by Steven Goldberg. Stanford, California Stanford University Press, 2008. 176pp. Cloth. $24.95. ISBN: 9780804758611.
Reviewed by Caren Dubnoff, Department of Political Science, College of the Holy Cross. Email: cdubnoff [at] holycross.edu.
In her much acclaimed book about the Declaration of Independence, Pauline Maier observed that “separation of church and state was one of the most radical innovations of the American Revolution.” (Maier 1997). But if much current legal commentary is correct, separation may have been a historical innovation whose day has now passed.
According to many observers, the Supreme Court has moved from reading the Establishment Clause as requiring separation of church and state toward seeing it instead as requiring only neutrality – not favoring one religion over another, and not favoring religion over irreligion. And even if the Court’s retreat from separation has not been complete, support for the principle has clearly eroded. These changes are moreover increasingly welcomed by many commentators. Some support neutrality because they believe it to be a more accurate reading of the Establishment Clause command. Others do so because they believe that neutrality will provide more principled decision-making than has occurred under the separation principle. Neutrality would add clarity and consistency to an area of law that they argue is now confused and incoherent. Some argue that separation weakens religion, and with it the moral values upon which the development of the civic virtue essential to a good functioning democracy depends. Others argue that the conditions that supported separation have changed, and a new doctrine is needed to promote either the Clause’s most fundamental concern, the promotion of religious liberty,
or other constitutional values such as equality.
In this brief volume Steven Goldberg writes in opposition to this approving trend. He challenges the argument that because religion has a positive effect on moral values and civic virtue, it merits government support. He also responds to the argument that barring religion from the public square violates the free exercise rights of the religious. With respect to outcomes, it is Goldberg’s contention that government sponsorship actually harms religion. According to Goldberg when religion enlists government support in putting forth its message, it compromises its ability to be a positive force in society. “[I]n American culture public religion is inevitably watered down religion.” But if religion is to be “a source of moral values in a materialistic, scientific culture it must have real content” (p3). Real content “arises in hearts, homes, houses of worship, and in the private sector, not in government bureaucracies” (p.2). Goldberg thus does not challenge the importance of religion to the formation of moral citizens, but rather contends that government hinders this process.
Furthermore, Goldberg points out that the limitations on government sponsorship of religion have not created [*652] a secular society. Religion in the United States is much more vibrant and its free exercise is more protected than in other Western societies where limits on state sponsorship are absent. This religious vitality “flows from restricting the embrace of government while protecting free exercise. The real danger to religion comes “not from its failure to be recognized in the public square but from the costs that come with that recognition . . . . [Its] true power . . . . flows from restricting the embrace of government while protecting free exercise” (p.5). This is of course the core separationist position. Goldberg goes on to argue that the Court has been more solicitous of free exercise in crafting doctrines supportive of private individual choice than have other government actors and the public.
Goldberg builds his argument around three cases: the controversy over the posting of the Ten Commandments; the argument over the introduction of Intelligent Design in school biology classes; and the argument over holiday displays. He later focuses on the constitutional protections of free exercise, including, but not confined to, the free exercise clause. Along the way he provides some doctrinal background.
Chapters 2-4 form the heart of the book. Chapter 2 takes up the controversies surrounding the display of the Ten Commandments. No doubt most readers probably believe they know what these are. But, as Goldberg makes clear, there are several versions of the Ten Commandments. Different Bibles and the religions that use them count, order and define the Commandments differently, and so the actual content of the Ten Commandments is variable, depending on which Bible (Hebrew, King James, or New American) one uses and which Biblical passage (Exodus or Deuteronomy) one invokes. Further while the Ten Commandments in whatever form do contain much that is important to the regulation of human behavior, much of what they say is clearly about man’s obligations to God. The Ten Commandments are therefore undeniably religious and their different versions are sectarian.
