Church, State, and the Crisis in American Secularism

Cover

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Contents

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pp. ix-x

Preface

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pp. xi-xvi

... The 2004 presidential election demonstrated to me that American politics and law were not consistent with reality. In politics, while we were giving lip service to the idea that we had a secular government, anyone could see that our elections were characterized by religiously oriented voting. In law, the doctrine of government neutrality toward religion dominated judicial opinions, but the actual outcomes of cases were inconsistent with any such rule. ...

Acknowledgments

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pp. xv-xvi

In the two books that preceded this one, I thanked my friends and family and acknowledged my intellectual debts. None of that needs to be repeated, with one exception: I must once again thank my friend and colleague of thirty years, Robert Taylor. Robert and I have studied together throughout most of that time. Like Socrates, Robert does not like to write and, again like Socrates, he succeeds in imparting the wisdom of how little we know. ...

Introduction

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pp. xvii-xxv

... Nor is there basic agreement among the justices on the United States Supreme Court as to the permissible role of religion. There are details that are shared, such as the anti-coercion principle, but there is not agreement as to foundations. The key question—whether we are to have a genuinely secular government— has not been answered. The gap between the Court’s pronouncements, on the one hand, and social reality, on the other, is perhaps best symbolized ...

PART 1. THE ESTABLISHMENT CLAUSE CRISIS

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pp. 1-

1 What We Say: The Supreme Court’s Promise of Government Neutrality toward Religion

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pp. 3-23

The crisis in interpreting the Establishment Clause lies in the gap between what the United States Supreme Court has written that the Constitution demands—what we say—and what American society actually does. The Court has promised government neutrality toward religion; but our practices suggest something quite different. Neutrality has a variety of meanings, as we shall see, but all of its meanings ...

2 What We Do: The Failure of the Supreme Court to Redeem the Promise of Government Neutrality

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pp. 24-45

Three years before Everson was decided, there was a dramatic manifestation of a nation in an open relationship to religion in the public sphere. On June 6, 1944, President Franklin Delano Roosevelt addressed the nation on the occasion of the D-Day landings in Normandy. He spoke for only a few minutes. He asked the nation to join him in prayer. ...

3 Why Only the People and Not History Can Resolve the Establishment Clause Crisis

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pp. 46-71

The Establishment Clause crisis consists of the gap between what we say in constitutional law about government neutrality toward religion, on the one hand, and the obvious endorsement of religion by government in practice. In effect, the crisis reflects an inability to choose between the alternatives that Ronald Dworkin starkly sets forth: a secular society tolerant of religion or a religious society tolerant of nonbelief. In part 2 of this book, I will propose the higher law ...

4 Proposals That Have Failed to Resolve the Establishment Clause Crisis

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pp. 72-94

I wrote in the last chapter that the Supreme Court’s job is to state the obvious. In the context of church and state, this means giving a principled account of the meaning of the Establishment Clause. The Court’s job is to determine what the Establishment Clause means so the people may ultimately render their own judgment. ...

PART 2. USING GOVERNMENT SPEECH AND HIGHER LAW TO RESOLVE THE ESTABLISHMENT CLAUSE CRISIS

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pp. 95-

5 The Establishment of Higher Law

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pp. 97-119

The last chapter ended at the limits of Establishment Clause jurisprudence. The current law of the Establishment Clause allows wide-ranging use of God-language in government displays, creeds, and events, at least outside of special contexts, like schools, in which coercion is a particular concern. ...

6 Using Religious Symbols to Establish Higher Law

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pp. 120-142

Government’s use of religious symbols is a very different issue than government endorsement of higher law. The Pledge of Allegiance says “one Nation under God,” not “one Nation under the Essential Unity of All Things.” If the Pledge said the latter, not many people, and certainly no judges, would call it unconstitutional as a violation of the Establishment Clause. ...

7 Applying Higher Law in Church/State Issues

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pp. 143-167

Up to this point, I have treated the Establishment Clause as if symbolic government expressions, such as the Pledge of Allegiance, the national motto, and displays of the Ten Commandments, were the only issues that appear. But such cases are only a part of the history of litigation under the religion clauses of the Constitution. What about the rest ...

PART 3. USING THE HIGHER LAW ESTABLISHMENT CLAUSE TO SAVE SECULARISM

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pp. 169-

8 The Failure of Secularism under the New Atheism

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pp. 171-189

There are two forms of secularism in America, or at least there are two tendencies moving toward two ideal types. These two tendencies begin from the same secular starting point: natural laws identified by science are invariant; miracles, or any other supernatural interventions in the world, are impossible in principle. It is this rejection ...

9 The New New Secularism and the Higher Law

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pp. 190-209

Where does the term “new New Secularists” come from? It comes from a somewhat altered term in a newspaper column. Peter Steinfels, a professor at Fordham University and co-director of the Fordham Center on Religion and Culture, writes a biweekly column, called “Beliefs,” for the New York Times. In a February 2009 column entitled ...

10 Is God a Universal Symbol?

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pp. 210-228

Secularists will be surprised to hear that America is much closer to resolving at least a part of its religious culture wars than they might have thought. Despite all of the concern about Christian nationalism and the undoubted desire of a substantial number of Americans that Christianity be recognized as America’s official religion, in fact if not in name, the Supreme Court has been quite clear that the government may not endorse any one ...

11 The New Politics of Higher Law Secularism

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pp. 229-245

Could America ever produce a dominant progressive political coalition? Maybe I should say, reproduce such a coalition, since we may have had such a coalition of forces during the early years of FDR. But we don’t have such a coalition now, as witnessed by the simple fact that during the debate over healthcare reform, a single-payer system was never a serious possibility. ...

Conclusion: Perfecting Democracy

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pp. 246-247

... He claimed that some secularists believe that religion must be removed from the public square in order to safeguard democracy. To the extent that religion must be privatized, however, it is clear that ordinary democratic processes are unlikely to accomplish the goal. Americans are much too religious for that. ...

Notes

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pp. 249-265

Selected Bibliography

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pp. 267-270

Index

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pp. 271-282