Two Questions for the Establishment Clause

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Kenneth Townsend

In different ways, Noah Feldman and William Marshall critique the received liberal wisdom concerning Establishment Clause jurisprudence.  Feldman argues that we should adopt the “no money, no coercion” principle of the Founders.  This means the government should reduce religious groups’ access to public funds through faith-based social service or school voucher programs, but become more tolerant of symbolic, non-coercive public endorsements of religion, such as Ten Commandments displays.  Meanwhile, after surveying the values and shortcomings of secularism, Marshall concludes that government should allow religious groups to receive funding, under certain conditions, but should be diligent in preventing new public endorsements of religion.

Two important practical questions emerge from these pieces.  First, to what extent, if any, should religious groups who perform social services be eligible for public funds?  Second, how should we understand the relationship between symbolic endorsement of religion and coercion?

To my mind, Marshall offers a more compelling answer to the funding question.  There is no reason to think that the Founders’ “no money” admonition was meant to put religious groups at a disadvantage compared to non-religious groups.  As Feldman acknowledges, the Founders feared that taxation for religious purposes violated the conscience of those who believed differently.  But, in a modern welfare state in which taxes fund a wide range of controversial ethical and economic endeavors, equal treatment should guard against religious groups being uniquely excluded from funding.  Feldman recognizes that these changed circumstances might lead us to reach different conclusions than the Founders, but he suggests we should, nevertheless, avoid funding religious organizations because competition for the government’s largesse is likely to result in political polarization.  It is far from certain, however, that excluding faith-based groups altogether will not simply lead to political polarization of a different sort.

Marshall rightly notes that, as long as religious groups are not exempted from generally applicable regulations, and as long as state funding does not go to purely religious activity, there does not appear to be any constitutional problem with government funding religious groups that perform public functions.  President Obama seems to agree.

The most relevant question for the symbolism debate is whether or not the state can be effectively neutral between competing conceptions of the good.  If one believes there is a neutral space the government can occupy, then all public symbolic endorsement of religion should be avoided.  If public endorsement of religion persists, even though a neutral alternative exists, it is reasonable to suspect coercive intentions are at work.  If we conclude, however, that the government cannot be genuinely neutral, there seems no principled way to exclude only religious symbols from the public sphere.  To do so, as Feldman observes, is to discriminate against religious perspectives in favor of non-religious ones. 

Marshall is at least as effective as Feldman in diagnosing the shortcomings of secular neutrality, but his greater concern over the coercive potential of religious symbols leads him to conclude that government should not endorse religion, unless the endorsement is part of a benign and longstanding tradition.  Marshall’s conclusion might seem practically appealing, but his distinction between old and new religious symbolism is problematic.  If the state cannot be neutral, which Marshall concedes, why should religious groups who seek public endorsement be denied the same opportunities available to non-religious groups?  Marshall understandably worries about the coercion that could result if certain religious groups capture government interests and then exclude other perspectives, but he fails to appreciate fully that symbolic endorsement, unlike public funding, is not always a zero-sum game.  Whether enacting a local holiday, hanging a plaque at the courthouse, or displaying an exhibit at a public mall, there are many creative ways for the state to endorse religious symbols without it resulting in chaos or coercion.

The good news here is that we, as progressives, can be friendly to religion without compromising our core principles.  In fact, strict secularism, of the sort Marshall and Feldman dismiss, runs counter to progressive values of equal treatment and respect.  In a happy coincidence, the current political climate is a hospitable one for progressives who are open to religion.  We should embrace this political reality with the knowledge that our constitutional and philosophical principles are safe.