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?

Early reactions to the Supreme Court’s decision this week to uphold sectarian legislative prayers in Town of Greece v Galloway have been mostly critical from the left. That is not surprising: One might expect the political response among pundits and academics to be as predictable as the 5–4 split between the justices. But it turns out that some liberals, including some prominent progressive thinkers and, for that matter, the Obama administration, are either sanguine about or affirmatively happy with the decision. For example, Noah Feldman, a professor at Harvard Law School, has endorsed Justice Kennedy’s plurality opinion on the grounds that only government coercion should trigger a violation of the Establishment Clause. As long as the government does not force you to do or say anything religious, he says, and provided that it does not proselytize or denigrate other religions, the government can endorse whatever religious messages the majority prefers.

Under this analysis, if the Town of Greece wants to post a billboard saying, “This is a Christian Town,” it is perfectly within its rights to do that. The town might have bad manners, but there is nothing unconstitutional about that. No coercive harm, no foul.

Why would some liberals accept this understanding of the Establishment Clause? In his earlier work, Feldman argues for a compromise between secular liberals and religious conservatives. Secular liberals, he contends, worry chiefly about state funding of religious organizations. 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. Everyone would be happy. Or that was the theory.

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. And now in Town of Greece,  the same majority has endorsed state-sponsored religious speech by local majorities, which in most cases will mean state-sponsored support for Christianity.

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—that at least as an adult you are not being coerced by government prayer unless your religion is being denigrated or you are threatened with damnation? The other apparent rationale for acceding to this new standard is the idea that atheists, Jews, Muslims, Hindus, and other religious minorities should simply have thicker skins. They are all tiny minorities in a deeply religious nation, and they ought to have greater respect for the religious beliefs of the Christian majority. If they lack that respect, or if they feel alienated by the majority’s religious pronouncements, they have only themselves to blame. As Noah Feldman put it, “it is an interpretive choice to feel excluded by other people's faiths.”

In Town of Greece, the conservative majority makes the same shift, suggesting that it is an unreasonable interpretive choice to be offended by the majority’s religious pronouncements. According to Justice Kennedy, writing about coercion, “It is presumed that the reasonable observer is acquainted with this tradition [of legislative prayer] and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews.” In other words, if you choose to believe that the state is excluding you, something is wrong with you.

As several others have pointed out, there is something strangely familiar about this argument in Town of Greece. Before it rejected racial segregation in Brown, the Supreme Court once said that if racial minorities interpreted a state’s policy of “separate but equal” as imposing a stigma upon them, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Similarly, albeit in a very different context, the majority today says that if you respond to sectarian legislative prayer—indeed, to a systematic practice of state support for the majority’s religious beliefs—by saying that you have been separated out or excluded, you have made the wrong  “interpretive choice”—you have chosen “to put that construction upon it.”

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. 

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.

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