by I am thrilled to contribute the occasional musing to this blog, which so far has been the subject of some very productive conversations. I thought it would be useful to start with a lament.
There’s a whole lot of consensus in the law and religion field these days, at least among those in the American legal academy who focus on these matters. I know that statement risks overstatement, but I think it is largely true. Steve Smith once wrote a fine article about what he called the “de facto disestablishment.” Well, it seems to me that these days we’re in a kind of de facto Era of Good Feelings (maybe that should be Era of God Feelings) in law and religion. Many of us who write in this field, whatever our personal beliefs, do so from a position of high regard for religion, relatively low regard for any approach that would marginalize, privatize, or sideline religion, and approval of accommodation of religion, whether as a constitutional or a legislative matter. Of course we argue over little details, like whether a theory of religious liberty is possible in the first place. And of course there are ongoing doctrinal disagreements, especially on the Establishment Clause side of the ledger. But on the whole there is a strong sense that we are all pulling in more or less the same direction.
I wonder whether this is entirely a good thing. I must confess that, having come late to the party, I miss the strong separationists and secularists. Few writers in law and religion itself, as opposed to occasional visitors to the field, would now argue, as Kathleen Sullivan once did, that the Constitution establishes a firmly secular democracy. Outside the more rarefied precincts of law and religion scholarship, to be sure, many people still hold this view. But for those who are deeply part of the scholarly conversation, that position is relatively rare these days. Steve Gey is a very honorable exception, and he is writing an amazing amount. There are a couple of relatively new voices who take a position something like this; I think, for instance, of valuable work by Caroline Mala Corbin. But much of the recent separationist work in this vein seems to be more doctrinal than theoretical. What Steve once called a de facto disestablishment “establishment” is now much more of a minority voice, and a relatively mild one at that.
Now, I am not one of those voices. My own work falls much more in the non-separationist line (not anti-separationist, I should emphasize, but non-separationist). Perhaps I should be glad that the kinds of views I share seem to be in the ascendancy. But I’m not entirely sure I am. A good conversation needs good adversaries. Maybe strong separationism and secularism have become marginal voices in this conversation because those positions were always frail, and therefore not a good adversary. But I miss some of those contrary voices and would like to see more of them. I wonder whether anyone else shares that sense of lament, and whether anyone can supply any reasons why these voices seem to be less of a part of the main conversation. Is it a matter of genuine consensus, something stemming from changes in the (mainstream or legal academic) culture itself? Is it a question of who chooses to write in this area — or who we choose to hire? Or is it something else?
How much of it also is a function of the Sup Ct largely rejecting the strong separationist thesis? I also think you’re right in terms of the self-selection dynamic: law & religion seems (in my completely unscientific estimation) to have a much higher percentage of religious believers (or maybe more accurately, “fans of religion”) than other academic fields.
This is an interesting observation. I’ve noticed that even among students in my seminars, there don’t seem to be as many vehement “no aid” separationists on school aid issues, for example, as there once were. Rob may be right that a shift in the Supreme Court may be partly responsible, though the current position seems quite fragile: a shift in a vote or two and we could be back in the “no aid” mode. Scholars like Doug Laycock may have made a difference: Laycock is clearly not trying to advance religion, but he effectively criticizes the old-fashioned version of separationism.
Still, in addition to Steve Gey, we shouldn’t overlook scholarly non-academics, like Mike Newdow. I mentioned a recent article of his a week or so ago: it’s definitely worth a read with respect to some familiar historical issues. And I think there are plenty of academics and others who think we should have, and the Constitution requires, a “secular” government. I also sometimes have the impression that this view is powerful by being taken for granted among people, academics and non-academics, who don’t really work or think much in this area. Debates about same-sex marriage, for example, often feature “of course” sorts of claims that, for example, “Of course religious reasons can’t count in providing any justification for tradition-based laws.” The claims and assumptions may be powerful in practice even though (or because) they are largely oblivious to all the reflections on this subject by people like Greenawalt, Perry, Eberle, Audi, and others.
For those who are “unGodly,” so to speak, there may have been a movement away from strict separationism after the work of people like Philip Hamburger. After that, separationism became at least in part associated with some nasty things that newer scholars didn’t want to be connected to. I still think that separationism has at some core level a greater friendliness to religion than some of the more contemporary secularisms. If one compares the views of, say, Vince Blasi or even Kent Greenawalt (both of whom say positive things about the virtues of separationism, for essentially Madisonian reasons) to the views of egalitarian secularists or fans of formal neutrality (Marci Hamilton, for example), I think we’ve reached a far more adversarial place today.
Nice observation Paul – I got reminded of Steven Smith’s Dusk of Discourse article in the HLR last year.
There are a number of recent observations (Gedicks, Sullivan) that the Court is moving along the lines of a new “establishment” when it comes to neutrality among religions. And I think this is a net effect of mainstream culture, given the preponderance of religion in general (no particular kind), that somehow we should just accommodate it and the only disagreement would be as to how.
My question is, do you think this is not a good thing as a matter of scholarly conversation, or not a good thing in general? Do you think that there is something off about this direction?
Thanks for the responses. In answer to Steve, I agree (and mentioned in my post) that these kinds of views are still easily found in mainstream culture. That’s important, but I was focusing more on what I consider the somewhat lamentable absence of strongly stated arguments along these lines in mainstream law and religion scholarship. In answer to Anna, I would say that I wonder whether this is a problem for scholarly conversation; I’m less concerned with whether this is a good thing in general. I don’t think there’s anything “off” in this direction; I share it. But I would hate to see us in an academic echo chamber. In answer to Marc, I characterized myself as non-separationist rather than anti-separationist, and I certainly take a more vigorous view of what is proscribed under the Establishment Clause than, say, Steve. I did have Marci Hamilton in mind, certainly, and there are aspects of her work — mostly the journalistic aspects, rather than the theoretical aspects — that I think serve as useful correctives to a complacent view of religion and its virtues. But I am less convinced that she is influential at the level of theory — something I am generally glad about, since I broadly disagree with her views. Still, that leaves me hungry for other advocates who can state these views in what I would consider a more persuasive way.
Lots of interesting questions here– sociological and otherwise. How about this? A generation or so ago, the main fault line concerned “separation”– what it entailed, etc. Today, the main fault line has shifted to “secularism”– whether it’s constitutionally mandated, what it entails, etc. I’m not sure there’s any less disagreement than there was. There may even be more disagreement now. I think there is. But it’s at a more fundamental level.