Culture Wars The Struggle to Define America by James Davison Hunter (z-lib.org)

254	THE FIELDS OF CONFLICT

root of this case was whether churches have a right to speak out on moral issues in the political realm without endangering their tax-exempt status.9 The group Abortion Rights Mobilization argued that the exemption provided the Catholic Church with an unfair subsidy for partisan political activity in the abortion dispute. In this case, as in many others, it makes a critical difference who wins. Those who define how a contest is to be played out will have an upper hand in shaping its final outcome. It is no surprise, then, that the struggle to define those rules has escalated and intensified.

The battle over the rules by which contending alliances work out their differences shows how the struggle for definition has shifted to the substance of law and the judiciary. The single best measure of this, I would contend, is the multiplying number of court cases dealing with the relationship between church and state in America. The Supreme Court cases dealing·with the meaning of the First Amendment religion clauses were very rare prior to the 1870s. By the middle of the twentieth century the ten-year average number of church and state cases had increased to nineteen (between 1937 and 1946). By the years 1977-86, the number had nearly doubled to thirty-five. 10 In sum, at the Supreme Court level, the first three-fourths of America's history as a nation witnessed only one-fourth of the religion cases while the last fourth of American history has witnessed three-fourths of the religion cases. The same pattern in church and state litigation is seen in lower federal courts and in state courts. There has been explosive growth: now the cases number in the thousands. 11

The Technical Issue

The numbers are impressive but the basic question lingers unanswered: what bearing do church and state disagreements have on the struggle to determine the procedures of public disagreement? How are the first sixteen words of the First Amendment-"Congress shall make no law respecting an establishment of religion nor prohibiting the free exercise thereof'-relevant to the contemporary culture war? Why is this part of the Constitution the center of legal controversy? The answer is in part sociological: articulating the rights and responsibilities of religion (in a strictly traditional and institutional sense) is not what the religion Clauses are all about. The religion cI:mses articulate something that is broader and ·more generic, namely, the interrelationship between the

LAW

255

convictions of consciousness, the autonomy of belief and belief systems, and the powers and prerogatives of the state. "Free exercise" means the protection under the law to live and worship according to the dictates of conscience. But are there limits to what the state will accept as permissible? If so, what are the limits and how do those limits change? Likewise, the "no establishment" provision means that the state will not link its interests with the interests of a particular faith, that it will be as neutral as pos- sible-but is "neutrality" really achievable? If not, on which side should the state err? It is in the subtle vagaries in the interpretation of these clauses that the interests of different ideological contenders can either be enhanced or diminished.

This entire issue can be addressed by way of exploring (1) the opposing ways in which "religion" is defined by the courts and (2) the opposing ideals of the proper relationship between church and state. The questions may seem esoteric and beside the point, yet' we will see that they are of decisive significance.

Defining Religion

To understand how the legal definition of religion has come to be contested, it is first necessary to sketch out the ways in which the courts have implicitly conceptualized religion. For this task it is useful to refer to the analytical tools of the social sciences. Although these definitions have never been explicitly invoked by the courts, it is clear that the courts operate within a framework that is laid out by'the social sciences.

Social Scientific Definitions of Religion

For all practical purposes, social science offers two approaches to the definition of religion: the substantive approach and the functional approach. Both definitional approaches emerge out of respected intellectual traditions, but the analytical differences are marked. 12 Those who adopt the substantive model argue that religion should be defined by what it is-that is, by the "meaning contents of the phenomenon;" Those who favor the functional model maintain that religion should be defined according to what it does.

In the substantive approach the differentia is thf! category of the "sacred" or the "holy." Yet the sacred, from this perspective, has afairly

256 THE FIELDS OF CONFLICT

specific meaning. The sacred is the realm of the supramundane or the transcendent-what Rudolf Otto called the mysterium tremendum. As such it is a reality that humans experience as "wholly other," for it evokes feelings of ineffable wonder and awe. Religion, then, is the meaning system that emanates from the sacred.

Again, what distinguishes functional approaches to religion is ,!he conc6fl for what it does jts role &Rd moseguences for jndjyidual !,!id social existence. For the individual. religion proyjdes "mad maps {Qt the soul" a liieailmg system offering a sense of purpose and meaning to the life course, a stable set of moral coordinates to guide everyday life as well as mechanisms to help the individual cope with the traumatic experiences of suffering, pain, and death. At the societal level, religion

functions to justify institutional arran		ements, t eh eneratin	l
i	rabon or m arx1st termmo	"timatin the
this level, re i ion can also perform a prophetic function, delegitima			g

the status quo and calling for the establishment of a new social ordei) From this perspective, religion is also defined by the sacred but the sacred in this case could be any ultimate value or any orienting principle adhered to by a social group.13

Although analytically distinct, these approaches clearly are not mutually exclusive. The substantive approach recognizes the functionality of religion and the functional approach recognizes the special qualities of the supernatural. Nevertheless, both approaches carry different an-

alytical consequences. Gen Uy the substantive model					·	·		i ·on
to the range of traditional theisms:			u	"sm C · ianit	, Islam			Hin-
'	· o on.	he unctlonal model is more inclusive. B					defining
·	to its soc1a		n	reli "on has becom	l	r	el	s n-
us	with such	terms as cu tural s stem, belief s stem,

LAW

257

the profoundly religious nature of these phenomena and employ these terms to describe them.

