God’s Name in Vain: The Wrongs & Rights of Religion in Politics

From the June 2000 Forum in Prouts Neck, Maine

Stephen L. Carter, William Nelson Cromwell Professor of Law, Yale Law School

Jeffrey Rosen, Legal Affairs Editor, The New Republic

Most arguments favoring the separation of religion and politics focus on religion as a threat to democracy. Mr. Stephen Carter, on the other hand, believes that religious involvement in electoral politics constitutes a greater threat to religion. He argues that religious groups lose their true purpose when they become involved in the politics of power. Mr. Carter speaks on the importance of religious diversity and the need for separationism to better serve the needs of society. He addresses issues such as prayer in schools and African American political party membership. Jeffrey Rosen discusses legal dimensions, citing important court cases related to the boundaries of the public and private spheres.

Transcript


MICHAEL CROMARTIE: Stephen Carter is William Nelson Cromwell Professor of Law at Yale Law School. Among the books he has written are the award-winning The Culture of Disbelief: How American Law and Politics Trivialize Religion (1993) and God’s Name in Vain: The Wrongs and Rights of Religion in Politics (2000).

STEPHEN L. CARTER: I come to these issues of religion and politics as a scholar, but also as an evangelical Christian. I didn’t start out as an evangelical; I became one in the course of writing about law and religion and politics. And so although I try to maintain a tone of scholarly neutrality, some of it has become personal in a way that I wouldn’t have expected fifteen years ago.

I’m going to begin by telling a story by way of introduction to a theory I want to advance about religion in public life. Fannie Lou Hamer was a powerful and marvelous black woman who was the guiding spirit, inspiration, and founder of the Mississippi Freedom Democratic Party. That party was founded in the early 1960s as a counterweight to the state’s then lily-white Democratic Party. In 1964, the Mississippi Freedom Democratic Party threatened a credentials fight at the Democratic National Convention against the lily-white slate. Lyndon Johnson, who was going to be nominated, wanted the convention to look like a coronation; he wanted no bumps on the road to his nomination for his first run for president in his own right. So when the credentials fight was threatened, he sent his vice-president-in-waiting, Hubert Humphrey, to negotiate with Mrs. Hamer, giving him explicit orders: find out what she wants and give it to her.

Humphrey met with Mrs. Hamer in a hotel room in Atlantic City and asked her what she wanted. “I want the beginning of a new Kingdom right here on earth,” she replied. Humphrey hadn’t thought of that yet; that wasn’t one of the things that Johnson had empowered him to offer. So he took a different tack. “Well, you know, I’ve been fighting for civil rights for a long time, since before it was fashionable,” he said, which was true; he had made a pivotal speech in support of civil rights at the 1948 Democratic convention. “It would be really important to have me in the White House as a strong voice for racial equality,” Humphrey continued, “and if I can’t reach a deal with you, I’m not going to become vice president.”

Fannie Lou Hamer had survived beating and torture in a city jail for insisting on her constitutional rights, and she was not particularly impressed. She answered, “Senator Humphrey, I know lots of people in Mississippi who have lost their jobs for trying to register to vote. I had to leave the plantation where I worked in Sunflower County. Now if you lose your job as vice president because you do what is right, because you help the Mississippi Freedom Democratic Party, everything will be all right. God will take care of you. But if you take the nomination this way, why, you will never be able to do any good for civil rights, for poor people, for peace, or any of those things you talk about. Senator Humphrey, I’m gonna pray to Jesus for you.”

So that was the end of the negotiation. Humphrey went back to Lyndon Johnson and reported that he had failed. But Johnson was a master of politics, and he knew that for every inspirational leader, there are plenty of pilot fish swimming in the leader’s way, people who are in the organization as much to serve their own ambition as to serve some vision. So he went to Mrs. Hamer’s various lieutenants and horse-traded: You can get this project; your wife can get a position on this commission. As a result they voted, in effect, to turn Mrs. Hamer into a figurehead and then to accept the shameful compromise under which the party was allowed to have just one seat on the floor of the convention where the lily-white delegation was seated. And that was pretty much the end of the Mississippi Freedom Democratic Party.

I tell this story for two reasons. One is that it shows the limits, not so much of religious advocacy as such, but of action based on deep religious conviction when it runs up against the wall of practical politics. The other reason is that it shows what can happen to religiously radical movements when they become involved in the electoral side of politics. Now, I’m an avid defender of religious voices, whatever tradition they may be from, in our public life, on policy issues, and so on. I am a big believer in that. However, I want to draw a distinction between two different ways of conceptualizing the politics we talk about when we talk about religious voices in politics. One of those, the one that Fannie Lou Hamer ran up against, is electoral politics, the actual process of selecting those who will hold the coercive power of the state in their hands. The other kind of politics is the politics of philosophers, the politics of Madison, the politics of conversation, dialogue, self-governance, what we do as a people in trying to come to a public consensus or at least to a public decision. While it is a good and deeply American thing for these religious voices to be raised along with all the other voices in society in our conversational politics, it can be a dangerous thing when religious voices become involved in electoral politics — dangerous, I want to propose, not so much to democracy or to America, but to the religious institutions or people who seek that involvement.

About a half century ago, C. S. Lewis wrote a well-known essay entitled “A Meditation on the Third Commandment.” Lewis never quotes or describes the third commandment, since he was writing for a literate audience in an era when, if you were well educated, you would know the Ten Commandments. The essay was written in opposition to a proposal by a group of Tories to break away from the Conservative Party and form a Christian party. Lewis was against attaching the word Christian to the name of a party. A couple of his arguments are quite salient to our subject here today.

One of the arguments we can summarize by saying, though he didn’t put it quite this way, that a Christian party was, for Lewis, an oxymoron. On the one hand, he said, if it were truly Christian, it would preach the whole gospel and nobody would vote for it. On the other hand, if it were truly a party, it would mute some parts of the gospel and exaggerate others or make some stuff up in order to win elections, and therefore not be truly Christian. And so his biggest objection was that a Christian party was an oxymoron.

