Unity of the Graveyard and the Attack on Constitutional Secularism

Brigham Young University Law Review, 2004 by Gey, Steven G

The answer to these complaints lies in the secular Constitution's unwavering protection of a vibrant private sector, coupled with multiple protections from government control over activities within that sector. Privatizing religion does not, as Carter claims, ostracize or devalue religious belief; rather, by privatizing religion secular government protects religion by allowing it to grow free of government control and free of domination by each group's religious antagonists. If the secular Constitution does not allow even dominant and powerful religions to use their private power to incorporate their religious views into law as the defining principles of cultural unity, then that is simply because other, weaker religious groups-as well as the nonreligious-also deserve protection from their more powerful adversaries. Religious groups can continue to practice their faith unless doing so will harm their neighbors or impose their values on unwilling fellow citizens. Members of religious groups can decide not to abort nonviable fetuses, but they cannot force that choice on others who have a different view of ensoulment. Likewise, religious children can pray in public school study halls and classrooms, so long as their parents do not insist that the State use its power to force other students to do the same. And under a proper rendering of a secular democracy (Zelman's contrary holding58 notwithstanding), religious parents can send their children to private religious schools, so long as they do not force their neighbors to pay the tuition.

56. See Stephen L. Carter, Evolution, Creationism, and Treating Religion as a Hobby, 1987 DUKE LJ. 977.

57. Graham Walker, Illusory Pluralism, Inexorable Establishment, in OBLIGATIONS OF CITIZENSHIP AND DEMANDS OF FAITH 111, 111-12 (Nancy L. Rosenblum ed., 1987).

58. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding a Cleveland, Ohio, school voucher program that provided financial benefits to private religious schools).

Under a regime of secular democracy, religious groups can even militate to replace the secular democracy with an undemocratic theocracy-at least up to the point that their militancy becomes a direct incitement to imminent revolution.59 But if they want to play by democracy's rules, religious groups should not be able to write their principles into law, unless those principles can be justified in secular terms that are accessible and acceptable to nonadherents.60 Likewise, religious adherents cannot make their chosen theology the focal point of crusades for national unity. In the context of the current controversy, sinners, atheists, transgressors, and apostates are Americans too, even in times of crisis, and the quest for national unity must treat them with the same respect as the most sanctimonious politician bowing ostentatiously in public prayer.

V. REAL UNITYAND THE NEGATIVE case FOR CONSTITUTIONAL secULARISM

The affirmative case for constitutional secularism proceeds from the assumption that there is positive value in a democratic system in which everyone may participate in political decision making, but in which even political losers may retreat into loyal opposition in the private sector without fear of civil sanctions, imprisonment, or worse. This affirmative case seems insufficient for many of those seeking to introduce their religious values into the public sphere and thereby to enforce their God's commands as law. The security of the private sector provided by secular democratic regimes will never suffice for any religious group that seeks to dominate the culture and define that culture through the group's own perspective on the word of God. For any group such as this, there must be another, more convincing argument for secular democracy that does not rely on notions of political reciprocity, guarantees of equal political participation, and participation in an open and vibrant private sector. For such a group the argument for democracy must take a negative form; in other words, the case for democracy must be made in comparative terms as the lesser of alternative evils. The negative case for democracy therefore must be made through appeals to fear. secular democracy may not give you everything you want, democrats must say to reluctant religious advocates, but it's better than what you could suffer under alternative regimes.