Introduction: Religion, Division, and the Constitution

Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could excessive[ly] —and, therefore, unconstitutionally— entangle government and religion, not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their divisive political potential. He worried that government actions burdened with this potential pose a threat to the normal political process and divert attention from the myriad issues and problems that confront every level of government. And, he insisted that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Accordingly, he concluded that the parochial-school-funding programs under review in Lemon were unconstitutional, not only because they foster[ed] an impermissible degree of entanglement between government and religion, but also because they were likely to intensif[y] [p]olitical fragmentation and divisiveness on religious lines. As I have described in detail elsewhere, Chief Justice Burger\u27s view that the First Amendment not only authorizes, but also invites, judges to look to their observations and predictions of political division along religious lines for the enforceable content of the Establishment Clause has, since Lemon, been endorsed and employed by many scholars, judges, commentators, and citizens, in many cases and contexts. More generally, the claims that America is divided and religion is divisive are unavoidable in—indeed, they animate and shape—much of what is said and written today about law, politics, religion, and culture. The distinguished contributors to this symposium examine and unpack the many empirical, doctrinal, and normative presuppositions and assumptions implied by its title, Religion, Division, and the Constitution

Do Churches Matter - Towards an Institutional Understanding of the Religion Clauses

In recent years, several prominent scholars have called attention to the importance and role of First Amendment institutions and there is a growing body of work informed by an appreciation for what Professor Balkin calls the infrastructure of free expression. The freedom of expression, he suggests, requires more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]. The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain institutions, newspapers, political parties, interest groups, libraries, expressive associations, universities and so on. These First Amendment institutions are free-speech actors, but they also play a structural - or, again, an infrastructural role in clearing out and protecting the civil-society space within which the freedom of speech can be well exercised. These institutions are not only conduits for expression, they are also the scaffolding around which civil society is constructed, in which personal freedoms are exercised, in which loyalties are formed and transmitted, and in which individuals flourish. Similar infrastructural claims can and should be proposed with respect to the freedom of religion. Like the freedom of speech, religious freedom has and requires an infrastructure. Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience. The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them. Accordingly, the theories and doctrines we use to understand, apply and enforce the First Amendment\u27s religious-freedom provisions should reflect and respect this fact. If we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Professors Lupu and Tuttle have put it, whether religious entities occupy a distinctive place in our constitutional order[.

Standing, Spending, and Separation: How the No-Establishment Rule Does (and Does Not) Protect Conscience

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity. The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds us of the importance in our constitutional law and tradition of structural devices that preserve individual liberty and, in so doing, helps to illuminate the real relationship between nonestablishment and the liberty of conscience: Nonestablishment and church-state separation protect conscience by committing us to the idea that there are, and ought to be, multiple, rival authorities. Protecting and respecting the freedom of conscience requires protecting and respecting the competing associations, institutions, and authorities that both clear out the space in which consciences are formed and engage in the formation of consciences. A community that cherishes the freedom of conscience will allow non-state formers-of-conscience to flourish, will acknowledge their appropriate independence, and will not aspire to remake them in its own image

American Conversations With(in) Catholicism

The jacket photo for John T. McGreevy\u27s Catholicism and American Freedom is striking. In the foreground, a young and vigorous Pope John Paul II, censer in hand, strides across an altar platform on the Mall in Washington, D.C. His attention is fixed off-camera, presumably at the altar he is about to reverence with incense. At the bottom of the picture, gathered around and below the platform, sits a grainy group of mitre-wearing bishops. Looming directly over the scene, in the background yet dominating the photograph, is the towering dome of the U.S. Capitol Building. This picture is worth many thousand words; it evokes and captures many of the events described, themes developed, and debates presented in this excellent book. The crowd of faceless bishops, lurking beneath the foundations of the Capitol, recalls the famous Thomas Nast cartoon depicting a mass of crawling crocodile-like prelates who, with toothy, gaping mitres, stalk Tammany-abandoned schoolchildren cowering in the ruins of the public schools and armed only with the Holy Bible. That the Church\u27s rituals are proceeding in our most public of public squares, in the shadow of the unmistakably churchlike seat of our national government, reminds us that our separation of church and state has long been anything but strict, and perhaps also that even our professedly secular state has at times demanded faithlike loyalty to its own political orthodoxies. That the Capitol dome so resembles that of St. Paul\u27s Cathedral in London highlights the tension between Catholicism and American\u27s Protestant origins, traditions, and premises. In the picture, the Pope occupies an in-between place, as Catholics in America often have: he appears both suspended and intent on mediating between the ancient, hierarchical Church he leads and the modern, democratic nation he is addressing. His posture is neither defensive nor defiant, but confident. It is as if his aim is not to impose a conclusion, but to propose a claim and to initiate a conversation

Church, State, and the Practice of Love

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church\u27s commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order. The specific goal for this paper is to draw from Deus caritas est some insight into what is a fundamental and - at present - the most pressing challenge in church-state law, namely, the preservation of the Church\u27s moral and legal right to govern herself in accord with her own norms and in response to her own calling. It asks, what does the new Pope\u27s work and thinking, about the future and present state of the Church and her organized practice of love, suggest about the appropriate content and vulnerable state of the rights and independence of religious groups - and of the freedom of the Church