The Iceberg of Religious Freedom: Sub-surface Levels of Nonestablishment Discourse

• Publication year: 2003

38 Creighton L. Rev. 799. THE ICEBERG OF RELIGIOUS FREEDOM: SUB-SURFACE LEVELS OF NONESTABLISHMENT DISCOURSE

Creighton Law Review

Vol. 38

STEVEN D. SMITH(fn*)

I. INTRODUCTION

I hope I correctly understood Professor Dallon's invitation to participate in this conference as a proposal to reflect broadly on scholarly work in an area in which I've been teaching and writing for about two decades now, and in any case I want to try do that by describing what I perceive to be three levels of disagreement in Establishment Clause discourse. For short, we can call these the "lawyerly," the "constitutive," and the "philosophical" (or perhaps the "theological") levels. Disagreement at the first of these levels is readily and everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. Nonetheless, my own view is that much of what is said and decided at the first, most visible level, is largely dictated by commitments at the second level, and that (contrary to liberal wisdom which suggests that public or constitutional reasoning should be detached from people's various "comprehensive doctrines")(fn1) commitments at the second level are in turn influenced to a significant extent by what is believed or at least presupposed at the third level. Hence the comparison of our Establishment Clause discourse to an iceberg: what we see is the most insubstantial part, and the real mass and force are partly or largely out of sight.

II. LAWYERLY DISPUTES

So let me start by simply alluding to the sorts of lawyerly arguments that we all observe and often participate in. Are school voucher programs that include religious schools constitutional?(fn2) May a judge - or a city - place a monument inscribed with the Ten Com-mandments on public property?(fn3) Are the words "under God" in the Pledge of Allegiance unconstitutional?(fn4) What about so-called "faith-based initiatives"? Or prayer in public school classrooms, or graduation exercises, or sports contests?(fn5) May a city allow a youth organization with a marginal religious component to use property in a public park?(fn6) May a state require the teaching of creationism in the public schools if evolution is taught?(fn7) And so forth.

These are the kinds of questions that we encounter in the newspapers almost everyday, and that law professors teach about and write about; and we typically do so using familiar lawyerly techniques and materials. So we argue about what "the framers intended," or about what the chaotic mass of modern precedents really means, or about what the doctrines announced by the modern Supreme Court require or entail or imply.

It is plain enough that these sorts of lawyerly arguments have not led to any general consensus regarding the various legal controversies that arise, nor does consensus seem likely to emerge any time soon. And the lack of consensus is hardly surprising. After all, we know from experience that on large constitutional questions in which people have a stake, the lawyerly materials are rarely determinate enough to demonstrate decisively that one answer is right and the other answers are wrong. Usually there will be reasonable disagreements over how to characterize the "original meaning" of a constitutional provision, or how to adapt that meaning to modern circumstances, or the extent to which original meaning should govern modern interpretations anyway; and these disagreements make it impossible for one side in a controversy to triumph conclusively.

In this particular area (that is, Establishment Clause controversies), I think there is a special problem, which is that we can be reasonably confident that the prevailing official account of the constitutional provision's original meaning - the separationist story as told in Everson v. Board of Education(fn8) and reiterated by people like Justice Souter(fn9) - is, at least as a mundane historical proposition, false in important respects. The original purpose of the Establishment Clause was simply to leave the matter of religion where it had been all along and where most everyone in the founding period believed it should stay - namely, within the jurisdiction of the states.(fn10) But hardly anyone favors that position today: I certainly do not. And more generally, people (and especially Supreme Court Justices) are not about to give up on an attractive story for as trivial a reason as that the story happens to be false. However, the result is that the official story assumes more the character of a revered myth.

One of the virtues of a myth is that it can be retold and revised and shaded to suit current needs and values. But that virtue also means that insofar as there is disagreement about what those current needs and values are, a malleable myth will not be able to settle those disagreements, because everybody will be able to reshape the myth to their own purposes.

If the familiar lawyerly materials are incapable of demonstrating that one view in a controversy is correct and the other views are wrong, then a suspicion naturally arises: maybe the lawyers and scholars and judges are not so much deriving their conclusions from the arguments they publicly offer, but rather are (consciously or unconsciously) selecting from a rich batch of rhetorical resources whatever materials and arguments operate to support outcomes that they are already predisposed to favor on other grounds. Maybe premises are being derived from conclusions, not the other way around.

But then, what are the real determinants of those conclusions, and hence of the premises? What prompts Justice Thomas, say, to prefer the premises that will lead to one set of conclusions and Justice Souter to prefer a different set of premises?

III. THE CULTURAL DIVIDE: WHAT "AMERICA" IS

The answer, I suspect (or at least a large part of the answer) is that our lawyerly arguments are driven to a significant extent by our more general understandings and commitments regarding what sort of political community the nation we call "America" is. And here we notice a somewhat different and deeper kind of disagreement - one that is only occasionally debated forthrightly in lawyerly arguments about school prayer or school vouchers, but that is sometimes at least alluded to and that in any case is familiar enough from other work and in other contexts. Sometimes this disagreement is discussed under the heading of "culture wars," which of course was the title of a much noticed book published just over a decade ago by the University of Virginia sociologist James Davison Hunter.(fn11)

Hunter found that across a wide variety of seemingly independent political and social issues, Americans tend to coalesce into two broad camps, which he called "progressive" and "orthodox." These camps diverge over the essential character of the nation. "This is a conflict over how we are to order our lives together," Hunter observed. "[T]he contemporary culture war is ultimately a struggle over national identity-over the meaning of America, who we have been in the past, who we are now, and perhaps most important, who we, as a nation, will aspire to become in the new millennium." Consequently, the struggle expresses itself, among other ways, in competing constitutional claims in more than the lawyerly sense - competing claims, that is, about what "constitutes" us as a nation. Orthodox interpreters "link[] the nation's birth to divine will . . . . To them, America is, in a word, the embodiment of Providential wisdom." By contrast, "[t]hose on the progressive side of the cultural divide rarely, if ever, attribute America's origins to the actions of a Supreme Being." Instead, they tend to suppose that "the American mind has been from the outset pragmatic, optimistic, and secular . . . ."(fn12)

If you want convenient labels for these two understandings of America, you can easily find them simply by pulling out and examining the back of a dollar bill. On the left side, just under the pyramid capped by the spooky radiant eye, you see the phrase "Novus Ordo Seclorum." The Latin words are best translated as "New Order for the Ages," or so I am told; but if like me you never studied Latin, you might naturally translate this phrase as "New Secular Order." Balancing this description, though, in slightly more legible letters and in the middle of the bill, are the words we now know as the national motto of the United States: "In God We Trust."

"New Secular Order" vs. "In God We Trust": these are mere slogans. Slogans can be important, but philosophers and social scientists tell us that our more developed understandings often adopt narrative terms: we grasp our worlds, and our most basic beliefs and commitments, in the terms of stories.(fn13) And in fact the "progressive" camp and the "orthodox" camp each has its own story of America - a story that explains how America came into being, and how it developed, and what it stands for.

The Secular Order story(fn14) narrates how freedom-loving colonists fled the oppressive religious establishments of early modern Europe and, after some floundering and backsliding, eventually concluded that the best way to avoid the conflict and persecution associated with such establishments was to embrace a "separation of church and state" - a...