Divided by God: America's Church-State Problem--And What We Should Do about It

One nation, divisible

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 ground.

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 Roberts.

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 place."

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," Feldman writes.

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 equal deference."

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 bias.

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 to compromise.

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.

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