Divided by God: America’s Church-State Problem--And What We Should Do about It
By Noah Feldman
Farrar, Straus and Giroux, 320 pp., $25

Conservatives and liberals can agree on one thing: The Supreme Court is nowhere so incoherent as in its interpretation of the Establishment Clause. Give nine robed men ten simple words--“Congress shall make no law respecting an establishment of religion”--and much confusion will inevitably ensue. The Court will find that Nativity scenes cannot appear on public property, unless they are surrounded by some plastic reindeer, a cutout elephant, and, just to be safe, a talking wishing-well. It will determine that emotionally inchoate 18-year-olds should be spared the harmful effects of a nondenominational prayer before a high-school football game, but that kindergarteners are mature enough to handle daily exposure to a patriotic pledge that explicitly invokes God. It will conclude that a framed Decalogue in a Kentucky courtroom must go, yet a statue of the Ten Commandments near the Texas Capitol can stay. With every passing year, precedent grows more conflicted, and the public more impatient.

Noah Feldman, one of America’s brightest young minds, deplores this trend, and in his justly lauded new book, Divided by God, he sets out to introduce a measure of order and clarity into Establishment Clause jurisprudence. Feldman seems magnetically drawn to intractable questions of religion and politics: An expert on Islam and democracy, he was deeply involved in drafting the interim Iraqi constitution. (To a man who has watched Sunnis and Shiites hash out their differences, our problems must look easy.)

Feldman’s book is part history and part policy prescription. The historical narrative tends to be episodic rather than continuous. Thus post-revolutionary Virginia’s debates over subsidizing ministerial salaries receive careful attention, as do the attempts by 19th-century Catholics to secure public funding for parochial schools (mostly unsuccessful) and social services (mostly successful). The scandal of Mormon bigamy, the rise of American atheism, and the fundamentalist response to modernity are all likewise skillfully presented. It reflects well on Feldman that he respects how long these controversies remained outside the courtroom, and that he never rushes the story to get to the legal material he knows best.

Conflict serves as a central motif of this account. Partly this is a matter of academic fashion: Historians of American religion nowadays eschew consensus narratives, suspecting them of conspiring--either naïvely or perniciously--to deprive marginal groups of their particularity. In Feldman’s case, though, something more profound is also at work. Following James Madison, Feldman appreciates how religious diversity can lend stability to the state, a conviction that explains the deliberate ambiguity of the book’s title. It could be providential, one may infer, that we are divided by so many creeds.

America remains bound by disagreement, but the character of that disagreement has changed dramatically in the last few decades. No longer do disputes break down along sectarian lines, nor are they resolved in the public square. Today’s contests occur before the bench, and they are fought not among churches, but between what Feldman calls “legal secularism” and “values evangelicalism.”

Legal secularism aspires to separate government from religion to the greatest extent possible; its proponents hope to maintain and heighten Jefferson’s “wall of separation.” Emerging from the horrors of World War II, this concept was born of skepticism about imbuing the state with any divine sanction. Over time, it became more preoccupied with protecting the rights--often equated with feelings--of religious minorities. As the default position within elite legal circles, such secularism has enjoyed tremendous success in getting the courts to bar all manner of traditional public expressions of religion.

Values evangelicalism, by contrast, harks back to the older ideal of non-preferential government support for religion. Such support is deemed indispensable for fostering a shared constellation of moral values, without which a common citizenship cannot exist. Though they repeatedly lose their fights over religious expression, values evangelicals have in the past decade advanced steadily along another front: They have convinced the courts that religious groups should be eligible for public funds on the same terms as other social organizations.

The judiciary has it exactly backward, Feldman contends: What it needs to do is “offer greater latitude for public religious discourse and religious symbolism, and at the same time insist on a strict ban on state funding of religious institutions and activities.” In short, the country needs to return to the recognition that disestablishment subsists so long as there is neither coercion inflicted nor money expended. It is a measure of how far our jurisprudence has strayed that “no force, no funds” sounds like a radical proposition. But radical it is--radical in the sense that it would require decades of misguided precedent to be vacated, and radical too in the etymological sense of returning the Establishment Clause to its Madisonian radix, root.

One never wants to read too much into these things, but Feldman’s receptiveness to so traditional a criterion might--possibly--signal a tectonic shift underway. If a law professor at NYU, former clerk for Justice Souter, and darling of the New York Times is pleading for a fairly conservative understanding of the Establishment Clause, might it not suggest a pivot towards sane jurisprudence? And, if so, could it work?

Feldman is savvy enough to acknowledge that both sides may initially resist his proposal. Many on the left certainly have. “Feldman is very wrong about the America that the Christian right is seeking,” writes Michelle Goldberg in Salon, which, evidently, involves “Christian supremacy, spiritual and political.” Such complaints are of course sophomoric, but they nevertheless represent a widely felt sentiment among liberals.

Conservatives have more concrete reasons to doubt their opponents’ amenability to compromise. Precedent already favors the secularist, and, since Establishment Clause cases fall under civil-rights laws, the plaintiff enjoys the enormous advantage of one-way fee-shifting. In bringing such suits, activist groups like the ACLU simply cannot lose money. Quite the contrary--if successful they stand to profit by tens, even hundreds, of thousands of dollars.

Given this background of mutual distrust, one is entitled to wonder just how realistic Feldman’s attempt at mediation could prove--which makes it all the more curious that he has so little to say about possibly supplementing his principle with a healthy dose of federalism. The federalist solution--increasingly associated with Justice Thomas--takes seriously the text of the First Amendment. The Establishment Clause simply prohibits the national government from interfering with prerogatives traditionally reserved for the states. On this view, the modern Supreme Court has twice erred gravely: first in applying disestablishment to every level of government, and then again in casting itself as the sole arbiter for all of the nation’s religious disputes. Resolving the problem would thus entail relinquishing authority back to state and local governments.

Feldman’s cursory treatment of the federalist approach--no more than a handful of intermittent paragraphs--compares unfavorably with his extremely well-developed critiques of legal secularism and values evangelicalism. One suspects that he finds the indeterminacy of federalism intellectually unsatisfying, a far cry from the enduring principle he seeks. But Feldman, good Madisonian that he is, surely knows that principle distances itself from politics only at great peril. Allowing local communities to set their own policies is probably more politically feasible than continuing to try to impose a top-down, nationwide rule. And recourse to such an expedient need not override Feldman’s principle, but rather might supplement it: Most jurisdictions would, I suspect, voluntarily adopt that principle, just as they did throughout American history.

Some, however, would not--but in so doing they would actually enlarge the very diversity that Feldman, again following Madison, quite correctly sees as “a blessing and a source of strength or balance.” If a multiplicity of sects contributes to our republican vigor, so too should a variety of church-state arrangements--provided, of course, that none infringes on the individual right of conscience. We are constituted, after all, by our willingness to disagree amicably, no less about religion than politics, and where the twain should meet. 

Christopher Levenick is the W. H. Brady Doctoral Fellow at AEI.