Senate Hearing on Religious Expression in the Public Square

I appeared yesterday before the Senate Judiciary Subcommittee on the Constitution, at a hearing called "Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square." My fellow panelists included Professor Vincent Phillip Munoz (whose excellent essay on the Religion Clause appeared in a recent issue of First Things) and Melissa Rogers, currently visiting professor at Wake Forest Divinity School and formerly the (excellent) head of the Pew Forum on Religion and Public Life.

My own statement was related to the conversation we are having about Greg's latest paper, and grew out of a paper I did a few years ago about the place of religious argument in the death-penalty context. Here's a bit of what I had to say:

As President Clinton put it, nearly ten years ago, “religious freedom is literally our first freedom,” and it was central to our Founders’ vision for America. True, the Framers did not always agree about what the “freedom of religion” meant, but they knew that it mattered. And, they were right.

The protections afforded to religious freedom in our constitutional text and tradition are neither accidents nor anomalies. They are not, as one scholar has claimed, an “aberration in a secular state.” Our Constitution does not regard religious faith with grudging suspicion, or as a bizarre quirk or quaint relic. Rather, as my former colleague, Dean John Garvey, once observed, our laws protect the freedom of religion because “religion is important” and because, put simply, “the law thinks religion is a good thing.” In our traditions and laws, religious freedom is cherished as a basic human right and a non-negotiable aspect of human dignity.

Accordingly, our laws and constitutional doctrines should regard governmental restrictions upon religious expression – and not religious expression itself – with sober skepticism. . . .

. . . Many of us misunderstand the meaning of the phrase, “separation of church and state,” and the place of this idea in our constitutional tradition. To be sure, the “separation of church and state” – properly understood – is a crucial component of religious freedom. That is, (a) the institutional and jurisdictional separation of religious and political authority, (b) the independence of religious communities from government oversight and control, (c) a respect for the freedom of individual conscience, (d) strict government neutrality with respect to different religious traditions, and (e) a clear rule against formal religious tests for public office – all of these “separationist” features of our constitutional order have helped religious faith to thrive in America. In other words, the “separation of church and state” – if properly understood – is not an anti-religious ideology, but a way to implement our commitment to religious freedom.

However, many have confused Thomas Jefferson’s “figure of speech” about a “wall of separation between church and State” with an unsound rule that would authorize – and even obligate – public officials to scrub clean the public square of all “sectarian” residue. This view of church-state separation is seriously mistaken. Indeed, as John Courtney Murray lamented more than 50 years ago, arguments like this stand the First Amendment “on its head. And in that position it cannot but gurgle nonsense.”

In fact, our Constitution separates “church” and “state” not to confine religious belief or silence religious expression, but to curb the ambitions and reach of governments. The aim is not to “put religion in its place” – after all, in our tradition, the government lacks the power to determine religion’s “place” – but instead to protect religion by keeping the government “in its place.” . . .

. . . Nothing in our constitutional tradition implies a duty of self-censorship by religious believers. And, nothing about the First Amendment suggests that religious expression is unwelcome or out of place in civil society and public debate. Still, many appear to share the view – to put it bluntly – that it is somehow in “bad taste to bring religion into discussions of public policy.” On this view, as Stephen Carter memorably put it, religion is “like building model airplanes, just another hobby: something quiet, something trivial–not really a fit activity for intelligent . . . adults.”

In fact, however, our Constitution does not demand the “trivialization” of religion and does not require what Richard Neuhaus famously called a “Naked Public Square.” The Constitution does not impose a “don’t ask, don’t tell” rule on religious believers presumptuous enough to venture into public life, and it imposes no special obligation on devout religious believers to “sterili[ze]” their speech before entering the public forum. Active and engaged participation by the faithful is perfectly consistent with the institutional separation of church and state that the Constitution is understood to require. . . . We should remember, as Professor Elshtain has warned, that “if we push too far the notion that, in order to be acceptable public fare, all religious claims . . . must be secularized, we wind up de-pluralizing our polity and endangering our democracy.”

Finally, it must be said that many of us misunderstand the significance of the Supreme Court’s observation that, under our Constitution, “religion must be a private matter[.]” This claim should not be taken to mean that “religion’s place is in the home” – or in the church – or that religious faith does not speak to questions of public policy and the common good.

William James once quipped, “in this age of toleration, [no one] will ever try actively to interfere with our religious faith, provided we enjoy it quietly with our friends and do not make a public nuisance of it[.]” Sometimes, though, religious people are called precisely to engage, respectfully and straightforwardly, their fellow citizens in dialogue about how we should live and live together. The point is, nothing in our constitutional text and traditions implies that religious citizens should refrain from speaking and acting as if their faith has consequences for state and society. After all, as Justice Thomas has insisted, it would be a “most bizarre” reading of the First Amendment that would “reserve special hostility for those who take their religion seriously, [and] who think that their religion should affect the whole of their lives.”

The Constitution protects our right to keep our faith private. It does not, however, require us to privatize our faith before entering into the public square or taking up the responsibilities of citizenship. . . .

Rick