The waning phase of the acrimonious Bush era features a newly aggressive secularism, reflected in bestsellers that cast sophomoric scorn upon believers of all faiths. According to a New York Times Book Review critic, it looks like America's ballyhooed culture war is petering out as the Religious Right suffers "the thrashings of a dinosaur that can do a lot of damage even in its final throes."

Or on the contrary, have evangelicals "joined the American elite," as the subtitle of a forthcoming book from Oxford University Press contends? Indeed, as a couple dozen other books warn, have believers grasped so much power that "fascists" or "Christocrats" or "Christianists" or "theocons" threaten to supplant American democracy with theocracy?

There is related confusion over religion's legal status. In his impassioned book The Last Freedom: Religion from the Public School to the Public Square, Joseph P. Viteritti, director of Hunter College's graduate program in urban affairs, asserts that religious freedom is being suppressed by cultural elites—an assessment echoed by many observers. But from other circles we get a sharply contrasting view: in God vs. the Gavel (Cambridge Univ. Press), for example, Marci A. Hamilton of Yeshiva University's law school argues that religious liberty has gotten out of hand as agitators twist the Constitution to unfairly claim "broad sway to violate the vast majority of laws."

With one-vote U.S. Supreme Court majorities on so many religious and moral disputes, the next president's nominees are likely to tip the balance. Viteritti counts among the experts who are dissatisfied with the Court's religion jurisprudence these past 60 years, though they reach no consensus on a solution. The prime example of this literature is Separation of Church and State (Harvard) by Philip Hamburger of the Columbia University Law School, who believes that the First Amendment, though written in order to limit government intrusion, has been interpreted so as "to constrain religion." In Religious Freedom and the Constitution (Harvard Univ. Press), Princeton University Provost Christopher L. Eisgruber and Lawrence G. Sager, law school dean of the University of Texas at Austin, argue that the familiar demand for a high wall of separation between church and state is "silly and incoherent." They advocate instead "equal liberty" that gives religion neither special privileges nor disabilities. In Divided by God (Farrar, Straus and Giroux), Harvard Law's Noah Feldman would tolerate bland public religious symbols (e.g., "under God" in the Pledge of Allegiance) but takes a tougher line against any public aid to "faith-based" schools or charities.

The Constitution famously forbids federal laws "respecting an establishment of religion, or prohibiting the free exercise thereof." Viteritti thinks the idea that this requires complete church-state separation would have been "unfathomable" to founders Jefferson and Madison. In outlawing Mormon polygamy in 1879, the Supreme Court ruled that while freedom of belief is absolute, religious actions may be curbed if they subvert the social order. In a 1940 Jehovah's Witnesses case, the Court for the first time extended the Constitution's religion demands to state and local governments. After that, Viteritti contends, the Court used the "establishment of religion" clause to protect purported interests of government or non-believers over against the "free exercise" of religious believers. A 1947 dictum held that governments cannot "pass laws which aid one religion, aid all religions, or prefer one religion over another." A 1971 elaboration stated that laws must have a "secular legislative purpose" and a "primary effect … that neither advances nor inhibits religion," and cannot foster "excessive" entanglement between church and state. Coherent application of those standards has proven elusive.

Viteritti agrees with Marci Hamilton in opposing use of religious freedom gambits to shield sexual molestation or medical neglect of children. But Hamilton also rejects freedom claims in less dire situations. She especially laments the 1963 Sherbert decision, in a Sabbath observance case, which fixed the principle that government needs a "compelling state interest" to override religious freedom. The subsequent Yoder ruling (1972) applied that doctrine to grant the Amish the right to avoid compulsory high school attendance. Hamilton praises—and Viteritti opposes—Justice Scalia's 1990 Smith decision, which scuttled the "compelling state interest" rule and said religious individuals and groups must obey laws that generally apply to others. With the "free exercise" guarantee thus weakened, successful religious lawsuits since have largely cited other constitutional rights (free speech, freedom of association, equal protection, due process).

