: Symposium: Establishment and Fairness

In his two volumes, Religion and the Constitution, Kent Greenawalt has obligingly laid out for us the fruit of a long career of careful consideration of the significance and practicality of the religion clauses of the First Amendment to the United States Constitution. This second volume, Religion and the Constitution: Establishment and Fairness, devoted to the establishment clause, like the first volume, repays careful and repeated reading. Greenawalt is suitably modest about the capacity of law to regulate religion while being quietly ambitious and insistent about the fundamental rightness of the American way of non-establishment. His work is reasoned, prudential and deeply humane. I have learned a great deal from both books.

Greenawalt's work is also very personal. There is a subtle coercion about this book. The accumulated many small judgments of what count as good reasons over bad reasons for a particular course of action underscore a fundamental commitment to the importance of religion in the United States. Above all, perhaps, there is a privileging of free church ecclesiology. Religion is properly, for Greenawalt, and for Americans generally, according to Greenawalt, the voluntary association of individuals with communities of others who are like-minded in their transcendent commitments. Thus, for example, in his discussion of John Locke, Greenawalt comments negatively on the lack of freedom for Anglicans in England under establishment because they lack the capacity to choose their leaders and their form of government (p. 21). To be able to choose one's religious leaders and the form of government of one's religious organization is basic to Greenawalt's understanding of the American way of religious freedom. While he concedes that Englishmen may enjoy a kind of religious freedom, they cannot really know the real thing. There are many such moments in this book, with very little acknowledgment that religion is changed by the freedom he celebrates. Those he pities would not be Anglicans if they had the capacity to choose their leaders and form of government. To be Anglican is to believe that apostolic succession is God-given and that its administration is intimately connected with the Crown. Indeed, for most religious people everywhere at most times, religious leadership, and the form of government of one's religious community, is, in some sense, given, not chosen, and related in explicit ways to government. Those are aspects of religion that gives it its authority and its comfort.

The establishment of a state church, as is the case in most of Europe, or the privileging of a religious tradition, as is the case in Israel and elsewhere, does not, according to Greenawalt, entirely disqualify you from membership in the company of liberal democracies or necessarily imply that you do not practice a reasonable degree of toleration and accommodation of religious difference. Professor Greenawalt's view is, however, that, for good reasons, rooted both in history and in contemporary realities, it is the American way to understand disestablishment and separation as necessary for true religious freedom and, by implication, full membership in the universe of liberal democracies. He also seems to believe that disestablishment has largely worked in the United States. It is messy, but it works. This volume demonstrates the workableness of disestablishment in the United States, given a particular understanding of what religion is.

Some contexts are harder than others, though. One of the thornier issues for proponents of non-establishment in the United States is how to manage religion in places in which government has control over its citizens in ways that restrict their access to the free market in religion--in the military and in prisons, principally. Professor Greenawalt discusses these chaplaincies in Chapter 12 and concludes that, while complete disestablishment is in each case impossible because of the need for the government actually to provide occasions for religious exercise, the voluntary model should be replicated as much as possible. Military chaplaincies should be staffed not with military officers as they are...