It is within these parameters that American jurisprudence has sought to define religion. Yet the task of defining religion for legal purposes has not been a systematic process but one that has. evolved from case to case with different judges.

Legal Definitions

It ~as not until the 1870s that the Supreme Court took up the question of the nature of religion spoken of in the First Amendment. From this time through the end of the nineteenth century and well into the twentieth century the courts defined religion in strictly substantive terms-religion referred to theistic notions of divinity, morality, and worship. 14 In i890, for example, the Supreme Court Justices held that "the term 'religion' has reference to one's view of his relations to his Creator, and to the obligations they impose for reverence for his being and character, and of obedience to his will." 15

The reason for adopting this restricte.d approach was simple. As Justice David Brewer wrote for the majority opinion in Church ofthe Holy Trinity v. United States (1892), "Our civilization and our institutions are emphatically Christiart.... From the discovery of this continent to the present hour, there is a single voice making this affirmation. ; . that this is a Christian nation."16 Thus it was entirely understandable that in the cases dealing with the legality of Mormon polygamy, the Justices would legitimate their decision of opposition by referencing "the consent of the Christian world in modern times."17

Forty years later, the courts again approached the problem of defining religion and the s.trict substantive approach was again affirmed. The case was United States v. Macintosh, a case dealing with a Canadian immigrant and professor in the Yale Divinity School who was denied citizenship because he refused to agree to bear arms unless he were first allowed to decide whether the war was "morally justified." There, in the course of its decision, the Supreme Court maintained that

the essence of religion is belief in a relation to God involving duties superior to--those arising from any human relation.... One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will of God. 18

258 THE FIELDS OF CONFLICT

The assumption of a Christian nation was absent from the definition but the theistic meaning was emphatically not.

Not long after this decision, however, the courts began to. expand their approach. The first indication of this came in 1941 when afederal court of appeals was presented with .a case involving a conscientious objecfor. The individual, Mathias Kauten, sought exemption from mil- itary service because he maintained that such service would be in violation of his "religious conscience." The legal difficulty posed by his argument was that he openly admitted that his objection was not rooted in a "belief in a deity." Nevertheless, the court ruled in Kauten's favor, in part through a broadened definition of religion. As the court put it,

Religious belief arises from a sense of the inadequacy of reason as a means of relating the individual to his fellow men and to his universe-a sense common to men in the most primitive and t!ie most highly civilized societies.... It is a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets.... Conscientious objection may justly be regarded as a response of the individual to· an inward mentor, call it conscience or God, that is for many persons at the present time the equivalent of what has always been thought a religious impulse. 19

The significance of the decision was that it a~ed the central reference point in the legal understanding of religion~~ere the reference point

rev·	been the nature of belief (in a dlvfn.e bein ), it was now
the s	olo ·cal function of belie	Withm four years the Supreme
Court affirmed this position when ·		eld that courts could not consider

the truth of particular creeds or. tenets, only the sincerity with which individuals adhered to their creed.20

The shift toward a functional definition of religion was affirmed yet again in the early 1960s. In 1961, for example, the Supreme Court.struck down an old Maryland statute requiring all public employees to declare their. belief in God. The case was Torcaso v. Watkins and it involved a postal worker who was unwilling to make the declaration because it violated his freedom of belief. The Court agreed, stating that Maryland law-had also violated the no-elitablishment clause of the First Amendment because it put "the power and authority of the State of Maryland ... on the side of one particular sort of believers-those who are willing to say they believe 'in the existence of God.' "21 It further maintained that

LAW

259

"neither the State nor the Federal Government can constitutionally aid all religions as against non-believers, and .neither can aid those religions ba~ed on a belief in the existence of God as against those religions founded on different beliefs."22 Of "those religions founded on different beliefs~' it explicitly mentioned the Eastern religious faiths of Buddhism and Taoism, but also the functional equivalents, e · l cultu d secular hµmanism.

