Sago Boulevard

Sunday, July 31, 2005

Some Thoughts on State-Church Separation

The role of state-church separation in American law has been on my mind recently. ACSBlog has a good summary of a panel discussion on the subject from the ACS National Convention. Some excerpts:
Judge [Stephen] Reinhardt open panel saying that he had a simple answer--when it comes to public policy, there is not a false dichotomy between secularism and religion it is a constitutionally mandated one. He had added that this nation provides the highest respect for religion and religious beliefs, but the constitution is godless. It does not mention god, nor does it declare a national religion. “It was not an oversight that god is not in the Constitution,” Reinhardt argued. He explained that the founding fathers believed that, “religion had no place in government, and the government had no place in religion.”...
[Melissa] Rogers warns that we can no longer rely on the courts as a backstop to protect this separation. She claims that progressives need to develop a vision that advocates both the protection of liberty and religion. She added that progressives must work to ensure that the government does not place burdens on the practice of religion, and, at the same time, we must stop expecting the government to promote our faith and claiming discrimination when the government does not promote our faith...
Secularist and religionist do not need to be on opposing sides, according to [Samuel] Casey, and that the free exercise and separation clauses of the first amendment need not clash.

Here's what's bothering me: I have a vague understanding of what "religion" means, although I'm aware that my understanding of the term is heavily influenced by personal religious biases. But I'm really not sure what "secular" means. Everybody, religious or not, believes certain things about the world to be true and certain things to be false. From a constitutional perspective, what's the difference between a belief that happens to coincide with that of a major religious institution and one that doesn't? You might answer that so-called religious beliefs simply have a special legal protection. But that's not good enough! In order for certain kinds of beliefs to enjoy special protection, there must be some difference between those beliefs and others. Even if you make the silly distinction between "faith" and "reason", the same problem arises. What about entirely secular beliefs that make no sense? (I can think of a few). Or a secularist who expresses beliefs that are often associated with religion? Is it the belief that is either "religious" or "secular" or is the individual expressing that belief?

There's a real tension in the First Amendment. In two sentences, the Constitution mandates that we figure out a way to differentiate between (and then balance) "belief" and "religious belief", "custom" and "religious custom", "ideology" and "religious ideology". Yet, it provides no tools for defining "religion". To suggest that the Constitution is "godless" doesn't help. The government can't be religiously neutral for the same reason it can't be ideologically neutral.

I have no real solution; I'm using this space as a way of thinking out loud. But I think the courts, in navigating the First Amendment should focus on defining key terms. At least in discussions I've participated in, "religion" is taken to imply the stereotype of American Christianity and "secular", that of left-wing humanism - which does very little to illuminate the issues at hand. We have to think more deeply about what we call "religious" and "secular". We can't interpret the Constitution unless we understand the words it uses.