We last encountered evangelical Christian Harvard law professor William Stuntz here (David Brooks said he’d written one of the ten most influential articles of 2004) and here. Now he’s written another article, “Turning Faith Into Elevator Music,” that I commend to everyone. (Hat Tip to InstaPundit)
Part of his argument here — supporting strict separation of church and state, including taking down all the 10 Commandments in courtrooms, etc. — is not as surprising as some may think for an evangelical to make. There is a long and honorable tradition among a number of Protestant denominations and sects of opposing religious entanglement with government, and vice versa, not because it threatens theocracy etc. but because it of necessity dilutes and contaminates religion. As Stuntz writes,
Symbolic acknowledgments like the Texas monument and the Kentucky plaques, like religious mottoes on money or public manger scenes (usually accompanied by Santa and his reindeer), are quintessentially lukewarm. They do not so much honor God as try to buy him off, cheap. This was precisely the problem with most mandatory school prayers in the days when such things were allowed. The prayers were so vapid as to insult believers, yet still managed to offend non-believers. Just like baby Jesus with a stable full of reindeer.
Seeing the Ten Commandments in public spaces is a little like hearing the Miranda warnings on “Law and Order,” which doesn’t make anyone think about the real meaning of Miranda (whatever that is) because it doesn’t make anyone think at all. It’s the social equivalent of elevator music. Religious people shouldn’t want their faith to be elevator music.
To repeat, this part of Stuntz’s argument is not really unique or unusual, even coming from an evangelical Christian. (He does, however, make it beautifully. I’m a big fan of not only what but how Stuntz writes.)
What I find more original from the professor of Christian legal theory (among other more normal law school offerings) is his emphasis on the Christian, as opposed to legal or constitutional, arguments for foregoing all monuments, etc.
Here’s a thought experiment. Test the decision to put that monument on the Texas capitol grounds against another Biblical principle: the Golden Rule, the idea C.S. Lewis liked to call “do as you would be done by.” Take the people who want symbols of their faith on government property, and put them in a society where passionate atheism is the majority view. Suppose all those passionate atheists want to put up monuments in every courthouse and state capitol saying that there is no God, that all good law consists of human wisdom and nothing more. Would my fellow believers like that state of affairs? I don’t think so. I know I wouldn’t like it. It would make me feel, just a little, like a stranger in my own home, someone who doesn’t belong. It would be a tiny reminder that other people with beliefs hostile to mine own this country, and that I’m here at their sufferance. I wouldn’t like that at all.
If that’s right, then turning around and doing the same thing to people who don’t believe what I do when my crowd is in the majority is wrong. Not wrong by the measure of the First Amendment or some legal theory or secular philosophy, but wrong by the measure of “do as you would be done by.”
…. If the Golden Rule means anything in this context, the question should be, what is to the other side’s advantage? Twenty-first century America is a land full of legal rights, and lawyers to make the most of them. The most Christian thing to do in a place like that is to make the least of them. Somewhere, sometime I’d like to hear that my fellow believers, when given the opportunity to erect some watered-down monument or display, said: “Thank you, but no. I don’t want to exercise my rights.” That would communicate more Christian faith than all the monuments and plaques and graduation prayers put together.
Stuntz thus argues not that insisting on religious symbols (or pale shadows of religious symbols) in public space is unconstitutional but rather that it is, well, impolite. It’s bad manners. In this approach he is being as characteristically Southern (he graduated from William and Mary and UVA law school) as those Bible-thumpers whom many Yankees believe to be the region’s sole (white) inhabitants. (An old friend of mine, Bob Canzoneri, from Mississippi, wrote a very good book on the South a while ago called I DO SO POLITELY: A VOICE FROM THE SOUTH (Houghton Mifflin, 1965).