It follows that since most Justices of the Supreme Court hold that the Establishment Clause forbids at least the permanent advantaging of one religion over another, displays of the Ten Commandments can be made acceptable only by stripping them of their religious meaning. According to Goldberg, this is exactly what has happened, with defenders asserting it represents only an acknowledgement of a religious history or by characterizing it as one among many sources of law. There are in fact three Supreme Court decisions that are directly on point: STONE v. GRAHAM, where the Court in a 5-4 decision struck down a Kentucky statute that required the posting of the Ten Commandments in all classrooms in the state; MCCREARY COUNTY v. ACLU, another 5-4 decision striking down a Ten Commandment display in a Kentucky Courthouse because the recent placement of secular objects did not suffice to transform a display that had originally been religious into one that was now secular; and VAN ORDEN v. PERRY, a 5-4 decision finding no constitutional violation of a display in a sculpture garden along with secular objects, because in that setting it showed no religious purpose. Goldberg builds a convincing case that the moral teachings of the Ten Commandments get lost in these displays. [*653]
The argument that government support for a display of the Ten Commandments does not really strengthen its religious force assumes that the primary purpose of the display is its actual religious teachings. But what if the display’s actual purpose is symbolic, a statement of who we are as citizens, a measure of acceptability? If so, and in the end Goldberg acknowledges that this may indeed be so, then the criticism that the result is watered-down religion is unlikely to persuade supporters that they are pursuing a false goal. Having identified the symbolism in these displays, Goldberg then fails to pursue an important implication of that finding, that they then violate the constitutional principle of equality embodied in the religion clauses. As Justice O’Connor stated in LYNCH v. DONNELLY, religion cannot be made a basis of “a person’s standing in the political community” (LYNCH, at 687).
Goldberg’s next example is the controversy over including Intelligent Design in the biology curriculum. These efforts are the latest iteration in the debate over the teaching of evolution. Goldberg begins with a brief history that traces the controversy from the Scopes trial to an Arkansas law prohibiting the teaching of evolution, then to a Louisiana law requiring that if evolution is taught, equal time must be afforded creation-science. More recently, there have been efforts to require that Intelligent Design be taught as an alternative to evolution. Such cases have not yet come before the Supreme Court. For a brief period of time, it appeared that such a test was in the offing when a federal district judge held that inclusion of Intelligent Design in the curriculum in Dover, Pennsylvania, violated the Establishment Clause. But before the city could appeal, the election of a new school board on that issue led to its removal from the biology curriculum, thus mooting the issue.
Goldberg is less interested in the particulars of the Dover controversy than in the broader questions raised by the movement to include Intelligent Design in the biology curricula. Goldberg argues that Intelligent Design is as objectionable in a biology class as was creationism and so-called “creation-science,” because like these it is not science. None of these teachings can be disproved by empiric evidence, and the potential for refutation is a hallmark of true science. But the more important issue for Goldberg is what would happen to religion if proponents of Intelligent Design succeed in persuading the public and the courts. In his view, religion would actually be weakened, because the Intelligent Designer described by these teachings is little more than a tinkerer, a force that fills in the blanks that evolution has yet to explain. It is not the God that some scientists have in mind when they speak of Intelligent Design – that God is of cosmic magnitude, a God that created the laws and the very order of the universe, without which the fabric of space would not exist. The classroom Intelligent Designer is also not the God of traditional religion, the God who gives us our souls and teaches us how to live. In Goldberg’s view, “intelligent design . . . . empties religion of everything that makes it important. God is no longer the creator of the universe, a source of ethical teachings or the inspiration for a sense of awe and humility. God is instead a second-rate engineer” who fills in the gaps left in evolution’s account of creation. The better remedy for religious parents is [*654] subsidized private religious education, a solution that Goldberg supports.
Does Goldberg answer the concerns of fundamentalist parents? I doubt it. The problem here is that there can be a real conflict between religious and secular views of how our world came to be. In this case these positions may be irreconcilable, and the private school opt-out, even if partially funded by government as Goldberg suggests it should be in Chapter 5, is only a partial answer because of the other benefits that may accrue from a public school education. He further overlooks the possibility that for proponents of Intelligent Design a fundamental objective is satisfied just by casting doubt on evolution, part of a strategy to get religion a “foot in the door.” That said, Goldberg is clearly correct that Intelligent Design does not belong in a science class. It is not science, and as Goldberg correctly notes, its proponents also distort the meaning of a “theory” as it is used in science. Whatever one’s position on the constitutional issue, this chapter is worth reading because it provides the nonscientist a window on how scientists who accept the theory of evolution can also believe in God.