But Lewis had another objection. He felt that the temptations that come when you hold the levers of power in your hands are enormous, and for Christians — he could have broadened this to people of deep faith in general — could be extraordinarily dangerous. The temptation is not just a temptation of using the power but also of confusing what God wants with what you want and have the power to do. Stanley Hauerwas made the point that the Inquisition became possible when the medieval church gave up the power to die for its beliefs in exchange for the power to kill for its beliefs. You lose something precious when you hold in your hand the power to force other people to do something. And I suggest that what you lose is the power of prophetic ministry, the power of standing outside the structures of authority and pointing out what you think they’re doing wrong. What’s quite striking about the prophets of Israel is that they stood outside the corridors of power. They tried to tell the king what to do, no question, but they didn’t try to say, “I’m going to be king.”

Now why should that matter? Well, one of the reasons why deep religious conviction is valuable to democracy is that it leads to genuine diversity. A religion that doesn’t change who we are and how we look at the world is hardly a religion. We’re different persons because of what we believe than we would be otherwise. The more religious diversity you have, the more centers of deeply profound meaning you have, the more genuinely diverse your society is going to be. When I say “genuinely diverse” I mean diverse in the sets of ideas that are brought to the table. The very fact that people’s fundamental principles differ sharply leads to having a variety of ideas in play.

The main reason why a lot of evangelical parents, including myself, become so concerned about what goes on in the public schools has less to do with the desire to proselytize than with the desire to protect. It has less to do with wanting to make other people’s children more religious than with keeping one’s own children from being seduced by secularism. In my travels I’ve talked to a lot of parents in small communities in the Bible Belt. When they talk, for example, of prayer in public schools, they don’t advocate classroom prayer because they want everyone else to learn their religion. It’s because they raise their own children to believe that everything that’s important in life is through prayer, and for the state to say “This is important but it excludes prayer” is an affront to their religion. I still think they’re wrong on the merits, and I’m still against organized classroom prayer, but I don’t think their position is ridiculous or irresponsible.

Similarly, parents who fight against teaching evolution are not, I think, trying to proselytize. I myself analyzed some of those cases that way in some of my early writings, but I was mistaken. Instead, those parents are trying to have their children taught what they believe to be true. A large proportion of Americans believe, or at least say they believe, that the Genesis account of creation is a literally true historical account of how the world came about. Parents want their children taught what they think is true, and not taught what they think is false.

 

“Once you get involved in politics on the side you want to win, suddenly you find you can compromise…There’s a problem when you alter what you previously said was not negotiable, or soft-pedal things previously important in order to attain a particular political goal.”

All that is by way of protecting what I would describe as their ability to create centers of meaning, centers of understanding, that are distinct from what they see coming from the dominant culture. It may be that the white evangelicals who backed, say, Jerry Falwell, have a different vision of what they want to protect than the black evangelicals who backed Martin Luther King. Yet while substantively the visions may be different, analytically there’s a similarity in that both are trying to create a world in which they can comfortably raise their children. In both educational theory and political theory, some voices tell us that this a very bad thing for parents to do. This theory, which goes back as far as Horace Mann, holds that it’s very important to use the public schools as a way of giving children diverse ideas and diverse experiences and of teaching them a critical style of thinking. These are things they will need in order to become responsible adults. They can then make sensible choices about religion rather than having religion imposed upon them.

To a lot of religious parents this is terrifying stuff. Again, for evangelicals — and this is true of Judaism as well — there is not a sense of religion as choice. God chooses you; you do not choose God. The notion that you can decide what to do is contrary to a religious message that many parents are trying to teach their children. Now that does not go to the issue of who’s right and who’s wrong; it only helps to explain why so many of these battles are so hard fought. People are trying to protect their religious visions. When they feel you are pressing on what’s most important to them, they’re naturally going to press back, and I think that a lot of the fervor we see today in some of these conservative organizations is a pressing back.

But there’s a problem with these organizations, and to talk about that problem I need to go back to Fannie Lou Hamer. As recently as the 1950s, it was still very respectable for black Americans to be Republicans. While my parents were both Democrats, my grandparents on both sides were Republicans back for generations. The 1964 Civil Rights Act was actually supported by a higher proportion of Republicans than Democrats in Congress. So what happened? The Republican Party’s opposition to a lot of initiatives that blacks thought were important in the years since 1964 is certainly part of it. But you also have to look at what happened to black clergy.

One of the striking things about the great sermons of Martin Luther King — not the “I Have a Dream” speech but a lot of the other great sermons — is a remarkable radical energy, a vision of a very different America, an America built on radically different premises than the America he saw and the America we have. It’s a vision that never comes to fruition even though, or perhaps precisely because, the black clergy make the choice, and it is a choice, to become part of the electoral coalition of the Democratic Party. As the black leadership and clergy get more involved in the Democratic Party, what you see is a falling off of radical energy; radicals get pushed to the sidelines, and pragmatists take control. Now from the point of view of politics that is a good thing. You want pragmatists to control. Politics is the art of the possible; you want compromisers. That makes sense once you make that choice to be part of a political coalition. But it comes at a price. A lot of black preachers I’ve talked to in recent years have complained about the things they do not feel free to say in the pulpit because such things are against the interests of the Democratic Party or positions that Democrats take.

I believe that the same thing is going to happen or is already happening to the energy of a lot of white radical evangelicals, radical perhaps for different causes. Take for example the Christian Coalition. It continues to be a reliable building block of the Republican electoral coalition and a relatively powerful entity in the primary battles. But something interesting has happened.

In 1995 the Christian Coalition published with much fanfare its ten-point “Contract With the American Family,” presented, as its then director Ralph Reed said, as “ten suggestions, not the Ten Commandments.” There are two striking things about these “suggestions.” The first is that there is nothing striking about them. That is to say, these ten suggestions could have emerged from any moderately conservative think tank inside the Beltway. There’s nothing distinctly Christian about them, whatever that might mean. There is also nothing “Restorationist” about them when you think of the Restorationist theology of the early Pat Robertson and the early Christian Coalition folks.

The second thing that is striking about them is the arguments pressed on their behalf. There is, as I recall, one biblical verse cited briefly in the discussion of one of the ten. Otherwise the argument is stated entirely in ordinary political language. Now immediately a lot of liberal critics say, “Well, it’s subterfuge. There’s a radical position working back there that they’re just not saying.” Maybe that’s true. Could be. But the fact that they feel the need to resort to subterfuge is an indication of how far the group has been successfully subverted by its involvement in politics. The “Contract With the American Family” is written by a group that is blamed for hurting the Republican Party and wants to move into the mainstream, wants, in Ralph Reed’s famous phrase, “a place at the table.”

