Thursday, November 20, 2008

Religion and the Constitution

On Tuesday, ACS hosted Bill Marshall, Professor of Law at UNC, to speak on "The Founding Fathers: Religion and the Constitution." Mr. Marshall began his talk by noting that religion serves as the focal point on the on-going culture wars. Both sides think that every case they lose is the end of the world, and that their interests are completely opposed. However, Mr. Marshall argued that the secular and religious forces actually compliment each other.

In his view, the progressives have been the true protectors of religious freedom in the United States, which the conservatives don't seek to protect religious freedom, but a particular partisan agenda. The progressives' mistake, according to Mr. Marshall, is that they have let themselves be portrayed as anti-religion, rather than demonstrating that they are in fact protecting religious freedom by preventing the mixture of any religion and the government.

Mr. Marshall noted that the courts continue to say there are no clear lines in cases focused on establishment (like litigation involving nativity scenes), and that they are right - there are no clear lines as to what is constitutional and what is not, because it is hard to determine what counts as religious belief, when it can encompass almost any type of behavior.

Mr. Marshall also argued that the conservatives have forgotten that the United States is a secular society to begin with. Thus, while most people respond in surveys that they support school prayer, once it is suggested that it may not be their prayer of choice, support for school prayer falls apart. Mr. Marshall suggested that government and religion are dangerous when combined, but that pure secularism has its problems, as it can be divisive. He noted that evangelicals used to be in favor of strict separation of church and state, but that this changed in the 1960s when they looked around and saw part of what they were being attacked. The government actions did not look neutral to them. Instead they saw an overarching secularism as its own form of an establishment, and one that excluded them. This shows that an overly compulsive secularism can create its own problems. In response, the left needs to do more to equate anti-establishment norms with the protection of religion and demonstrate to those on the right that their focus should be not on protecting a certain faith, but ensuring that there is a true separation between church and state. Mr. Marshall believes that the current Summum Supreme Court case shows the intellectual weakness of carrying the conservative argument too far, as they have fought for the equality for religious instiutions and organizations in state treatment and now are faced with the same type of claim in opposition. Hopefully, this will suggest strongly t the conservatives that there is no better way to protect religion than keep the government out of it.

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