Religions, Fragmentations, and Doctrinal Limits

The title of this symposium, "Religion, Division, and the Constitution," suggests certain presuppositions: there is a set of activities captured by the term "religion;" these activities might be politically or socially or culturally divisive (though maybe not); and constitutional law should do something about this (or, again, maybe not). Together, these assumptions form a thesis to be explored or interrogated: "Religion Clause doctrine should mediate the political, social, and cultural divisions caused by religion." The title also implies some less obvious assumptions. One is that the term "religion" is meaningful or useful or, at least, uncontested in this context, a concept that uncontroversially holds within it essential characteristics of a certain kind of activity. Another is that some sort of unity exists in the United States that "religion" might (or might not) threaten to divide, some political or social or cultural consensus that religion undermines (or not). Still a third assumption is that Religion Clause doctrine is capable of eliminating or mitigating threats to this unity. All three assumptions are flawed. First, the term "religion," as used in our title and by many commentators, lumps together attitudes that are irreconcilably different. The problem here is not "religion," but rather a certain kind of "religion," so the emphasis should be on "religions," not "religion."1 Second, "division" implies a unity or an order that "religion" - whatever it is - threatens to divide, which I think gets the problem exactly backwards: "Religion" is not threatening to divide an existing social or cultural consensus; rather, a certain kind of religion is seeking to impose unity on a society and a culture that are already radically divided.2 And finally, there is little that Religion Clause doctrine can do about this state of affairs; at the least, this problem cannot be resolved on the basis of any plausible neutral principle.3 PART I To begin, let me summarize some reports on American and European attitudes about religious belief and worship that appeared in the popular press in 2004 and 2005. The Barna Research Group reported that "88% of [American] teens say they are Christians," "60% believe that 'the Bible is totally accurate in all of its teachings,'" and "56% feel that their religious faith is very important in their life."4 This, I suppose, was the good news. On the other hand, "slightly more than half of all U.S . teens also believe that Jesus committed sins while he was on earth," "two-thirds say that Satan is just a symbol of evil, not really a living being," and "[o]nly 6% believe that there are moral absolutes."5 Now, lest you think that Barna surveyed only the bad blue-state teenagers, consider this: Evangelical youth minister Josh McDowell has reported that "[n]inety-one percent of born-again teenagers surveyed a few years ago proclaimed that there is no such thing as absolute truth," that a "slight majority" of evangelical teens "say that the bodily resurrection of Jesus Christ never occurred," and that "[n]early 60% of evangelical Christian teenagers now say that all religious faiths teach equally valid truths."6 Even so, a recent UCLA study of college freshmen "showed [that] 80 percent are interested in spirituality and discuss it with friends; 79 percent believe in God and 76 percent are searching for meaning and purpose in life. In addition, 81 percent say they attend religious services."7 David Barton, a Christian reconstructionist and Republican activist, has argued that because eighty-eight percent of Americans "call themselves Christians," there is a "fairly good basis" for calling the United States "a Christian nation."8 Similarly, former Alabama Chief Justice Roy Moore (who I trust needs no introduction), has argued that American judges "have become arbitrary in depriving Americans of life by legal abortion or starvation, by snatching property rights for private economic gain[, and] by restricting our freedom to acknowledge God. …