Now, Ralph Reed took a lot of flak from his right wing for this documentAnd note that his defense is really quite innocuous. He said things like, “Well, a lot of religious people care about the capital gains tax.” That’s true, but the conservative evangelical who gets this thing in the mail might understandably think, “I don’t need them to help me with the capital gains tax issue.” In this document the Christian Coalition largely abandoned the so-called social issues that helped to give it birth. Whether subterfuge or not, whether it marks the solidifying or the fragmenting of the group, it does exemplify what C. S. Lewis was talking about: that once you get involved in politics on the side you want to win, suddenly you find you can compromise.

Dietrich Bonhoeffer wrote that “compromise is the enemy of the Word.” He wrote that, of course, at a time when the German Protestant churches were under pressure, and most of them were happily moving to become in effect the Nazi Church. And so I don’t want to lift that out of historical context. But Bonhoeffer was, I think, also making a richer theological point: that there is something about pure doctrine, as opposed to malleable doctrine, that ought to be attractive to a person of deep faith. What happens too often in politics is that the doctrine gets softened in the effort to win, or in the effort just to stay at the table.

That’s a dangerous thing for religion, but it’s a good thing for political organizations. If you view the Christian Coalition as primarily a political organization, then you can see this as a good thing. But to the extent that you view it as a religious organization, there’s a problem. There’s a problem when you alter what you previously said was not negotiable, or soft-pedal things previously important in order to attain a particular political goal. That was what C. S. Lewis was worried about.

Another point in Lewis’s essay is about the other problem with a “Christian party”: the allies it has to take on in order to win. You take on allies because you think they’re with you on a particular issue; then they disagree with you sharply on another issue, and only then do you realize what a terrible mistake you’ve made because of the rush to win.

In practice this has a couple of implications. The first is that people who are concerned about radical religious energy in politics — who think it’s a bad thing — should be glad for the Christian Coalition, should be glad that there are ways to take that energy, tame it, mainstream it, and fit it into the electoral coalition of the existing political framework. The people who should be upset that there is a Christian Coalition are people who think that the religious voice in politics in its genuine, authentic self is very important and ought to be liberated, ought to be untamed.

The second implication is that if anything like what happened to many black clergy happens also to white clergy on the evangelical side, then we’re going to see a great loss of energy at the level of leadership. It’s not clear what will happen at the level of follower-ship. Maybe a lot of radical energy will be left floating around out there and not really represented by the politically connected leadership. This is a more dangerous situation because of the potential for demagoguery in trying to take advantage of that. But it’s probably less dangerous than it seems, because the long history of America shows that once you’ve been organized you’re in trouble; you’re bound to be co-opted sooner or later.

The other point I want to make has to do with the idea that maybe religious conservatives, instead of trying to persuade the dominant culture to be more accommodating of their deeply held convictions, should back off into separate institutions. I find it quite intriguing to think about the retreat, if you will, of religious energy into parallel institutions, in part because I owe a debt, in my work, to Roger Williams. For all his bad qualities, Roger Williams had some really good ideas. He is probably the best American source to point to for the origin of our practice of separation of church and state. The “wall of separation” image comes from his idea of a “hedgerow” that separates the garden from the wilderness, the garden being the place where the people of faith would congregate to hear the voice of God and the wilderness being the world. The wall protected them from the wilderness. They needed that protection so that they could reason together without interference and live the lives God would want them to live without having the larger society impinging on them in any important way. Roger Williams’s garden wall was to protect the garden from the wilderness, not the wilderness from the garden.

Now, that is only one of many important strands in Protestant thought about separation of church and state. But here’s why I said that Roger Williams has had an important impact on my work. I believe in the importance of nurturing competing centers of meaning, so that neither the state nor the culture can say that it is the only right way of looking at the world. Therefore I believe very deeply in the importance of the wall for guarding the garden, for protecting a lot of places where people can freely build communities, creating meanings different from those you or I might want to impose if we happened to run everything.

When I mentioned this idea in a church in Pittsburgh somebody said, “Well, okay, but not home schooling, because if you have home schooling a lot of people will teach their kids that creationist stuff.” Well, so what? If that’s what I want to teach to my kids, it doesn’t mean that other people have to teach it to their kids. I’m always quite wary of the idea that there is just one way to be American, one set of understandings we all must have, one way of approaching the world. I myself am much more comfortable with having a lot of very diverse approaches. People say, “But some parents will teach their kids really evil things.” Well, we don’t need to work out an intricate view of church and state to do something about that. If we believe that a lot of parents are going to teach their kids evil things, then we have much more to worry about in America than what we teach in schools or where we draw these various lines.

I like diversity. I believe very deeply in dialogue across our different traditions, and I sharply disagree with the notion that such dialogue is impossible. I think Martin Luther King is a great exemplar of this kind of border crossing. His speeches were all sermons. Although you may find one or two where the evangelical rhetoric is toned down, for the most part they are open and unabashed sermons for a particular, narrow religious tradition. But sometimes, when we least expect it, those seemingly narrow arguments from a tradition we may not share can cross that border — the border between denominations, between traditions, between religion and non-religion — and touch the human heart, where we simply know right from wrong.

MR. CROMARTIE: Thank you, Stephen. Our respondent is Jeffrey Rosen, legal affairs editor of The New Republic and the author of a new book called The Unwanted Gaze: The Destruction of Privacy in America. Jeffrey is also an associate professor of law at George Washington University. He wrote a fascinating piece in the New York Times Magazine (January 30, 2000) called, “Is Nothing Secular?”

JEFFREY ROSEN: It is slightly harrowing to respond to one’s former teacher, especially in a group that knows far more about this topic than I do. I will focus my response on the particular point of the legal boundaries of the public and private sphere and how this matter relates to the Roger Williams vision that Professor Carter endorses.

