America's Freedom of Religion Doctrine is Under Threat

EVANSTON, Ill. --- “The American law of freedom of religion is in trouble, because growing numbers of critics, including a near majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality.”

That is the opening sentence of “Defending American Religious Neutrality,” the provocative new book by Andrew Koppelman, an influential Constitutional scholar who is the John Paul Stevens Professor of Law at Northwestern University.

In the book, set for publication on Jan. 1, 2013, Koppelman takes on critics of the First Amendment’s “establishment” clause who increasingly are branding its freedom of religion doctrine as both “incoherent and substantially unattractive.” Their solution would be to replace it with “a new set of rules far friendlier to official endorsement of religion.”

Those proposals, Koppelman argues, would “lead to heightened civil strife, corruption of religion and oppression of religious minorities.” He goes on to mount a rigorous legal defense of the view that American religious neutrality is in fact both coherent and attractive.

“If the state gets to discern God’s will,” he writes, “we will be told that God wants the reelection of the incumbent administration.” The First Amendment’s leading framers believed strongly that religion can be corrupted by state support, he says.

America’s religious neutrality has become more vague over time as the country became far more religiously diverse, but Koppelman contends that is a strength, arguing America has been “unusually successful” in dealing with religious diversity. He points out the U.S. has achieved “civil peace” in these matters far beyond the capabilities of other democracies, such as those in Europe, to do so.

Koppelman acknowledges there are inconsistencies that appear to stem from American law on religious issues. For instance, how do we reconcile the ban on official prayers and Bible reading in public schools while still having “In God We Trust” printed on U.S. currency or beginning many legislative sessions with prayers? And how do we justify making Christmas a holiday or explain the confusion over faith-based social services, public financing of religious schools and the teaching of “intelligent design”?

The key for Koppelman in resolving these puzzles is the concept of religious neutrality and the need for the state to distance itself, to keep “some degree of abstraction away from controversial conceptions of the good.”

The book explains the fundamental wisdom of the First Amendment doctrine that treats religion as a good thing, and as such, “holds that religion’s value is best honored by prohibiting the state from trying to answer religious questions.”

Following is an edited transcript of a recent interview with Koppelman about his new book:

Q: What is the central Constitutional theme of your book? 

A: Discussions of the religion clauses of the Constitution tend to represent two broad views:  Either the people who want government to be able to endorse any religious proposition that it wants, to declare that the U.S. is a Christian nation or to authorize the government to embrace whatever religious propositions it sees fit, or the ones who think government is to be a religion-free zone which is completely blind to any value associated with religion. 

What I try to show in the book is that American law is not a member of either of those camps. What American law actually does is regard religion as a good thing but insists that its value be understood at a very high level of abstraction, so that government takes no position on any controversial religious question.

Q: But there are many inconsistencies in the law as it applies to religion, aren’t there?

A: This is theoretically untidy and is made worse by the fact that American law grandfathers in a huge number of practices that violate this rule about taking no position on any religious question. The rules are that these practices are OK, but, for instance, the Supreme Court decided that the Ten-Commandment display is OK if it has been around for 50 years, not if it has been put up last week. That’s just how American law goes. There are all kinds of untidiness about this.

Q: Is this approach something uniquely American?

A: The U.S. is the most religiously diverse society in the history of the planet. And we do a better job of managing our diversity than other high functioning rich countries. If you compare the status of our religious minorities with what’s going on in France or in Germany we look pretty good. So, I think that it’s worth taking the trouble to understand how the Americans actually do it. And if you understand how the Americans actually do it, then maybe there’s something to be said for doing it our way.

Q: What about separation of church and state, doesn’t religion still strongly influence our politics?

A: There is a misconception that is shared by people with very different views that says if you are in favor of a very strong separation of church and state, you must be hostile to religion. People on the left and right, people who are and aren’t hostile to religion, share this view. But when the framers put this strong separation in place, they did it because they valued religion so much and they thought that religion would be corrupted by state control.

Q: You single out the views of Supreme Court Justice Antonin Scalia in the book as a leading thinker who fails to appreciate the unique kind of religious neutrality you are defending.

A: The sheer diversity of religions is something that Justice Scalia, who purports to be an Originalist, doesn’t really get. Scalia suggested being friendly to religion means you embrace the idea of monotheism, and the Ten Commandments. It’s as if he’s never heard of Hinduism or Buddhism. It’s very strange.