As I walk to the gate, I have the same fear as I had 50 years ago. It is in me. It is still the same fear. (Elie Wiesel, Nobel laureate, on the fiftieth anniversary of the liberation of Auschwitz.)
There was, in fact, nothing metaphorical about the Germans' systematic murder of six million Jews, nothing metaphysical or literary. The Jews were terrorized, humiliated, herded, enslaved, tortured, shot, gassed and burned; then their bones were ground up, mingled with their ashes and dumped into ponds or pits. There was nothing uplifting about any of this, no saving grace, no redeeming human nobility.
1. Quoted in Newsweek 15 (02 6, 1995).
2. Reich, Walter, In the Maw of the Death Machine, The NY Times Bk Rev 1 (01 29, 1995) (reviewing Langer, Lawrence L., Admitting the Holocaust (Oxford U Press, 1995)). Hauerwas, Stanley, Against the Nations: War and Survival in a Liberal Society 62–78 (Winston Press, 1985) makes the claim that the Holocaust must have significance in a post-Christian era for a Christian ethics grounded in Christian theology. Although as a non-Christian, I will leave the general issue of a Christian ethics to others, I do think Hauerwas over-reads the idea of post-Christianity. That Christianity is no longer the organizing force of world theology seems correct. But, as Professor Hauerwas himself notes, the “evidence is still out” on the Enlightenment's claim to toleration for Judaism in America, id at 72, and it remains out precisely because America remains a Christian nation.
3. The idea of the “public square” and its role in “public-izing” religion is the subject of Theodore Y. Blumoff, The New Religionists' New Gospel: On the Rhetoric and Reality of Religions' “Marginalization” in Public Life (manuscript on file).
4. Perhaps the most widely cited statistic comes from the Gallup organization, which records that over 91% of Americans declare their belief in God (at least to a pollster), 87% profess to be Christians. Gallup, George and Castelli, Jim, The People's Religion: American Faith in the 90's (Macmillan, 1989). Kosmin, Barry A. and Lachman, Seymour P., One Nation Under God: Religion in Contemporary American Society 15–17 (Crown, 1993) found that approximately 92% of respondents described themselves as having a religion. Consistent estimates come from The Roper Center for Public Opinion Research, The Public Perspective, (07, 1993/August, 1993) (73% of Americans responding that they are themselves “extremely/very/somewhat” religious).
5. See, for example, Blumenthal, Sidney, Christian Soldiers, The New Yorker 31 (07 18, 1994). Judis, John B., Crosses to Bear: The Many Faces of the Religious Right, The New Republic 21, 25 (09 12, 1994) notes the prominence of religious groups on public affairs, but suggests that because of the positions they hold on many issues, the Religious Right is taking on a stealth approach: its success supporting Republicans will, in his view, be “directly proportional to its invisibility.” See also Grafton, Anthony, The Sense of Ending, The New Republic 29, 30 (03 8, 1993) (noting the rise and acceptability of fundamentalist Christian views in the United States, including the highest reaches of government). But compare Gailey, Phil, “Mainstreaming Godliness,” The NY Times Bk Rev 11 (03, 5, 1995) (reviewing Reed's, RalphPolitically Incorrect (Word Publ, 1995), and suggesting that mainstreaming the Christian Coalition, Reed's present goal, may not be compatible with abortion as a litmus test for support).
6. Gedicks, Frederick Mark, Public Life and Hostility to Religion, 78 Va L Rev 671 (1992).
7. See Greenawalt, Kent, Religious Convictions and Political Choice (Oxford U Press, 1988).
8. Carter, Stephen L., The Culture of Disbelief: How American Law And Politics Trivialize Religious Devotion passim. (Basic Books, 1993).
9. Conspicuously absent from these critiques are formal descriptions of just what elements compose this “public square.” In casual conversation or in our leisure reading the critics will deliver to us who doubt the aptness of the public square metaphor a short list of elements in our popular and legal culture where religion is supposedly missing: few major dailies have full-time religious beats, prime-time, network television evinces a certain hostility toward religion. Barrett, Laurence I., The “Religious Right” and the Pagan Press, 32 Colum Journalism Rev 33 (07/Aug, 1933) (opining that “we journalists are not a very pious lot”); the cultural elite is wedded to rights, Smith, Steven D., Separation and the “Secular”: Reconstructing the Disestablishment DecisionalTex L Rev 955, 977–78 (1989); and individualism rather than communitarianism, Leo, John, Boxing in Believers, US News & World Rpt 20 (09 20, 1993); and the Supreme Court has abdicated its responsibility toward religion generally, and toward non-mainstream, religious minorities in particular. This last critique is undeniably correct. For example, Bowen v Roy, 476 US 693, 699, 700 (1986); Lyng v Northwest Indian Cemetery Protection Assoc., 485 US 439, 440 (1988).