A question: why is Stephen Carter not happier than he is now? He has won, hasn’t he? The remarkable arc of the legal treatment of religion over the past decade is a vindication of Stephen Carter’s important work. He spent the first part of his career arguing eloquently against the strict separationist principle, which (a) advocated a public sphere denuded of any kind of religious expression and (b) opposed any kind of direct government aid to religion, even when it was part of a scheme that put public and private institutions on equal terms. That strict separationist vision has been rejected by the Supreme Court, and the equal-treatment vision is ascendant there. It is likely to be reaffirmed soon in the Mitchell case. [In Mitchell v. Helms, decided June 28, 2000, the Court held that distributing government funds to provide such equipment as computers both to public and to private, religiously affiliated schools does not violate the Establishment Clause.] So strict separationism has been vanquished, and the equal-treatment vision — what I think Professor Carter is arguing for — has been vindicated.

Moreover, the third vision, the one we might call religious supremacism, also opposed by Carter, has been rejected as well. The supremacists argue for an openly religious public sphere in which students can pray in schools and public displays of religion such as crèches are permissible. This supremacist vision has at least three adherents on the Supreme Court. We saw Justices Rehnquist, Thomas, and Scalia in recent cases wistfully looking back to a time when it seemed that a supremacist majority was in their grasp, and indeed this is the vision that candidate George W. Bush has embraced. But they’ve lost for now. So why aren’t Professor Carter and those who share his views celebrating?

I think it’s in part because this equal-treatment vision, while extremely appealing in theory, is very hard to carry out in practice. It’s so subtle and so complicated, and requires such delicate adherence. This is why I want to think about the Santa Fe case. On the way to that I want to trace the rise and fall of separationism and the triumph of Carterism and see how this applies in the Santa Fe and Mitchell cases. I will conclude by asking Professor Carter whether or not the Roger Williams–like vision he so eloquently posed — that the purpose of separationism is to protect the church from the state, not the state from the church — applies to many of the new state/church partnerships whose constitutionality will increasingly be upheld under this new equal-treatment vision. I’m thinking of course of charitable choice. This is not an age when the church is retreating deeper into the wilderness. It is a time when the church is administering welfare benefits on an unprecedented scale.

The arc of the rise and fall of separationism in America follows the rise and fall of anti-Catholicism; the basic impulse to keep state funds from sectarian schools was rooted in a robust anti-papacy. This whole debate that we’re having about the appropriate boundaries between the public and private sphere couldn’t have existed in an eighteenth-century world where welfare and education services were essentially privatized. When the church monopolized education and welfare, we didn’t have to worry about keeping the church from the encroachments of the state. It wasn’t until schools began to be state sponsored in the mid-nineteenth century that the great school battles developed. The Blaine amendment to the Constitution proposed in 1875 and narrowly rejected would have prohibited tax money from going to any sectarian schools. The resurgence of anti-Catholicism in the 1940s culminated in Hugo Black’s famous “wall of separation” metaphor: we must keep the wall high and impregnable; we cannot tolerate the slightest breach. This is Hugo Black, on one hand the great civil libertarian and textualist, on the other hand the robust anti-papist who just wanted to protect the good Protestants of America from the encroachments of Rome.

So separationism found its brief flowering, and it’s important to stress how brief this era was. It was really just in the 1970s and 1980s. The Lemon test, of course, is the notorious instantiation of it; it requires that governmental action be entirely secular in both purpose and impact and that it avoid excessive entanglement of the state with religion. It culminated in decisions like those that prohibited religious groups from participating on equal terms on public property — the school cases that said that, e.g., the Christian group couldn’t meet on school property but the gay and lesbian group could. This was the principle that inspired the opponents of separationism to argue for its demise.

The intellectual leader in defending equal treatment has been Professor Carter, who has made the case most powerfully in the public square. One of the legal architects was Michael McConnell, who argued first for the equal-treatment principle in the 1981 Widmar case, in which the University of Missouri had made its facilities available to all student groups except those that had a religious purpose. At the time McConnell was, somewhat improbably, clerking for Justice William Brennan, and he persuaded Brennan to lead an 8-1 majority rejecting this exclusion and embracing the idea that public facilities should be available to religious and non-religious groups on equal terms. This extraordinarily powerful idea (which is really a First Amendment idea, a free-expression idea) has gained such ground in the past few years that it seems to be leading almost inexorably to the eventual upholding of vouchers.

How could the architects have anticipated that this simple non-discrimination principle would prove so powerful in eradicating the excesses of strict separationism? We saw it function in the 1995 Rosenberger case, in which the Supreme Court struck down the University of Virginia regulation that made student-activities funds available for all student magazines except religiously oriented ones. We also saw it in the 1997 Agostini case, where the Court struck down the refusal to allow public school teachers in New York City to provide remedial instruction to disadvantaged students in religious schools. I expect we’ll see it in the Mitchell case as well.

So now we have this equal-treatment vision: how does it apply to prayer? The Santa Fe case strikes me as a much harder one than this arrogant, over-confident Court suggested. The imperialism of this Court knows no bounds. Here’s the Santa Fe case: In a modified policy issued by the school district, students vote by majority, first whether or not to have an invocation at football games, and then, if they vote yes, to select a person to deliver it. A further modification by the district court said that the invocation had to be non-proselytizing and non-sectarian. In my view, the narrowest way of striking this down would have been merely to say that the requirement that the school guarantee a non-sectarian prayer by itself constitutes an illegitimate entanglement. This is the worst of all worlds: the school is imposing the prayer on unwilling students and then dictating the content of the prayer. In Lee v. Weisman, the requirement that the rabbi’s prayer be censored to ensure that it was non-sectarian represents an affront to the Roger Williams principle that it is bad for the church when its message is diluted by the state. That degree of entanglement by itself might be enough to invalidate the policy.

Now let’s think about the majoritarian mechanism in Santa Fe. The Court says the fact that there’s a majoritarian election means that it’s not a true public forum, because minority voices are by definition stifled. The quintessential example of private religious speech that should be permissible is that there’s an election of the speaker and then the speaker can say whatever he or she likes, can pray or not pray. Now, although a Kentucky court struck down a similar scheme, I think this is a good example of purely private speech even on state property; the mere fact that the school owns the megaphone shouldn’t settle the question. Is the fact that there’s a majoritarian election for an invocation by itself enough to make it not a question of private speech, and essentially to put the school in the business of choosing the message? Maybe or maybe not. I’m not sure I’m convinced by the Court’s notion. Justice Stevens says it would be like having a vote about whether or not to have a political rally, and then a second vote about whether to have a Democrat or a Republican. This wouldn’t be an open public forum; it wouldn’t be the case that anyone could say whatever he or she might choose to say. Basically there’s an up or down vote about whether to have a prayer. It seems to me to be very close.

