The Separation of Church and State Has Nothing to Do With Feelings

The law, lawyers, and the court.
May 8 2014 1:30 PM

A Prayer for Liberals

Why are some liberals conceding that it's their fault for objecting to legislative prayer?

(Continued from Page 1)

Nothing about this is liberal. When the Town of Greece identified itself with Christianity, it excluded Jews, atheists, and other religious minorities. And those excluded weren’t making an “interpretive choice.” The town board made the choice for them.

As Professors Rick Pildes and Elizabeth Anderson have shown in their classic work on expressive theories of law, the constitutional harm worked by official endorsement of religion is not about feelings. It is not something that minorities can avoid by cultivating thick skins. Rather, the harm is that the legal relationship between a government and its citizens has been altered, so that minorities now stand in relation to government as minorities, rather than simply as Americans. Government prayer renders them separate members of the political community, regardless of how they feel subjectively. Justice Kagan is careful about this in her dissent. Every time she describes the harm, she says that citizens of Greece “become partly defined by their creed,” or that the town’s prayer “alters a dissenting citizen’s relationship with her government,” or that the member of a minority faith “becomes a different type of citizen ... she stands at a remove, based solely on her religion, from her fellow citizens and from her government.” Constitutional harm of this type is not about the subjective feelings of sensitive minorities, and it is not something that can be avoided by desensitizing them.

After Town of Greece, there is nothing preventing the kind of religious-government alliances that have caused concern for hundreds of years: government favoring of the majority religion, explicit acknowledgements and endorsements of those favored religious views, implicit support for the ministers who hold those views, and statements of religious superiority seemingly backed by government imprimatur. In the Town of Greece, for example, ministers made statements implying that those who did not acknowledge Christ as the savior and God's role in the town were somehow inadequate, incomplete, and wrongheaded. Justice Kennedy compounds the problem by implying that failure to acknowledge the state's dominant Christian religious tradition makes you “unreasonable.”  That is what Justice Kagan is worried about, and it should concern us all. 

Advertisement

Government expressions of support for particular religious faiths aren't dangerous because they injure the sensibilities of the non-adherents—because they hurt our feelings; they are dangerous because they establish the framework, the rhetoric, in which persecution and shaming of non-adherents is made possible.     

Incidentally, none of this necessarily makes religion special. Justice Kagan is right that “[t]he content of Greece’s prayers is a big deal,” but that is because, as she also recognizes, they touch on “a core aspect of identity.” Other types of government endorsement and denigration can do that too, such as racialized messages or statements about LGBTQ citizens, as one of us has argued.

The two main reasons for liberal acquiescence in Town of Greece are appeasement for the sake of a political compromise that the court (and just about everyone else) has already rejected, or else self-abnegation of the equal citizenship of religious minorities and nonbelievers. Neither of those options is attractive. Which makes some liberals’ willingness to accept them rather more surprising than the Supreme Court’s most recent assault on the separation of church and state.

Micah Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law.

Nelson Tebbe is a professor of law at Brooklyn Law School and visiting professor of law at Cornell Law School.

TODAY IN SLATE

History

Slate Plus Early Read: The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

Mitt Romney May Be Weighing a 2016 Run. That Would Be a Big Mistake.

Amazing Photos From Hong Kong’s Umbrella Revolution

Transparent Is the Fall’s Only Great New Show

The XX Factor

Rehtaeh Parsons Was the Most Famous Victim in Canada

Now, journalists can't even say her name.

Doublex

Lena Dunham, the Book

More shtick than honesty in Not That Kind of Girl.

What a Juicy New Book About Diane Sawyer and Katie Couric Fails to Tell Us About the TV News Business

Does Your Child Have Sluggish Cognitive Tempo? Or Is That Just a Disorder Made Up to Scare You?

  News & Politics
History
Sept. 29 2014 11:45 PM The Self-Made Man The story of America’s most pliable, pernicious, irrepressible myth.
  Business
Moneybox
Sept. 29 2014 7:01 PM We May Never Know If Larry Ellison Flew a Fighter Jet Under the Golden Gate Bridge
  Life
Dear Prudence
Sept. 30 2014 6:00 AM Drive-By Bounty Prudie advises a woman whose boyfriend demands she flash truckers on the highway.
  Double X
Doublex
Sept. 29 2014 11:43 PM Lena Dunham, the Book More shtick than honesty in Not That Kind of Girl.
  Slate Plus
Slate Fare
Sept. 29 2014 8:45 AM Slate Isn’t Too Liberal, but … What readers said about the magazine’s bias and balance.
  Arts
Brow Beat
Sept. 29 2014 9:06 PM Paul Thomas Anderson’s Inherent Vice Looks Like a Comic Masterpiece
  Technology
Future Tense
Sept. 29 2014 11:56 PM Innovation Starvation, the Next Generation Humankind has lots of great ideas for the future. We need people to carry them out.
  Health & Science
Medical Examiner
Sept. 29 2014 11:32 PM The Daydream Disorder Is sluggish cognitive tempo a disease or disease mongering?
  Sports
Sports Nut
Sept. 28 2014 8:30 PM NFL Players Die Young. Or Maybe They Live Long Lives. Why it’s so hard to pin down the effects of football on players’ lives.