2/2/2011--On Sunday, Robert Marus responded to my essay in Religion Dispatches about the diminished protection of religion under the Free Exercise Clause. Marus argued that while this was true, it was also true that the Establishment Clause was shrinking as well. Both trends he said were a threat to religious liberty.
Marus pointed to several trends in which religion and government intermix: the use faith-based organizations to deliver government services, the use of vouchers to allow indirect funding of religious schools, the decline of the Lemon test to restrict government funding of religious institutions, and the equal treatment cases requiring government institutions to fund religious activities—such as student groups—when they fund anything else. The effect of all this is to treat religion as just another interest group, which is what the Free Exercise Clause cases also do.
Undoubtedly, the Establishment Clause recognizes religion as unique. It is one activity in society that government may not fund, hence not establish. And it is certainly true that the framers did not want tax dollars going to all religious activities any more than they wanted tax money to go to one religion only. So, it is true that no-establishment means not supporting religion and not just not picking one religion.
But what if religion is special in another sense as well? What if religion is special in what it can contribute to society? Then that should be recognized also.
I argue in my forthcoming book, Church, State, and the Crisis in American Secularism, that religious language, images and symbols have a unique role to play in the struggle that an increasingly secular society is engaged in over meaning itself. In certain contexts the government may use traditional religious language to combat the specter of relativism and nihilism. This is not an endorsement of religion but of objective value.
One can go farther. Government should not be neutral about the meaning-making institutions in society. It is still true that government may not support religion per se. But when government supports the private choices of religious expression, along with other secular expressions of meaning, it is supporting unique bulwarks of a healthy society. Those school vouchers, for example, will one day also go to deep ecology schools and to secular humanism schools.
Yes, religion is special. And government must be careful not to endorse religion. But that special quality points to the crucial role religion can play in a secular age.