This is why Stevens then has to go further and say, Do we really know, with regard to the Lemon test, that this was an illegitimate state purpose? The earlier draft of the Santa Fe policy had not allowed an invocation and/or message, but an invocation or benediction; it was purely prayer oriented. Now Rehnquist has a very good dissent. He says, If the concern is that this will be applied illegitimately, why not wait for an actual illegitimate application of it? Again, my own instinct is that the result was right because of the non-sectarian aspect, but the Rehnquist objection was strong here.

In Santa Fe, Rehnquist and Scalia and Thomas — the three religious supremacists — are slyly concealing their true colors. Remember that in Lee v. Weisman they just came out and said they thought that a non-sectarian, non-proselytizing prayer would be an appropriate recognition of the religious heritage of a religious people. Here they just want neutrality, and if there’s a problem with the application, they said, they’ll deal with that when it occurs. Santa Fe shows how just how elusive neutrality is. On the one hand you have these supremacists who were hiding their true colors. On the other hand you have the majority, led by Justice Stevens, who has this nice argument about entanglement. Then he just goes to pieces so to speak and starts citing Lemon and stressing that the real problem with this prayer is that some people might perceive it as offensive; this would send an illegitimate message that would make people feel excluded. Stevens cites some O’Connor opinions about not wanting to make people feel traumatized by being exposed to offensive and vulgar language. This is the most troubling part of the opinion, this whole vestige of the worst strains of separationism, which would make the permissibility of speech, let alone prayer, turn on the perception of the listeners and its “offensiveness.” This shows how hard the old habits die.

Among those joining Stevens in the majority opinion are Ginsburg and Breyer, secular Jews who came of age in an era when Leo Pfeiffer, the great head of the American Jewish Congress, was advocating separationism of the most uncompromising kind. For that generation of Jews and for some mainline Protestants (Stevens lists his religion as Protestant; the others identify themselves as Methodists or Lutherans and so forth), the old separationist habits die hard. And I guess I would say that if even the Supreme Court justices can’t make a strong case for neutrality and equal treatment, it’s not surprising that this principle hasn’t found resonance in the public square. So maybe this is why Professor Carter isn’t so happy. Legally he has achieved this paradigm-shifting Supreme Court victory, but it’s impossible in culture to convey a sense of how complete and how central this triumph is, because the battles will never stop.

I’m going to conclude with the question I began with, which is, Does this Roger Williams–like vision apply to many of the new church/state partnerships that will be permitted under the equal-treatment vision? I think it will be a good thing if charitable choice, which allows religious providers to compete with non-religious providers on equal terms in the administration of welfare benefits, is upheld by the Supreme Court; it’s one of our richest and most interesting social experiments. If one is concerned, as Stephen Carter so eloquently is, about protecting the church from the depredations of the state, from the temptation to dilute and compromise its message, I pose the question whether some of these church/state partnerships may not cause even greater threats than simple electoral politics.

The charitable-choice law in some ways protects churches from a requirement that they remove the most visible aspects of their iconography in the administration of welfare benefits. No doubt the ACLU is gunning up for a really fun decade of litigation! There’s a lot of money involved here. And as this money becomes a serious, substantial part of the budgets of certain churches — especially African-American churches, which are applying for and receiving these contracts in much greater numbers than other churches — how could pressures not operate that might pull them aside from their central message and lead them to focus their energies on non-pastoral polities that would change their very essence? So as I congratulate Professor Carter on his important victory, I also ask whether the inadvertent fruits of this victory might threaten some of the church autonomy that he so powerfully defends.

MR. CROMARTIE: Thank you, Jeffrey. I think Stephen wants to make a quick comment. Then we’ll open the conversation to everyone.

MR. CARTER: I’m very flattered that Jeffrey thinks I’m responsible for a change in the legal climate, but I think it’s just a matter of common sense. On the question he asks at the end: I’m very troubled by these religious court decisions; I’m very troubled by vouchers. When I say troubled by them, I don’t mean I’m opposed to them. But I do think that churches that fight for this money need to think carefully about what they’re taking, about what will happen years down the road when the strings start being applied and they have used a lot of public money to build their schools, to build this and build that. I’m not saying that they shouldn’t take it or that it’s unconstitutional; I’m saying it’s worth being very thoughtful about, very prayerful about.

DAVID VAN BIEMA, Time: I’m interested in the Southern Baptists because they seem to be very involved with political questions and yet they seem extraordinarily vigorous. It seems to me that there’s really a two-track thing going: you keep your rank-and-file in line because you’re talking about inerrancy, and then you pursue political policies in Washington and elsewhere. Do you foresee, as a result of the political activity, some sort of weakening or dissipation of the energies of the Southern Baptist Convention?

MR. CARTER: Certainly it’s a group of people with a lot of radical energy within mainstream terms. But it is important to distinguish between institutions that do church work, like the Southern Baptist Convention, and institutions that get heavily involved in the political side of things, like the Moral Majority in the past or the Christian Coalition in the present.

MR. VAN BIEMA: There is certainly some blurring when you see someone like Jerry Falwell being welcomed back into the fold. I think he has been described as still an independent Baptist, and that may indeed be the case, but I believe his church is now in the Convention.

 

“You lose something precious when you hold in your hand the power to force other people to do something. And I suggest that what you lose is the power of prophetic ministry, the power of standing outside the structures of authority and pointing out what you think they’re doing wrong.”

MR. CARTER: I think we’ll have to see what happens in the long run. Falwell is kind of a moving target, a person who has remade himself a number of times. His most recent remaking of himself in dialogue with gays and lesbians, for example, is very interesting stuff. You’ve raised a good question, but I think we’ll have to wait and see. What I present is a kind of speculation more than a settled historical view.

E. J. DIONNE, The Washington PostI come from a Catholic tradition that has always had no problem with involvement in day-to-day politics. But Stephen, if I heard you right, you are laying out a recipe for withdrawal from politics by religious people. Is that the logic of your position? If not, what are the proper terms of engagement for religious people in politics?

