7/8/2010--The following is a precis of a paper I am submitting to law reviews. It takes Higher Law in the Public Square a little deeper. The quotation below comes from Justice Anthony Kennedy’s majority opinion in Lee v. Weisman , the decision that prohibited prayer at public high school graduations. In context, Justice Kennedy was considering the constitutionality of “nonsectarian prayer,” which he apparently defined as prayer that expresses a conviction supporting morality that transcends human invention. His conclusion was that while government may not suppress such prayer, neither may government itself undertake it, through, in the case itself, inviting clergy to a graduation ceremony and assisting in the creation of the prayer through guidelines given to the speaker.
“If common ground can be defined which permits once conflicting faiths to express the shared conviction
that there is an ethic and a morality which transcend human invention,
the sense of community and purpose sought by all decent societies might be advanced.”
Religion has its uniqueness, which is feared in the Establishment Clause and protected in the Free Exercise Clause. But religion is also part of a larger tradition that transcends religion and includes much of philosophy and political theory. That tradition was characterized by C.S. Lewis as the “doctrine of objective value”. It has been called by other names, such as civil religion, higher law, natural law, even religious naturalism. That tradition may be established by the government without violating the Establishment Clause and its practice is protected more by free speech than by free exercise. As the reference to “their Creator” as the source of rights in the Declaration of Independence illustrates, that tradition can be symbolized through religious imagery. That tradition is currently promoted through displays of the Ten Commandments and public references to God. But the tradition is not religion. It shares common ground with religion.
The failure to recognize this tradition as separate from religion, and to celebrate it, has led to numerous mistaken commitments. It has led the New Atheism toward relativism and even nihilism. It has obscured the natural law aspect of the Constitution exemplified in the Ninth Amendment, a natural law orientation that is anything but “godless”. It has caused the Supreme Court to overlook the “common ground” of values clearly present in American society and history. It has misled Justice Scalia into promoting the worship of the biblical God, when other formulations of God-language would alleviate constitutional disputes about religious imagery without sacrificing societal thanksgiving and even praise. In general, this failure has prevented the celebration of common meaning between religious believers and many nonbelievers.
Use of God-language and the Ten Commandments to promote this tradition does not lead to debased, “bleached faith” because religious believers agree that there is common ground with this tradition, although for the believer it is religion that represents the larger tradition and it is the nonbelievers who share only partly in the Truth. In Christianity, for example, the “hidden Christian” and the human conscience are said to represent common ground with nonbelievers and non-Christians.
The recognition of this common ground will not only clarify and resolve many Establishment Clause issues, but will allow formation of new political coalitions, as secularists and religious believers come to value their shared commitments. Such recognition will also deepen secularism itself and reorient it to the perennial questions of human existence.