I?ll start with James Madison, my favorite Founder and the one whose views on religious liberty dominated the Constitutional Convention. Madison based his understanding of natural rights and the role of the state on Locke?s ?social compact.? But, as one scholar has noted, because the exercise of religion requires that each person follow his own conscience, it is a particular kind of natural right, an inalienable natural right. Since opinions and beliefs can be shaped only by individual consideration of evidence that that particular individual finds persuasive, no one can really impose opinions on any one else. Unlike property, or even speech, religious liberty cannot be sold, or alienated, so it does not become part of the social compact. The state must remain noncognizant of its citizens? religions?meaning that it simply has no jurisdiction over religion. A just state must be blind to religion. It can?t use religion to classify citizens, and it can neither privilege nor penalize citizens on account of religion.
I’ll start with James Madison, my favorite Founder and the one whose views on religious liberty dominated the Constitutional Convention. Madison based his understanding of natural rights and the role of the state on Locke’s “social compact.” But, as one scholar has noted, because the exercise of religion requires that each person follow his own conscience, it is a particular kind of natural right, an inalienable natural right. Since opinions and beliefs can be shaped only by individual consideration of evidence that that particular individual finds persuasive, no one can really impose opinions on any one else. Unlike property, or even speech, religious liberty cannot be sold, or alienated, so it does not become part of the social compact. The state must remain noncognizant of its citizens’ religions—meaning that it simply has no jurisdiction over religion. A just state must be blind to religion. It can’t use religion to classify citizens, and it can neither privilege nor penalize citizens on account of religion.
This view of Madison’s is a far cry from the interpretation favored by some of our current Justices, notably Scalia, Rhenquist and Thomas—an interpretation sometimes called “nonpreferentialism.” (explain)
Roger Williams, who founded Rhode Island, is most often cited for the religious view of the importance of separation; he was the originator, as far as we know, of the phrase “a wall of separation”—and a full 150 years before Thomas Jefferson used it. Historians sometimes overlook the importance 18th and 19th century Christians placed upon the doctrine of liberty of conscience—what they called “soul freedom.” Such views were most strongly held by Mennonites, Quakers and Baptists, but they were also part of the beliefs of colonial era Episcopalians, Methodists and Presbyterians.
John Leland was a traveling evangelical Baptist with a strong view of the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control.” He also wrote that “the state has no right or leave to concern itself with the beliefs of an individual or that individual’s right to expound those beliefs…The state is to maintain order, not to judge right and wrong.” And here’s my favorite Leland quote: “The very tendency of religious establishments by human law is to make some hypocrites and the rest fools; they are calculated to destroy those very virtues that religion is designed to build up…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”
Were there people who lived at the same time as Madison and Leland who felt otherwise? Of course there were. But it was the position of Madison and Leland that prevailed; it was their view of the proper relationship (which might more accurately be described as the proper lack of a relationship) between church and state that became part of our constitutional structure.
Today, in addition to rampant historical revisionism, there are two common justifications for allowing government to take cognizance of religion—arguments that are mutually exclusive, although often offered by the same people. They are sometimes called the instrumental argument, and the ceremonial justification.
You are all familiar with the instrumental argument; it is best summarized by a bumper sticker that was popular a few years ago: something along the lines of “When prayer was removed from the classroom, guns and teenage pregnancy came in.” (I didn’t say it was a logical argument.) A good example of the instrumental approach was offered by Tom Delay, right after the Columbine school shootings. (According to today’s NYT headlines, Tom DeLay’s reading of the bible hasn’t kept him out of hot water for ethics violations…but that’s another matter.) DeLay said “I got an email this morning that said it all. A student writes, ‘Dear God, why didn’t you stop the shootings at Columbine?’ and God writes back ‘Dear student: I would have, but I wasn’t allowed in.’”
This naive belief that exposure to a denatured and generic religion in the classroom will make students behave is exactly the same justification given for current efforts to post the Ten Commandments—if people see “Thou shalt not kill” on the wall of a public building, well, they won’t kill. (For complex theological reasons I do not understand, this evidently doesn’t work if the building is privately owned.) Unfortunately, available evidence does not support this belief in the magical powers of religious iconography. The United States is by far the most religious of all the western industrialized nations—and we are also the most violent. There are few—if any—atheists in our prisons. Folks in the Bible Belt pray more—and kill more. And as Stephen Chapman noted in a column following DeLay’s comments, school shootings have not occurred in hotbeds of secularism like Berkeley or Cambridge or New York City, but in towns where Norman Rockwell and James Dobson would feel right at home: Paducah, KY, Jonesboro, ARK, and Littleton, CO.
