A Solution to America's Church-State Conundrum

My son loves to flag interesting articles from publications like The Wall Street Journal, The Economist, and The New York Times during the wee-hour web-surfing he does and send emails to me about them. Among this morning's flagged articles is a piece by Noah Feldman, professor of law at New York University, in the Times. It deals with a solution of the Church-State conundrum in America.

The nub of Feldman's solution, worthy of thorough examination and discussion by all of us:

Despite the gravity of the problem, I believe there is an answer. Put simply, it is this: offer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities.

He goes on to explain:

Such a solution would both recognize religious values and respect the institutional separation of religion and government as an American value in its own right. This would mean abandoning the political argument that religion has no place in the public sphere while simultaneously insisting that government must go to great lengths to dissociate itself from supporting religious institutions. It would mean acknowledging a substantial difference between allowing religious symbols and speech in public places (so long as there is no public money involved) and spending resources to sustain religious entities like churches, mosques and temples. Public religious symbolism expressed in statues, oaths and prayers reflects citizens' desires to see their deeply held beliefs expressed in those public situations where moral commitments are relevant: legislatures, schools and, yes, courthouses and statehouses. Religious proclamations or prayers may open sessions of Congress without costing anyone a dime.

But government money, even when nominally available equally to all, inevitably creates political competition between religious groups over how and where scarce money will be spent. Zero-sum appropriations drive zero-sum politics. A tuition voucher is never priced out of thin air: its amount is set by a political process that favors some schools (for example, Catholic schools that already have infrastructures and support from a centralized church) at the expense of others.

In the courts, the arrangement that I'm proposing would entail abandoning the Lemon requirement that state action must have a secular purpose and secular effects, as well as O'Connor's idea that the state must not ''endorse'' religion. For these two tests, the courts should substitute the two guiding rules that historically lay at the core of our church-state experiment before legal secularism or values evangelicalism came on the scene: the state may neither coerce anyone in matters of religion nor expend its resources so as to support religious institutions and practices, whether generic or particular. These constitutional principles, reduced to their core, can be captured in a simple slogan: no coercion and no money. If no one is being coerced by the government, and if the government is not spending its money to build religious-themed monuments or support religious institutions and practices, the courts should hold that the Constitution is not violated.

And:

The solution I have in mind rests on the basic principle of protecting the liberty of conscience. So long as all citizens have the same right to speak and act free of coercion, no adult should feel threatened or excluded by the symbolic or political speech of others, however much he may disagree with it.

While one may quibble with a few particulars in Feldman's lengthy, thoughtful, and elegant argument, I believe that he has identified the outlines of a dynamic revival of the American compact on Church and State questions. As Glenn Reynolds would say, read the whole thing.