10. For example, Ackerman, Bruce, Social Justice in the Liberal State (Yale U Press, 1980); Rawls, John, Political Liberalism (Columbia U Press, 1993); Nagel, Thomas, Moral Conflict and Political Legitimacy, 16 Phil & Pub Affairs 215 (1987).
11. McConnell, Compare Michael W., “God is Dead and We Have Killed Him!” Freedom of Religion in the Post-Modem Age, 1993 BYU L Rev 163; McConnell, Michael W., Religious Freedom at a Crossroads, 59 U Chic L Rev 115 (1992).
12. See Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics (Oxford U Press, 1991).
13. A related incommensurability argument holds that conceptions of human good are in such a state of conflict that no rational solution is possible. Although much of what follows bears upon this question, I will not address it directly. Suffice it to say that legislatures routinely make decisions that incorporate one conception of good or another; and no neutral position is expected. As one commentator notes, this is “the very substance of politics.” Gardbaum, Stephen A., Why the Liberal State Can Promote Ideals After All, 104 Harv L Rev 1350, 1361 (1991).
14. Smolin, David M., Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 Iowa L Rev 1067 (1991) (book review).
15. See, for example, Lind, Michael, Rev. Robertson's Grand International Conspiracy Theory, NY Rev Bks 21 (02 2, 1995).
16. The story of anti-Catholicism in the nineteenth century is movingly told by Higham, John, Stranger in the Land: Patterns of American Nativism, 1860-1925, 28-30, 58-63, 77–88 (Rutgers U Press, 2d ed, 1974); see also Handlin, Oscar, Boston's Immigrants, a Study in Acculturation [1790-1880] 201–06 (Belknap Press, rev ed, 1972). I recall one of these incidents in text accompanying note 62.
17. I might add that several fairly recent opinions from the Supreme Court have done remarkably little to give me comfort as a wholly accepted citizen in my own country. Lynch v Donnelly, 465 US 668 (1984); Goldman v Weinberger, 475 US 503 (1986). For a view describing Justice O'Connor's opinion in Lynch as “genteel anti-Semitism,” see Tushnet, Mark V., Religion and Theories of Constitutional Interpretation, 33 Loyola L Rev 221, 222–24 (1987). Of course, perhaps no opinion of the Court in recent years more fully depreciates Jewish citizenry than Braunfield v Brown, 366 US 599, 608-09 (1961) (upholding Pennsylvania's Sunday closing law against the claim that, to do otherwise, would put two orthodox Jews, whose religion requires Saturday—Sabbath—closing, and declaring that an exemption for these orthodox would constitute unfair economic advantage).
18. Undeniably, others—Catholics, Gypsies, communists, homosexuals, the mentally handicapped, “untermenschen” all of them— suffered needlessly under Nazi persecution. They too have stories to tell, and demand the respect accorded innocent sufferers. But their story is not mine, and I cannot tell their story.
19. The statement in text should not be interpreted to mean that the Holocaust arrived without a context: Christian persecution of Jews was not invented by the Third Reich. Before Martin Luther provided groundwork for German anti-Semitism, Christians in the Middle Ages and Russians almost forever had periodically and wantonly slain Jews.
20. Borowitz, Eugene B., Liberal Judaism 25–6 (Union Am Hebrew Congregations, 1984).
21. Of course, the orthodox do wear their religious symbols openly; they also tend to live in self-segregated communities.
22. Borowitz, , Liberal Judaism at 58–9 (cited in note 20), notes that there is no Jewish tradition of suffering similar to the Christian symbol of the crucifix. He also states, however, that “[cjovenant means that God demands more of Jews than of other people and punishes them more stringently than others.” Id at 58.
23. Hauerwas, , Against the Nations at 68 (cited in note 2) (summarizing the argument of Berkovits, Eliezer, Faith After the Holocaust (KTAV, 1973)).
24. In a recent essay. Professor Lipstadt describes two features that distinguish the Holocaust from all other occasions of similar brutality: “It is the only time in recorded history that a state tried to destroy an entire people, regardless of … age, sex, location, profession or belief. And it is the only instance in which the perpetrators conducted this genocide for no ostensible material, territorial or political gain.” Lipstadt, Deborah E., Not Facing History; How Not to Teach the Holocaust, The New Rep 26, 28 (03 6, 1995).
