Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom

Crosspost from Balkinization

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea.  Here it is:  Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities.  The Jacobins were wrong.  In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

Religion and Division

Crosspost from Balkinization

A particular narrative has, for many years, informed and shaped both our thinking about the meaning and purpose of the First Amendment’s no-establishment-of-religion rule and the construction-by-courts of the doctrines, standards, and tests used to enforce that rule. The narrative goes something like this: Europe suffered through many years of war, persecution, and political turmoil, in large part because of the failure to appropriately separate church and state, religion and politics. As Madison put it, in the Memorial and Remonstrance, “[d]uring almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” Our Founders learned from this experience, the narrative goes, and so sought to guard against “divisiveness” in politics by privatizing religion.

Two Questions for the Establishment Clause

In different ways, Noah Feldman and William Marshall critique the received liberal wisdom concerning Establishment Clause jurisprudence.  Feldman argues that we should adopt the “no money, no coercion” principle of the Founders.  This means the government should reduce religious groups’ access to public funds through faith-based social service or school voucher programs, but become more tolerant of symbolic, non-coercive public endorsements of religion, such as Ten Commandments displays.  Meanwhile, after surveying the values and shortcomings of secularism, Marshall concludes that government should allow religious groups to receive funding, under certain conditions, but should be diligent in preventing new public endorsements of religion.

Two important practical questions emerge from these pieces.  First, to what extent, if any, should religious groups who perform social services be eligible for public funds?  Second, how should we understand the relationship between symbolic endorsement of religion and coercion?

Obama's Inauguration: A Progressive Approach to Religion in the Public Sphere?

 

"We know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus – and nonbelievers."
 – Barack Obama’s Inaugural Address, January 2009

Since George Washington invoked “the Almighty Being” in his first inaugural address, prayer has opened America's Presidential inaugural ceremonies.  Recent Presidents -- Republicans and Democrats alike -- have chosen religious figures who have offered broad ecumenical prayers to appeal to the widest range of people.

But, in a departure from the norm, Barack Obama chose voices from extreme ends of the political spectrum and wove them together into a pluralistic patchwork of public religious expression: the first openly gay Episcopalian bishop commenced the festivities, an evangelical preacher known for his opposition to gay marriage offered the invocation, and a veteran civil rights leader delivered the benediction.  At the National Prayer Service the next day, the first female president of the Disciples of Christ gave the sermon, and Muslim, Hindu, Jewish, Protestant, and Catholic leaders offered prayers from their faith traditions. (To see video coverage of the festitivites, click here.)

Never before had an inaugural ceremony embraced such radically inclusive religious representation.  Obama was the first to give a prominent place to Muslims and Hindus, both in the ceremony and his inauguration speech.  (The Bush and Clinton inaugurations were racially diverse but remained almost exclusively Judeo-Christian, prominently featuring Billy Graham.)  Can Obama’s inauguration hold up a picture of a new progressive approach to religion in the public sphere?