Noah Feldman, Divided by God: Too Mushy-Middle?

Many thinkers and activists have been asking themselves that question, and at the radical middle, two distinct answers to the church-state problem are being offered now.

One is top-down, the other bottom-up; and, as so often happens, the top-down answer is the best worked-out and is being given the most ink.

The top-down answer: Symbols yes, funding no

Law professor Noah Feldman’s recent book Divided by God may be the most influential text on church-state relations in years. It was adapted at great length in the New York Times Magazine and it’s garnered exceptional reviews (see RE:SOURCES section at the end of this article).

It is wonderfully written, and the author knows his subject through hard-won experience -- he was raised as an Orthodox Jew, and he recently served as advisor on mosque-state issues (and other issues) during the constitution-writing process in Iraq.

“Is there a third way that could produce reconciliation between . . . evangelicals and secularists?” Feldman asks. He answers in the affirmative, and his answer is admirably concrete:

“I suggest that we should permit and tolerate symbolic invocation of religious values and inclusive displays of religion while rigorously protecting the financial and organizational separation of religious institutions from institutions of government.”

In other words, a moment of silence for prayer or spiritual reflection in the public schools should be permitted again -- but government funding of even secular textbooks for private religious schools should be forbidden again.

Making the case for compromise

The most compelling part of Feldman’s book is the way he makes his case -- by looking at U.S. history.

He shows that we’ve always been fighting over church-state issues. Every lasting “solution” was essentially a compromise . . . to be followed by an increase in ethnic and religious diversity . . . to be followed by another workable compromise.

For example, the “liberty of conscience” preached by the Founding Fathers (itself a compromise meant to protect religious dissenters against compelled taxation to support religious teachings) became less relevant as the U.S. became a vast sea of competing largely Christian sects in the 19th century.

Enter “nonsectarian Christianity” as the basis for a common morality that was taught in schools and encouraged in the public square.

Jewish immigration helped precipitate the dominant approach to church-state issues in the mid-20th-century -- what Feldman calls “legal secularism” and groups like the ACLU call maintaining a strict “wall of separation” between church and state. But as Feldman’s book makes clear, a strict wall of separation is not required by the Constitution.

Strongly religious people are making that point now -- Feldman calls them “values evangelicals” because they’re trying to carry their religious morality and values into public institutions.

But neither legal secularists nor values evangelicals may be relevant any more, says Feldman, since our ethnic and religious makeup is changing once again.

We are no longer a so-called Judeo-Christian nation.

We are becoming extraordinarily religiously diverse -- not only are Christian and Jewish belief systems metastasizing but Muslim, Hindu, Buddhist, spiritual / New Age, agnostic-humanist, and other so-called “minority” belief systems are all gaining traction now.

That’s why Feldman feels we need a new Grand Compromise.

The Grand Compromise revealed

In a nation where personal belief systems matter so deeply to so many of us (Feldman says), we can’t shut their expression out of the public square -- we just can’t -- if we want the American people to feel they’re full participants in the nation. Therefore, so long as the various belief systems aren’t "coercing" anyone, he’d permit much more public religious / spiritual expression than the Supreme Court does now.

At the same time, though, in a nation with so many competing belief systems, Feldman thinks you’re creating a tinderbox if you let them compete for government funding for their projects. So he’d stop all government funding of all faith-based schools, hospitals, social services, etc.

Ironically, although Feldman is no constitutional “originalist” like Robert Bork, his Grand Compromise -- public expression yes, funding no -- harks back to that of the Constitution’s Framers. It’s the polar opposite of the Supreme Court’s current position, which Justice Sandra Day O’Connor, in particular, spent much of her Court life forging.

Problems with the Grand Compromise

Like many top-down solutions to social problems, Feldman’s Grand Compromise works better on paper than it would in real life.

The American people is becoming as religiously diverse as he claims. Stifling our public religious / spiritual expression does make it difficult for us to share ourselves with our fellow citizens and build bonds with them. Feldman is right about that.

But unless we want the federal government to control more and more of our lives (and many faith-based services to decline), we must continue to provide public assistance to faith- or spiritually-based schools, hospitals, and social services.

Also, some of our faith groups (e.g., Catholic, Lutheran) operate many more institutions than others. Feldman’s “solution” would therefore penalize certain faith groups more than others.

Finally, it is beyond dispute that many faith- or spiritually-based enterprises are more rigorous, more competent, and / or more creative than many comparable government enterprises. In the U.S. today we cannot afford to radically diminish some of our most successful institutions because they’re staffed by Americans who love God or life in identifiable ways!