The reason these proponents of government-sponsored prayer want government to make us pray is because they are convinced that in the absence of state coercion, we won’t. That’s why they object to non-mandatory, private baccalaureate services in lieu of prayer at high school graduations. Such baccalaureate services, which used to be the norm, permit meaningful prayer for those who wish to participate. So what’s the objection? Tellingly, it is that such services are voluntary—that those who “need” to prayer won’t come. The folks making this argument know what prayer is good for you and me, and are willing to use the power of the state to make us participate in a ceremony that includes that prayer.
The instrumental argument for supporting public religion and prayer is basically “religion is good for people, so the state should impose it.” The ceremonial defense of public religion is that it has no effect at all–that it’s meaningless. This is the argument that prayers at graduations and similar venues are merely “traditional” and “ceremonial.” (Myles Brand story) People of faith—quite justifiably—find such characterizations deeply offensive. As a minister friend of mine used to say, he doen’t pray “to whom it may concern.” No religion I know of sanctions the notion that prayer is merely ceremonial, void of particularistic significance and useful only as an archaic (albeit charming) tradition.
The Founders of this nation believed that government neutrality in matters of religious belief—Madison’s noncognizance—was essential if government was to be seen as legitimate. They also believed that state neutrality was necessary if genuine religious sentiment was to flourish. You only need look at nations without a First Amendment to see how right they were; countries like England have seen state-sponsored religions degenerate into pleasant rituals without vitality; on the other end of the spectrum, nations like Saudi Arabia and Iran have employed the force of the state in the service of religious conformity. Both alternatives are instructive.
Let me just conclude these remarks by commenting on a couple of current manifestations of America’s religious culture wars: the President’s Faith-Based Initiative, and efforts to pass state and federal constitutional amendments banning same-sex marriage.
As many of you know, I recently completed a 3 year study of “faith-based” contracting—I’m finishing the book on that study now. I think the questions raised by the President’s Initiative point to the wisdom of Madison’s insistence upon government noncognizance of religion, and to the accuracy of Leland’s observations.
Charitable Choice and the President’s Faith-Based Initiative are efforts to increase the numbers of “faith-based” social service providers contracting with the state. In order to accomplish that, government agencies must first define religion, or “faith.” (We all saw how well that worked with conscientious objectors.) I should note here, by the way, that the term “faith-based” is itself illustrative of the problem. I’m sure the phrase was intended to be more inclusive (and perhaps less alarming to groups like AU) than the word “religion,” but it betrays an unconscious, and rather telling, bias. “Faith based” is a very Protestant religious concept. Catholicism and Judaism, among others, are “works based” religions. Of course, government has contracted with religious organizations ever since it has provided social services, so the first question that arises is: How do the faith organizations the President proposes to recruit differ from Catholic Charities, Lutheran Social Services, the Salvation Army, and government’s many other long-time religious partners?
A much more troubling question comes next: Since the effort to recruit new faith partners has not been accompanied by additional funding for social services, it is hard not to see Charitable Choice as an effort to shift funds from one set of religious providers to another –presumably, from government’s traditional religious partners (who generally operate in accordance with applicable professional and constitutional norms) to more evangelical providers focused upon "personal transformation" of clients. If new FBOs do bid for contracts in any significant numbers, the competition for limited dollars will create precisely the sort of conflict among religious groups that the First Amendment was intended to avoid.
The First Amendment does not prevent government from doing business with faith organizations, but that doesn’t mean that any program run by a religious provider will pass constitutional muster. There is a constitutionally significant distinction between programs that are offered by a religious provider or in a religious setting, and programs in which religious observance or dogma are integral to service delivery. Failure to understand that distinction invites the very mischief that so worried Madison and Leland.
Despite the rhetoric emanating from the White House, the question is not whether government should partner with religious organizations to provide social services. It always has, and undoubtedly always will. The question is "when are such partnerships appropriate and how should they be structured and monitored?" Similarly, the question is not whether religious or secular organizations are better; it is "what organizational characteristics are most likely to predict successful program delivery?"
If there is one truism our study confirmed, it is that simpleminded confidence in the power of undefined “faith” is misplaced. No armies of compassion are rushing in to relieve government of its responsibilities for social welfare, and faith has not provided a short-cut to self-sufficiency. As the head of one faith-based agency puts it, "Most poor people have all the religion in the world. What they don’t have is job skills." To which observation both Madison and Leland might have added: and government’s responsibility is limited to providing them with the job skills.
