6/24/2010--My new book, Higher Law in the Public Square, will be published spring 2011 by Indiana University Press. Here is a description:
Higher Law in the Public Square proposes that the government may use religious images to express higher law values without violating the Constitution. Higher law is the tradition that justice and morality are real and not just opinion or human invention. Government may endorse higher law and may use religious symbols like the Ten Commandments and the word God to do so. Ten Commandments Displays in parks and public places are constitutional, as are the words “under God” in the Pledge of Allegiance and “In God We Trust” as the national motto.
The book does not endorse religious belief. The author is a secularist and higher law is not religion. The commitment to objective values is shared by religious believers and many atheists, who both reject the current cultural malaise of relativism and post-modernism. Sharing in the expression of higher law unites believers and non-believers across current culture war boundaries.
The higher law proposal in this book accomplishes several goals previously thought incompatible.
• It harmonizes caselaw that currently requires government neutrality toward religion while inconsistently permitting religious symbols to remain in the public square; the religious symbols stay.
• It reassures atheists, whose insistence on government religious neutrality has been losing ground politically; government religious neutrality is maintained.
• It attracts religious believers, who have always agreed that religious imagery expresses the higher law tradition; religious symbols gain a new universality.
• It allows religious liberals to interpret traditional religious images in a nonorthodox way; God can stand for justice and truth.
• It creates the potential for a new political alignment uniting atheists and believers by eliminating the irritant of calls for cleansing the public square of religious images; a more potent left than at any time since the Depression.
• It reorients secular thinking toward the affirmation of meaning in human life; atheism accepts religious images in that spirit.
Religious images have always served a double role. They have always symbolized higher law as well as denominational claims. The religious believer need not give up her strictly religious interpretation of these symbols. Only the government that uses these symbols must plausibly claim that they reflect the higher law. As long as that is done, their genuinely religious meanings are legally irrelevant. The Ten Commandments stand for the proposition that justice and injustice are real—the same commitment that universal human rights represent. A nation under God is one that insists that even majority rule is not the final arbiter of right and wrong—the same commitment humanity made at Nuremburg. Religious images understood in this way are not universal—there are skeptics—but these images are potentially unifying.