Religion and Division

Eugene Volokh has some posts up about Judge Karlton's concurrence in the Ninth Circuit's recent Faith Center Church case.  In that case, a panel majority, per Judge Paez, concluded that  a library may exclude "religious worship" from a policy that opens library rooms broadly to "meetings, programs, or activities of educational, cultural, or community interest."  In the concurring opinion, Judge Karlton writes:

Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion. Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power. . . .

As Volokh notes, though, it is not clear that letting a church meet in a public library, which is open to other community groups, "marr[ies] . . . passions to government power."  Judge Karlton continues:

That threat is not merely historic. One need only look about the world to see that danger in play. The scenario is the same whether it is in Northern Ireland where Catholics and Protestants kill each other in an effort to establish governmental power, in Israel, where Jews and Muslims do the same, in Iraq, where Shi’a and Sunni are engaged in similar slaughter, or in Sudan where Muslims murder Christians. Nor is that the only danger.

As Volokh comments, though, "it's not clear that evenhanded treatment of all religious groups alongside secular groups in access to government benefits has much to do with conditions that lead Catholics and Protestants to kill each other."  More Judge Karlton:

Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. Such favor can only lead to alienation and social unrest. . . .

The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone’s religion. Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous. . . .

As I have argued, in this article, it does not seem that the assertedly "salutary purpose" of "insulating civil society from the excesses of the zealous" is one that (a) is really all that salutary, in a free civil society or (b) should be promoted through the interpretation and application by judges of the Religion Clauses.  Instead, I believe:

[We should be] mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.