Submitted to a Candid World

What exactly is it that liberals like myself object to, when we object to the mixing of church and state, or the state appropriation of religion to its own ends? I’ve argued before that the two biggest (but perhaps not only) problems with blurring the line between church and state occur when (1) a pluralist society freezes out a minority, by sending an exclusionary message through religious acts or symbology, sometimes with disastrous results, or when (2) the state’s decisionmaking process is tainted by subjective religious beliefs. Unsurprisingly, the problem with the latter type of church-state blending is ably presented by sitting president George W. Bush, who in 2003 refused to give condoms to Africa as part of an AIDS-prevention package, because his religious views mandated abstinence-only education. Obviously, reality refused to bend to Bush’s religion, and AIDS in Africa has continued to rise apace, all because Bush couldn’t remove his biblical blinders. Note also that “maverick” John McCain has a similar failing.

But the law is powerless to stop politicians from making religiously-motivated errors of policy: we as citizens have that job. And, on the first point, it’s tough to tell when a state use of religious symbolism crosses the line from expressive to impermissibly exclusionary (“get out, non-Christians!”). Where exactly is that line?

Law student that I am, to sketch the boundaries, I propose two hypothetical situations. In the first, the mayor of a Southern city, seeking to reaffirm his city’s progressive bona fides, wants to host a ceremony honoring fallen Union soldiers who died in the Civil War, fighting to free the slaves of his state. He wants to play the Union’s marching song – the “Battle Hymn of the Republic” – at the ceremony. The Hymn, of course, is a ringing evocation of what it means to be an American: “…let us die to make men free.” But it’s also blatantly Christian: “as He [Jesus] died to make men holy…” Is this state sponsored religious symbolism constitutional?

In the second case, we’re in Ancient Rome, which has, oddly enough, adopted the American Constitution, and secularized itself. The problem is, the Old Religion lingers. A number of Senators object to a monument in the Senate House, the Altar of Victory, which since time immemorial has been thought to guard the health of the Roman state. They say it’s a state endorsement of religion, and excludes secular senators and Christians. Other Senators – both adherents to the old faith and historical preservationists – object, saying the religious monument is a token of the past, historical, and with muted religious significance. Who wins?

Perhaps surprisingly, I would uphold both ceremonial uses of religious imagery, on the grounds that the threat of sending an exclusionary message is minimal when the dominant theme of a religious icon or expression is historical or cultural rather than evangelical. In these hypotheticals, both the Battle Hymn and the Altar of Victory have unique places in the consciousness of their respective populations owing to their antiquity, not their religiosity. While this position places me at odds with many of my liberal compatriots, I’m in good company. In 2005, Justice Breyer cast the tie-breaking vote in two “Ten Commandments on the courthouse steps” cases, distinguishing a monument with great antiquity (therefore valid – see Van Orden) from a monument placed seemingly only to inflame religious tensions and “make a point” (therefore invalid – see McCreary).

Being in a pluralist society not only requires us to avoid using the state to place one religion over the other; it also requires us to tolerate cultural expressions that might carry with them a twinge of religiosity. We cannot expunge religion wholesale from the public sphere, without depriving ourselves of valuable reminders of our heritage.

On the church vs. state front of the Culture Wars, I don’t think I’m conceding that much. We must still be extra wary of egregious and dangerous attempts to blend church and state. On a common theme, for example, teaching creationism in public schools would be by my rubric the worst of the worst, since it sends an exclusionary message to a particularly susceptible set of the population (children), and muddles the objectivity that democracy demands of both science and government. As liberals, the defenders of the church/state line, we ought to pick our battles, and conserve resources for the major clashes.