Although I am not certain how broadly Professor Lipstadt defines the term “perpetrator,” it is now clear, if it was not before, that many German bankers benefitted financially from the Nazi expropriation of German Jewish businesses and financial holdings in the 1930s. See Nash, Nathaniel C., Files Show Bank Aided Nazi Cause, The NY Times, § A, col 1, at 4 (03 19, 1995).
25. Some of the more heinous incidents of public anti-Semitism in the United States during the first half of this century are recorded by Sachar, Howard Morley, The Course of Modern Jewish History 338–42 (World, 1958).
26. Herberg, Will, Protestant— Catholic—Jew: An Essay in American Religious Sociology 141 (Anchor, Peter Smith rev ed, 1960).
27. Higham, , Stranger in the Land at 95 (cited in note 16). He notes that cultured Americans disavowed the fanaticism.
28. See, for example, Sinclair, Molly, Arab Americans Decry Gulf-related Harassment, Wash Post A16 col 1 (01 28, 1991); see also Golden, Tim, A Recurring Dread That Iraqi Victims May Be Relatives, NY Times A13, col 4 (01 19, 1991).
29. Borowitz, , Liberal Judaism at 4 (cited in note 20).
30. Harris, Lis, Holy Days: The World of a Hasidic Family (Summit Books, 1983).
31. See Gedicks, Frederick Mark, The Religious, the Secular, and the Antithetical, 20 Cap U L Rev 113 (1991).
32. Exceptions do exist and°they are genuinely welcome. See Hartigan, Emily, Surprised by Law, 1993 BYU L Rev 147.
33. See Smith, Separation and the “Secular” (cited in note 9).
34. Perry, Love and Power at 92 (approving the use of Lincolnesque religious imagery in public discourse) (cited in note 12).
35. Carter, , The Culture of Disbelief at 50 (cited in note 8); McConnell, Michael W., Law, Religion and the “Secular” State 39–40 in Proceedings of the Second Annual Symposium of the Constitutional Resource Center (Drake U Law School, 1991).
36. Greenawalt, Religious Convictions (cited in note 7) (defending religious participation but advocating secular language).
37. Audi, Robert, The Separation of Church and State and the Obligations of Citizenship, 18 Phil & Pub Affairs 259 (1989).
38. Sullivan, Kathleen M., Religion and Liberal Democracy, 59 U Chi L Rev 195, 198 (1992), advances a variant of this argument.
39. By revelatory, I mean a proposition that is known by some divine dispensation such as a vision, not a revelation that purports to be accessible to all via reason or science or any other epistemological channel.
40. Smith, , 67 Tex L Rev at 1008–1011 (cited in note 9). In fairness, I am addressing only a small piece of Professor Smith's sophisticated and nuanced position. Suffice it to say that (a) I disagree with most if not all of his normative conclusions and (b) I will be addressing many of his other arguments in subsequent works. For a position compatible with Smith's, see generally Gedicks, Frederick Mark, Some Political Implications of Religious Belief, 4 Notre Dame J Legal Ethics & Pub Pol 419 (1990).
41. Smith, , 67 Tex L Rev at 1010 (cited in note 9).
42. See, for example, Kennedy, Helen and Brown, Laura, Abortion Protesters Defy Cardinal's Request to Stop, The Boston Herald 1 (01 11, 1995) (announcing plans made by pro- and anti-abortion advocates to meet and seek common ground); Frolik, Joe, Demons Fade in Abortion Debate, The Plain Dealer 1C (01 17, 1993); Shirk, Martha, Opponents Begin to Look Beyond Abortion, St. Louis Post-Dispatch ID (07 15, 1990).
43. Rejecting an Establishment Clause attack on restrictions to public abortion funding, the Court wrote: “[T]he fact that the funding restrictions … [may] coincide with religious tenets of the Roman Catholic Church does not, without more, contravene [the Establishment Clause].” Harris v McRae, 448 US 297, 298-99 (1980).
44. I am sincerely and deeply grateful to my colleague Jack Sammons for helping me clarify my own thinking on this, as on other, issues.
45. Marquez, Gabriel Garcia, One Hundred Years of Solitude (Amereon Ltd, 1976).
46. Eliade, Mircea, The Sacred & the Profane: The Nature of Religion 24 (Jovanovich, Harcourt Brace, Smith, Peter ed, 1987).