If the effort to portray “faith” as an important element in service delivery is misplaced, the war being waged against gays and lesbians is a frontal attack on two of the most fundamental principles of our constitutional system, equal protection of the laws and separation of church and state.
With all of the rhetoric about government needing to “protect” marriage, we sometimes forget that government cannot and does not sanctify marital relationships. Churches, Mosques and synagogues join people in religious unions; the state merely confirms those relationships for purposes of securing the legal incidents of that partnership status. If you are married in a civil ceremony, you have a civil marriage—meaning that the state recognizes your legal partnership for purposes of enforcing the obligations you have assumed. Prohibiting state recognition of same-sex partnerships—many of which have, in fact, been blessed by a church or synagogue—denies gay couples access to 1008 legal rights that heterosexual citizens enjoy. Those include the right to be appointed as a guardian of an ailing or injured partner, the right to take family leave, the right to legally parent a non-biological child, and the right to half of the partnership’s accumulated property if the relationship dissolves. Same sex couples pay more taxes than married couples, because they aren’t entitled to spousal gift and estate tax exemptions and deductions. They can’t seek damages for a partner’s wrongful death. There are hundreds more—legal and civil rights enjoyed by any heterosexual married for two days or two months, but denied to gays who have been partners for 30 or 50 years.
The justifications for imposing these legal disabilities are virtually all religious, and rooted in the doctrines of some, but certainly not all, conservative denominations. Despite efforts to pretend there are secular policy concerns at stake, all one need do is look at the justifications offered to see their true nature:
- We are told that gays should not be allowed to marry because homosexuality is immoral. But all religions teach that rape and murder are immoral—and Indiana allows rapists and murderers to marry.
- We are told that marriage and sex are for procreation. So where are the bills prohibiting marriages between old people and sterile people?
- We are told that gay parenting is harmful to children, but there is absolutely no credible research confirming that harm. (This morning, Eric Miller cited James Dobson, etc.)
- We are told that recognition of gay unions will undermine the institution of marriage. But we are not told why that is so, and we were told the same thing about interracial marriage, and about allowing women to own property and vote.
At the March 8th rally in Indianapolis, supporting SJ7, Steve Carter told the crowd that marriage is for biological parents and their natural-born children. Those of us with stepchildren we love every bit as much as we love our biological children, those who have adopted children they adore, found that characterization both inaccurate and offensive. In what was undoubtedly the most surreal line of the day, Eric Miller encouraged citizens of Indiana to emulate Mississippi. Presumably, Mississippi is a cultural role model for its embrace of the ideal of separate but equal. Most of the signs and speeches, however, didn’t even try to hide the real basis for support of the ban; they insisted that SJ7 is what God wants the legislature to do.
We all understand that SJ7 and its counterparts are not efforts to protect families—they are efforts to privilege some families at the expense of others. These measures aren’t even about religion and morality—they are about whose religion, whose morality. That is why the issue is so important to so many of us who are not gay. It is because we know that when government gets the right to decide whose beliefs are acceptable, no one’s beliefs are safe.
What happens when government imposes the religious views of some Americans on the rest of us?
- First of all, government itself loses legitimacy, because it is acting contrary to the rule of law and norms of neutrality and equality. The rule of law requires that we constrain and limit the discretion of government officials. Every time we give those officials added discretion—to choose this religious service provider over that one, to send this welfare recipient to that religious program rather than this secular one—we increase the opportunity for abuse of discretion. We move further from the rule of law, and closer to the arbitrary exercise of power by man. Furthermore, political conflict intensifies, making it more difficult for government to do the jobs it is supposed to do. If you doubt the accuracy of that observation, a quick look at Congress and the Indiana General Assembly should confirm the point.
- Second, religious liberty is compromised, and with it, religion itself. Beliefs not freely chosen are by definition not authentic. The imposition of religious observances, or the passage of laws privileging religious beliefs, tends to increase the public’s skepticism about all religion.
- Finally, society itself loses. Religious disputes are among the most bitter and divisive of conflicts. The current, highly contested political debate about “values” has been terribly corrosive of our national identity, and harmful to our sense of national purpose. We need to minimize the culture wars, not add fuel to the fire. The way to minimize conflict is to listen to the logic of James Madison and John Leland. The way to add fuel to the fire is to let the State make the religious beliefs of some Americans the law of the land.
Organizations like Americans United have never been more important. Thank you for inviting me.