Friday, November 30, 2007


A Shift in Interpretation of the Establishment Clause? --
(Crossposted to Street Prophets)

Winnefred Fallers Sullivan is Associate Professor of Law and Director of the Law and Religion Program at SUNY-Buffalo. She recently posted an an adaptation of her keynote address from a conference on "After Pluralism".

In it, she suggests that contrary to the goals of both the political left and right, the American jurisprudential view on the First Amendment establishment clause is shifting because of a changing "religious anthropology" no longer rooted in a peculiarly Protestant view of religion (which she ties in part to anti-Catholicism).

Sullivan writes:


Yet the Nicholson case, when seen in the context of recent Supreme Court First Amendment jurisprudence, represents a larger shift, in my view, one not related to partisan politics. Obscured by the culture wars rhetoric around the faith-based initiative is a wider cultural shift to greater public acknowledgment of religion, an acknowledgment that is moving away from determination by “established” protestant models of religious life. Indeed, from the perspective of many religious communities, aspects of these pastoral care regimes may seem a troubling de-mystifying and naturalization of religion.

Taken together with recent decisions approving school vouchers as well as public approval of faith-based social services generally, the U.S. may be moving toward an acknowledgment of religious universality that has more in common with those countries in which the state, in spite of secularization and the de-privileging of state churches, continues to assume responsibility for the religious well-being of citizens. Religious freedom and non-discrimination are there often understood to be possible, even if not always realized, without separation in the austere American sense. As Grace Davie says about Europe, in contrast to the U.S., religion is there more often regarded as a “public utility” than as an active personal commitment by an individual. It is not necessarily about personal faith in a protestant evangelical sense. It is about getting the work of the public done, in orphanages, schools, hospitals and other charitable institutions, as well as about providing ritual and comfort for significant times in people’s lives. It depends on a different religious anthropology. And it is no less committed to religious freedom. Such an approach is feared by the left and the right in the U.S., but I think it may be happening nonetheless.


Here, she refers to an unsuccessful lawsuit by the Freedom from Religion Foundation challenging the constitutionality of the VA's chaplaincy program. Sullivan claims that we are seeing a growing "kind of religious universalism" which views religion in the abstract as a positive without differentiating between the different religions.

Sullivan cites the VA case as one of several "that move away from the high separationism of the mid-twentieth century towards what we might call a post-pluralistic acknowledgment of religion. While this is seen as establishment by some, by others it is seen as a benign establishment, permissible because no longer tainted by religious bigotry."

I find this to be a fairly interesting description of how people think about religion and politics. The notion of American views on secularism being colored by a Protestant heritage appeals to my postmodern soul. The characterization of a "particularly Protestant" understanding of permissible religion as "internal, chosen and believed" and may provide insight into how conservatives view Muslims. And I've often pointed to the possibility of differing worldviews of people from Protestant and Catholic backgrounds (even if they are no longer practicing those particular faiths) that affect how they view certain issues on both sides of the liberal-conservative divide.

This also puts a different spin on arguments about church-state issues on the left. For those who strongly believe in a Jeffersonian "wall" of separation of church and state, anyone who believes differently wants to turn the clock backward. However, in Sullivan's framework, those who advocate more acceptance of religion in public life (consciously or not) may see strict separationism as archaic and themselves as progressively understanding the realities of a post-pluralism society.
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