47. A recent editorial nicely phrased the point: “Religious reasons will not persuade or compel the nonreligious ….[and the] intensity of a conviction, moreover, says nothing about its merit.” Demagoguery in America; Religious Right Attacks President Clinton, The New Rep 7 (08 1, 1994) (editorial).
48. Note that I am in no way declaring a need to purge public discourse of reference to religiously-based arguments. To the contrary, one may be quite advertent about the spiritual or other moral bases of discourse without, for example, using scriptural references of which the other is ignorant (at least without attempting to educate the dialogical partner). There is no question in my mind that an exposure to advertently religiously grounded arguments can be—and very often are—enriching, moving, and a genuine part of what it means to flourish as a human being. See Waldron, Jeremy, Religious Contributions in Public Deliberation, 30 San Diego L Rev 817, 841–42 (1993).
49. Perry, Love and Power (cited in note 12). I reviewed an early version of the text at the Symposium on Law, Religion, and the Public Forum at Capital University Law School in the Fall, 1990. Blumoff, Theodore Y., Disdain for the Lessons of History: Comments on Love and Power, 20 Cap U L Rev 159 (1991).
50. I noted this ambiguity in an early review of Love and Power. See Blumoff, , 20 Cap U L Rev at 171–72 n 59 (cited in note 49). Similar confusion was confronted by Foley, Edward B., Tillich and Camus, Talking Politic, 92 Colum L Rev 954, 962 (1992) (reviewing Love and Power).
51. Perry, , Love and Power at 105–06 (cited in note 12). It is only fair to note at the outset that, regrettably, Professor Perry has altered this view in subsequent works. See text accompanying notes 52, 53.
52. Id at 106. See generally, Gaffney, Edward M. Jr., Politics Without Brackets on Religious Convictions: Michael Perry and Bruce Ackerman on Neutrality, 64 Tulane L Rev 1143 (1990) (concluding that introducing more religion into public life can be done with language accessible to all). It is clear that Professor Perry has changed some of his views about accessibility in later works. See note 51. It is not altogether clear, however, if he has removed the ambiguity about religious language as language, or if he still abides by a limited use of language in public discourse.
53. Perry, , Love and Power at 120 (cited in note 12). On the issue of whether any epistemic differences do typically exist, compare Alexander, Larry, Liberalism, Religion, and the Unity of Epistemology, 30 San Diego L Rev 763 (1993) (concluding that the faithful comes to their religious beliefs … “in exactly the same way as are her beliefs that Washington was the first president, that Kinshasha is the Capital of Zaire, that Maris hit sixty-one home runs, and that the speed of light is a constant.”) with Blumoff, The New Religionists' (cited in note 3) (agreeing with Alexander's conclusion but finding that his conclusion begs the essential question of whether liberalism and religion should be judged by the same standards of truth).
54. Coleman, John, An American Strategic Theology 192 (Paulist Press, 1982).
55. Greenawalt, , Religious Convictions at 90, 180 (cited in note 7) (urging a”common currency of political discourse” to unite members of a democracy).
56. See, especially, Smolin, , 76 Iowa L Rev 1067 (cited in note 14).
57. Perry, Michael J., Religious Morality and Political Choice: Further Thoughts—and Second Thoughts—on Love and Power, 30 San Diego L Rev 703, 709 (1993).
58. In Love and Power, (cited in note 12) Professor Perry came to this same conclusion. I apologize to him now for wrongly criticizing him for just such purported “exclusivity.” In fact, he was on the right track then, and not I. I think we both realize that the problem of incommensurability cannot be theologically based because, although we disagree on a number of issues, we encounter no difficulty translating our respective traditions into secular dialogue.
59. The Halakha is a compilation of rabbinic discussion on Talmudic law. See Telushkin, Rabbi Joseph, Jewish Literacy: The Most Important Things to Know About the Jewish Religion 154–58 (Morrow, 1991).
60. Several colleagues dispute this notion, but having gingerly introduced myself to a middle Georgia audience as a non-Christian educated in part in non-Christian values at a public hearing on sex education in the public school curriculum, I stand by the proposition in text.
61. For an informative discussion of Halakhic bases for Jewish-Christian dialogue resting on pre-Mosaic, Noahide Laws, see Novak, David, Jewish-Christian Dialogue: A Jewish Justifiction (Oxford U Press, 1989).
