Over the Wall: Protecting Religious Expression in the Public Square. - book review

Over the Wall: Protecting Religious Expression in the Public Square, FRANK GULIUZZA III. Albany, NY: State University of New York Press, 2000, ix + 219 pp. $62.50 (cloth), $20.95 (paper).

Over the Wall can be seen as the latest in a series of efforts to clarify or redefine the Establishment Clause of the First Amendment of the United States Constitution ("Congress shall make no law respecting an establishment of religion . . ."). To put Guliuzza's thesis in a sentence, Guliuzza wishes to replace what he takes to be the prevailing separationism of contemporary church-state jurisprudence with (quoting Justice William Rehnquist) a stance of "authentic neutrality" which bears a striking resemblance to more standard accounts of "accommodationism." The question, simply put, is whether the Establishment Clause proscribes government assistance to religion generally (separationism) or simply prohibits government from assisting particular religions at the expense of others (accommodationism, or non-preferentialism). Guliuzza clearly favors the latter position.

Over the Wall represents an odd mixture of argumentation and passion. Guliuzza devotes several chapters to exposing the motives of separationists. He makes two general claims: first, that separationists are hostile to religion, and second, that the manner in which secularist/separationists (Guliuzza devotes substantial space to showing these to be equivalent) amounts to a religious faith. Aside from the ad hominem nature of these claims, the first is, in many instances, empirically false. While certainly some separationists are hostile to religion (a claim Guliuzza documents with primarily anecdotal evidence), my own research has led me to encounter many highly religious people who endorse a strong version of separationism for reasons which are primarily theological. Guliuzza repeatedly disparages the metaphor of the "wall of separation" between church and state, and is apparently unaware that the use of the image began with Roger Williams, who sought to protect "the garden of the church" from contamination with the secular world, rather than vice versa.

The claims that separationists are both hostile to religion and practitioners of a quasi-religious faith are merely annoying, until one asks why these claims should matter. The answer, apparently, is that if secularism (the source of separationism) is regarded as essentially a religious belief, then separationist policies and court decisions amount to an unconstitutional "establishment" of this "religion" (pp. 122-123).

Guliuzza suggests that, although separationism is the dominant theme of contemporary church-state jurisprudence, the Supreme Court has not been consistent in applying a separationist doctrine, and has at times invoked an image of neutrality. Guliuzza argues that separationism is alternatively, incompatible with neutrality, and one of several neutral stances government could assume with respect to religion. Such conceptual and jurisprudential "incoherence" could bc laid to rest if separationism were consigned to the ashcan of legal history, and that the Court were to adhere consistently to Rehnquist's conception of "authentic neutrality."

It is of course not news to anyone that the Supreme Court's Establishment Clause jurisprudence is nor a model of coherence or clarity. Guliuzza's work is the most recent in a long line of efforts to impose some intellectual order on a number of overlapping, conflicting rulings by the Court. The usual strategy, employed by Guliuzza in this book, is to argue that one or another concept trumps other competing considerations: In this instance, that neutrality is a cleaner, more normatively acceptable basis for adjudicating church-state conflicts than is any adherence to a notion of church-state "separation." While one can certainly make such a claim, justifying such an argument requires that one apply extra-constitutional warrants to the problem. Other studies have, for example, invoked the "original intent" of the Framers of the Constitution, or pointed to the failures of secular institutions to fulfill their missions (witness the current debate over private school vouchers).

Guliuzza's warrants appear to be that proponents of separationism are guided by unworthy motives such as religious bigotry, and that religion consequently does not occupy a sufficiently prominent place in the public dialogue. Such assertions may seem plausible to those already convinced that religious values are not accorded sufficient respect in the American political culture, although one suspects that even readers sympathetic with Guliuzza's project and goals would wish for a more plausible presentation of the accommodationist position. More importantly, Over the Wall does not provide much in the way of intellectual challenge for those who approach church-state relations from a more separationist perspective. Readers unconvinced of their own bigotry or unpersuaded that the consequences of separationism have been "disastrous" will find little in this book that encourages them to reassess their own positions.

COPYRIGHT 2002 Association for the Sociology of Religion
COPYRIGHT 2002 Gale Group