Fox News had a special last night on Church and State. I give it a mixed review. The negatives were to be expected: Brit Hume's annoying slant to the story; trying to make the "pro-separation" forces out to be the bad guys; Bill Donahue, who is an obnoxious blowhard was given a soapbox on which to rant.
The positives: For scholarly opinion, they featured very credible, reasonable, distinguished scholars. They had Daniel Dreisbach, Philip Munoz, and James Huston. No "Christian Nation" hacks like David Barton or William Federer. (From what I've seen of it, I really like Munoz's work on the Church/State issue. It reminds me of Michael McConnell's.)
They should have given more time to some of the pro-separation scholars they featured, who were again, very good (Marci Hamilton and Rob Boston).
I think I could endorse what Munoz and McConnell (who wasn't on the show) seem to argue for; their theory arguably fits with what I call "classical secularism," and may not fully satisfy what the religious conservatives desire on Church/State issues.
For instance, let's make a spectrum: One one end we would have the notion that Establishment Clause prevents only a federally established Church and nothing else (states would still be able to have establishments). On the opposite end would be complete separation of Church & State: No government funds ever going to religion, no "under God" in the pledge, no "in God we Trust" on our currencies, no religious symbols on public property. The Supreme Court's current jurisprudence is somewhere in between, and changes inconsistently from context to context.
I'm more interested in where the natural law/natural rights ideal for which Jefferson and Madison argued in the Statute on Religious Freedom and Memorial and Remonstrance (which are the Declaration of Independence's cognate natural law documents) would fit along the spectrum if given constitutional status. Note, the Madisonian/Jeffersonian "ideal" constitutional standard may be far different than the Madisonian/Jeffersonian "practice" as Presidents and political leaders (for instance, as Presidents, attending Church services every week on public property; Madison voting on a committee to allow Congressional chaplains, but later arguing that in theory, they violate the Constitution, etc.). The "ideal" Jefferson and Madison, especially read at a higher level of abstraction than which they expected, would drive us closer to the "separation" end of the spectrum.
Also, given that Justice Thomas believes the Declaration's natural law is the organic fundamental law of the United States, he too should support giving those two VA documents constitutional status, certainly using them as a guide for Establishment Clause cases. I haven't read all of Thomas's Church/State opinions. I think he's closer to the extreme end that believes the EC only constrains the federal government and only prevents it from "establishing" a national Church. However, he needs to explain why if he believes in natural law, the Memorial and Remonstrance and VA Statute on Religious Freedom aren't likewise incorporated with the Declaration into constitutional jurisprudence. For instance, in CUTTER V. WILKINSON, Thomas writes:
The Clause prohibits Congress from enacting legislation "respecting an establishment of religion" (emphasis added); it does not prohibit Congress from enacting legislation "respecting religion" or "taking cognizance of religion." [Rowe: The "no cognizance" standard was articulated in the Memorial and Remonstrance.] P. Hamburger, Separation of Church and State 106-107 (2002)....In any event, Ohio has not shown that the Establishment Clause codified Madison's...view that the Federal Government could not legislate regarding religion....The words ultimately adopted, "Congress shall make no law respecting an establishment of religion," "identified a position from which [Madison] had once sought to distinguish his own," Hamburger, supra, at 106. Whatever he thought of those words, "he clearly did not mind language less severe than that which he had [previously] used."
However, as far as I know, Philip Hamburger is a legal positivist. The Constitution, from a positivist perspective and separated from the Declaration, is a pro-slavery document and thus makes a major "compromise" with the anti-slavery ideal in the Declaration. If it's proper to read the Constitution through the lens of the Declaration, why isn't it likewise proper to read the First Amendment (or other provisions of the Constitution) through the lens of the Memorial and Remonstrance and VA Statute on Religious Freedom?
And just what is the Jeffersonian/Madisonian ideal on separation of Church and State? Well, arguably, it's not quite ACLU style "separation" but rather full religious equality. That is equality between the orthodox and the unorthodox religions, and equality between religion and non-religion. Thus, perhaps this natural law theory would be better channeled through the Equal Protection Clause or some substantive recognition of Equality under the Privileges or Immunities Clause. Here is Munoz on the matter:
By "non-cognizance" Madison means that the state may not recognize or acknowledge the religious affiliation of individual citizens or associations of citizens. Literally, the state may not take religion into its view. To adapt a term from civil rights discourse, the state must remain "religion blind." The state, therefore, may neither privilege nor penalize [Rowe's emphasis] a citizen or an organization on account of religious affiliation. It may not grant exclusive privileges to one sect or to all religions generally. Ecclesiastical establishments, accordingly, violate the legitimate constitutional authority of any social compact. By definition, they fail to respect the "unalienable" character of man's natural right to religious liberty.
A majority of scholars and several Supreme Court justices have misinterpreted Madison as demanding a strict "wall of separation" between church and state. They fail to see the social compact framework of the "Memorial and Remonstrance," and thus fail to see that Madison limits the state's authority either to favor or disfavor religion. Just as the state may not single out Religious Liberty and the religion or religious citizens for beneficial preference, so the state may not exclude religious entities or religious individuals as such from generally available rights and privileges. To take one currently controverted point, according to Madison's principle, if the state supports a general social service program, it may not exclude, on account of religion, religious individuals or religious associations from competing for government funds.
Therefore, the constitutional non-discrimination principle on religion is analogous to race. Just as colorblind is a classical liberal constitutional ideal, so too should "religion-blindness" be. We are not a "white nation" in a public or civil sense. Neither are we a "Christian nation."
Likewise, Michael McConnell has argued for something similar and some social conservatives recognize it's not quite what they want. Here is Thomas West on McConnell's theory and on how it doesn't satisfy his traditionalist desires:
Law professor Michael McConnell gives the ablest scholarly defense of the view that government may promote "religion in general," but "must not favor one form of religious belief over another."9
Sometimes conservatives are even tempted to make use of the liberal view that government must be completely neutral between religion and "irreligion." In the Rosenberger case, the University of Virginia funded a variety of student publications, but it refused to fund a Christian journal. Michael McConnell argued to the Supreme Court on behalf of the Christian students that "the state should be completely indifferent to whether students use those benefits to participate in religious activity." The Constitution requires "neutrality between religion and its various competitors in the marketplace of ideas." The Court agreed. Unfortunately, McConnell's victory for the Christians was also a victory for Satanic, sado-masochistic, pedophile, and Nazi publications. They too are "competitors in the marketplace of ideas." They too have a right to government funding on an evenhanded basis.10
It's ironic that McConnell's notion of religious equality and neutrality is more consistent with natural law principles which Dr. West and Claremont purport to support.
The paradigmatic example of the classical secularism that I argue for is the Equal Access Act which both guarantees to religion "equal access" to use public facilities, but also limits such religious rights to circumstances where such facilities are available on a neutral and non-discriminatory basis. Therefore, religious student groups receive no more and no less protection that say gay rights student groups. Or take vouchers: As long as they are generally available to unorthodox religions and non-religious private schools, as well as traditional Christian and Catholic schools, they should be Constitutional. So along with Christian schools, secular private schools, Scientologist schools, Muslim schools, etc. may get vouchers too.