62. When I completed my first writing in this area several years ago, I sent a copy of it to another Jewish law professor for comments. This person had published many pieces in the area and has continued to do so. After making some comments, he responded in a way I shall never forget. He first suggested that I tone down the “Jewishness” of the piece. In the next paragraph, though, he relayed a recent experience that had an unexpectedly profound effect on him. He had just returned from his first trip to Israel. The trip occurred during Christmas break. He remarked that he was shaken by his reaction to Christmas day in Israel. Of course, Christmas is not a national holiday; in fact, it wasn't a holiday at all and hence there was no public celebration to speak of. It was something, he noted, to be surrounded on this of all days by people who look like you. He felt at home and comfortable. I have refrained from following his advice on this score; and I sense that he might find the experiential incommensurability I describe here somewhat familiar.
63. Wolpe, David J., The Healer of Shattered Hearts: A Jewish View of God 11 (Penguin Books, 1990).
64. Sullivan, Kathleen M., Religion and Liberal Democracy, 59 U Chi L Rev 195, 197 (1992).
65. Id at 198 (rejecting any position that permits religious groups to do direct battle with one another to create the foundation for political policy). In her review of Stephen Carter's work, (see note 8) Sullivan expresses concern that “allowing religions to speak in politics with their distinctive voices might yield irreducible conflict and impasse.” Sullivan, Kathleen M., God as a Lobby, 61 U Chi L Rev 1655, 1669 (1994) (Book Review).
66. Ackerman, Bruce, Why Dialogue? 86 J Philos 5, 10 (1984). ProfessorAckerman, presents an updated version of this argument in Political Liberalisms, 91 J Philos 364 (1994).
67. Id at 16-17.
68. Jocz, Jakob, The Jewish People and Jesus Christ After Auschwitz 14 (Baker House Book, 1981).
69. Bauman, Zygmunt, 27 Society 71 (09/Oct, 1990).
70. Anti-Defamation League, Civil Rights Division, Research and Evaluation Dept., Audit of Anti-Semitic Incidents 1 (1993).
71. See, for example, Rawls, John, The Idea of an Overlapping Consensus, 1 Oxford L Stud 1, 2 (1987).
72. Stout, Jeffrey, Ethics After Babel: The Language of Morals and Their Discontents 212 (Beacon Press, 1988) (italics added).
73. Hitchcock, James, “Church, State, and Moral Values” The Limits of American Pluralism, 44 Law & Contemp Prob 3, 5 (1981) (opining that it is unclear why, in a liberal democracy, religious differences are more inflammatory and potentially disruptive than other differences such as race, gender, etc.).
74. See, for example, Greenawalt, , Religious Convictions at 156–62 (cited in note 7) (citing no authority); Perry, Love and Power, ch 2 (cited in note 12) (citing Greenawalt); Carter, The Culture of Disbelief, ch 2 (cited in note 8) (reciting anecdotes).
75. According to ancient Jewish understanding, resident alien gentiles who accept the seven preexilic commandments of Noah—“the Noahide Laws”—partook of sufficient morality to achieve salvation. See Novak, , Jewish-Christian Dialogue at 26–41 (cited in note 61).
76. See, for example, Higham, Stranger in the Land (cited in note 16); Hofstadter, Richard, Anti-Intellectualism in American Life (Random House, 1966).
77. See Herberg, Will, Judaism and Modern Man: An Interpretation of Jewish Religion 133 (The Jewish Publication Society and Meridian Books, 1959) (“Once we recognize that the whole of life stands under the divine sovereignty, we are unable to consent to the withdrawal of any area from the ultimate concern to which religion bears witness.”); Hauerwas, Stanley and Baxter, Michael, The Kingship of Christ: Why Freedom of “Belief” is Not Enough, 42 DePaul L Rev 107 (1992).
78. Blumoff, , Disdain for the Lessons of History at 184–85 (cited in note 49).
79. Id at 185. The original quote stated the following:
To be a member of any religious community … is to consider oneself chosen in two ways. If we assume the proposition that normal people want self-respect and the minimization of cognitive dissonance, we can conclude that one does not subscribe to the tenets of any particular denomination unless one believes that, at least under the conditions that prevail during membership, that denomination is superior. In this sense, it is the believer's chosen denomination. But it is also chosen in a second sense, namely, in terms of the denomination's [superior] relations with God.
80. It is at least a grisly empirical question whether, as a percentage of the population, more people have given their lives in the name of political ideology than in the name of religious expeditions, including the Crusades, the Thirty Years' War, and so on. It is at least worthy of note, moreover, that Stalin's brutal regime included repression of religion, for fear that religion might undermine his political hold.
81. I do not mean to reduce political ideology to a purely economic function. Having made that statement, I will stand by the historical accuracy of the point in text: When the ideology ceases, at the very least, to facilitate economic functions, it will perish. I do acknowledge, as I must, that many lives can be lost and much excruciating pain inflicted in the time it takes for the dollars and cents to run out.