Stuntz’s is an approach with which I can easily identify. It is identical, in fact, to my own view of the sporadic but continuing controversies over flying the Confederate flag over state houses, etc. I don’t think individuals, or collections of them into groups, even minority groups, have a right not to be offended by public displays of whatever, but I also think it’s dumb and unattractive and, yes, impolite for a community, or a state, to insist on the display of symbols that a significant portion of its citizens finds objectionable.
But as much as I admire and even agree with Stuntz’s approach here, I do have some reservations about it — more quibbles, concerns, qualifications than outright disagreement, however. First, as we’ve seen Stuntz acknowledges that his view that it is “wrong” to post religious religious symbols in public places is “[n]ot wrong by the measure of the First Amendment or some legal theory or secular philosophy,” but wrong based on his reading of the Golden Rule. He’d rather the courts, legislatures, etc., stick to their tasks instead of setting about to instill morals (but what about schools?), but he also acknowledges that “the question shouldn’t be what I’d rather.” Fine. The problem here is that Stuntz, after predicting a continuing round of ACLU lawsuits challenging religious displays, also says (for the reasons outlined above) “I’m rooting for the lawsuits.”
That, simply put, won’t do. Stuntz obviously agrees that it is not the role of the courts to enforce his, or anyone else’s, reading of the Golden Rule. (Well, maybe that’s Justice O’Connor’s role; it seems to explain her opinions as well as anything else.) But if Stuntz wants federal courts to tell state legislatures and courts what they can and cannot display, he should supply them, and us, with another set of reasons, reasons that cannot avoid, as he does here, “the First Amendment or some legal theory.”
My other qualification about Stuntz’s Golden Rule approach is, like his own presentation, more personal. Stuntz recognizes that, given his background and values, many people will be surprised by his position on religious displays. It’s “a little odd,” he writes, that he should oppose public religious displays,
since I’m part of the target audience, the constituency that is supposed to like these things. I live in Massachusetts (which Michael Moore likes to call “Canada”), but my natural sympathies belong to [what Michael Moore calls] Jesusland. I’m a Christian. I believe the Bible is a true account of who God is and who we are. I believe the Ten Commandments lie at the core of wisdom. I believe the Incarnation, the event all those manger scenes celebrate is incomparably the best and most important event in human history. If it matters, I even voted for George W. Bush, twice. So if anyone should want the Ten Commandments in state capitols and “in God we trust” on the coins and manger scenes on courthouse lawns, I should.
I can say something very similar, or at least make the same sort of “it’s a little odd” comment, and for similar reasons. I was the only Jewish student in school — in fact, in the whole small Alabama town — where and when I grew up. That was before God (which, make no mistake about it, meant Jesus) had been thrown out of the schools, and thus I experienced (“was subjected to,” if you prefer) the whole nine yards of prayers, Christmas celebrations, Christian benedictions, blessings of the teams, etc. You’d think I’d be the perfect candidate to favor removing all these religious expressions that should have made me feel excluded.
Maybe I should be, but I’m not, and for some of the very same reasons given by Stuntz for excluding them.
Stuntz makes a sensitive and strong case that majorities should refrain from insisting on the public display of religious symbols, even if they have a right to display them, when doing so would make minorities feel excluded, disrespected, like strangers in their own home who live where they do by sufferance and not by right. But, in my view, that restraint should be a two-way street. By Stuntz’s own logic, shouldn’t minorities also refrain from insisting on their right (if they have one) to have all religious symbols removed if doing so makes large numbers of their neighbors angry, resentful, and feeling that their own values are being disrespected? Majorities, after all, can also be made to feel like strangers in their own homes.
Whatever the theory and however Stuntz or anyone else would have felt, I know that in my case I very much did feel that I was part of my community. If Jesus loved me, too, as the song promised, so much the better. But let’s leave Jesus out of it. Insofar as forcing the removal of religious symbols is intended to make minorities feel more welcome and less excluded, I can assure you that in my experience doing so would unquestionably have had exactly the opposite effect.
In short, we would have a more harmonious, less contentious, society if everyone followed Stuntz’s good advice, not just majorities.