One Nation Divided by God
by Benedicta Cipolla

Church-state issues are at the forefront of American political and cultural debate as the Supreme Court begins a new session with a new chief justice on October 3. New York University law professor Noah Feldman has stepped into the fray with a book, DIVIDED BY GOD: AMERICA'S CHURCH-STATE PROBLEM -- AND WHAT WE SHOULD DO ABOUT IT (Farrar, Straus & Giroux, 2005), that tries to reconcile the two sides of the divide most vociferously opposed to each other. He calls them "the legal secularists" and "the values evangelicals."

Feldman offers a historical analysis of how both groups have failed to ensure full inclusion of all citizens. He critiques legal secularists (who, while they may be religious themselves, believe government should be strictly secular) for excluding "citizens who draw heavily on their religion for public guidance," and values evangelicals (who insist on the direct relevance of traditional moral and religious values to political life but who may or may not be evangelical Christians themselves) for assuming an "acceptance of others' beliefs that many religious believers cannot accept without sliding into relativism."

According to Feldman, legal secularists should allow greater latitude for public religious discourse and symbolism, and values evangelicals should abandon their support of state funding for religious institutions and activities. "Such a solution would both recognize religious values and respect the institutional separation of religion and government as an American value in its own right," he writes.

Some legal scholars wonder how feasible Feldman's compromise would be.

"This is about power on a battlefield, and I don't see anyone giving up that battlefield voluntarily," says Marci A. Hamilton, a church-state scholar at the Cardozo School of Law at Yeshiva University and the author of GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW. "Government needs to be restrained from joining forces with any particular religious group."

Feldman says believers have every right to influence political discourse, although religious reasoning should never become a "conversation stopper." While he suggests allowing more religious symbols in the public square, such as Nativity scenes on a town green, he would prohibit the use of government money to promote such displays. Individuals and groups have a right, he says, to argue for their views as long as the state guarantees all citizens an equal right to do so. "By contrast," he writes, "when the state funds programs and institutions, it acts as a unified actor in controlling limited resources."

His proposal rankles some who worry that allowing more religious symbols amounts to endorsing a particular religion, a view that draws on a 1984 opinion written by Justice Sandra Day O'Connor and advocated since then by other justices. "Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message," O'Connor wrote.

But Feldman believes that because everyone has the right to recognition of their religious symbols, endorsement per se is not exclusionary -- a position that raises some concerns about minority faith traditions.

"I worry pragmatically about its success," says Chuck McDaniel, visiting assistant professor at the J. M. Dawson Institute of Church-State Studies at Baylor University. "He's advocating ensuring religious symbolism in the public square, but how do you ensure religious pluralism, that the various faith groups are accurately represented in that symbolism?"

For McDaniel, allowing government to promote religious symbols or religious speech results in a dangerous intermingling of church and state, even if no public funds are utilized. The average person walking by a plaque of the Ten Commandments donated to the town hall by a church, for example, might not realize that his tax dollars did not support the plaque.

Feldman responds that the only fundamental outcome for someone whose belief system does not include the Ten Commandments would be a reminder of his minority status. And for Feldman, minorities require no constitutional shield from this fact, as long as they are subject to neither coercion nor discrimination.

Raised an Orthodox Jew (he says he now considers himself "post-denominational") in Cambridge, Massachusetts, Feldman attended a nearby yeshiva day school for 12 years but lived in a neighborhood dominated by Irish and Italian Catholics. "I was brought up to have a certain sense of not feeling threatened by being a religious minority," he says in an interview. "We didn't feel bad about it. Being reminded you are a religious minority is not an inherently oppressive thing."

"I think he misunderstands the power of symbolism and the kinds of harm religious minorities would indeed suffer," says Bette Novit Evans, professor of political science at Creighton University. "It goes back to [Justice] O'Connor's sense of exclusion, the sense that someone is less of a citizen. It's an intangible discrimination. I think that's absolutely a violation of the establishment clause."

Feldman is optimistic -- some say overly so -- about the effects of immigration and religious diversity on Americans' acceptance of non-Christian religious symbols. Minority religious groups, however, have only begun to claim equal footing in the U.S. religious spectrum, and outside of a diverse community like Boston, where Feldman grew up, Americans may be less accepting. In a 2004 Auburn University poll, 69 percent of respondents supported Ten Commandments displays in schools and other public settings, while only 29 percent supported displaying non-Christian symbols.

Kathleen Moore, an associate law professor at the University of California at Santa Barbara who has written on Muslim immigrants, says that because of concerns over terrorism, Muslims are just beginning to make their presence felt in the public square. The Council on American-Islamic Relations and other Muslim organizations, for example, have donated Qur'ans to state courts for Muslim witnesses and jurors to use when being sworn in. In late July, the ACLU filed a suit in North Carolina after two judges said the Christian Bible was the only religious text that could be used.