One nation, divisible

Do evangelicals and secularists want the same America? Legal scholar Noah Feldman says yes, and he has a plan for a more perfect union. Too bad it will never work.

By Michelle Goldberg

Jul 23, 2005 | Noah Feldman, a law professor at New York University with a Ph.D. in Islamic thought from Oxford, has thought long and deep about the problem of balancing religious fervor and democratic liberties in the Muslim world. His 2003 book "After Jihad" argued for the possibility of Islamic democracy and urged America away from its policy of supporting Middle Eastern autocrats out of fear that, if they fell, fundamentalists would rise in their place. He was a senior constitutional advisor to the Coalition Provisional Authority in Baghdad, an experience that informed his well-regarded 2004 book, "What We Owe Iraq."

Compared with the thicket of sectarian tensions in Iraq and elsewhere in the Islamic world, America's religious conflicts must have seemed fairly easy to dispatch, and in "Divided by God: America's Church-State Problem -- and What We Should Do About It," Feldman sets out to do just that. The book takes a brisk, fair and fascinating tour through the history of church-state separation in America. It culminates in a plan for resolving the furies of the culture war that is theoretically elegant and historically grounded. Unfortunately, it is almost completely divorced from political realities and the facts on the ground.

In "Divided by God," Feldman frames America's divisions over religion in the public sphere as a struggle between two camps that he calls "legal secularists" and "values evangelicals." He believes -- falsely, I think -- that both groups have essentially compatible visions of national harmony. "Religious division threatens [American] unity, as we can see today more clearly than at any time in a century, yet almost all Americans want to make sure that we do not let our religious diversity pull us apart," he writes. "Values evangelicals think that the solution lies in finding and embracing traditional values we can all share and without which we will never hold together. Legal secularists think that we can maintain our national unity only if we treat religion as a personal, private matter, separate from the concerns of citizenship."

The last section of "Divided by God" outlines a possible compromise between these two sides. Feldman's plan is just on its own merits, but it's highly unlikely to result in a cultural rapprochement because Feldman seriously mischaracterizes the issues at stake and the motivations of the antagonists. He takes far too much of the Christian right's propaganda at face value, arguing as if, for example, there really were a concerted attempt by secularists to banish the celebration of Christmas from public view. "Just what is threatening to religious minorities about Christians celebrating the holiday and the state acknowledging that fact?" he asks. The answer is precisely nothing, which is why Christmas decorations and the like pose almost no public controversy, contrary to the fevered sputterings of Fox News anchors and talk radio demagogues.

I'll return to this point in a moment, but first I should say that "Divided by God" deserves to be read for its compelling and insightful first two-thirds. As a constitutional scholar, Feldman seems far better grounded in the legal history of the Establishment Clause than in the political nuances of current culture war battles. At a time when the very idea of separation of church and state is under broad attack from right-wing historical revisionists and politicians, Feldman clarifies the thinking of America's founders and of subsequent leaders about the role of religion in the life of the nation.

Most important, he explains that the founders were unconcerned with public religious symbolism but were deeply opposed to public religious funding. Much of the book is taken up with a valuable discussion of the evolution of legal doctrine on the First Amendment, which, as Feldman points out, wasn't even held to apply to state governments until 1940. His explanation of how the Supreme Court became the arbiter of so many local culture war skirmishes is particularly welcome as background to the national debate over Supreme Court nominee John Roberts.

Feldman is absolutely right about the supreme paradox of our current church-state legal regime, which bans prayers at high school football games but allows billions of taxpayer dollars to flow into sectarian charities under President Bush's faith-based program. "The fascinating irony of the church-state debates is that, in the era of the endorsement test" -- which renders laws "endorsing" religion unconstitutional -- "legal secularists have failed to hold the line on the ban of government funding for religion, the cornerstone of early legal secularism and indeed of the American tradition of the separation of government institutions from the institutional church," he writes. "Values evangelicals have simultaneously found themselves frustrated in the symbolic sphere about which they care most, and the loss of which inspired them to action in the first place."

To remedy this backward situation, Feldman proposes a bargain -- more tolerance for public religious expression in exchange for tighter restrictions on government funding of religion. He distills it down to a slogan: "No coercion and no money." This approach makes a lot of sense, not least because it could address some of the inevitable incidents of secularist overreach -- the elimination of Christmas songs in public schools, for example -- that infuriate local communities and ricochet around the right-wing media, sparking howls about anti-Christian persecution throughout the land.

Next Page: Feldman is wrong about the America that the Christian right is seeking

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