82. Told by Armstrong, Karen, A History of God: The 4000-Year Quest of Judaism, Christianity and Islam 376 (Alfred A. Knopf, 1993).
83. See, Reynolds v United States, 98 US 145 (1879) (upholding the conviction of a member of the Mormon church for bigamy, then a central tenet of the religion).
84. Brennan, Justice, concurring with the result in Corp. of Presiding Bishop v Amos, 483 US 327 (1987), where the Court upheld the religious employment exception to Title VII's prohibition on employment discrimination, Civil Rights Act, 42 USC § 2000e-1 (1995), noted the inherent potential for chilling a church's religious activities posed by its need to comply with secular law. Fearing that a court may find that an activity is not sufficiently “religious” to obtain an exemption, the church “would have an incentive to characterize as religious only those activities about which there likely would be no dispute, even if it genuinely believed that religious commitment was important in performing other tasks as well.” Id at 343.
85. Tushnet, Mark V., Desegregating “Church” and “Culture,” 42 DePaul L Rev 235 (1992) (“When culture grants … accommodations [to religious groups], it lowers the price we have to pay for our beliefs.”).
86. See Lupu, Ira C., Models of Church-State Interaction and the Strategy of the Religion Clauses, 42 DePaul L Rev 223, 228–30 (1992) (discussing the difficult problems for civil government posed by the religious communities allegiance to a higher sovereign). And for some of us, the commitment may even transcend this problem: for many contemporary American Jews, our religion is who we are, quite apart from and in addition to allegiance to our higher authority. We simply cannot imagine being other than we are; and this is a fact of our life to which we pay indivisible homage.
87. The Court's consistent application of strict scrutiny to issues of intentional race discrimination evidences its awareness of the dark side of our racial history. For example, United States v Carolene Products, 304 US 144, 153 n 4 (1938). Moreover, race, for all the descendants of American slaves, defines life itself. The only distinction I offer in this regard is that unlike religion, whose very theological nature seems to have a dark side, the dark side of race is not inherent in racial difference but in the ignorance of—or in the unwillingness to accept—our basic similarity. Thus, where the struggle against racism involves the recognition of fundamental similarity, the struggle against religious intolerance must overcome the desire for—and necessity of—fundamental dissimilarity.
88. Marshall, William P., The Other Side of Religion, 44 Hast L J 843, 855 (1993).
89. National Public Radio, Oh Freedom Over Me, 06 20, 1994.
90. Stout, , Ethics After Babel at 212 (cited in note 72) (italics added).
91. Sunstein, Cass R., Incompletely Theorized Agreements, 108 Harv L Rev 1733, 1735 (1995).
92. Id at 1736 n 8 (discussing the distinctive feature of his largely descriptive account of incompletely theorized agreements and the Rawlsian strategy). Elsewhere he notes that his “argument… has a great deal to do with the problem of collective choice” generally. Id at 1745.
93. Id at 1743 (italics in the original).
94. Novak, , Jewish-Christian Dialogue at 13 (cited in note 61).
95. Id at 17.
96. This is not to say that these different conceptions might not conduce to very different legislative proposals. Of course, they will. But all this means is that, as always, compromise will be necessary before legislation can be enacted.
97. Retold by Steinberg, Milton, Basic Judaism 12 (Harcourt Brace, D. & Steinberg, J. renewed ed, 1975).
98. Baeck, Leo, The Essence of Judaism 212 (Schocken Books, 1976).
99. Paraphrasing Heschel, Abraham Joshua, A Passion for Truth 35 (Farrar, Strauss and Giroux, 1973).
100. Perry, , 30 San Diego L Rev 703 (cited in note 57).
101. Outka, Gene and Reeder, John P. Jr., eds, The Priority of Democracy to Philosophy 254, 265 (Princeton U Press, 1993).
102. A 1993 estimate put the number of Christian radio stations nationwide at 1200, which the National Religious Broadcasters claimed represented 10% of all radio stations. Weisskopf, Michael, Energized by Pulpit or Passion: “Gospel Grapevine” Displays Strength in Controversy Over Gays in the Military, The Wash Post, Sec A 1 (02 1, 1993).