Viteritti, a political scientist who has been appointed by leading New York Democrats to various advisory panels, plunged into the church-state vortex in 1999 with the influential Choosing Equality: School Choice, the Constitution, and Civil Society (Brookings Institution). Like Last Freedom, the earlier work argued for the constitutionality of tax-supported vouchers so disadvantaged children in inadequate urban schools can afford tuition at religious or other private schools. This is not aid to religion as such, he argues, but provides needy parents educational choices as a matter of equal justice. Regarding choice of social services, Viteritti cites research indicating that clients vastly prefer "faith-based" providers and says they should also receive public aid.

The Viteritti doctrine would "grant people of faith the most generous scope of freedom possible without infringing on public order" or limiting peoples' right to believe or to disbelieve. He wants to maximize freedom of conscience and "minimize situations in which the state uses its authority to force people to do something they think is wrong."

The underlying problem, Viteritti contends, has been a "negative predisposition toward religion in the courts." A "snobbish bigotry," rooted in fear and ignorance, infects not only judges but other cultural elites. He believes that a wide swath of intellectuals, opinion leaders, and influential media mistakenly suppose that Americans who take religion seriously "are irrational and uninformed, a stupid lot who must be treated with suspicion."

Unlike the anti-theocracy crowd, Viteritti therefore concludes that the risks from "antireligious sentiment now outweigh the risks that emerge from the outbreaks of religious zealotry that have dotted the political landscape; to put it more bluntly, the threats from the left are more dangerous than those from the right." He finds that most Americans fall into an ambiguous "hollow middle," rejecting both rigid secularism and overly intrusive religion. Yet Americans generally favor religion's role in society, unlike the Supreme Court and government, which Viteritti says engineered secularization of public life and the public schools during recent decades.

On schools, Viteritti would allow students to opt out of reading assignments or sexual explorations that seriously offend their parents' values. Though he insists on the teaching of Darwinian evolution, he says government "has no business officially using science as a tool for refuting religion"; schools should recognize non-scientific ways of comprehending nature. He leaves vague just how to achieve this balance.

One alternative for believers, of course, is to attend religious day schools. Viteritti thinks that if they receive public funding they must be accountable to the public, with these implications: The government should not force schools to secularize their curriculum or faculty, but should bar admission of students on the basis of religion. He sees little reason to oppose gay marriage and likewise thinks schools should not discriminate in staff hiring on the basis of sexual orientation, instead observing a "don't ask, don't tell" policy. Dismissal of homosexuals—as of heterosexuals—would be justified only if they admit to and openly flaunt a lifestyle opposed to a school's religious standards. Neither religious conservatives nor secular liberals will agree.

And the gay question may prove considerably more troublesome for free exercise than Viteritti admits. That is the view of Marc Stern of the American Jewish Congress, who is among the ablest attorneys advocating strict separation of church and state. In a paper featuring 237 legal citations and footnotes (at becketfund.org/index.php/article/494.html), Stern details sweeping vulnerabilities that religious groups and individuals, especially parachurch organizations, could face as same-sex marriage is legalized. He concludes that special legal exemptions will be necessary to protect followers of Protestant, Catholic, Eastern Orthodox, Mormon, Jewish, Muslim and other traditions that oppose same-sex behavior. Already, university Christian clubs have come under fire for this reason.

However the gay issues play out, lower schools will continue to be the central arena of conflict. To Viteritti, public education is no longer neutral but reflects an "obstinate secularism" that has "little tolerance for religious or philosophical pluralism" and thus threatens the freedom of believers. If his perception is correct, this presents a stupendous problem for a pluralistic democracy.

Richard N. Ostling, a longtime religion writer with Time magazine and the Associated Press, is the coauthor with his wife Joan of Mormon America: The Power and the Promise (HarperOne, rev. ed., 2007).

Copyright © 2007 by the author or Christianity Today/Books & Culture magazine.
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