Second, a question on Santa Fe: I agree with Jeffrey; I can’t see how the Court could come out any other way, but I also didn’t like the feelings language. However, I was actually quite convinced by the majoritarian argument, and I want to know what I was missing by being so convinced. The example I thought of was a Southern Baptist quarterback having to play in a public school in a Catholic neighborhood where they pipe in a “Hail Mary” before every game. I think that would raise a serious religious-liberty problem.

My third point is on charitable choice. A lot of folks are suggesting that the solution for the churches is to set up 501(c)(3)s — I think there will soon be a church named St. 501(c)(3)! In a way that seems like a very good idea, because you could hive off certain activities and then the state wouldn’t get involved in the core work of the church. But a lot of advocates of charitable choice see this as a kind of separationist Trojan horse, where the separationist side is trying to say, Well, we’ll have charitable choice but we won’t really have charitable choice. I would like to ask both Stephen and Jeffrey to comment on that.

MR. CARTER: To your first question, how should religious people get involved in electoral politics, I’d reply: the way porcupines make love — very, very carefully. I’m most concerned at this point about the corruption of institutions, partly because institutions, even in non-hierarchical denominations, are the custodians over time of a body of doctrine.

On the 501(c)(3) thing: I think this is not a swell idea. I think the tail has been whacked off from it. If the idea is that you should be able to participate like everybody else, then once you organize to participate, you are really looking at money that is going to dictate how you organize as a church. You’ve already lost, it seems to me, when you start saying, “I’m going to remake myself in order to get eligible for this money.”

On the Santa Fe case: I’m not entirely persuaded by any part of the Court’s argument. I think the dissent was probably right in saying that the case was not ripe for decision. It can’t be that on its face electing a student to speak is problematic, which is what everyone said. What has to be the case is that it’s problematic because of what we think they’re going to do. But outside of certain statutes that are said to chill free speech, ordinarily the Court doesn’t decide cases that way. It doesn’t base decisions on what might happen.

The emphasis on offense, I agree with Jeff, was gratuitous, but also extremely interesting. From the point of view of the religious parent, it raised interesting notions. If some people are going to object to a prayer that they see as religious because it offends them, then what do you say to evangelicals who say, “Christianity is not a religion. The others are all religions, but this one is God-given truth. I object to non-religious things that offend me, too. So if evolution is taught, I should be able to object because that offends me. It strikes at the heart of my religious sensibility. Therefore nobody should be exposed to it, so that my kids won’t be exposed to it.” The only clean way to write this opinion would be to say there could be no prayer of any kind, student initiated or state initiated, at any public school function whatsoever. That would be a clear constitutional law. It would be a lousy constitutional law, but it would be a clear one, and people could accommodate themselves to it. But because of its failure to declare a clear rule, the Court is inviting school districts to go back and try again and keep on trying.

MR. ROSEN: Yes, that seems exactly right. The question is, and Rehnquist poses this, Is this an argument against all majoritarian elections? So if you don’t accept a clean Carter rule and say that an elected speaker should be able to speak about whatever she or he likes, then you just want to ensure that people are not campaigning on particular messages. What invalidates the rule here perhaps is the fact that first you decided whether to have an invocation or message — that itself was content based; essentially, there was an up-or-down vote on whether to have a prayer — and then you chose who delivered it. That’s what made it not a public forum. A genuinely majoritarian election where you can elect a speaker to say whatever he or she liked would be permissible. But what makes it so tricky is that the fact that it was an invocation or message might arguably mean that you would just decide whether or not to have a speaker, and then the speaker could choose to say whatever he or she liked, which means that Stevens was surely right that it might have been more prudent to wait to see how the thing operated in practice.

DR. JEAN BETHKE ELSHTAIN, Divinity School at the University of Chicago: Jeffrey, I wonder if one reason that Stephen isn’t quite as happy as you think he ought to be is that in fact the stake hasn’t been driven into the heart of separationism with quite the decisiveness that you suggest. You yourself talked about Stevens’s “gratuitous referencing of Lemon” in the Santa Fe case, so it strikes me that the Lemon test is still lurking in the interstices as an ever-present possibility. We don’t know what the makeup of the Court will be in the future; this stuff could be resurrected at any point. Certainly it is alive and well in political argumentation and political philosophy, given the dominance of the sort of Rawlsian tendency in liberal political philosophy.

Stephen, this picks up a bit on what E. J. Dionne said: it struck me as I was listening to you that Catholics would refract the issue of civic engagement in a very different way. In part this is because the great social encyclicals make it clear that we have available to us a civic language that appeals to all persons of good will, the persons to whom the social encyclicals are addressed. You can make a partial translation — not a full and complete translation, but at least a partial and rather effective translation — of the deep religious commitments into a language that invokes natural-law principles and that makes available these common-good concerns in a way that doesn’t water down the faith. It doesn’t require that faith commitments be totally present at every point in time in order to make effectively a certain kind of argument. People have access to these arguments through reason, whether or not they have the faith commitment.

MR. CARTER: I agree with that entirely. The Catholic social tradition is a great and noble one. I think Rerum Novarum is one of the great pieces of pastoral theology. But I am not trying to say that churches should not be involved in politics, only that when it gets to the point of deciding who should be elected, we have a different kind of homiletic. I quite agree that religious traditions can remain true and authentic while speaking very effectively in a prophetic voice from outside the corridors of power. There’s a long history of that all over the world, and certainly in the United States. But when they get into the business of selecting, they don’t speak through their own best voice, I think, and then there’s a danger of backlash. I think it was in 1854 that clergy were petitioning for the abolition of the slave trade, and Congress warned that the clergy were going to take over: if you listen to this petition, Congress said, suddenly our nation will be run by clergy, and that will be a terrible thing.

DR. ELSHTAIN: That position you just articulated is fully compatible with John Paul’s insistence that clergy not stand for electoral office, even as you have this robust engagement in what I usually call civil society.

MR. CARTER: I think there’s much to be said for the view that clergy should not stand for public office, not because they will destroy America, but because they will lose their best selves. That’s true whether it’s Pat Robertson or Jesse Jackson.

