Mirror of Justice

Here are some scribblings of mine, from today's USA Today, on church, state, religion, and politics:

With all due respect to baseball, America's real national pastime is, and has long been, arguing about the place of religion in politics. In the USA, religious faith has always played a role in shaping policy and inspiring citizens, and those same citizens have always wondered, and sometimes worried, about this influence.

(Illustration by Sam Ward, USA TODAY)

From the outset, we have believed that church and state are and should be distinct and also have known that faith and public policy are not and cannot be entirely separate. Finding and maintaining the right balance — avoiding both a reduction of religion to politics and an elevation of politics to religion — has been and remains a challenge.

One of the most important political stories of the past 25 years — one in which this challenge has been at center stage — is the emergence, energy and electoral success of the so-called Religious Right. This development unsettled what had become the comfortable consensus among many modern sociologists and suggested that their predictions of religion's decline, like reports of Mark Twain's death, were greatly exaggerated.

In the early 1980s, after the formation by Rev. Jerry Falwell of the Moral Majority and the election of President Reagan, many worried that the return of conservative Christians to the rough-and-tumble of party platforms, campaigns and elections threatened to unsettle the foundations of Thomas Jefferson's famous "wall of separation" between church and state. In 1984, Richard John Neuhaus responded to these concerns in an important and influential book, The Naked Public Square. Neuhaus insisted, correctly, that there was nothing un-American — and, indeed, nothing particularly new — about religious believers, ideals, claims and commitments in public life.

During the next two decades, conservative Christians continued to shape American politics, even as organizations such as the Christian Coalition and the Family Research Council replaced the Moral Majority. Issues such as same-sex marriage and partial-birth abortion during George W. Bush's time simply took the place of pornography and prayer in public schools during his father's presidency.

On the other side of the proverbial aisle, at least some of the Democrats' recent electoral victories can fairly be credited to many voters' increased interest in exploring the religious dimensions of environmental stewardship, immigration policy and waging war. Put bluntly: If religiously motivated voters helped the Republicans take over Congress in the mid-1990s, it appears that such voters helped to deliver it back to the Democrats in 2006.

Today, our national pastime is thriving. We continue to wrestle with, and to disagree about, faith and politics, church and state. The debate is both alive and lively, and informs policy topics from global warming and suburban sprawl to school choice and human cloning. It will not — and, in a free and diverse society, should not — end anytime soon. That said, and notwithstanding the popularity in some quarters of overheated and unfair diatribes about "Christian fascism" and "American theocracy," it is worth noting, and celebrating, the progress we've made toward clarity and consensus.

Far from a theocracy

For starters, scholars and commentators across the ideological spectrum increasingly agree that religious believers are entirely free to participate, as whole persons, in public life and in the civic arena. This freedom is the mark of an open, generous democracy, not a step toward "theocracy."

Nothing in the text, history or structure of our Constitution requires Americans to accept disintegration as the price of admission to the life of active, engaged citizenship. Even a government such as ours (especially a government such as ours), which is appropriately "separate" from religious authorities and institutions, need not and should not discriminate against religiously motivated expression and action.

During William Rehnquist's tenure as Chief Justice of the United States (1986-2005), the Supreme Court, for the most part, came to appreciate that the goal of our First Amendment — which protects religion's exercise in part by prohibiting its "establishment" — is not to push religious faith to the margins, in the hope that it will wither, but to protect religion from manipulation and distortion by governments, in the confidence that it will flourish.

True, each year brings another installment of the "Christmas wars" over holiday displays in public, and courts continue to struggle in cases involving Ten Commandments displays and religiously themed mottos and monuments.  It is tempting to elevate these skirmishes into epic battles between the sacred and the secular.

In fact, it is becoming well settled that legislatures may acknowledge religion's role in our history and practices, accommodate religious believers' special needs and cooperate with religious institutions in advancing the common good. All of this can be done without thereby "establishing" religion.

Of course, to note and welcome these developments is not to pretend that our faith-in-politics arguments are over or that the church-state problem has been solved. Looking ahead, at least two challenges seem particularly pressing.

The first is to remember and appreciate the importance of church-state "separation," rightly understood. Unfortunately, separation has often been misunderstood — by critics and defenders alike — as requiring that religion remain entirely private, confined to the sanctuary, the Sabbath and the self.

What the separation of church and state demands is that governments accept and respect the distinctiveness and independence of religious institutions and communities. It is not a menorah in the public park or the words "under God" in the Pledge of Allegiance that today threaten to undermine the "wall of separation."

Instead, the present threats come, for example, from state laws that require religiously affiliated agencies to pay for their employees' contraception, and from employment-discrimination lawsuits challenging religious schools' decisions about the hiring and firing of teachers.

'Caution by the church'

If this first challenge is a call for limits on the state, the second might be seen as a call for caution by the church.

To say faith speaks to politics is not to imagine that it provides clear, authoritative answers to complicated policy questions. There are plenty of good reasons for reasonable, faithful believers to decide that it is unwise for church leaders to address difficult political questions, particularly when they are questions — as most are — about which reasonable, faithful believers can disagree.

Religious commitments could and should animate our entire lives, but they will not always neatly dictate a particular policy.

During its 25 years, USA TODAY has covered and analyzed the tenures of four U.S. presidents, the final days of the Cold War, an ongoing technological revolution and, regrettably, terrorist attacks at home. All of these events and developments have shaped our ongoing conversation about religious freedom under law.

If the past quarter-century is any indication, it would seem that bright and busy times — another 25 years, at least — are ahead for our national pastime.

Richard W. Garnett is the John Cardinal O'Hara, C.S.C. associate professor of law at the University of Notre Dame.