Hallowed Secularism and Constitutional Law

9/8/2007--Obviously the principle of government neutrality toward religion is in some degree of tension with Hallowed Secularism. That is because the Supreme Court does not know when something is “religion” and thus banned, or is “values” and thus permitted. So, for example, if the people in a secular country want to affirm that reality has meaning and history has a pattern, and that these are in some sense binding, they might say that their country is “under God” even though they don’t believe in a traditional God. For this Court, that formulation would raise an issue of government non-neutrality toward religion. But, on the other hand, if the same secular people wrote a Pledge that stated in detail that reality has meaning and that history has a shape and that we are judged by how closely we follow that meaning and shape, this text would probably not even raise an issue of church and state, even though God and this formulation could be thought of as the same thing.

To state this problem is not to solve it. And I cannot try to solve it here. It is fair to say that the doctrine of government neutrality toward religion is recent and not well justified by text or history. It is also fair to say that coercion and sectarianism are rejected by most Americans, even those who want more religious expression in public life. So, the building blocs of a new approach to church and state issues are available. That foundation would be to prohibit any form of religious coercion and to avoid endorsing a specific religion but to allow all forms of relationship with transcendent reality and no longer referencing people's religious motives. What is missing is a new vision in constitutional law that can bring all this together.

The change I am seeking does not usher in theocracy, as charged by Kevin Phillips. Theocracy is not an outcome but a process. If a democratic people adopt the criminal law of the Old Testament because they believe it is God’s will, that result is still democratic rather than anything else. Conversely, if a governing structure gives final say to a clerical institution, as in Iran, the result is theocracy regardless of what democratic window dressing may exist.