New Paper by MOJ-Friend Steve Smith

Many MOJ-readers will be interested in a new paper Steve Smith recently posted on SSRN.  I know that Steve would welcome any comments readers might have:  [email protected]

Click here to download/print the paper.

How Secularists Helped Knock Down the Wall of Separation between Church and State

STEVEN DOUGLAS SMITH University of San Diego School of Law November 8, 2007 San Diego Legal Studies Paper No. 07-124

Abstract:      An increasingly common view maintains that the legendary “wall of separation between church and state” has fallen into a state of serious disrepair. There is also a widely voiced opinion about who deserves the blame, or the credit, for this development: the people ostensibly responsible for the wall's decline are religious conservatives, working through and upon the Republican Party and Republican appointees to the federal bench. In this article, I argue that this ascription of responsibility is fundamentally misleading. Complacently offered or accepted, it does a serious disservice to our understanding of the long-term causal influences that have combined to subvert the commitment to church-state separation and also, more generally, to our understanding of the situation we currently occupy and the prospects that may be available to us. Indeed, from a more detached perspective, the diagnosis ascribing the decay of the wall of separation to religious believers and their political representatives is almost exactly wrong. It would be more accurate, ultimately, to attribute the declining fortunes of the wall - and the principle of separation - to secularists and secular influences (in a modern sense of the term) than to religion. Part I of the article (“Foundations: Separation and the Classical 'Secular'”) attempts to explain three things: what “secular” meant in its premodern or classical sense, how the “secular” in that classical sense gave rise to a jurisdictional question affecting church and state, and how a commitment to “separation of church and state” and a derivative commitment to freedom of conscience expressed the generally shared classical response to that jurisdictional question. Part II (“Dissolution: Separation, Conscience, and the Modern 'Secular'”) follows the same order, attempting to explain how the concept of the “secular” was transformed into its modern sense of “not religious,” how the modern sense of the secular dissolved the earlier question of jurisdiction and replaced it with a question of justice, and how this transformation has altered and significantly undermined the classical commitments to “separation of church and state” and freedom of conscience. Part III (“Phasing out the Wall”) discusses the stages in which the reduction of the wall - of the commitments to separation of church and state and freedom of conscience - has proceeded in modern American jurisprudence. The Conclusion reflects briefly on the alternatives that may be available to us now.