Divided by God: America's Church-state Problem--and What We Should Do About It - Hardcover

Excerpted from Divided By God by Noah Feldman. Copyright © 2005 by Noah Feldman. Published July 2005 by Farrar, Straus and Giroux, LLC. All rights reserved.

For ten days in August 2003, with an insurgency brewing and soldiers dying in newly conquered Iraq, the nation’s attention suddenly became riveted on sleepy Montgomery, Alabama. Late one night the previous winter, Judge Roy Moore, the elected chief justice of the Alabama Supreme Court, had arranged for a two-and-a-half-ton block of granite to be erected in the rotunda of his courthouse. The enormous rock, which took a team of men and machinery to move, was inscribed with the Ten Commandments. A federal district court found the monument to be an unconstitutional infringement on the separation of church and state, and ordered its removal; in late summer, a federal court of appeals agreed.1

What happened next grabbed the public eye: Moore refused. This extraordinary act of civil disobedience by a judge sworn to uphold the law brought out spokespeople and activists for both of the two most prominent schools of thought about church and state in the contemporary United States. On the front steps of the courthouse and on live television, their arguments began with the framers of the Constitution. The evangelicals declared that our entire system was built on Judeo-Christian values, and that the founding fathers, whose moral sense was based on the Bible, would have been astonished and horrified to see the Ten Commandments proscribed by court order. The secularists invoked Thomas Jefferson and James Madison to support their view that the symbols of religion ought to be kept out of the governmental sphere altogether. Both sides shared the assumption that they could win the argument if they could prove that history was on their side.

The Montgomery controversy mattered for reasons greater than the specter of a politically ambitious Alabama judge refusing to follow a federal court’s order, or the constitutional question of whether the Ten Commandments may lawfully be displayed in public places, which the Supreme Court had yet to resolve. With a presidential election looming, the evangelicals and the secularists were enacting in microcosm the national debate about the right relationship between religion and government in the United States. The stakes of that debate extend beyond statues to billions of dollars in government funding, basic moral questions of life, death, and family, and the recurrent challenge of what it means for Americans to belong to a nation. The Ten Commandments were just a symbolic stand-in. Judge Moore had struck a vein of division that runs deep in America’s and its psyche.

1. Glassroth v. Moore, 242 F. Supp. 2d 1067 (M.D. Ala. 2002), aff’d, 335 F.3d 1282 (11th Cir. July 1, 2003), cert den., 124 S. Ct. 497 (Nov. 3, 2003).

INTRODUCTION

In the darkest days of the Civil War, the absolute low point of division in American history, Abraham Lincoln could still imagine religion as a potentially unifying force. North and South, he observed in his second inaugural address, prayed to the same God and read the same Bible, even if they interpreted it differently. Through a shared faith, the American people could someday bind up the nation’s wounds, inflicted by a just God as punishment for the original sin of slavery.

Today, the overwhelming majority of Americans still say they believe in God, but a common understanding of how faith should inform nationhood can no longer bring Americans together. To the contrary, no question divides Americans more fundamentally than that of the relation between religion and government. For many, moral values derived from religion are the oldestar of political judgment. Almost a quarter of the electorate in the 2004 presidential election described values as the most important issue to them, and of these, some four-fifths voted for President George W. Bush.1 Yet many Americans believe with equal commitment that religion is a private matter that should not figure in the sphere of politics—a view expressly adopted by Senator John Kerry in the presidential debates, where he explained his pro-choice stance by asserting that his personal beliefs as a Catholic must not be imposed on women who held different beliefs about abortion.2 Although church membership did not predict which candidate a voter would choose, one statistic stood out sharply: the more often you attended church, the more likely you were to vote for President Bush.

A HOUSE DIVIDED

The deep divide in American life, then, is not primarily over religious belief or affiliation—it is over the role that belief should play in the business of politics and government. Consider same-sex marriage, which appeared on ballots in eleven states in 2004 and shows no sign of disappearing from public debate. Many Americans insist that marriage is “between one man and one woman” but say they have no objection to civil unions that give gay couples the same rights as married people. If there is no legal difference between civil union and marriage, why object to the word “marriage”? What’s in a name? The obvious answer is that even though marriage is a state institution, it has a traditional religious definition, which opponents of same-sex marriage do not want to change. The reason so many people oppose same-sex “marriage” is that they believe the state’s sanction of marriage should take account of a moral value derived from religion.

Religious values also figure prominently in the debates about stem-cell research, abortion, euthanasia, and the death penalty. On each of these life-and-death issues, one school of thought insists that citizens’ private religious values should not decide government policy, while an equally vociferous alternative view maintains that the right answers to such ultimate questions must come from the wisdom of religious tradition. In each case, the debate is as much about whether faith should inform political debate as about the rights or wrongs of the issue. “We are a religious people,” the Supreme Court said in 1952, “whose institutions presuppose a Supreme Being.” Clearly, not everyone agrees. Is the Court’s dictum true today? Was it ever true in our history?

The essential question of how religion and government should interact becomes most salient when we confront the controversial constitutional problems that arise under the heading of church and state: Should the government be able to fund religious schools or social programs through the model of charitable choice? May courthouses display the Ten Commandments? Do the words “under God” in the Pledge of Allegiance amount to an establishment of religion? No one lives or dies as the result of our resolution of these hard questions on which the Supreme Court inevitably opines, but they are nevertheless lightning rods for debate, because they go to the very heart of who we are as a nation. They raise the central challenges of citizenship and peoplehood: who belongs here? To what kind of nation do we belong?

This book sets out to address these crucial questions, turning to our history to understand the origins of today’s controversies and exploring how we might chart a course for the future. Two sides dominate the church-state debate in contemporary American life, corresponding to what today are the two most prominent approaches to the proper relation of religion and government. In this book, I call those who insist on the direct relevance of religious values to political life “values...