One might usefully contrast FDR's relationship with American fundamentalists in the 1930s with President Clinton's today. FDR rated them troublesome to dangerous. Leuchtenberg, Compare William E., Franklin D. Roosevelt and the New Deal: 1932-1940, 101-03, 146, 179–84 (Harpers Torchbook, 1963) (discussing Rev. Charles Coughlin and FDR's response to him) with Barnes, Fred, Rev. Bill, The New Rep 10, 11 (01 3, 1994) (noting “Clinton's embrace of evangelicals”).
103. Carter, , The Culture of Disbelief at 54 (cited in note 8) (suggesting that the fact that a number of clergy have become politically prominent “may be a symptom of the problem, not evidence of [the] existence” of religion in public discourse) and id at 70 (arguing that a problem occurs “when one's theology always ends up squaring with one's politics … [because then] there is reason to suspect that far from trying to discern God's will and follow it in the world, the political preacher is first deciding what path to take in the world and then looking for evidence that God agrees”). Professor Carter's general reaction to Fundamentalists comes clear in Carter, Stephen, Let us Pray, The New Yorker 60 (12 5, 1994).
104. It is on this very question that Professor Carter's arguments fall apart. He acknowledges that even political preachers, whose conduct he describes as “trivializing” religion, Carter, , The Culture of Disbelief at 45 (cited in note 8), are probably “sincere” in their belief that the issues they champion in public follow from their belief system. Id at 69-70. But in his discussion of Edwards v Aguillard, 482 US 578 (1987), where the Court struck Louisiana's creationism act because of impermissible legislative motive, he writes that “[for] the religiously devout citizen, faith may be so intertwined with personality that it is impossible to tell when one is acting, or not acting, from religious motive—and this is certainly true for legislators.” Id at 111. The upshot is he would condemn political preachers for trivializing religion despite their inability to determine (a) when they are or are not acting front religious motives and (b) what is or is not in the best interest of religion. Perhaps Professor Carter knows who the charlatans are, and if so he should broadcast it. It does strikes me, however, as a peculiarly God-like act to reproach those who sincerely believe that they are carrying out God's will.
105. Employ. Division, Dept. of Human Resources of Oregon v Smith, 494 US 872 (1990). That the critics find fault with Smith, despite its strong statement in favor of public religious discourse, is a curiosity I examine in a work-in-progress. The same goes for competition among the sacred and profane for state university funding. See Rosenberger v Rectors and Visitors of the University of Virginia, 115 S Ct 2510 (1995).
106. Church of Lukumi Babalu Aye v City of Hialeah, 113 S Ct 2217 (1993).
107. Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v Amos, 483 US 327 (1987).
108. Board of Educ. of Kiryas Joel Village School Dist. v Grumet, 114 S Ct 2481 (1994).
109. Smith, 494 US at 890.
110. See, for example, Larson v Valente, 456 US 228, 244 (1992) (The act in question violates “the clearest command of the Establishment Clause… [that] one religious denomination cannot be officially preferred over another.”); Everson v Bd. of Educ, 330 US 1, 15 (1946) (“Neither [a State nor the Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another.”).
111. See, for example, Smith, 494 US at 890 (declaring that “leaving accommodation to the political process will place at a relative disadvantage those religion practices that are not widely engaged in [is an] unavoidable consequence of democratic government”); Lynch v Donnelly, 465 US 668 (1984) (rejecting a claim that the city's sponsorship of a creche within its Christmas display violates the Establishment Clause). In County of Allegheny v ACLU 492 US 573 (1989), the Court upheld the public display of a Menorah and Christmas tree as part of a city's “Salute to Liberty” exhibit. At least one commentator would view this type of result as evidence of the (unfortunate) triumph of religious equality. Conkle, Daniel O., Different Religions, Different Politics: Evaluating The Role of Competing Religious Traditions in American Politics and Law, 10 J Law & Relig 1 (1993–1994). Professor Conkle presents a thoughtful analysis, but if he is correct on this equality conclusion, it does not undermine the conclusion in text. After all, “equality” of treatment cost the Native Americans their jobs in Smith and their holy lands in Lyng v Northwest Indian Cemetery Protection Assoc., 485 US 439 (1988). Thus, equality in a society dominated by a Protestant mainstream and a strong, well funded Catholic church may not prove a very comforting ally for minority religions. Treating similarly those who are dissimilarly situated with respect to access to power is problematic. Support for the Conkle thesis is found in two recent decisions of the Court. See Rosenberger v Rectors and Visitors of U of Virginia, 115 S Ct 2510 (1995); Capitol Square Rev. and Advisory Bd v Pinette, 115 S Ct 2440 (1995). I am reviewing these two decisions in a short work titled, The New Establishment Clause Jurisprudence of Disclaimer.
