Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


"Secular Government, Religious People"


Byron Borger

09-15-2014


Politics and Prose

By Byron Borger

September 15, 2014

 

Secular Government, Religious People Ira C. Lupu and Robert W. Tuttle (Eerdmans; 2014) $25.00

 

The Center for Public Justice has long advanced certain principles to faithfully and wisely guide the just formation of public policy. Yet we must continually take up the living project of developing fresh ways to think about these principles and integrate them into our citizenship and political activism, applying them to concrete policies and proposals. While we should strive for overall consensus on principles and frameworks, we will undoubtedly disagree about the best legal and legislative route to enact these larger civic goals.

One policy area that generates considerable debate and disagreement is what might broadly be called church-state relations, or, perhaps more accurately, the contours of religious liberty for individuals and organizations. Court decisions about religious conduct in the public square are often argued or appealed on the basis of free expression rights afforded in the First Amendment. Other times, cases may be argued or appealed more on the disestablishment mandate. That is, some emphasize freedom for religion while others emphasize freedom from the same. 

This provocative new book shows that the proverbial pendulum swings from one emphasis to the other, and various camps are drawn to the strengths of one legal justification or another. Secular Government, Religious People is a careful, detailed study of both freedom for and freedom from religion fostered by an unbiased, religiously secular government. Even though the United States may have one of the most religious populations on Earth, our government, as Lupu and Tuttle argue, is and should remain, decidedly secular.

The authors are both professors of law at George Washington University and are no strangers to the policy debates and the (often intriguing) legal history of religious freedom cases. Although their views seem at odds with many of CPJ’s positions, and they do not use the “principled pluralism” language for which we are known (or even the “positive neutrality” notion developed by CPJ friend Stephen Monsma, nor do they cite CPJ’s partner organization, the Institutional Religious Freedom Alliance), they are well acquainted with the ways in which Christian ideas and ideals as articulated by the Center have shaped our understanding of the development of modern jurisprudence. In their wide-ranging acknowledgments, they thank Luis Lugo (of Pew Forum on Religion and Public Life) who was himself a former staff member of CPJ.

Lupu and Tuttle are also conversant in the scholarship of two CPJ friends and leading lights in the field, the late Harold J. Berman (Harvard Law School) and Emory University’s John Witte, Jr. The early part of the book is peppered with citations and footnotes from this pair of eminent legal historians and philosophers, assuring us that the authors are widely read in the best resources and are among the top tier of legal commentators on American religious liberty. One legal theorist writes, “For well over a decade now, the scholarly team of Ira Lupu and Robert Tuttle has been a valuable and distinctive voice in conversations about religion, law, and government... Secular Government, Religious People reflects the mature, comprehensive culmination of that collaboration.”  Frederick Mark Gedicks of Brigham Young University Law School writes, “In this book they brilliantly synthesize their prior work into a structural interpretation of the Establishment Clause that is historically and textually sound... A major work that all scholars of law and religion will need to read and consider.”

The authors bring a knowledgeable perspective to a wide variety of cases, displaying their exceptional fluency in rulings in many states, in Circuit and Federal Courts, and certainly in the most germane Supreme Court decisions. They discuss seminal rulings such as the historic Wisconsin v Yoder, the excessive Employment Division v Smith (often referred to simply as Smith), the iconic 1971 Lemon test which prevents “excessive government entanglement” with religious affairs (but also must not inhibit religious practice in any way), and very recent rulings such as Town of Greece v Galloway.

To over-simplify, their argument in favor of the “secular character” of American government seems perhaps a mid-way point between strict separationists and principled pluralists. One important chapter is called “Government Responsiveness to a Religious People” and in one long case study, they explore the legal ramification of government-funded military chaplains, which seems to walk what some might call a balanced line. 

While we may not agree with many of their conclusions (for example, the authors favor the final ruling in Christian Legal Society v Martinez, the Hastings Law School ruling where CPJ filed an amicus curiae brief siding with CLS), their book is tremendously useful for showing how they attempt to adjudicate our secular government and our very religious people.

CPJ Fellows and scholars should help us better understand the strengths and weakness of the approach offered by Lupu and Tuttle; a more serious review demands more detail than allowed in this brief summary. I trust that many of us (whether or not we agree with the book’s approach) will acknowledge the importance of this latest installment in the prestigious Emory University Studies in Law and Religion series and will study it carefully, glad for its dedication to deepening this important conversation. 

-  Byron Borger runs Hearts & Minds Books. Capital Commentary readers can get a 20% discount on books listed here by ordering through Hearts & Minds.

 



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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”