Unity of the Graveyard and the Attack on Constitutional Secularism

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

Proponents of religious unity offer an image of a devout nation joining hands in a benign collective exercise of national prayer and obeisance to a unifying God. However, this inclusive image does not reflect the more nuanced and sometimes troubling nature of the collective American religious experience. Religion has not been a consistently unifying force in this country. Just as often, it has been the source of division and strife. Even before the founding of the Republic, the infusion of religion into politics was characterized by factionalism and internecine conflict. Stories of battles over early forms of establishment are legion.24 The Virginia dispute over Patrick Henry's religious-establishment proposal is itself a good case study of the difficulties in achieving significant unity even among groups of Christians whose doctrinal dissimilarities are not nearly as extreme as the disputes among conflicting faiths in the modern world.25

The strange thing about the modern debate over these issues is how proponents of religious politics use this history of religious conflict to reach precisely the opposite conclusion from that reached by Madison. For example, Justice Thomas appropriately recounts the hostility directed toward Catholics during the nineteenth century,26 but draws a counterintuitive conclusion from that history, namely, that the Court should lower Establishment Clause restrictions on links between church and state.27 As would be demonstrated by a more complete rendition of the historical conflict cited by Justice Thomas, religious dominance of government is the problem, not the solution.28

There are two possible explanations for this tendency to use the history of politicized religious conflict to argue in favor of increasing religious influence over modern politics. Both of these explanations are unflattering to the proponents of religious unity. The first possible explanation is that the various dominant sects have decided to profit on a short-term basis from access to government funds from which they were all previously barred. This short-term marriage of convenience simply delays the inevitable battle for ultimate dominance between the various religious beneficiaries of government largesse.29

The other possible explanation is that a seismic shift has occurred in the way the various mainstream Christian (and even some Orthodox Jewish) sects have decided to approach the issue of sectarian conflict. Prior to the modern era, the main cause of religious conflict was the effort of each sect to dominate competing sects that were products of the same cultural matrix. Disputes between, for example, Protestants and Catholics were hostile and even violent, but the two factions at least shared a common understanding of the religious and political culture in which they both arose.30 The antagonists may have disputed, for example, the authority of the Pope, but neither faction disputed the authority of God.

In the modern world-or at least in the modern industrialized world-this common understanding is much more tenuous. Two different phenomena have undermined the framework in which religions operate in the West. The first is the rise of cultural (as opposed to political) secularism. In blunt terms, the influence of traditional religion in the Western world is rapidly diminishing. Based on current trends, the practice of traditional Western religion may soon become the exclusive franchise of the United States and parts of the third world. One could make a good case for the proposition that in Western Europe religion is already largely irrelevant to the culture and that religion's influence over the way people live their daily lives is already de minimis. A recent New Tork Times analysis depicts the bleak prospects of religion in Europe. 31 According to one recent comprehensive study of European culture, only twenty-one percent of Europeans said religion was "very important" to them.32 Church attendance rates of Europeans also reflect the diminishing significance of religion. In Italy-one of the more religious Western European nations-the percentage of the population who regularly attend church is reported to be as low as fifteen percent.33 The Times reporter summarizes the reality of religion in Europe by noting that "Europe already seems more and more like a series of tourist-trod monuments to Christianity's past" and by further rioting that the "withering of the Christian faith in Europe" has effectively shifted the religion's center of gravity to the Southern Hemisphere.34