God and State [12 cents]

Last evening, I went to Politics and Prose to listen to NYU Law Professor Noah Feldman talk about his new book, "Divided by God". While I was not particularly impressed with the presentation, and do not think I would be particularly impressed by the book, it did give me the opportunity to think about the important issue of the relationship between God and State.

Feldman is a very young man, who studied Islam at Oxford, and was involved in the initial drafting of the proposed Iraqi constitution a few years ago. I could not help but wonder if, since the U.S. has founding fathers, if Iraq will have founding strangers.

He said that he has always been interested in the interplay between state and religion, and his new book talks not about Iraq, but about the United States.

The book apparently has two distinct parts: history and suggestions. Based on some of the internet reviews I have scanned, his writing on the history of church and state in the U.S. is quite good. Based on the same reviews, and what I heard last night, his suggestions are fairly weak.

I should say, and this is good, that he tries to take a middle position: you cannot promote religion in the public sphere, but you cannot try to eliminate it. All sides must learn to accommodate. But easier said than done.

His chief focus seemed to be on government funding for religious activities, which he believes is a no-no, rather than religious activities on government grounds, or as a part of government programs, which he does not seem to fault. I do not think it is this simple.

In talking about religious funding, he concentrated on "faith based initiatives" and school vouchers. In talking about acceptable non-financial activity, he talked about Christmas carols, representations of the ten commandments, and (in a limited sense) creationism.

His point seemed to be that if you go out of your way to eliminate all religious mention in government programs, you alienate too many people, so you must pick and choose your issues. Caroling at Christmas is to him, obviously, not an issue. To some people, on both sides, it is, and saying "don't make such a big deal of it" does not seem to me to be a meaningful answer. If the reason to abolish Christmas carols (and I don't know that I am necessarily in favor of abolition) is to protect the rights of religious minorities, it does not seem to me that they should be allowed in to protect the rights of religious majorities as the expense of those religious minorities. The issues are obviously complex.

Whether faith based programs are a problem or not, I am not certain. In some instances, they obviously will be, but whether these instances will be the exception or the rule is yet to be seen. The biggest government subsidies of religion are, of course, property tax exemption for churches and other religious properties, parsonage allowances for clergy, and chartible deductions for contributions to religious organizations. These did not come up in last night's discussion; I do not know if the book addresses them or not.

As to the presence of the ten commandments on public property, this has never been a big issue of mine, nor have crosses, creches or menorahs. They do lend a human touch (even though not necessarily a touch that represents me) to government bureaucracy. And, like the three financial contributions set forth above, religious representation is so engrained in our governmental sphere, that it would be difficult to eradicate them all.

For example, we just went through litigation on the phrase "under God" in the Pledge of Allegiance. I do not think that a reference to God belongs in the pledge. It was not there in my grade school years, and it has always seemed to me to be an artificial appendage added to a very acceptible pledge. It adds nothing to the pledge, and in fact detracts from it, to my mind. A nation dedicated to liberty and justice for all, I understand. But add God, and you distort the meaning of liberty and justice for all. Religion, on the one hand, and equality on the other, have never been handmaidens, here or elsewhere.

In addition, putting aside the visible case in Kentucky of the ten commandments in the courthouse, we have ten commandments all over this land in public buildings and on public parks. We have, for example, at the foot of the stairs leading the Federal courthouse in Washington DC a carved obelisk which displays both a cross, and an outline of the ten commandments. Government buildins all around Washington DC have engraved adages with religious allusions. Our coinage and paper money tells us that in God we trust. It is everywhere.

He talked about abortion and single-sex marriage, both of which he claims to be religious issues. I am not sure that they are religious issues exclusively. He said that, if you are not religious, you are not against abortion. He said that the only objection to single-sex marriage is a religious objection. I am not at all certain why this is, or why it should be, so.

He did not focus on abortion too heavily, but did talk about marriage. To him, marriage should be a 'civil union', a certificate of domestic partnership issued by the government, having nothing to do with a religious ceremony. The religious ceremony should be separate. But to many, only a religious ceremony would create a marriage. And would you have the religious ceremony before or after the civil one?

If the issue is strictly contractual, a civil union, and if it does not have to be between a man and a woman, can you have multiple civil marriages (i.e., civil polygamy)? And if not, why not? Wouldn't he have to say that the objection here would, as well, only be a religious objection? If you can have a civic objection to polygamy, why not to single sex marriage?

His suggestions for evolution/intelligent design is equally unworkable. He wants both taught. Teach evolution in science class. Teach creationism as a branch of philosophy. That will make everyone happy!!

Of course, to him intelligent design is a euphemism for creationism, and I suppose he is correct. But, looking at it a little more broadly, evolution and intelligent design are not in conflict with each other; why can't that point be made. Evolution tells you how things, once started, proceed. Intelligent design, or creationism, tell you how things got started. Where is the necessary conflict.

Go back to the founding fathers. Deism? Deism was a form of creationism, a form of intelligent design, no? Yet it was not fundamentalism; it taught (presumably) that the universe, created by a deity, was then left to operate on its own, by the laws established by that deity to govern the universe.

And in fact, what is Deism, if not Freemasonry, God the architect, and all that? But that is for another day.

So, what does the Constitution permit? No establishment of religion. Either this means no establishment of a state religion (it surely means at least this), or it means no establishment of any (or all) religion. If the latter, then you need to wipe away all religious support from the government. If the constitution does not mandate this broad brush approach (and no one has seriously suggested that it does), you need to determine when religion is appropriate for government support, and when it is not. And this depends, as well, on your definition of religion. And on your view of the appropriate role it should play in American society.

No answers today, but this is where the problems lie. But cause these two determinations: what is religion, and what role should it play are extremely difficult questions.

One follow up question: Why should religion and state be kept apart here? Is it because that is what the constitution mandates, or is there a reason beyond that? In other words, does the constitution say what we would like it to say, if we had our choice in the matter? Presumably, we think that separation of church and state is a good thing. And, if that is the case as a matter of values, how can it be good here, and not, for example, in Iraq, where we seem to have no problem with this new state being an Islamic state? Or in Israel?