Divided by God: America's Church-State Problem--And What We Should Do about It
by Noah Feldman
One nation, divisible
A review by Michelle Goldberg
Noah Feldman, a law professor at New York University with a Ph.D. in Islamic thought
from Oxford, has thought long and deep about the problem of balancing religious
fervor and democratic liberties in the Muslim world. His 2003 book After
Jihad argued for the possibility of Islamic democracy and urged America away
from its policy of supporting Middle Eastern autocrats out of fear that, if they
fell, fundamentalists would rise in their place. He was a senior constitutional
advisor to the Coalition Provisional Authority in Baghdad, an experience that
informed his well-regarded 2004 book, What
We Owe Iraq.
Compared with the thicket of sectarian tensions in Iraq and elsewhere in the
Islamic world, America's religious conflicts must have seemed fairly easy to
dispatch, and in Divided by God: America's Church-State Problem -- and What
We Should Do About It, Feldman sets out to do just that. The book takes
a brisk, fair and fascinating tour through the history of church-state separation
in America. It culminates in a plan for resolving the furies of the culture
war that is theoretically elegant and historically grounded. Unfortunately,
it is almost completely divorced from political realities and the facts on the
In Divided by God, Feldman frames America's divisions over religion
in the public sphere as a struggle between two camps that he calls "legal
secularists" and "values evangelicals." He believes -- falsely,
I think -- that both groups have essentially compatible visions of national
harmony. "Religious division threatens [American] unity, as we can see
today more clearly than at any time in a century, yet almost all Americans want
to make sure that we do not let our religious diversity pull us apart,"
he writes. "Values evangelicals think that the solution lies in finding
and embracing traditional values we can all share and without which we will
never hold together. Legal secularists think that we can maintain our national
unity only if we treat religion as a personal, private matter, separate from
the concerns of citizenship."
The last section of Divided by God outlines a possible compromise between
these two sides. Feldman's plan is just on its own merits, but it's highly unlikely
to result in a cultural rapprochement because Feldman seriously mischaracterizes
the issues at stake and the motivations of the antagonists. He takes far too
much of the Christian right's propaganda at face value, arguing as if, for example,
there really were a concerted attempt by secularists to banish the celebration
of Christmas from public view. "Just what is threatening to religious minorities
about Christians celebrating the holiday and the state acknowledging that fact?"
he asks. The answer is precisely nothing, which is why Christmas decorations
and the like pose almost no public controversy, contrary to the fevered sputterings
of Fox News anchors and talk radio demagogues.
I'll return to this point in a moment, but first I should say that Divided
by God deserves to be read for its compelling and insightful first two-thirds.
As a constitutional scholar, Feldman seems far better grounded in the legal
history of the Establishment Clause than in the political nuances of current
culture war battles. At a time when the very idea of separation of church and
state is under broad attack from right-wing historical revisionists and politicians,
Feldman clarifies the thinking of America's founders and of subsequent leaders
about the role of religion in the life of the nation.
Most important, he explains that the founders were unconcerned with public
religious symbolism but were deeply opposed to public religious funding. Much
of the book is taken up with a valuable discussion of the evolution of legal
doctrine on the First Amendment, which, as Feldman points out, wasn't even held
to apply to state governments until 1940. His explanation of how the Supreme
Court became the arbiter of so many local culture war skirmishes is particularly
welcome as background to the national debate over Supreme Court nominee John
Feldman is absolutely right about the supreme paradox of our current church-state
legal regime, which bans prayers at high school football games but allows billions
of taxpayer dollars to flow into sectarian charities under President Bush's
faith-based program. "The fascinating irony of the church-state debates
is that, in the era of the endorsement test" -- which renders laws "endorsing"
religion unconstitutional -- "legal secularists have failed to hold the
line on the ban of government funding for religion, the cornerstone of early
legal secularism and indeed of the American tradition of the separation of government
institutions from the institutional church," he writes. "Values evangelicals
have simultaneously found themselves frustrated in the symbolic sphere about
which they care most, and the loss of which inspired them to action in the first
To remedy this backward situation, Feldman proposes a bargain -- more tolerance
for public religious expression in exchange for tighter restrictions on government
funding of religion. He distills it down to a slogan: "No coercion and
no money." This approach makes a lot of sense, not least because it could
address some of the inevitable incidents of secularist overreach -- the elimination
of Christmas songs in public schools, for example -- that infuriate local communities
and ricochet around the right-wing media, sparking howls about anti-Christian
persecution throughout the land.