112. See Judas, John B., Crosses to Bear: The Many Faces of the Religious Right, The New Republic 21 (09 12, 1994) (arguing in part that the narrowness of the Religious Right's positions limit their appeal).
113. Id at 23-24 (noting that some have moved beyond “stealth”).
114. Everson 330 US at 1, 15 (1947).
115. Lemon v Kurtzman, 403 US 602 (1971).
116. See Foley, , 92 Colum L Rev at 957–58 (cited in note 50) (rehearsing the argument of Greenawalt, Religious Conviction and Political Choice (cited in note 7) who counsels a minimalist approach to the use of religious discourse in public policy formation).
117. A third, weaker principle, calling for a secular rationale, is identical to the motivational principle, except that one need not be actually motivated by the secular rationale offered. In light of the requirement of actual motivation in the motivational principle, it is difficult to see what the secular rationale principle adds.
118. Audi, , 18 Phil & Pub Affairs at 274 (cited in note 37).
119. Audi, Robert, Religious Commitment and Secular Reason: A Reply to Professor Weithman, 20 Phil & Pub Affairs 66, 70 (1991) (opining that the neutrality principle protects the church from “dilution of the clergy's religious function”).
120. Id at 284.
121. My implicit sympathy with his position is suggested by the third piece of the project of which this essay is a part. It bears the working title The Diplomacy of Liberalism.
122. From Winthrop's, John shipboard sermon, “A Modell of Christian Charity,” quoted in Miller, Perry, Errand Into the Wilderness 5 (Belknap Press, 1956). The story is told with enduring clarity and accessibility by Morgan, Edmund S., The Puritan Dilemma: The Life of John Winthrop (Harpers, 1958).
123. de Tocqueville, Alexis, Democracy in America 48 (Mentor, ed, 1956).
124. A fascinating piece of this story is told by LaFeber, Walter, The New Empire: An Interpretation of American Expansion, 1860-1898 ch 8 (Cornell U Press, 1963) (discussing the role of Protestant clergy in the build up of American military power).
125. I have intentionally omitted several examples most often given to illustrate this point: the anti-slavery movement before the Civil War, the temperance movement, and the civil rights movement of the post-War era. See Brennan's, Justice powerful concurring opinion in McDaniel v Paty, 435 US 618, 641 & n 25 (1978) (Brennan concurring).
126. Carter, , The Culture of Disbelief at 97–101 (cited in note 8).
127. Lesly, Elizabeth and Beard, Elliott, Pennies From Heaven; It's Time for Uncle Sam to Pass the Collection Plate, 23 Wash Monthly 1 (04, 1991). As one commentator notes, “What is striking about the contemporary era, … is the extent to which religious engagement, across the theological and ideological spectrum, is institutionalized into national lobbying organizations. In 1950 there were only sixteen major religious lobbies in Washington representing fairly narrow concerns. By 1985 there were at least eighty and the list is growing.” Hertzke, Allen D., The Role of Religious Lobbies, in Dunn, Charles W., ed, Religion in American Politics 123 (Congressional Quarterly, 1989).
128. Audi, , 20 Phil & Pub Affairs at 66 (cited in note 119).
129. Heschel, , A Passion for Truth at 87 (cited in note 99).
130. Wolpe, , The Healer of Shattered Hearts at 7 (cited in note 63) (quoting Rav Kook, a twentieth-century Rabbi and mystic).
* B.S., A.M., Ph.D., J.D. Visiting Professor of Law and Visiting Fellow in the Program in Law and Religion, Emory University Law School, and Visiting Scholar at the Candler School of Theology, Emory University, Fall 1995. Professor of Law, Mercer University School of Law. Friends and colleagues have provided valuable comments on earlier drafts of this work and other parts of this project for which I am truly grateful. They include Robert Audi, Michael Broyde, Joseph Claxton, Dan Edwards, Emily Hartigan, Kurt Lash, Harold Lewis, William Marshall, Sheldon Nahmod, Michael Perry, David Oedel, Jack Sammons, Melvyn Tarnopol, Sidney Watson and John Witte. I have presented portions of this work in two forums: at a Mercer Law School Faculty Colloquium and in a Faculty Colloquium at the Program in Law and Religion at Emory University School of Law, both in the Fall, 1995. I sincerely appreciate the many helpful and meaningful responses I received. I have had tremendous research assistance on this project from Diane Flynn (Class of 1996). Finally, I wish to thank Interim Dean Dick Creswell who has provided generous financial support and made time available to pursue my larger project.
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