Church, State, and the Crisis in American Secularism

7 Applying Higher Law in Church/State Issues

143 s e v e n Applying Higher Law in Church/State Issues 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 of the legal issues that have arisen? I proceeded in this way because all these other issues depend on the answer to a foundational question: religiously speaking, who are we as a people? As we saw in the introduction, Ronald Dworkin wrote that we havetodecidewhetherweareareligiouspeopletoleratingnonbeliefora secular people tolerating religion. He was right that we must decide who we are before we can think intelligently about church/state issues. Once we come to a basic understanding, everything else will fall properly into place. In contrast, our current failure to do this is why an Establishment Clause crisis exists. Fortunately there is a third possibility beyond the two choices offeredbyDworkin . We are neither areligiouspeople norasecularpeople. We are instead a mix of believers and nonbelievers. We are also a mix of different kinds of beliefs, some of which are indistinguishable from nonbelief. The false dualism between belief and nonbelief is keeping America from coming to a consensus about religion in the public square. It is keeping us from resolving deep matters of national identity, such as the 144 Using Government Speech and Higher Law Pledge of Allegiance, that any healthy polity must be able to clarify. All nations must be able to say who they are, even if the claims are not universally acceptable. Since church and state is a constitutional question, it is not unreasonable to expect the justices of the Supreme Court to help us resolve it. But instead of helping us clarify who we are, the Court currently seems determined to avoid Dworkin’s fundamental challenge of identity. The justices seem unable either to choose between the alternatives Dworkin has presented or to go beyond his dualism to a more inclusive constitutional vision. In lieu of genuine judicial statesmanship, the justices have refused to say anything definitive about the Establishment Clause. The justices found a lack of standing in Elk Grove and have not heard another Pledge of Allegiance case since. They split evenly in the two Ten Commandments cases. And they decided another Ten Commandments case— Pleasant Grove—by putting off the Establishment Clause issue through arefusaltoaskthegovernmenttostateplainlythemeaningofitsspeech. And recently, in Buono, the justices decided a very narrow issue without adding any clarity to Establishment Clause analysis. Some would disagree with this criticism and say this is judicial statesmanship.Yearsago,AlexanderBickelwroteofthe“passivevirtues” in which the Supreme Court avoids cases it is best not to decide.1 But we can now see the flaws in Bickel’s approach. Perhaps we would have been better off if the Supreme Court had held in 1947 in Everson that the Establishment Clause only means that there is no one national religion and it has nothing to do with separation of church and state as such. That, however, would not have been avoiding the issue. It would have definedaConstitutionthatleftthematterofchurchandstatetopolitical adjustment. Under this constitutional regime, in the years since 1947, we might have come to a national consensus about the place of religion in the public square. Instead the Court gave us a very specific constitutional vision. The Court unanimously promised that the government would be neutral towardreligion .NooneshouldblametheACLUandothersforattempting to redeem that promise. Having given that promise, the Court cannot now walk away from church/state issues. If the justices avoid the issue of church and state now, they are leaving the American people in a morass Applying Higher Law in Church/State Issues 145 that the justices created. It is too late for avoidance tactics like denials of standing. Of course, my higher law proposal may not turn out to be helpful. It may be that the justices will end up endorsing Justice Scalia’s official nationalmonotheism.Ortheymayfinallyinsistongenuinegovernment neutrality. Or they may find some other way out, some description of God and religious symbols that is more satisfying than ceremonial deism . I don’t know what the future will hold. I only know that the law’s proper purpose is to bring reconciliation. Reconciliation must be the ultimate test of jurisprudence in this field as in any other field of law...