MR. ROSEN: In a wonderful essay about pluralism Stephen talks about the need for people with hyphenated identities to feel free to proclaim their identities in this newly diverse public sphere. So maybe the best strategy is just to talk the language of identity politics and non-discrimination, which is a form of language that really has resonance today, and to stress that it’s a form of discrimination — the only unforgivable sin in this age — to prohibit religiously identified Americans from proclaiming their identity along with everyone else. It’s a powerful rhetoric, and it links to some other things we’ve been talking about, such as, why is it that you can come out as gay or lesbian but you feel embarrassed coming out as religiously devout? Why not just feel proud and go on the “Oprah” show to talk about it! Maybe by talking this non-discrimination language we could get to a point where the devout feel as free to proclaim their identities as everyone else.

DR. LEO P. RIBUFFO, George Washington University: We historians and you constitutional lawyers look at the Constitution differently. We can say, “Well, that’s an eighteenth-century document from two or three world-views ago,” and that’s that. But you guys have to put the behavior of a twenty-first-century country into the framework of an eighteenth-century document, and then you complain that the Court — which is essentially a nine-person committee — doesn’t do this in an intellectually coherent way. To the several billion people in the world who are not American constitutional lawyers, this might seem a rather bizarre way to run a country.

MR. CARTER: I’d like to say that I agree.

DR. RIBUFFO: Okay. Both of you don’t want the Lemon test, I gather. Does either of you have neutral principles to serve as guidance on how religion-state relations should be decided, or are you sort of ad hoc-ing here and there?

MR. CARTER: In a way I want to throw up my hands and say that all this legal doctrine is a lot of nonsense and you can never fix it. To some extent I believe that. But in my youth, the youth that Jeff referred to, I offered two principles. First, the state cannot discriminate among religions, and second, except for the most compelling interest, the state cannot interfere with the free exercise of religion. That’s the whole of the religion clause of the First Amendment. And that would ban classroom prayers as interference with the free exercise of religion, which includes the exercise of parents’ right to raise their children in a particular religion or no religion at all. It would also mean that when Major Goldman wanted to wear his yarmulke, the Supreme Court was wrong in saying that the Air Force could, without violating the First Amendment, enforce the regulation forbidding the wearing of “headgear.” That was a bad Supreme Court decision because it interfered with the fundamental principle of religious liberty without a sufficiently telling reason.

Now, when one makes an argument like this about how to read the Constitution, certainly historical challenges can be raised, but I’m more interested in the practical challenges. A few years ago I was moderating a debate between two very distinguished constitutional scholars, Michael McConnell, whom Jeff mentioned earlier, and Katherine Sullivan, now dean of Stanford Law School. It was a debate about the limits of religious freedom, and someone in the audience raised a question about human sacrifice. I figured, “That’s a no-brainer! That’s absurd!” But to my astonishment both of these very distinguished constitutional scholars, two of the most thoughtful voices on religious freedom in the country, said that such a practice might be allowable as long as it involved consenting adults and there were no coercion!

I do think we could reach a rich consensus on a lot of places where we should draw the line, recognizing that in the margin there will be some differences. For example, suppose that there were no constitutional right to abortion and that a certain state had laws against abortion in all circumstances, but that someone belonged to a religious tradition that permitted or even required abortion under certain circumstances. Would the state law interfere with religious freedom?

In Kansas City a few years ago, a young woman in law school was offered a job with the attorney general of the state of Georgia. She subsequently engaged in a same-sex marriage ceremony permitted by her religious tradition, in her house of worship, and the job offer was withdrawn. The attorney general was very careful to say that he was not withdrawing the offer because of her sexual orientation but because of the same-sex marriage ceremony, which he said is against the public policy of the state of Georgia. It strikes me that he had the matter backwards: if he had refused to hire her because of her sexual orientation, that would have been within his prerogative; but by binding his action to the same-sex marriage ceremony he was actually punishing her for what went on within the four walls of her house of worship. To me that’s a violation of the fundamental principle of religious liberty.

In my view, when the religious liberty issue arises, the question should always be “What is the compelling reason why the state should be able to prevent it?” rather than “What is the religious basis for it?”

MR. ROSEN: Here’s a simpler question that’s a different instantiation of the same impulse: public religious speech bad, private religious speech good. All the hard questions are questions of state action, and we try to figure out on which side of the line a particular problem falls. So that’s why we have our debate about Santa Fe, about whether the intervention of the election mechanism converts it into the school’s speech rather than the student’s; that’s the central question in all the voucher cases, whether or not the intervention of private choice converts it from a state to a private decision. It’s hard, and you can have very different intuitions on all these cases, but it’s very different from this expressive-harms notion, the question of the received effect of the speech or even the dominant purpose of the speech. It avoids the sort of touchy-feely questions about stigmatic injuries and expressive harms and focuses on this hard question of what’s public and what’s private.

This is why, as Leo Ribuffo pointed out, we constitutional lawyers have a much harder task than historians. We have an entirely different society than the one the framers inhabited; the boundaries between the public and the private sphere are both radically contested and utterly different. That’s why the dreariest of the Supreme Court’s religion decisions are the sort of one-step originalism stuff. Something like Rehnquist’s dissent in Wallace v. Jaffree — just grimly reciting the history of the first Congress and pretending that that could possibly solve all these interesting questions — is just too simplistic to be interesting. These translation questions are really hard, and there’s no obvious answer from text or history. You just have to make better and worse arguments about which side of the public/private divide a particular question falls on.

DR. JAMES L. GUTH, Furman University: As I was listening to Stephen talk about the distinction between entering into the conversation as religious actors, which he sees as a legitimate role for religious people, and taking part in the electoral process, which he sees as in some sense off limits, I recalled an argument made by John Mark Hansen, who teaches political science at the University of Chicago. Hansen said that the only way you really become a part of the conversation in the United States is to demonstrate electoral impact. Is that a kind of understanding you’re willing to accept, Stephen, that the participation of religious groups in the public realm is going to be constrained very severely if they choose not to engage in electoral politics?

