8/4/2009—One of the best illustrations of the need for a new theory of church and state is the question whether the government may post the Declaration of Independence in every public schoolroom in the country. Actually it is not a question. Obviously the government may do so. The question is why the government may do so.
The problem of course is the grounding of rights in their endowment by their Creator in an early section of the Declaration. Plenty of religious believers use that language to show that this is a Christian or at least religious nation. The strict separationists who want the government to have nothing to do with religion are confronted here with an ontological issue. If we are endowed by God with our fundamental rights, then a secular public life is impossible in principle.
The answer as to why the Declaration can be posted can have nothing to do with the government’s purpose. The Declaration can be posted regardless of whether the Governor of a state hopes they will spark a religious revival.
The Declaration can be posted for one of three reasons. First, it is simply a patriotic reminder of our independence from England. So the Supreme Court has in fact suggested. But the Declaration makes a fundamental political claim—that human rights are not inventions of men. It was a document of an idea. It is not a museum piece.
Second, it can be posted because monotheism is compatible with the Establishment Clause. This is Justice Scalia’s theory. But Scalia excludes nonbelievers and nonmonotheists.
Finally, and my proposal, the Declaration can be posted because it can be reinterpreted to be a claim applicable to all kinds of beliefs, religious and nonreligious. The belief that rights are real represents the theory of objective value. Our rights are built into the way things are. The religious believer hears the word God and hears the grounding of a political claim. The nonbeliever hears the word God and hears a different kind of grounding of the same political claim. But they both hear and accept the same political claim. The worldwide movement of universal human rights depends on our getting this right.