Introduction: Religion, Division, and the Constitution

Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive [Iy]" - and, therefore, unconstitutionally - "entangle" government and religion,1 not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential."2 He worried that government actions burdened with this "potential" pose a "threat to the normal political process"3 and "divert attention from the myriad issues and problems that confront every level of government."4 And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect."5 Accordingly, he concluded that the parochial-school-funding programs under review in Lemon were unconstitutional, not only because they "foster[ed] an impermissible degree of entanglement" between government and religion,6 but also because they were likely to "intensify]" "[pjolitical fragmentation and divisiveness on religious lines."7 As I have described in detail elsewhere,8 Chief Justice Burger's view that the First Amendment not only authorizes, but also invites, judges to look to their observations and predictions of political division along religious lines for the enforceable content of the Establishment Clause has, since Lemon, been endorsed and employed by many scholars, judges, commentators, and citizens, in many cases and contexts. More generally, the claims that America is divided and religion is divisive are unavoidable in - indeed, they animate and shape - much of what is said and written today about law, politics, religion, and culture. We have all seen the maps and survey results that are said to reveal - or, maybe, to construct - our 'Two Americas"9: Red and Blue, Metro and Retro,10 "United States of Canada" and "Jesusland."11 And, we have all heard, time and again, about the "culture wars"12 pitting - in the words of one of our more clear-eyed social observers - "racist fascist knuckle-dragging NASCAR-obsessed cousin-marrying roadkill-eating tobacco-juice-dribbling gun-fondling religious fanatic rednecks" against "godless unpatriotic pierced-nose Volvo-driving Franceloving left-wing communist latte-sucking tofu-chomping holistic-wacko neurotic vegan weenie perverts."13 True, many social scientists have questioned the post-Bush v. Gore "Red v. Blue" thesis, and suggested that, in fact, our country and communities come in a wide range of purple shades.14 Still, the "religion is divisive" meme continues to spread through and to shape both litigation and public conversations. For example, Justice David Souter observed not long ago that "[w]e are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable."15 Indeed, according to a prominent philosopher, Richard Dawkins, "[o]nly the willfully blind could fail to implicate the divisive force of religion in most, if not all, of the violent enmities in the world today."16 Former Senator and Ambassador John Danforth (who is also an Episcopal priest), is not quite so harsh, but still warns that while, "[a]t its best, religion can be a uniting influence, ... in practice, nothing is more divisive."17 In addition, prominent jurists and scholars continue to urge that the asserted tendency of a particular policy to cause, or to reflect, religion-related divisiveness may and should be taken into account by judges asked to evaluate its constitutional validity. Indeed, the argument that what Chief Justice Burger called "political division along religious lines"18 is constitutionally significant, as well as politically, culturally, or aesthetically troubling, appears to be enjoying something of a comeback after a time on the doctrinal back burner.19 Justice Breyer, for example, in his crucial concurring opinion in one of the recent Ten Commandments cases, identified "avoiding] that divisiveness based upon religion that promotes social conflict" as one of the "basic purposes of [the Religion] Clauses. …