MR. CARTER: Yes, I accept that description, but I hope it doesn’t make my views quite as paradoxical as they seem. What I think that religious people — especially when they’re organized in group — have to do is to hold a very fine and delicate balance. Because it is the case, to restate the point more crudely, that the more votes you can deliver, the more impact you have. No question. The problem for me from the Christian point of view is, Why do I want to get into the conversation, to be persuasive or to be coercive? Those are not the same activity. Sometimes arguments that are couched in terms of values can have resonance and can cut across lines.

JOHN LEO, U.S. News & World Report: In line with your distinction between advocacy and electoral politics, what would you say about the Catholic clergy and bishops who’ve been drawn beyond the general principle on abortion to pushing candidates?

MR. CARTER: I really think it’s a mistake to put the imprimatur of God’s name next to a political candidate, not because God doesn’t care, but because the possibility of error is so great. In the African-American church it is very common to find a lot of clergy endorsement and quasi-endorsement, voter guides, and the like. I think it’s a terrible mistake. The kinds of arguments that are made within a religious tradition should affect people. Our religion makes us different people than we would be without it. But I nevertheless think there’s a difference between feeling the weight of your tradition pushing you in a different direction and being told in effect that to be a godly person you have to move in this direction.

KENNETH WOODWARD, NewsweekIt seems to me that when you talk about church you really are talking about the small evangelical congregation. For me as a Catholic, that doesn’t do enough. If you imagine church differently, perhaps you can imagine more involvement. The tradition I’m talking about looks at two things. One is that people are going to be formed by their society no matter what. You can’t be a perfectionist and say, we’re going to live like Amish; even the Amish are affected by the kinds of formation that take place when you are living in a society, even at its margins. To some extent you have to play in the larger field. Secondly, it seems to me that there’s a danger of perfectionism in what you’re talking about. If you want any portion of justice achieved, you’re going to have to get your hands dirty. You’re going to have to see ideals compromised if as a Christian citizen you want to see at least half a loaf accomplished, on behalf of minorities or whatever the cause may be. You can’t not be involved in that sense.

MR. CARTER: I don’t think that getting one’s hands dirty is inherently a bad thing. The problem arises when people get involved in politics and decide, “Gee, this is the place for me!” That’s where the temptation comes in. It’s not so much that one should never be involved in politics at all; it’s that there are dangers to institutionalizing one’s involvement. And the model isn’t so much a small evangelical church. I think that over the years there’s been a much greater political involvement of both the Catholic Church and mainline Protestant denominations. Sometimes their efforts are great, and sometimes they have a lot of difficulties.

MR. WOODWARD: How about Catholic Charities or its Protestant equivalent, where they are using a lot of government dollars?

MR. CARTER: What I’m talking about is not the risk of getting one’s hands dirty but the risk of becoming so reliant on that money that when the strings come, when a later administration with a different view imposes conditions that should cause concern, one says, “We really need that money, so we’ll adjust to those conditions.” In 1982, when the Supreme Court decided it was not a violation of religious freedom for the IRS to withhold the preferred tax status of Bob Jones University because of its segregationist policies, Bob Jones gave up the money rather than change its policies. While I think those policies are wrong from a Christian point of view, one has to give them credit for integrity. Giving up money is very hard to do.

FRANKLIN FOER, The New RepublicProfessor Carter, you gave Fannie Lou Hamer and the civil-rights movement as an example of the bad things that can happen when religiously motivated people try to achieve their vision through political involvement. But it seems to me that that movement was victorious, that Fannie Lou Hamer’s prophetic vision was in large part achieved.

MR. CARTER: I think what was achieved was the bureaucratization of civil rights. The vision and achievements came to be limited to things that are measurable in the fight against racial injustice. Not a bad solution if you can’t do anything else, but Fannie Lou Hamer’s broader vision of economic justice, of redistribution of land, and a lot of other things — it’s gone. It’s off the table. And it’s something that preachers who want to be part of the Democratic coalition can’t talk about. So there was indeed a civil-rights victory, and I’m not diminishing it or the work of the people who bled for it. The transformation in the law and in some parts of society was enormous. But the richer radical vision, I would say, was not achieved. I’m not sure whether it should have been achieved; I’m only describing what actually happened.

MICHAEL BARONE, U.S. News & World ReportWe talked earlier about what could happen with charitable choice, particularly the kind of thing that Bush is talking about. I think that different religious faith traditions are going to cope with this in different ways. The Catholic Church has a set of institutions, a vocabulary, and a 2,000-year history of interacting and getting along with the state and inserting its moral principles and vocabulary. They’re old pros at this, and much of that will continue to go on as it has. I think a lot will depend on how this stuff is administered. If you have some Ruth Bader Ginsburg — type separationists in the regional offices of HUD and HHS in Dallas, say, you’re going to get very different results than if you have people who are sympathetic to the program at that local level. There is tension built into that program. It suggests that the results are not going to be totally satisfying on any grounds. There may be some real messes created here or there. Some organizations may follow the suggestion implicit in what Stephen Carter said, which is, “Hey, just stay private. Raise your own money so you can do what you want to do.”

A question of the last thirty years that fascinates me, one I have not seen addressed, is the relationship between the black churches and the plagues of crime and poverty in the underclass black communities. Have the black churches done a lot to help? Why have they not done more?

MICHEL MARTIN, “Nightline”: My sense, from a reporting perspective, is that many of these churches have felt their primary mission to be mediating a relationship between the community and the outside world, i.e., the white power structure — speaking truth to power, as it were. They see themselves as the mediators between the powerless and the powerful. What is going on right now is a real shift in emphasis, achieved after a great deal of pain and in some cases saying, “You know, we are killing ourselves now. Promiscuous sex, drug use, and various sorts of irresponsible lifestyles are as great a danger to our communities and constituencies as the Klu Klux Klan ever was.” That’s why I think we’re seeing a paradigm shift.

MR. CARTER: I think Michel is exactly right, but there’s another point here also. If you look at black preaching, you find there was a lot said about these issues of, say, sexuality and marriage as recently as the 1950s and 60s. That fell away in the 70s and 80s and early 90s. Now it’s starting to come back a little.

Why is it that black preachers talked about these things very sanely in those earlier decades, then stopped, and then started talking about them again in the 90s? It’s an interesting question.

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Stephen L. Carter

William Nelson Cromwell Professor of Law, Yale Law School

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Jeffrey Rosen

Legal Affairs Editor, The New Republic

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