Michael McConnell, Classical Secularist?

Now that O'Connor is retiring, the War begins. In terms of replacing her with a more conservative jurist, I think McConnell is the only one who could survive. Otherwise, the President will have to choose someone with more socially liberal or libertarian tendencies, for instance, Judge Posner.

In any event, part of McConnell's appeal is that, though he may be a solid conservative, he holds very interesting opinions, especially on religious matters, that often buck the standard conservative line, and defends these opinions with brilliant scholarship.

My readers know that I describe myself as a "libertarian" and a "secularist." However, just as a libertarian is a "liberal" in a "classical" and not a "modern-leftist" sense, I also consider myself to be a "classical secularist" -- that is I endorse the secularist ideals as posited by Jefferson and Madison. This system holds that government in principle ought to remain neutral between the different religions (all religions, the orthodox and unorthodox ones) and between religion and irreligion. In order for these norms to trigger a constitutional issue, however, some kind of tangible "right" must be involved -- a free exercise right, or some other kind of "privilege or immunity" which must be given on an equal basis. So for instance, if government in its mere words seems to endorse one religion over another, that might or might not be a federal constitutional issue (see my discussion of Amar below). But, in any event, some kind of actual individual right must be involved in order for government's action to be declared unconstitutional.

And if government connects itself with religion in some way, while managing to still uphold the principles of liberty, equality, and neutrality between the religions and between religion and irreligion, then such a Church/State nexus would be perfectly constitutional. Vouchers are the classic example: As long as they are available on a generally applicable basis -- they can be used for Catholic Schools, Jewish Schools, Scientologist Schools, Secular Schools, Prep Schools, etc. -- they are perfectly constitutional even if they have the incidental effect of aiding a lot of Catholic Schools, which they, no doubt, will.

So the "Wall of Separation" might not be the proper constitutional "metaphor" for understanding constitutional rights. But interestingly, much of what is done under the Establishment Clause, still could be vindicated under rubric of "equal protection" or "equal rights of citizenship," or as I have written before, a "substantive norm of equality" that is derived from our unalienable natural right to equality of conscience.

From the post where I quote Akhil Amar's outstanding book on the Bill of Rights:

Even a noncoercive establishment, [Thomas] Cooley [one of the Fourteenth Amendment's framers] suggested, violated principles of religious liberty and religious equality -- violated norms of equal rights and privileges. And once we see this, it turns out that the question -- should we incorporate the establishment clause? -- may not matter all that much, because even if we did not, principles of religious liberty and equality could be vindicated via the free-exercise clause (whose text, history, and logic make it a paradigmatic case for incorporation) and the equal protection clause (which frowns on state laws that unjustifiably single out some folks for special privileges and relegate others to second-class status). Surely Alabama could not adopt a state motto proclaiming itself "the White Supremacy State"; such a motto would offend basic principles of equal citizenship and equal protection. And so a law that proclaimed Utah a Mormon state should be suspect whether we call this a violation of establishment principles, free-exercise principles, equal-protection principles, equal-citizenship principles, or religious-liberty principles. Once we remember that we are not incorporating clauses mechanically but reconstructing rights, we reach the unsurprising conclusion that our basic touchstones should be the animating Fourteenth Amendment ideals of liberty and equality.

pp. 253-4

So now to McConnell and arguably his "classical secularism." Here is Jeff Rosen on his record:

More than anyone else in the country, McConnell is responsible for persuading the Supreme Court to abandon the rigid church-state separationism that prevailed during the 1970s, arguing instead that the state should be neutral toward religion. As a result, he supports school vouchers, but, unlike Justices Scalia, Thomas, and Rehnquist, he argued that graduation prayers in public schools were unconstitutional even before the Court struck them down in 1992.

And here is one of Phylis Schlafly's sons on McConnell, likening him to the next David Souter:

At first blush, that view may seem attractive to the Religious Right. But McConnell's legal philosophy is actually hostile to government expressions of faith, such as invocations at graduation or perhaps, eventually, the Pledge of Allegiance.

In 1992, McConnell declared as "wrong" the conservative view "that the government should have broader latitude to give voice to the religious sentiments of the community." McConnell's libertarian view gives one person the power to censor hundreds, in order for that one person to be free from hearing a prayer that he does not like.

Here is a quote of McConnell's on School Prayer:

"[O]fficially sponsored and led prayer in public school classrooms would be impossible to maintain today in a way that would be either spiritually valuable or noncoercive. . . .

"I do not believe that officially sponsored, vocal classroom prayer can be administered without effectively coercing those in the minority. And that should not be permitted. . . ."