Church-State Solution

The NYTs Magazine had an excellent piece by New America Foundation Fellow and NYU Law Professor Noah Feldman this weekend, describing a church-state solution that's pragmatic and respects the core ideal of the First Amendment.

Despite the gravity of the problem, I believe there is an answer. Put simply, it is this: offer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities. This approach, the mirror image of O'Connor's compromise, is drawn from the framers' vision and the historical experience of separating church and state in America. The framers might well have been mystified by courthouse statues depicting the Ten Commandments, but they would not have objected unless the monuments were built with public money. Having made a revolution over unfair taxation, they thought of government support in terms of dollars spent, not abstract symbols.

Feldman's simple solution is absolutely correct. Religious expression is part and parcel of freedom of expression, regardless, if like me, you find it archaic and moronic. The thing you can't have in a democratic, pluralistic, and religiously diverse country such as ours is the federal government using public money to endorse a certain religion.

Feldman continues:

From this logic, it follows that a moment of silence to begin the school day should not be invalidated just because it is intended to let children pray if they wish. Though it will never be easy to determine when schoolchildren are being coerced by peer pressure, at least some older students at optional events like a Friday-night football game surely are not being forced to pray when others are doing so voluntarily. Intelligent-design theory, itself a product of the ill-advised demand that religion disguise itself in secular garb, should be opposed on the educational ground that it is poor science, not on the constitutional reasoning, which some secularists have advanced, that it is a cover for religious creationism. If its advocates can persuade a local school board to put it in the curriculum, the courts need not strike it down as an establishment of religion. On the other hand, charitable choice, which permits billions of dollars in federal money to support faith-based organizations, should not be a vehicle for allowing government to pay for programs that treat alcoholics by counseling them to accept Christ. Schools that teach that Shariah (or Jewish rabbinic law or canon law) is the ultimate source of values should not be supported by tuition vouchers.

One of the benefits of Feldman's solution, especially in schools, is that an open dialogue among religions might arise if teachers explained secularly how certain religions arose historically, spurring ecumenicalism. So near Christmas you may have a nativity play and if there's a significant minority of Muslims, you may have a play depicting the importance of Ramadan. Another possible, although unexpected, benefit of ecumenicalism might be the acknowledgement that religious beliefs across the board have no evidence to support their claims -- signally a retreat from religious belief and the advance of reason and a more inclusive spiritualism.

For atheists like me who abhor religion and it's faith-based ridiculousness, Feldman has another simple, wise suggestion: win the argument wielding reason. As the country becomes more and more diverse culturally and religiously, it will become apparent to all but the freakiest of the fringe, that national unity is impossible if one religious groups' beliefs are incorporated into law. This is where we, the rationalists, can begin to recover ground lost over the past three decades. The law and public schools should be institutions that only regulate behavior and instruct citizens in the values needed to maintain a pluralistic democracy that respects individual rights. Furthermore, the state can only coerce the individual when that individual doesn't respect another's basic rights to life, liberty, and property (although I do think the definition of "property" needs to be refined in this upcoming century).

Feldman uses the issue of same-sex marriage to prove his point.

Legal secularists may fear that when facing arguments with religious premises, they have the deck stacked against them. If values evangelicals begin by asserting that God has defined marriage as the union of one man and one woman, then, say the secularists, the conversation about same-sex marriage is over. But in fact, secularists can make arguments of their own, which may be convincing: if the state is going to regulate marriages, shouldn't they be subject to the same equality requirement as every other law? Some might even go further and ask the evangelicals how they can be so sure that they have correctly identified God's will on the question. They may discover that few evangelicals treat faith as a conversation stopper, and most consider it just the opposite.

In any event, when the debate is over, the people will vote, and they will decide the matter. Legal secularists cannot realistically expect that they will win more democratic fights by banning the evangelicals' arguments, which can usually be recast, however disingenuously, as secular. Once in a while they may, if the composition of the Supreme Court is just right, thwart the values evangelicals' numerical superiority with a judicial override; but in the long run, all they will accomplish is to alienate the values evangelicals in a way that undercuts the meaningfulness of participatory democracy.

This might seem counterintuitive to all those Democratic gnashers of teeth after the recent election loss, falsely attributed to religious values. Atheists, skeptics, constitutionalists, liberals and Feldman's "legal secularists" need to courageously argue why our positions are correct. It shouldn't be that hard to show that "creation science" is anything but science or that state-sanctioned marriage is a constitutional right of all persons, regardless of sexual orientation.

Seriously, using a thought experiment, how many Americans would want to live underneath the legal code of someonelse's personal god if it wasn't their own, when we have the constitution and participatory democracy to guide us along, ensuring the basic rights of all citizens? I venture not many.

We need to have more faith in democracy and less in religion. Feldman's solution gives us rationalists the ability to test this hypothesis, pity us if we fail to grab the opportunity.