An extended article in next weekend's NYT Magazine offers a "solution" to church-state debates. Yeah right.
Despite the gravity of the problem, I believe there is an answer. Put simply, it is this: offer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities. This approach, the mirror image of O'Connor's compromise, is drawn from the framers' vision and the historical experience of separating church and state in America. The framers might well have been mystified by courthouse statues depicting the Ten Commandments, but they would not have objected unless the monuments were built with public money. Having made a revolution over unfair taxation, they thought of government support in terms of dollars spent, not abstract symbols.
This implies that there is some overall problem with how much "religious speech and symbols" are in the public debate now. I doubt this. First off, I think some framers WOULD be concerned if sectarian symbols of a certain denomination (as compared to references to God alone) were placed in front of public buildings. And, the First and Fourth Amendments generally suggests they were not just concerned with money.
Second, some examples offered are dubious. Football is a way of life in many areas, no more "voluntary" than an important after school club. If intellectual design is "a product of the ill-advised demand that religion disguise itself in secular garb," why in the hell shouldn't it be an Establishment Clause problem? But, generally, governmental funding is a fundamental concern. Voucher and charitable choice programs that feed millions into the hands of religious organizations probably is more problematic than some of these things. Still, a lesser problem is still a problem.
[I also share this sentiment: "But while values evangelicalism claims to advocate national unity and inclusion through shared values, school-voucher programs cut exactly the other way, promoting difference and nonengagement. Permitting schools supported by private money to teach that there is no common American undertaking is not the same as encouraging that teaching through state subsidy." As well as his fear that vouchers run riot could balkanize society.]
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. ... [T]he courts should substitute the two guiding rules that historically lay at the core of our church-state experiment before legal secularism or values evangelicalism came on the scene: the state may neither coerce anyone in matters of religion nor expend its resources so as to support religious institutions and practices, whether generic or particular.
Not quite. If schools teach religious doctrine (intelligent design) as science, how is this separation? Ditto if it chooses the Ten Commandments over other religious displays? And, Thomas Jefferson et. al. suggest that "coercion" was not the only thing promoters of religious freedom was concerned about. This libel -- and it is exactly that -- that strong separationist arguments somehow arose circa the Warren Era is downright wrong. It works both ways: evangelicalism was around for years as well. Solutions need to be based on reality, not stereotypes.
The solution I have in mind rests on the basic principle of protecting the liberty of conscience. So long as all citizens have the same right to speak and act free of coercion, no adult should feel threatened or excluded by the symbolic or political speech of others, however much he may disagree with it.
But, said "solution" is not required for this result. It is true that some "legal secularists" (ah labels) are uncomfortable when some make policy arguments based on religious principles. In fact, many are really worried about the sort of arguments being made, since environmentalism and other liberal friendly arguments often has moral and religious favor to them as well. And, of course, there are many religious liberals out there, useful to be brought out at right to choose and gay friendly rallies. This has little really to do with keeping government from sponsoring religious doctrine directly.
The fact that others have asked for and gotten recognition implies nothing about the exclusion of any religious minority except for the brute fact that it is a religious minority. There is no reason whatever for religious minorities to be shielded from that fact, since there is nothing shameful or inherently disadvantageous in being a religious minority, so long as that minority is not subject to coercion or discrimination.
Rhetorical overkill like this really is annoying. The argument basically wants to rob the "Establishment" Clause of much weight at all because "Texas is a Protestant State" is not supposed to be a problem. This blaming the victim sentiment is distasteful and at best clueless. Give religious individuals recognition ... but (and given the article's patron saint Justice O'Connor DISSENTED from allowing the Ten Commandments display in Texas, this is particularly obvious) not favoritism. I would argue that this is downright difficult without separation, but maybe it need not be with care shown. Care often is not shown.
Atheists will doubtless maintain that any public religion at all -- like "under God" in the Pledge of Allegiance -- excludes them by endorsing the idea of religion generally. But this misses the point: it is an interpretive choice to feel excluded by other people's faiths, and the atheist, like any other dissenter from a majoritarian decision, can just as easily adhere to his own views while insisting on his full citizenship. So long as no one is coerced into invoking God, it makes little sense to accommodate the atheist's scruples by barring everyone else from saying words that he alone finds to be metaphysically empty.
But, "everyone else" is not barred! If those who argue their point will insist on missing the bloody point (such as justices who use public statements of governmental figures to justify governmental acts promoting religion), why should they be taken seriously?
If our very Pledge, taught to our schoolchildren to honor the flag for which this country stands, promotes a belief in God, why should not those who do not share this belief find this exclusionary? Missing the point indeed! Also, "under God" DOES NOT just "endorse the idea of religion generally." The God promoted is not the only possible God available. Finally, how exactly does the author think six year olds are not "coerced?"
Finally, the author's strong opposition against funding will be deemed by many extremist. The "compromise" offered, one far from revolutionary, would not be deemed to be too attractive. It is the felt need of constitutional law professors to write things like this that results in the splitting the baby mush Justice Breyer was somewhat wrongly ridiculed for writing this week. The best path is somewhat unclear, I am surely willing to admit that. The one offered here does not cut it for me.