It is not a good idea for liberals to spend too much time fretting about crèches
in public squares. As in so many First Amendment disputes, the answer to speech
(or, in this case, symbolism) that makes someone feel excluded or alienated
is more speech -- menorahs, Diwali displays, images that reflect America's
polyglot spiritualism rather than suppressing it. "Ultimately, the nation
may have more success generating loyalty from religiously diverse citizens by
allowing inclusive governmental manifestations of religion than by banning them,"
The trouble with Feldman's suggestion is that even if liberals embrace it --
and I think they should -- it would do almost nothing to quell the sense of
evangelical grievance currently deforming our politics. That's because Feldman
is very wrong about the America that the Christian right is seeking, and about
the aims of the group he calls legal secularists.
The problem may be his reliance on legal arguments as a way to apprehend political
causes. One of the very few people he mentions as an example of a "values
evangelical" is Michael McConnell, a Christian conservative law professor
considered brilliant by his ideological allies and enemies alike. (Bush put
McConnell on the 10th Circuit Court of Appeals, and he was reportedly on the
shortlist to replace Sandra Day O'Connor on the Supreme Court.)
Feldman points out that McConnell pioneered the legal strategy of depicting
evangelicals as an oppressed minority in a 1995 case, Rosenberger vs. University
of Virginia. The case centered on evangelical students at the university who
were denied money from the school's student activities fund for their publication,
Wide Awake. Representing the students, McConnell took the case to the Supreme
Court. It would become, writes Feldman, "the first case in which evangelicals
successfully presented themselves as minorities, discriminated against and in
need of judicial protection."
The trouble with Divided by God is that Feldman seems to accept McConnell's
legal argument as the actual political motivation of the Christian right. Values
evangelicals, in his telling, just want to be heard along with everybody else.
"In its most sophisticated and attractive form, values evangelicism is
actually a type of mutliculturalist pluralism, professing respect for faith
as faith and for cultural tradition as tradition," Feldman writes. "This
inclusive vision of a society in which one can partake in the common American
project by the very act of worshipping as one chooses is more than broad enough
to accommodate new religious diversity that has come about as a result of Muslim,
Hindu and Buddhist immigration."
If this is what "values evangelicism" is, then the term is almost
meaningless, since it doesn't apply to any of the leadership of the Christian
right, the group that's actually fighting the culture wars that Feldman is trying
to mediate. Consider, for example, how the Family Research Council -- the Washington
spinoff of James Dobson's enormously powerful Focus on the Family -- reacted
in 2000 when Venkatachalapathi Samuldrala became the first Hindu priest to offer
an invocation before Congress. "While it is true that the United States
of America was founded on the sacred principle of religious freedom for all,
that liberty was never intended to exalt other religions to the level that Christianity
holds in our country's heritage," the group said in an apoplectic statement.
"Our Founders expected that Christianity -- and no other religion -- would
receive support from the government as long as that support did not violate
peoples' consciences and their right to worship. They would have found utterly
incredible the idea that all religions, including paganism, be treated with
This was not an isolated outburst -- it wouldn't be hard to find enough similar
quotes to fill a volume larger than Feldman's entire book. Sure, the Christian
right may invite a token rabbi -- often the South African ultraconservative
Daniel Lapin -- to its functions to promote an image of ecumenism, but that
cannot hide the motivating belief in Christian supremacy, spiritual and political,
at the movement's core.
There surely are instances in which overzealous school administrators and others
go too far in the cause of nondiscrimination, silencing religious speech that
is clearly protected by the First Amendment. Such infringements should be fought
for reasons both principled, because Christians have the same right to free
speech as everyone else, and political, because these abuses generate a backlash
that ultimately harms the cause of church-state separation.
But the ACLU doesn't need to be told to take this stance -- it already has,
despite attempts by the Christian right to distort its record.
In 2003, Jerry Falwell published a piece on the right-wing Web site Newsmax
titled "The Case of the Offensive Candy Canes." "Seven high school
students in Westfield, Mass., have been suspended solely for passing out candy
canes containing religious messages," he wrote. A few paragraphs later,
he continued, "The fact is, students have the right to free speech in the
form of verbal or written expression during non-instructional class time. And
yes, students have just as much right to speak on religious topics as they do
on secular topics -- no matter what the ACLU might propagate."
In fact, the ACLU submitted a friend-of-the-court brief in the case defending
the students on the grounds that, as the ACLU's attorney said, "students have
a right to communicate ideas, religious or otherwise, to other students during
their free time, before or after class, in the cafeteria, or elsewhere."