~ case involving conscientious objectors in 1965, the Supreme Court again affirmed the functional approach. Until this time the Selective Service Act of 1948 only granted exemptions to objectors whose religion was directly related to their belief in a Supreme Being. The Court concluded that the words "belief in a Supreme Being" could be construed as a "belief that is sincere and meaningful [and] occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption."23 In formulating this opinion, the Court referred to the work of Paul Tillich who·defined the essence of religion n'ot as a belief in God so much as an "ultimate concern,'' what individuals consider to be the depth of their lives, what they take seriously without reservation. In this light the Justices concluded that religion_could be defined as all sincere beliefs "based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent."24

With this series of decisions the constitutional definition of religion had expanded in a way that largely paralleled an increasingly inclusive pluralism in America. Its chief effect was to formally embrace nonthe.istic and, in particular, secularistic ideologies within the shelter of protection provided by the First Amendment religion clauses. On the surface the justification was both obvious and unassuming. The framers of the Bill of Rights just had not anticipated an America in which religious faith (and nonfaith) was so diversified, and where that diversity was so prominent. Therefore the courts were simply making constitutional adjustments that would serve the interests of a broader justice. As true as this may have been, the net effect carried several, then unforeseen, complications.

To this point, the functional defj.pition of religion had been applied only to the free exercise clause. It haci not been applied to the clause prohibiting the establishment of religion or religious faith. But the language of the First Amendment makes it clear that rights also carry restrictions. Irr order to be consistent the courts would eventually have

260 THE FIELDS OF CONFLICT

to apply a functional definition to the establishment clause as well. But

this would mean that sec!!lari§tic fajths and ideologies would alSo be
......	Cd from receiving support from the ''?Ce IA aAci&pati9A gfthi,'I,
prolitb
so~constitutional scholars have o enl re·ected the ssibilit			, a	ing
or a	ou	e stan ard"-a functional definition for free exercise		ur-
po~ (m or		er to protect "the multiplying forms of recognizably ls:gjl-
imate religious exercise") and a substantive definition for esta			·	ment
( . urposes.		Witbgut a double §tandarda.. as I awrence Tribe reasm!ed,

•...e.veryhumciiie government promm ro!!)d then be "deemed cor.istitu~ ~t."26 Other constitutional scholars have dissented from this, arguing that public justice can really be served only if the rights and restrictions imposed on theistic faiths are also imposed upon "nontheistic faiths."27 Besides, this recognition has been the practice in many. European countries for decades.

A Question of Interests

How religion is defined by the legal establishment is not merely a matter of academic curiosity but an issue linked directly and practically to the interests of opposing sides of the contemporary cultural conflict. It was clearly in the interests of progressives (and secular progressives in particular) for the courts to recognize a broader functional definition of religion in the early 1960s,. for it guaranteed rights that had not previously or (at least formally) been recognized. These court decisions represented a significant ac,hievement for secularist organizations and intellectuals who had been working for nearly three decades to have humanism recognized as a religion or at least as a functional equivalent of a religion.28 At the same time a functional definition was counter to the interests of the religiously orthodox (and the Evangelicals in particular), for the broader definition challenged Protestantism's de facto favored status in American law, education, and cultural mythology.

~is point the application .of tbe "functional test" to the free

exercise cl	·	accomplished realit . Its a lication t	establishment
c s howev		ot yet een determined. But here a	ai

interests would bC served by the different pessible etttS811:1CL: n fact the

1'i'itCrCsts in the establishment cases are precisel the		ite o	at
th	t e courts were to employ a func-
tional definition of religion for	blishment purposes it would serve

the interests of the orthodox, because it would ensure that secular values

LAW

261

and ideals would never be favored by the state over transcendent values and ideals. If, however, the courts employ a substantive definition of religion (and thus maintain a double standard), progressivist interests could be served for it would mean that secular ideologies and ideologies similarly aligned would be supported by the sta,te and not be legally challenged.Just as the interests of the Protestant establishment had been implicitly linked with the power of the state through the nineteenth and early twentieth centuries, so too the interests of a secular establishment would also be linked.

The scenario is not merely hypothetical. A widely publicized test of this came in the 1986"Alabama Textbook Case" (Smith v. Board ofSchool Commissioners), a case that pitted a coalition of Evangelical Protestants, conservative Catholics, and other "theists" against the Mobile Board of Education, which was backed by, among others, the American Civil Liberties Union and the People for the American Way. 29 The plaintiffs attempted to document the "distortion and exclusion of religious data" from the history textbooks, "the bias against religion in the social studies texts," and the bias toward a secular humanism in the home economies texts.30 They also attempted to show that secular humanism, both as a formal sectarian movement and as a more diffuse if not latent moral ideology, was the "functional equivalent of a religion." In short they argued that many of the textbooks used in the country's public schools were actually promoting the "religion of secular humanism" and were therefore in violation of the no-establishment provision of the First Amendment. As would be expected, the defendants rejected all of these claims.31 This one case by itself, then, illustrates clearly the polarization of orthodox and progressivist interests and ideals over how religion should be defined for establishment purposes.32

