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(82,333 posts) Thu May 8, 2014, 03:28 PM May 2014

A Prayer for Liberals

Why are some liberals conceding that it's their fault for objecting to legislative prayer?

May 8 2014 1:30 PM
By Micah Schwartzman and Nelson Tebbe

Micah Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law.

Nelson Tebbe is a professor of law at Brooklyn Law School and he will be a visiting professor of law at Cornell Law School in the fall of 2014.

Early reactions to the Supreme Court’s decision this week to uphold sectarian legislative prayers in Town of Greece v Galloway have been mostly critical from the left. That is not surprising: One might expect the political response among pundits and academics to be as predictable as the 5–4 split between the justices. But it turns out that some liberals, including some prominent progressive thinkers and, for that matter, the Obama administration, are either sanguine about or affirmatively happy with the decision. For example, Noah Feldman, a professor at Harvard Law School, has endorsed Justice Kennedy’s plurality opinion on the grounds that only government coercion should trigger a violation of the Establishment Clause. As long as the government does not force you to do or say anything religious, he says, and provided that it does not proselytize or denigrate other religions, the government can endorse whatever religious messages the majority prefers.

Under this analysis, if the Town of Greece wants to post a billboard saying, “This is a Christian Town,” it is perfectly within its rights to do that. The town might have bad manners, but there is nothing unconstitutional about that. No coercive harm, no foul.

Why would some liberals accept this understanding of the Establishment Clause? In his earlier work, Feldman argues for a compromise between secular liberals and religious conservatives. Secular liberals, he contends, worry chiefly about state funding of religious organizations. Going back to Jefferson and Madison, the idea behind separating church and state has been to prevent the state from forcing taxpayers to pay for other people’s religious practices. Fair enough. But in order to get religious conservatives to go along with that principle, secular liberal thinkers felt they had to give them something in return. And what do religious conservatives want? They want to be able to express their deepest religious convictions in the public sphere. They want to pray at town meetings, to place religious symbols in government buildings and on public lands, and, more generally, they want the state to acknowledge the importance—and perhaps also the truth—of their religious heritage.

So here we have the makings of a compromise: Liberals would get a ban on state funding of religion, and conservatives would get state-sponsored religious recognition. Everyone would be happy. Or that was the theory.

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/the_strange_liberal_argument_that_thin_skinned_religious_minorities_should.html