Split in Two

Book cover
Divided by Godby Noah Feldman

Farrar, Straus and Giroux. 251p $25


My parish church in the Williamsburg section of Brooklyn announced its political inclinations with a poster hung in a glass-encased bulletin board just inside the front entrance during the 1960’s and early 70’s. The photo showed an aborted fetus lying at the bottom of a silver bucket with the inscription "Choose Life."

The use of such stark imagery to inspire moral outrage and action on behalf of a specific kind of pro-life legislative agenda is emblematic of the stakes in the battle between citizens debating the role of religion in American public life.

In Divided by God, a well-researched, provocative and thoughtful treatise, Noah Feldman of the New York University Law School sees the conflict through the eyes of two different constituencies: values evangelicals and legal secularists. The first group insists on the direct relevance of religious values to political life. The second group believes that religion should be kept out of the public sphere. The conflict between these two groups now threatens to destroy a common national vision, writes Feldman.

Before proposing his solution to this church/state divide, Feldman traces the historical roots of the conflict by reminding us that Americans have been debating this volatile mix of law and religion since the age of the founding fathers. On June 12, 1788, James Madison, the Father of religious liberty, stood before the Virginia Convention debating the ratification of the Constitution and opposed the First Amendment.

The arguments on behalf of religious tolerance and liberty of conscience put forth by the framers, primarily through the influence of the 17th-century British philosopher John Locke, Madison believed, did not require constitutional protection. Religious diversity would guarantee religious freedom by itself, Feldman writes. This would be proven wrong when Tennessee authorities arrested a young substitute teacher named John Scopes for introducing his students to Charles Darwin’s theory of evolution in a public school.

The biblical literalists, as Feldman calls them, insisted that only the biblical vision of creation as described in the Old Testament should be taught to their children in the public schools. With William Jennings Bryan as their advocate, these forerunners of the values evangelicals argued that God’s vision as revealed in the Bible surpassed all others. In a dramatic cross-examination, Scopes’ defense attorney, Clarence Darrow, challenged Bryan to explain how Joshua could have made the Earth stand still without causing earthquakes or other terrestrial disasters.

Though Scopes was convicted and fined $100 by a judge eager to avoid making a martyr out of him, the biblical fundamentalists gained only a partial victory by generating a large amount of publicity for their cause.

Feldman corrects the historical fallacy put forth by a subsequent film and stage play that the Scopes trial added to the legal precedents regarding the constitutional separation of church and state. Darrow argued instead that the law banning the teaching of evolution violated his client’s free speech rights, according to Feldman.

When the elected chief justice of the Alabama Supreme Court, Judge Roy Moore, arranged for the erection of a block of granite displaying the Ten Commandments in the rotunda of his courthouse in August 2003, he violated the orthodoxy of legal secularists seeking to keep religion out of the public sphere. A federal district court concluded that the monument was an unconstitutional infringement on the separation of church and state, and ordered its removal. Later that summer, a federal appeals court agreed and upheld the decision.

Court decisions like this one, according to Feldman, serve as the intellectual foundation for the argument that religious values must remain outside the realm of public policy. Religious diversity could be reconciled with national unity by keeping the state secular, he writes.

An unlikely character, in the person of Supreme Court Justice Hugo Black, would step forward to become what Feldman calls the godfather of legal secularism. Raised amid the populism of Alabama that led him from a short stint in the Klan to the ranks of F.D.R. and New Deal loyalists, Black believed that the Establishment Clause’s major purpose was to protect religious minorities from persecution. He set forth the legal credo of legal secularism, writing for the majority in Everson v. Board of Education Ewing Township: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.... In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State.’

Subsequent decisions outlawing segregation and discrimination in the workplace, legalizing abortion and extending voting rights to women and African-Americans would further strengthen this secular constituency.

Beginning in the 1970’s, however, the legal secularists would have to contend with a new alliance of conservative Catholics and evangelical Protestants led by individuals like the Rev. Jerry Falwell, Pat Robertson and the Lutheran minister turned Catholic priest, the Rev. Richard John Neuhaus. Feldman accurately describes Falwell as having a vision that puts religious commitment in the service of politicsnot the other way around.

Nowhere does Feldman deal extensively with the limitations of translating religious sentiments into law. The drama surrounding the legal prohibition of alcohol in the 1920’s, for instance, serves as an important case study and ought to have been included in the book. Also, I believe Feldman has made a mistake in not acknowledging and discussing the contributions of the Jesuit theologian John Courtney Murray to the debate regarding the role of religion in public life. Murray’s belief that Catholics, Protestants, Muslims and Jews all have an important contribution to make to the public debate on a range of issues as long as they used the language of natural law, not religious language, to advance their arguments always adds to any discussion of the role of religion in the public square.

I would also have liked to read a discussion about implementing a constitutionally sound proposal for school vouchers patterned on the G.I. Bill.

Feldman credits both groups with partial victories and with expanding the parameters of the debate. The secularists broke the assumption that everyone is Christian and succeeded in having school prayer deemed unconstitutional. The evangelicals helped to create an atmosphere in which candidates for public office can speak openly about their faith. They also argued successfully for the passage of school voucher programs throughout the country that the Supreme Court ruled governments could supportso long as it was a tuition voucher for parents to use as they see fit.

Feldman’s final proposal for the reconciliation of these two powerful constituencies would offer greater latitude for public religious discourse and religious symbolism, and at the same time insist on a stricter ban on state funding of religious institutions and activities.

This solution does not take into account the fact that tax dollars have supported and continue to support the work of various Catholic, Jewish, Protestant and Muslim social service federations separately incorporated for constitutional reasons to allow them to receive government support. Federal and state dollars also support the educational mission of a variety of faith-based universities, including Boston College, Georgetown, Yeshiva, Brandeis and Brigham Young.

Even with these shortcomings, Divided by God is an important contribution to the debate, because it avoids polemics and focuses on providing a well-researched, historical and provocative discussion of two vital segments of our civic life.

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