Paul L. Caron
Dean




Sunday, October 17, 2021

Garnett: Revisiting The 'Separation Of Church And State' In Our Time Of Deep Division

Richard Garnett (Notre Dame), Revisiting the "Separation of Church and State" in Our Time of Deep Division:

Religious freedom, I believe, is a fundamental human right. Religious freedom does not matter because the Constitution protects it; instead, the Constitution (like modern human-rights law) protects it because religious freedom matters. It is not a gift from the government; it is a limit on the government. Every person, because he or she is a person, has the right to religious liberty—to embrace, or to reject, religious faith, traditions, practices, and communities. This freedom is enjoyed by, and is important to, religious believers and nonbelievers alike. Religious freedom, protected through law, helps both individuals and communities to flourish. It protects the “private” conscience and also promotes the “public,” common good. Religious or not, devout or not, we all have a stake in the religious-liberty project, and in the success of what Thomas Jefferson called our First Amendment’s “fair” and “novel” experiment.

Now, it is true that religious freedom is sometimes inconvenient for overreaching governments. Sometimes, it comes at a cost. Sometimes, it benefits people we think are just weird. Sometimes, it is abused. The same is true, of course, of other constitutional rights, like the right to be free from unreasonable searches, or the right to remain silent, or the right to protest and dissent. Legal and constitutional protections for fundamental human rights are sometimes inefficient; they sometimes get in the way. That our fellow citizens have constitutional and other legal rights means, sometimes, that we have to tolerate a lot of speech and action that we don’t like, that we disagree with, that irritates us, and that offends us. Religious freedom and free speech mean, necessarily, that there will be dissent, and dissenters. After all, if everyone agrees, these freedoms are unnecessary. A premise of our Constitution, though, is that—all things considered—they are worth it. ...

Aristotle was right: We are “political animals.” By this he meant that it is part of our nature to “do politics,” to gather in communities and around shared values, to pursue common goods and goals, to take care of each other. In this way, we also take care of ourselves. We are also, many of us believe, creatures made in the image and likeness of God. We are also, many of us think, “hard wired” to search for, and cling to, the transcendent, and to a truth about what it means to be human. On this view, part of what it means to be human is to be both “religious” (broadly understood) and “political.” Of course, this view might be wrong. Certainly, many people reject it. But, nothing about the Constitution of the United States requires us to reject it. And, nothing in America’s tradition of church-state “separation” requires those who do hold this view to accept dis-integration as the “price of admission” to public life.

To be clear, we wisely distinguish, or “separate,” religious and political authority. This is what the “separation of church and state” is supposed to mean. Those who drafted and debated our Constitution knew what a coercive national “establishment” of religion looked like—they knew about situations where kings picked bishops and bureaucrats were in charge of liturgy and prayer—and they knew they did not want one. (Now, many of them were comfortable with what John Adams called “mild and equitable establishments” at the state level, but that is a topic for another day.) They did not, however, believe that it was necessary—or even possible—to build a high “wall of separation” between “faith” and “public life.” They emphasized, again, the distinction between “religious” and “political” authority, while respecting the proper place and role of both. They did this—as James Madison famously and eloquently argued—not to cage “religion” or enclose it behind a “wall” but instead to protect religious freedom, which includes the freedom to build and live an integrated, balanced, public life.

https://taxprof.typepad.com/taxprof_blog/2021/10/garnett-revisiting-the-separation-of-church-and-state-in-our-time-of-deep-division.html

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