At the recent Netroots Nation convention in Pittsburgh, progressives engaged in a serious reconsideration of the meaning and reach of the Establishment Clause. A program entitled “A New Progressive Vision of Church and State” brought together a diverse group of panelists to debate a proposal (provocatively encapsulated in the subtitle of the program: “How I Learned to Accept ‘Under God’ in the Pledge of Allegiance and Stop Losing Elections”).
The proposal, which was mine, was that government should be permitted to use religious language in the public square when that language may plausibly be asserted to represent a nonreligious commitment. For example, the word “God” can refer to the ceaseless creativity of the universe and the objective validity of human rights. Arguably, this was the role of the “Creator” language in the Declaration of Independence. The goal of my proposal was to find common ground among nonbelievers, minority religious believers, and monotheists while retaining the core commitment of government religious neutrality.
The leadership of Netroots Nation was aware of how controversial such arguments were likely to be among their largely secular attendees. Thus, it was clear from the start that the panel would have to represent a range of views, including searching criticism of the proposal. This was certainly accomplished.
Of the three panelists who responded to the proposal, Rev. Janet Edwards was basically supportive of the suggestion that religious language and imagery be an available rhetorical resource in American public debate. She was more concerned about private religious speech than in the question of the specific limits on government endorsement of religion. Edwards ended up leading the room in an effective rendition of “Kumbaya,” with the word “Justice” substituted for the phrase “my Lord.”
Fred Clarkson and Vic Walczak were strongly critical of the proposal, for overlapping reasons. For Clarkson, the emphasis on the Declaration of Independence was historically as well as tactically flawed. The Constitution, not the Declaration, is the legal foundation of American public life. The Constitution quite intentionally omitted all reference to God, and its only reference to religion is to bar religious tests for office. That is the model that progressives should follow: a public space without reference to religious imagery. Any other approach adopts the framework of conservatives, who want the government to officially endorse at least monotheism, preferably the Bible and, if possible, Christianity.
Walczak, from his perspective in litigation, reminded the audience of the social division, discrimination, and even violence that occurs when government involves itself in religious matters. This is a story not of just of sixteenth-century Europe, but one that repeats itself in America all the time. Walczak also warned that a government permitted to use God-language in general terms will next use God to promote political positions, such as the hypothetical government slogan, “God opposes abortion.”
Both Clarkson and Walczak suggested that the proposal would be insulting to religious believers. Believers understand “God” to be God, and would certainly object to any suggestion that “God” really means something else.
The exchanges among the panelists were earnest but respectful. This positive tone was continued in the questioning from the audience. Most questions urged the retention of a strict separation of church and state. Toward the end of the allotted time, the issue arose of the proper role of religion in political debate, with some suggestion that some progressives view even private religious speech with wariness.
The entire exchange seemed to me to raise three fundamental questions. First, what is the proper role of history in the interpretation of the Constitution? I was suggesting that history should be basically irrelevant to debate about the Establishment Clause, both because American history on the subject of church and state is inconclusive and because as a general proposition, progressive Constitutionalism should offer the people of the United States a “living” Constitution through the development of currently acceptable Constitutional principles. Clarkson objected to that view as a kind of willful amnesia in which hard won lessons of the past would be forgotten.
Second, it seems to me that proponents of the separation of church and state must openly acknowledge just what their Constitutional ideal is. What is the ultimate goal of the Establishment Clause as they understand it? Since the proposal was being criticized for permitting the use of religious language by government (even though that language would have to be justified on nonreligious grounds), the contrary position must be the absolute ban on government sponsorship of religious language in the public square. This would mean that not only are the words “under God” in the Pledge of Allegiance unconstitutional, but so are any new public Ten Commandments displays, as well as the recent decision to add the national motto, “In God We Trust,” to the wall of the Capital Visitor Center. In addition to those changes, religious language would also have to be barred from any government-sponsored occasion, such as a presidential inauguration.
When these details are spelled out, it is clear that not only is this Constitutional vision wildly unpopular, but it really is a change from anything that America has ever practiced. It is a little hard to argue that this new world is one required by a reading of American history, or that it could have been anticipated by the framers of the Constitution.
Sometimes people who favor separation of church and state resist this kind of candor and say that some Constitutional violations are “merely symbolic” or not worth fighting about. But if a ban on government-sponsored religious language is required by the Constitution, these are not minor violations, but go to the heart of the wall of separation. These violations, if such they are, must be fought. And, if they cannot be fought because of the political fallout, then maybe the underlying Constitutional interpretation is wrong.
Finally, there is the question of the place of private religious speech in political debate. If the ban on public references to religious imagery is premised in part on a view of religion as a malevolent force (as is true for a Christopher Hitchens, for example), then suspicion of even private use of religious imagery in the public square naturally follows.
These are some of the questions we sought to explore in this forum.