C:hurch and State

Of the emerging nation-states in the late eighteenth century and nineteenth century, the United States and the Netherlands were unique in their formulation of church-state relations. The other emerging nations established a formal bond between "throne and altar" whereby the state would provide financial and administrative support for the church (one particular church) and the church would in turn legitimate the activities of the state as well as provide certain services on its behalf, such as education, welfare, public health, and the like. In America and the Neth-

262 THE FIELDS OF CONFLICT

erlands, however, no such constitutional provisions, were made. Religion was formally disestablished. This, of course, did not mean that the state played no favorites. As is well known, the Reformed Church retained many privileges in Holland through the nineteenth century, as did a common Protestantism in America. Nevertheless, in the administrative structure of the state a formal division between church and state was instituted. In the language provided by Thomas Jefferson's letter to the Danbury (Connecticut) Baptist Association in 1801, the religion clause "build[s] a wall of separation between Church and State."33

The contemporary quarrel over church and state is not really about whether a wall of separation of church and state should exist or not. It is true that among the orthodox Evangelicals a cluster of "reconstructionists" reject it in favor of a more theocratic model of governance derived from Old Testament law. Yet their numbers are very small. The real question is what does "sepaFation" mean? Should the "wall of separation" be unapproachable and totally unbreachable or should the wall be low and pervious? Would the interests of the state best be served by ·a policy of absolute mutual isolation or by one of occasional and strategic cooperation?

In 'udi 'al ractice two traditions of interpretation have evolved to

. reftec	e alternatives. The position o stnct separationism maintams
t e former, that t e w		separation must be igh and im ervious,
ecause t	e nghts o re igmus mmonues are a ways threatened when

the power of faith is linked with the power of the state. Ip principle, therefore, the state should neither receive aid from nor rovide aid to any religion~terial, monetary, or symbolic. As Justice Hugo Blac wrote in 1W7 in the famous case Everson v. Board of Education, the government cannot "pass laws which aid one religion, aid all religion, or

prefer one religion over another."34 The opponents of this position main- t~!!-·?.wt the 5.t!ict separation of cbpfch and state 1s a sociolo~i,al il;Q,;

~sibili~tptjons as large and encompassing as these will ineyitably ~~ dwn sbrn1\g govern how ehttreh and stau: relate to ~e

~r. The accommodationist response maintains th				should
nev	r one faith over anot	,	et it ould be free to accommodate
and even assist all faiths equal		. B!,2:.i~.....L&.1.,1;"-'t!J!S~~;J:l!:!,!!~~~!!!!:~~
amon	n commumues	faith These communities, in turn, are
not only disposed to fostering a di			ate of civic virtue but are free to

assist the government in meeting the welfare and educational needs of the people, particularly for those people who fall through the "safety net" of the existing apparatus.

LAW

263

Once More, a Question of Interests

All of this is relevant for a single reason: these two traditions of legal interpretation are no longer the subject of a specialized and even arcane legal discourse, but have become the currency of a larger public debate. More specifically, the categories of "accommodationism" and "strict separationism" have become the parameters of a dispute over judicial procedures within which contending sides in the contemporary culture war press their advantage. There are important exceptions to the rule but even so, because the programmatic interests of each are at stake, it is not difficult to predict which interpretive position each alliance tends to favor and why.35 Progressivist interests (particularly within the

·secularist and Jewish communities) tend to favor the policy of strict separation. In the Jewish case it is because separationism tends to undermine the culturally dominant position of Christianity vis-a-vis the state. In the secularist case it is because such policies reinforce the privatization of religious faith. The interests of religious orthodoxy and cultural conservatism more generally, by contrast, tend to be aligned with accommodation. While church and state remain separate and unequal, such policies nevertheless position these two institutions more as partners rather than as antagonists. Accommodationist policies not only allow but even encourage both the presence and participation of various religious voices in defining public policy and national identity.

The play of interests and "legal ideology" are most clearly seen among the activists themselves. Although perhaps less clearly, these tendencies are also seen within the communities they represent. Consider, for example, the results of the 1987-88 Williamsburg Charter Survey on Religion and American Public Life.36 Members of the general population and several elite groups (including ministers: priests, rabbis, media elites, and secular academics) were asked a series· of questions about the relationship between church and state in this survey. The results largely substantiate this intuition. On questions of general principle, fairly sharp contrasts emerged. Respondents were posed with the choice, for example, of whether they believed that "the government should not provide any support to any religions" orthat "the government should support all religions equally." Nearly nirie out of ten of the academics (87 percent), mainline ministers (85 percen~). and liberal rabbis (92 percent) chose the strict separationist position compared to less than half of the theologic;tlly conservative ministers (48 percent) and conservative priests (28 percent). Even the more Orthodox rabbis were less