Separations

A liberal writer ponders why other liberals are welcoming an increasing role for religion in public life.
Going back to Jefferson and Madison, the idea behind separating church and state has been to prevent the state from forcing taxpayers to pay for other people’s religious practices. Fair enough. But in order to get religious conservatives to go along with that principle, secular liberal thinkers felt they had to give them something in return. And what do religious conservatives want? They want to be able to express their deepest religious convictions in the public sphere. They want to pray at town meetings, to place religious symbols in government buildings and on public lands, and, more generally, they want the state to acknowledge the importance—and perhaps also the truth—of their religious heritage.

So here we have the makings of a compromise: Liberals would get a ban on state funding of religion, and conservatives would get state-sponsored religious recognition...

Except that the Roberts court, like the Rehnquist court before it, isn’t interested in taking this deal. In exchange for greater acceptance of religious practice and symbols in the public square, they have given up, well, nothing. In a series of 5–4 decisions, conservative majorities have rejected the ability of taxpayers to challenge state funding of religion...

If giving up your side in exchange for nothing looks like a shoddy compromise for liberals, what else might explain acceptance of Justice Kennedy’s new coercion principle[?]
See, the legislature is where you go to make compromises with the other side. When you try to fight your battles in the courts, you're going to get decisions on one side or the other. That's the nature of the beast.

The preference for waging war against conservative ideas in the courts is based on the hope that the battlefield itself is biased against conservatives. This follows from three ideas: 1) The judiciary must, in order to do their jobs, be highly educated. 2) The academy has largely been captured by liberals, which means educated people will have been taught to think by liberals most of the time. 3) As a consequence that re-enforces the bias, peer pressure among the highly educated is to conform to left-leaning ideas. Thus, the courts are much better ground for locating the real power of government than the legislature in which the general population gets most of the vote in selecting representatives. If the courts will just go along with stripping legislatures of the power to create laws that transgress against the principles of the left, it doesn't matter very much if you win or lose elections. When you win, you can pass new laws in line with your principles. When you lose, you can relax because the courts will throw out new laws that you'd oppose.

Unfortunately, there are some disadvantages to this approach. One of them is this one: when the court goes against you, it generally goes all the way. The other one is that politicizing the courts damages the legitimacy of two whole branches of government. The author really wants the courts to come up with political compromises here, in order to rewrite the laws in a way that would satisfy everyone. That's a legislative function. Should the courts take over the legislative function while also embracing the power to set aside legislatively-enacted laws that violate principles held by the educated elite who make up the judiciary, the court has effectively gelded the legislature. The legislature will not be respected as a co-equal branch of government if its power is completely co-opted by the courts.

By the same token, since Federal judges are not elected (and in this court serve lifetime terms) their decisions have no democratic legitimacy. When the legislature rewrites the law, it does so with the direct involvement of the people's representatives. Those representatives, should they defy the people's will, can be replaced at the next election. Unelected judges who cannot be replaced ought not to perform the legislative function in a republic that claims to draw its legitimacy from the will of the people.

So, grammercy for coming up with a viable compromise. I think people might go along with it. Take it to the legislatures, and at the state and local level as well. Make the argument. Point out that Jefferson and Madison are on your side. You might convince some people. Stop trying to get the courts to alter the playing field such that laws you don't like are forbidden to legislatures. Instead, play fairly and talk with the people with which you disagree instead of suing them.

Crazy idea, I know. But I'm pretty sure it's how the system was supposed to work.

10 comments:

Texan99 said...

A nutso bankruptcy judge I was found of--without ever wishing to tender any important decision to him--used to warn all the lawyers in the room to get out in the hall and cut a deal quick. "I'm a monkey with a pistol up here," he'd say.

E Hines said...

So, grammercy for coming up with a viable compromise. ... Take it to the legislatures....

A major part of the Left's problem with this, though, is that they're arguing from a false premise (and as intelligent as most of them are, and as well educated, I have a hard time buying into the idea that they don't know they're arguing from a false premise): ...a compromise: Liberals would get a ban on state funding of religion, and conservatives would get state-sponsored religious recognition....

Um, no. Conservatives get the right to pray at town meetings, to place religious symbols in government buildings..., and, more generally, they want the state to acknowledge the importance—and perhaps also the truth—of their religious heritage. There's nothing in there--these Liberals' own words, mind you--about religious recognition, much less anything coercive (as the linked-to author claimed later in the cite). A religious man praying at a government meeting in no way forces a non-religious man to do so (or a man of a differing faith to do so, or not, in a particular way), religious symbols in government buildings in no way espouse anything at all--unless we accept the truth of the flip side, too: the entire rest of the building is utterly devoid of religious symbology; how dare those atheists impose their atheism on everyone else in that government building? And recognizing our country's religious heritage is simply recognition of an historical fact: a significant fraction of our colonists were religious refugees.

Eric Hines

Grim said...

I tend to think the objection is sincere: that the frequency or regularity of Christian celebrations will tend to force non-Christians into exclusion.

Were I to argue my own position, it would be stronger: that we should amend the Constitution if necessary in order to enable laws based on nothing other than 'mere' Christian values. While not establishing a sect as the official religion, I do think we ought to be able to ground moral laws in the religious tradition that was itself the ground from which the American project grew.

But to do that requires, if it is to be legitimate, a lot of popular democratic support. Were the SCOTUS to hold tomorrow that this is what the First Amendment "really" means, it would be a deeply suspect ruling even though it attained my policy preferences.

Anonymous said...

And here I was thinking that the reason for the separation of church and state was to force people to give up the reason "God wants it" as justification for bad public policy.

Valerie

Grim said...

It's true: Deus vult should only be used to justify good public policies.

E Hines said...

I tend to think the objection is sincere....

I have a hard time buying that, given the intelligence and education of those who lead that position. Too, any exclusion of non-Christians is brought on by those non-Christians--Christians don't exclude much of anybody. In fact, much of the beef about religious things in government places is all about Christians forcing inclusion. These guys don't get to have it both ways.

In my darker moments, I just think those who feel coerced into Christian celebrations they don't want are just weak of character and need to find some backbone. That, though, probably is unfair.

[W]e should amend the Constitution if necessary in order to enable laws based on nothing other than 'mere' Christian values.

The Establishment and Free Exercise Clauses already cover this. It's not necessary, though, to couch the laws in terms of Christian values explicitly; most of those values are good social policy in their own right. It's also far easier to do, and far easier to discriminate the truly abusive distortions when we go back to another set of founding principles: limited government that intervenes/interferes in domestic matters as a last resort; personal responsibility and local aid being the primary and secondary sources. In fine: very few actual laws on the books, especially at the Federal level.

Eric Hines

Tom said...

Going back to Jefferson and Madison, the idea behind separating church and state has been to prevent the state from forcing taxpayers to pay for other people’s religious practices.

Really? Nothing I've read suggests it was about money. I always thought it was about not having a religious test for government employment or office, which most European governments at the time had.

Until the USSC ruled that the bill of rights applied to the states (after the 14th Amendment was passed), it was perfectly Constitutional for a state to have an official religion. Several states did, but they had all voluntarily ended the practice before the Civil War.

Tom said...

Tex, thanks for the story. That's funny!

Texan99 said...

My pleasure--and of course I meant to say I was "fond" of him, not "found."

I think state-enforced tithing was a hot issue as well as religious tests for office, no? Or had that stopped by the late 18th century? Wasn't that what a lot of Dissenters were hot about? I'm vague on the timeline here.

Tom said...

Oh, I had forgotten about that, and I'm not sure when it ended either.

I don't think that was the main idea behind it in the US, but still, good point. It very likely was a factor.