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Friday, July 01, 2005
A Thoughtful Proposal -- in the Wrong Direction
Ten Commandments | Posted by Thomas Berg at 12:25 AM
Professor Feldman's "A Church-State Solution" is a very thoughtful piece, attentive to the current positions and divisions on church-state matters. I do think, though, that his proposal would take things in the wrong direction. Feldman's is largely an argument about what policy will reduce religious divisions among us, and I think it suffers from two problems.
1. Feldman overlooks other goals, besides reducing religious division, that may be of equal or greater importance in church-state matters. For example, a very different theme was central to the founding-era proponents of religious freedom and disestablishment: the integrity and independence of religious organizations and communities. They viewed this theme as crucial both because religion (duty to a higher power) was of intrinsic importance and because religion was essential to the virtue of citizens and thus the health of society. A major reason for disestablishment was that religion would better thrive and contribute to society if it was not promoted or favored by government, but rather reflected the free choices of individuals who would then affect society and government through their values.
Feldman's proposal -- allow government to make symbolic statements for its favored religion, but forbid government from including religious schools or charities in funding programs – would lead us away from these ideals of religious integrity and voluntary choice. Cases about government symbols -- the category where Feldman wants to allow more government-religious interaction -- involve the government selecting one message it favors, perhaps on the basis of majority vote, but certainly to the exclusion of other messages that many citizens would choose. And even the general religious view that the government selects is likely to be watered down or otherwise distorted to suit the government’s interests: official prayers will be reduced to the least common denominator between varying faiths, municipal crèches will be surrounded by plastic reindeer and used to encourage the commercialization of Christmas.
By contrast, the policy that Feldman wants to bar -- inclusion of religious schools or social services in funding programs – can reflect much better the choices of individuals and religious communities. A wide range of entities can participate in these programs under equal terms, reflecting a wide range of choices about religion. With voucher programs, the amount of funding is a direct function of the choices of individuals to attend a given school or receive help from a given charity. Indeed, funding is probably necessary to ensure that religious schools or charities can continue to thrive according to individuals’ choices, since government typically funds the competing public/secular entities.
2. Even if reducing division is the overriding goal, I question whether Feldman’s proposal will achieve it. He’s right that voucher programs create some disputes over whether some schools will be denied eligibility because of their unpopular or anti-social teachings or practices. But of course he himself proposes to exclude school because of their religious teaching: why shouldn’t this exclusion promote just as much resentment, or more since it’s so broad-brush? (As my Mirror of Justice colleague Rick Garnett points out, and as I’ve discussed here, the largest class of religious schools, Catholic schools, do quite well at producing civic virtue.) The exclusion of religious schools from funding has produced intense controversy for decades; what makes us think it wouldn’t do so in the future? Even more, excluding religious schools from funding intensifies cultural disputes by pushing everyone (except the wealthy) into a single set of institutions, the public schools: many more people then have an interest in insisting that the schools reflect their (inconsistent and incompatible) values. We will continue to face the endless emotional disputes over public-school prayers, Christmas prayers, sex education, and countless other issues. As Jack Balkin put it, disputes over the content of official statements in government settings are "zero sum"; someone must win and everyone else loses. By contrast, voucher-type programs allow families of varying views each to send their children to schools closer to their views.
Feldman’s answer is that secularists and religious minorities should accept more Christian elements in the public schools and the public square. But such a sacrifice is still bound to produce resentment among non-Christians; and voucher programs would make the sacrifice unnecessary because families who wanted serious Christian elements could go to (now more affordable) Christian schools. In addition, any amount of religion that Feldman would allow in public schools would (and probably should) be insufficient to satisfy those who want their children’s education to contain serious religious elements and not just the occasional watered-down prayer or plaque on the wall. (In fact, Feldman would still forbid any sort of “mandated” prayer, which, in the light of Supreme Court precedent such as Lee v. Weisman, would probably cover any sort of official prayer in a public K-12 school.)
3. In the modern state, therefore, preserving the goal of religious voluntarism that animated the founders calls for the opposite of Feldman's proposal: continued suspicion of official government religious pronouncements, but increased acceptance of including religious choices fully in programs of educational or social-service funding. Nevertheless, I want to emphasize that I think that Feldman's analysis is very thoughtful and deserves close study.
(I should finish by saying that I share and appreciate Feldman’s position that religious views should be fully welcome into public debate on law and policy. But I don’t lump that question together with question of official government pronouncements on religion, as he does. One can draw a distinction between government being influenced by religious values in deciding on matters of law or legislation within its competence for example, being influenced by Catholic pro-life views in eliminating the death penalty) and government making a separate and more general pronouncement of a religious nature (for example, posting the Ten Commandments as a statement about the religious foundations of law in general). Religious values may participate as equal partners in public debate, and thus may influence the debate, and thus in a democracy may influence public decisionmaking. That doesn’t establish those values in the sense of the government adopting them as its favored stance overall. Indeed, much of the purpose of disestablishing religion – removing it from a direct favored relation with government – was to enable it to influence government by influencing the values of the people who then influence the government through debate and voting.)
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