Ultimately, Feldman’s solution -- so elegant on paper -- fails because it fails to address the underlying issue.

The underlying issue today (it seems to me) is not that Americans hold different faith- or non-faith belief systems. It is that there’s increasingly less trust among different kinds of Americans.

And that is in large part because we appear to hold increasingly less in common.

A true solution to the church-state problem, then, might permit both much more public religious-spiritual expression AND much more expenditure on religiously or spiritually identified nonprofit institutions . . . but ONLY after the American people has worked out a common value system for the 21st century.

As Feldman makes clear, we inherited a common value system without even trying in the 18th century -- because of our common Christian heritage.

But today, “we are the world” -- virtually every religious and spiritual perspective is here . . . and is becoming increasingly articulate each year!

Before we can have enough social trust to permit public symbolic expression of identifiable religious-spiritual beliefs and increased public funding of identifiable religious-spiritual institutions, we need to know that -- beneath all -- we are One People.

We have not felt that way for quite some time. Hence our church-state “problem.” Hence our democracy “problem,” too (see HERE).

The bottom-up answer: Adopt common values!

Over the last 15 years or so, quite a few thinkers and activists have tried to articulate values that the American people could adopt (or re-adopt) as their common values.

Some quick examples:

-- Evolutionary biologist Edward O. Wilson suggests an ethic of “honorable” self-restraint -- an attitude of care and humility -- toward the natural world (The Creation, 2006)

-- Literature professor and Solidarity Tucson support-group founder John McElroy suggests 25 beliefs, including three “primary” ones: “Everyone must work," “Persons must benefit from their work," and “Manual work is respectable” (American Beliefs, rev. 2000)

-- Former Republican Senator Jack Danforth suggests at least three principles, all having to do with process: “no one should presume to embody God’s truth, including ourselves," “we should pursue [our political programs] with humility," and “God’s truth is expansive enough to embrace conflicting opinions, even on hot-button issues” (Faith and Politics, 2006)

-- Communitarian thinker Amitai Etzioni suggests at least three “core values”: democracy, individual rights, and “mutual respect among [all] subgroups” (The Spirit of Community, 1993)

-- Former Amway President Dick DeVos suggests 24 values, including fairness, initiative, education, brotherhood, forgiveness, and service (Rediscovering American Values, 1997)

-- Former President Jimmy Carter suggests at least six values: preserving peace for ourselves and others, promoting economic and social justice, promoting global freedom and human rights, protecting the quality of the environment, alleviating human suffering, and cooperating with other peoples to achieve those values (Our Endangered Values, 2005).

-- Former Reagan cabinet member William Bennett suggests 10 key “virtues”: self-discipline, compassion, responsibility, friendship, work, courage, perseverance, honesty, loyalty, and faith (The Book of Virtues, 1993).

-- The Reuniting America group, discussed HERE, has been polling its 2006 conference invitees on “the values that we need to reunite us as Americans.” Top results so far (in order of finish): integrity, mutual respect, individual responsibility, trust, freedom.

The holistic end

One thing that stands out about these values, beliefs, and principles is that they’re consistent with all of our religious and spiritual and humanistic faiths.

In other words, in 21st century America, religious and secular values do not substantially differ. The clash between them is a hangover from history (which certain people love to continue to act out for their own selfish benefit). It is not an accurate description of today's reality.

In today's new context, we don't need Feldman's carefully constructed and elegantly argued Grand Compromise. We need a Grand Endeavor instead -- an attempt to forge an American identity for the 21st century by articulating (and, somehow, publicly ratifying) a set of socially shared values.

Where is the political party or organization that has the imagination to attempt this?

As Americans with common values, we’d be happy to encounter each others’ public religious / spiritual / humanistic expressions . . . because we'd be endlessly delighted to see who's here! And we’d be happy to spend public money on each other’s most coveted religious / spiritual / humanistic institutions, so long as it’s clear that they’re serving and benefiting us all.

That is what happens when a people becomes One.

RE:SOURCES

For some major positive reviews of Feldman’s book, see E.J. Dionne Jr., “American Spirit,” Washington Post (July 10, 2005); Michelle Goldberg, “One Nation, Divisible,” Salon.com (July 23, 2005); and Alan Wolfe, “The State of the Church-State Debate,” Slate.com (August 1, 2005).

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