Church, State, and the Crisis in American Secularism

Introduction

xvii I n t r o d u c t i o n There are two church/state crises today in America. The first is a crisis in the law of the Establishment Clause, which states that “Congress shall make no law respecting an establishment of religion.” Although the United States Supreme Court has promised government neutrality toward religion, America continues to have a very religiously oriented, indeed a monotheistically oriented, public square. In over a half century sinceEverson v. Board of Education1firstintroducedthenormsofgovernment neutrality and the wall of separation between church and state, thereisstillnobroadconsensusamongtheAmericanpeopleconcerning the proper role of religion in the public square. 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 —hasnotbeenanswered.ThegapbetweentheCourt’spronouncements , on the one hand, and social reality, on the other, is perhaps best symbolizedbythewords“underGod”inthePledgeofAllegiance,which a lower federal court, in 2003, found to be an unconstitutional establishment of religion, before the United States Supreme Court reversed the decision on standing grounds. Many observers of the legal landscape expect a change either in what we do or in what we say about what we do. Most expect the Court to disclaim neutrality. xviii Introduction The second crisis is as yet barely visible to most people. Secularism is growing in America. Perhaps 15 percent of the population has no institutional religion and this number will likely increase. Secularism is now popular enough that one may consider it a social phenomenon in its own right. Secularism is no longer a simple description of the consequence of loss of belief; to many, it represents an alternative way of life that should be satisfying in its own right. The crisis in secularism is in its relationship to religion. American secularism has been reflexively anti-religion. This distancing has cut secularism off from the sources of wisdom that religion has traditionally represented. New voices in secularism are calling for a reevaluation of the available sources of meaning for human life, which might lead to a rapprochement with religion. At this point, no one can foresee the direction in which secularism in America will go. Will it continue in its current direction toward relativism and postmodern humanism or will it seek common ground with our religious traditions? Thesetwocrises—intheinterpretationoftheEstablishmentClause and within secularism—are related. It is not too dramatic to say that strict separation of church and state is currently American secularism’s officialconstitutionalposition.Theconceptofconstitutionalizedseparation of church and state provides the normative foundation for secularism ’s general attempt to distance itself from religion and to treat religion as a merely personal and private matter. A movement in secularism toward engagement with religious sources is, therefore, almost inconceivable without an accompanying reconsideration of the meaning of the Establishment Clause. What is needed to resolve both crises is a common ground between religion and secularism. If it could be shown that many believers and nonbelievers share certain commitments, those commitments could thenbeexpressedinthepublicsquare,evenbygovernment,withoutany violation of the separation of church and state. And perhaps, although this is a more controversial assertion, religious imagery, language, and symbols could be used to illustrate these shared commitments. I believe that the higher law tradition can represent just such common ground. Let me demonstrate in a story just how this common Introduction xix ground might work. At a 2008 symposium entitled “Is There a Higher Law? Does it Matter?” Pepperdine law professor Robert Cochran discussed his law-student days at the University of Virginia. In the story, Cochran’s professor of jurisprudence—Calvin Woodward—illustrated through the architecture of the University of Virginia a kind of moral thinking that was disappearing in the twentieth century: Above the columns at the entrance to Clark Hall . . . carved in stone was the statement: “That those alone may be servants of the law who labor with learning, courage, and devotion to preserve liberty and promote justice.” From the front, we walked into a massive entry hall, adorned on either side with murals. On one side was Moses presenting the Ten Commandments to the Israelites. On the other was what appeared to be a debate in a Greek public square. As we gazed up at the larger-than-life figures, they seemed to represent the...