Nevertheless, stories about the ACLU and its evil plots against Christian confections
proliferated in the right-wing media. And this points to the problem with taking
seriously many of the Christian right's complaints about secular hostility to
their religious expression. Last year, the evangelical right was up in arms
over a so-called war on Christmas, symbolized by the decision of Federated Department
Stores, which owns both Macy's and Bloomingdale's, to use the phrase "Happy
Holidays" instead of "Merry Christmas." But that move was inspired
by capitalism -- the company wanted to make as many customers feel as comfortable
as possible in order to get their money -- not by legal secularism or anti-Christian
Unfortunately, Feldman shares some of the Christian right's distorted view
of the goals of most secularists. At one point, he writes, "legal secularists
are in favor of a constitutional rule under which the fact that supporters
have invoked religion in support of a bill in Congress could disqualify that
bill from taking effect as law" (italics his). He offers not a single quote
or citation to back up this generalization, so I can't judge what he's talking
about. I can say, though, that I've spent years writing about these issues,
talking frequently to people from the ACLU, Americans United for Separation
of Church and State, and People for the American Way, and I've never heard the
idea of a such a rule mentioned even once.
Contrary to what Feldman says, few secularists make it their mission to completely
strip references to the divine from the public conversation. At one point he
mentions Michael Newdow, the California father who sued over the phrase "under
God" in the Pledge of Allegiance. But Newdow doesn't lead any group or
represent any constituency. When the 9th Circuit ruled in his favor, there was
very little joy among secular liberals. When I interviewed Rob Boston of Americans
United for Separation of Church and State about the decision for Salon, he told
me, "This is a godsend for the religious right. They're going to raise
millions of dollars on this issue."
Meanwhile, Boston said, the Supreme Court had just ruled that publicly funded
vouchers could be used to pay for religious school tuition. "We're on the
verge of tax-supported religion in this country. It's a startling change of
policy, and instead of taking a hard, serious look at that, we're going to spend
a couple of months arguing about the Pledge of Allegiance," he said.
As this suggests, many legal secularists are already doing what Feldman says
they should -- focusing on coercion and money rather than symbolism. That's
where the significant battles are being fought, and unfortunately, Feldman's
formula offers little hope of a truce. Values evangelicals, he writes, "ought
to reconsider their position in favor of state support for religious institutions
and re-embrace the American tradition of institutionally separated church and
state. The reason they should be prepared to do so is that such state funding
actually undercuts, rather than promotes, the cohesive national identity that
evangelicals have wanted to restore or re-create."
Indeed, values evangelicals should do this, but they will not. Millions
of individual born-again Christian voters probably sincerely desire an end to
America's fierce polarization, but the movement's leaders believe themselves
to be fighting a civil war against a hateful enemy, and they are in no mood
Consider what happened this spring during the scandal over religious harassment
at the Air Force Academy in Colorado Springs, Colo. According to numerous reports,
a climate of evangelical intimidation and bigotry saturated the academy. Students
who refused to attend chapel during basic cadet training were marched back to
their dormitories in what was called a "heathen flight." Some faculty
members introduced themselves to their classes as born-again Christians and
encouraged their charges to find Jesus. There were numerous reports of upperclassmen
using their authority over undergraduates to proselytize and insulting those
who wouldn't convert; one Jewish cadet was slurred as a Christ killer.
Secularists were alarmed and demanded that something be done. Note, though,
that they did not object to the presence of state-funded evangelical chaplains,
only to the pervasive discrimination against nonevangelicals. This did not stop
the religious right from declaring born-again Christians the victims. When Democratic
Rep. David Obey proposed an amendment to a defense appropriations bill calling
for an investigation into religious bias at the academy, Republican Rep. John
Hostettler stood up on the House floor and said, "The long war on Christianity
in America continues today on the floor of the House of Representatives,"
later adding, "Democrats can't help denigrating and demonizing Christians."
A week later, Dobson hosted Hostettler on his radio show. Dobson began the
segment by announcing, "Liberal forces in this country want to squelch
the freedoms of evangelical Christians throughout the culture, but now it's
popped up at the Air Force Academy." He praised Hostettler for having "the
courage to stand up and be counted."
These fights are not about the right of values evangelicals to be heard. They
are about their right to rule. As a secularist myself, I wish to God that Feldman
were correct about the possibility of finding common ground and ending America's
divisions, but I don't have much faith.