The disputes surrounding holiday displays, or more precisely Christmas and Chanukah displays, provide the third case. For Chanukah, the result has been its elevation from a once minor Jewish holiday to one that gets great attention. Its religious message as a celebration of a distinctly Jewish event has been distorted by its more recent identification as a symbol of Jewish participation in a larger American culture. From a religious standpoint, the prominence of the Chanukah menorah in public displays has distorted traditional teaching by causing many Jews to consider it the most important menorah, losing sight of the more important and different Temple menorah. If the religious importance of Chanukah has been magnified, that of Christmas has been diminished by commercializing it. For both holidays, “the display must be devoid of any meaningful religious content” (p.67). Goldberg acknowledges that some of these costs are the consequence of constitutional requirements but contends the religious message would in any event have had to accommodate a very diverse nation with the same general result. Here again Goldberg discounts the possibility that a display may be more important as an expressions of one’s position in a broad community of believers than as a promoter of strong religious content.
Despite many concerns that separation of church and state would harm religion, America is a more religious country than many others with direct ties between government and a church. Chapter 5 proposes that the reason is the privatization of religion in America that separation’s critics so often criticize. Whatever limitations are imposed on religion by the Establishment Clause are more than compensated by the strong protection afforded free exercise rights by the Constitution and the political culture. The Supreme Court has reached a broad understanding under free exercise that the state may not target religion for adverse treatment, may not regulate religious beliefs and may not judge the truth of religious doctrines. There have been holdings that the due process clause protects parental control over upbringing and schooling and that religious speech must be treated on a par with other speech. Not surprisingly Goldberg favors a robust understanding of free exercise rights, including [*655] granting religious exemptions to generally applicable law. He characterizes such actions as equalizing rather than advantaging religion, and therefore not in conflict with the earlier argument against government support for religion.
This chapter is of a different order than the others. The doctrines that Goldberg describes certainly do provide an environment within which religion can thrive, but it does not follow from this that this environment is actually responsible for such religious vitality. There may well be other, more important factors.
I would conclude with the following observations. Goldberg takes the law as it is when he argues that government support for religion weakens its religious message. But were the Court to adopt the position of Justices Scalia and Thomas that the Establishment Clause bars only the establishment of a state church, the law would then permit much more religious content in government-supported endeavors. It remains to be seen whether the diversity of American society would then serve as a similar check via the political process.
In the end, I liked this book despite the reservations I have expressed. Though the broad argument it advances is not new, some of the evidence presented is based on very current issues, such as the discussion of Intelligent Design. The Court’s jurisprudence in this area remains highly contested, and I think this book provides a useful counterweight to those who oppose the separation principle. For this reason, I believe Goldberg’s book would be particularly useful in a course such as Religion and Law. Similarly, it would work very nicely in a basic American Government course that includes a section on civil liberties.
Maier, Pauline. 1997. AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE. New York, NY: Alfred A. Knopf, Inc.
COUNTY OF ALLEGHENY v. AMERICAN CIVIL LIBERTIES UNION GREATER PITTSBURGH CHAPTER, 492 U.S. 573 (1987).
EDWARDS v. AGUILLARD, 442 U.S. 578 (1989).
EPPERSON v. ARKANSAS, 393 U.S. 97 (1968).
KITZMILLER v. DOVER AREA SCHOOL DISTRI COURTS, 400 F. Supp. 2d 707; 2005 U.S. Dist. LEXIS 33647.
LYNCH v. DONNELLY, 465 U.S. 668 (1984).
MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, 545 U.S. 844 (2005).
STONE v. GRAHAM, 449 U.S. 39 (1980).
VAN ORDEN v. PERRY, 545 U.S. 677 (2005).
© Copyright 2008 by the author, Caren Dubnoff.