Sunday, September 05, 2004

On "settling the just bounds" between church and state

Our own David Price (D-N.C.) held his ground on Saturday morning on NPR's Morning Edition in a debate with Rep. Mark Souder (R-Ind.) over the role of religion in politics. They each have a chapter in a new book from the Brookings Institution called One Electorate Under God?

Price, who holds a divinity degree from Yale, readily conceded that "the motivations that bring people into politics are often tied to religious experience," and yet he points to the establishment clause as reason to ask, "When do I push to enact what may be religiously grounded precepts and principles into civil law, and when do I demur?" His position is that "in a pluralistic democracy one does attempt to appeal to more widely shared values."

Souder claims that he has "an obligation" to "bring [his] faith into the debate"--whether his views are widely shared or not. He cites the Christian abolitionist response to slavery as an example.

But he doesn't do so well when asked how he would have responded in the 1830s to the Mormons' religious arguments for polygamy. Missing the point that these were people acting out of their religious faith, he first invokes the New Testament to claim that "marriage is between a man and a woman" and then says that the way the Mormons were persecuted were wrong.

Mario Cuomo, a liberal Catholic, articulates his strategy for negotiating between church and state (his chapter is available in a .pdf from the Brookings web site above).

I can, if I choose, argue--even as a public official--that the state should not fund the use of contraceptive devices, not because the pope or my bishop demands it but because I think that for the good of the whole community we should not sever sex from an openness to the creation of life. And surely I, as a public official, can, if I am so inclined, demand a law to prevent abortions or stem cell retrieval from embryos, not just because my bishop says it is wrong but also because I think that the whole community, regardless of its religious beliefs, should agree on the importance of protecting life, including life in the womb, which is, at the very least, potentially human and should not be extinguished casually. I, even as a public official, have the right to do all of that.

The Constitution, which guarantees your right not to have to practice my religion, guarantees my right to try to convince you to adopt my religion's tenet as public law whenever that opportunity is presented. And it is presented often.

The question for the religious public official, then, is not Do I have the right to try to make public law match my religious belief? but Should I try? Would the effort produce harmony and understanding? Or might it instead be divisive, weakening our ability to function as a pluralist community? For me, as a Catholic official, the question created by my oath of office, by the Constitution, and by personal inclination was, When should I argue to make my religious values your morality, my rule of conduct your limitation? As I understood my religion, it required me to accept the restraints it imposed in my own life, but it did not require that I seek to impose all of them on all New Yorkers. . . . My church understands that our public morality depends upon a consensus view of right and wrong. Religious values will not be accepted as part of the public morality unless they are shared by the community at large.

Though Cuomo claims that "the Catholic tradition of political realism" generally works, even, in his view, when it came to "slavery in the late nineteenth century" (??), it doesn't exactly work when applied to slavery in the early nineteenth century. Or with Jim Crow in the first half of the twentieth. But there's an even more fundamental issue here, one that Stanley Fish has wrestled with. ("Mission Impossible: Settling the Just Bounds between Church and State," 97 Columbia Law Review 2255 (1997).)

The modern contours of the debate concerning the relationship between church and state were established in 1689 by Locke in A Letter Concerning Toleration, and discusison of the issue has not advanced one millimeter beyond Locke's treatment even though over three hundred years have passed.

A very Fishian line, certainly: this is the way it is, and don't bother to try to change it, because as much as you want to avoid it, this is the way it is. But as usual, he is on to something.

Locke begins by identifying the problem: Every church is orthodox to itself, and in the certain event that quarrels break out between competing orthodoxies, there is no one on earth capable of adjucating between them. . . . the problem is that were tolerance always the rule, government would be barred from restricting behavior that it found wrong and disruptive so long as those who engaged in that behavior could plausibly claim that they were moved to it by religious faith. Locke responds to this difficulty by refusing to extend tolerance to doctrines which "manifestly undermine the foundations of society, and are therefore condemned by the judgment of mankind." The contradiction is obvious: If every church is orthodox to itself, the category "the judgment of all mankind" is empty because it presupposes the common ground or shared point of view denied by the announcement that ever church is orthodox to itself. Indeed, if there were something called the judgment of all mankind, there would be no need of a liberal framework within which competing orthodoxies vied for political supremacy.

The fundamentalist religious viewpoint poses the crucial challenge to the notion, suggested by Price and Cuomo, that religion in the public sphere must always be tempered by tolerance, or that tolerance is a sufficient answer to all public issues involving religion.

Fish examines a case in which the mother of a public grade-school child objected to a curriculum that required her child "to participate in a program of 'critical reading' designed to cultivate the capacity for considering every side of a question." The very notion of exposure to multiple positions violated the mother's religious beliefs. Her argument was neither understood nor accepted in court. The court--we can hear it now--patiently pointed out that "teaching about" a viewpoint does not mean "teaching to believe in" that viewpoint. But this distinction, Fish points out, "rests on a psychology that is part and parcel of the liberalism Vicki Frost and her friends don't want imposed on their children." Rather, she feels called "to take care lest [her child] be influenced in the wrong directions, as they well might be if they were introduced to notions they were ill equipped to resist."

Fish's essay is much more involved than I can do justice to here, but a basic point is that there is and will always be an irresolveable tension between the "establishment of religion" and the "free exercise thereof," and that moral values are always at stake. "[C]onflict," he concludes, "is the name of our condition, and moreover, naming it does nothing to ameliorate it or make it easier to negotiate. The negotiations have to be done one at a time in the context of the urgencies and choices life continually throws in our way."

In the end, I think Fish does reach a conclusion that Price and Cuomo, as well as Souder and Frost, would have to endorse, troubling though it is to the liberal orthodoxy:

Politics, after all, is what is usually opposed to morality, especially in the texts of liberal theorists. Politics, interest, partisan conviction and mere belief--these are the forces that must be kept at bay. What I have attempted here is a reversal of this judgment. Politics, interest, partisan conviciton, and belief are the locations of morality. It is in and through them that one's sense of justice and the good lives and is put into action. Immorality resides in the mantras of liberal theory--fairness, impartiality, and mutual respect--all devices for painting the world various shades of gray.

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