Prefacing his comment supporting the Ground Zero mosque with one of his signature verbal tics indicating that he really, really means what he was about to to say (“But let me be clear”), President Obama recently announced:
But let me be clear. As a citizen, and as President, I believe that Muslims have the same right to practice their religion as everyone else in this country. And that includes the right to build a place of worship and a community center on private property in Lower Manhattan, in accordance with local laws and ordinances. This is America. And our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are. The writ of the Founders must endure.
Now, let me be clear. What I find most interesting about Obama’s comment is neither the hint of a hitherto unseen respect for “private property” nor even the startling evidence, also never seen before, of fealty to an originalist interpretation of a Constitution written in stone. If “[t]he writ of the Founders must endure,” it must be because the document that resulted from “the wisdom of our Founders” (which he had mentioned two paragraphs earlier) requires us to honor principles that don’t ebb and flow with the changing tides of public opinion. Elsewhere the Constitution may be “living,” adapting to newer conceptions of liberty, but not at the “hallowed ground” of Ground Zero. There at least, it means what it always meant.
What is interesting here is not this nod to originalism — a nod that is sure to be as temporary as it is insincere — but rather how the president chooses to defend the principle of religious liberty. “[O]ver the course of our history, he explains,
religion has flourished within our borders precisely because Americans have had the right to worship as they choose — including the right to believe in no religion at all. And it is a testament to the wisdom of our Founders that America remains deeply religious — a nation where the ability of peoples of different faiths to coexist peacefully and with mutual respect for one another stands in stark contrast to the religious conflict that persists elsewhere around the globe.
Yesterday, however, Obama backtracked and clarified what he had taken such pains to “be clear” about the day before: “Obama narrows mosque comments” (Politico) or “expands on mosque comments” (The Hill) by insisting that he was not commenting “on the wisdom” of putting a mosque at Ground Zero but rather only “very specifically on the right” to put it there.
Never mind that few critics of that decision deny the right. What is fascinating here is how Obama defines the right that he defends: “In this country we treat everybody equally and in accordance with the law, regardless of race, regardless of religion.” [Emphasis mine]
Let’s ignore for now both the fact that this assertion is clearly not true — it is official government policy in this country to treat some people better and others worse because of their race — and even the fact that Obama himself supports preferential treatment based on race and opposes all efforts to prohibit it. What is noteworthy is that he is now on record as recognizing that both religious freedom and racial equality require governmental neutrality, a principle embedded in the Constitution by the “writ of the Founders” whose wisdom has been confirmed over “the course of our history.”
As it happens, I’ve written about the relationship between religious liberty and racial equality before, and I hope you will indulge me in quoting a long excerpt from this 2002 post (occasioned by the then-recent Cleveland school voucher case) where I argued that “the principle of neutrality … derives not so much from the text of the Constitution as from something deeper in the very structure of our society,” the very thing identified by Obama in his recent comment:
That something is the overriding fact of religious pluralism, a pluralism that in the absence of official neutrality would lead to constant strife and conflict. The dissenters, in short, recognize that the small “c” constitution of American society of necessity dictates the meaning of the large “C” Constitution.
And now the long excerpt:
Race and Sects in American History
…. One of the most cherished myths of American history is that our foremothers and forefathers fled the Old World for the New to escape religious bigotry and build a new society based on religious freedom. In fact, the Puritans’ strongest complaint against the Old World was that it was too tolerant, that it was swimming in a sea of such moral sloth and corruption that it had lost all interest in purifying the church. The New World appealed to them because it was empty (except for the “heathens” ripe for conversion), and they could establish Godly communities the way they were quite certain God intended.
And yet within several generations religious toleration had broken out all over. Despite the best efforts of the Puritan divines, diversity could not be denied. The Baptists and Quakers proved irrepressible. Mennonites appeared, and Methodists sprouted like weeds in the wake of itinerant ministers. Even many Congregational churches split asunder as revivalist “New Lights” walked out and founded competing congregations.
What happened? Unintended and unplanned, America began to happen. What Voltaire said cynically about England came to be celebrated here: “If there were one religion . . . , its despotism would be terrible; if there were only two, they would destroy each other; but there are 30, and therefore they live in peace and happiness.”
Toleration developed not because it was valued but because it was necessary. “Freedom came to the Western world,” wrote Reinhold Niebuhr, one of our greatest theologians, “by the inadvertence of history. Toleration was an absolute necessity for a community which had lost its religio-cultural unity and could find peace only if toleration and freedom were accepted.”
America discovered, however, that toleration alone was not sufficient. Strict neutrality was also required, a prohibition against the state favoring any of the contending sects. As Justice Hugo Black wrote in Zorach v. Clauson (1952), “it is only by isolating the state from the religious sphere and compelling it to be completely neutral that the freedom of each and every denomination and of all nonbelievers can be maintained.” Or as the Court held in Abingdon School District v. Schempp (1963), “the government is neutral, and, while protecting all, it prefers none.”
But if the very structure of American society requires a principle of neutrality that in turn requires a separation of church and state (as the dissenters and I believe it does), should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time “ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history.” (POST-ETHNIC AMERICA, Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as “divisive” today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.
As a perceptive if fickle critic of affirmative action has written, racial and ethnic preferences predictably lead (and in fact have led) to
a real Balkanization, in which group after group struggles for the benefits of special treatment…. The demand for special treatment will lead to animus against other groups that already have it, by those who think they should have it and don’t….
The rising emphasis on group difference which government is called upon to correct might mean the destruction of any hope for the larger fraternity of all Americans.
That was Nathan Glazer, in AFFIRMATIVE DISCRIMINATION (Basic Books, 1975), and if anything he underestimated the divisiveness of bestowing governmental favors on the basis of race and ethnicity. Now that liberals have abandoned the formerly core value holding that every individual is entitled to be treated without regard to race, creed, or color in favor of multiculturalism and group rights, the very idea of “the larger fraternity of all Americans” is regarded by many as nothing more than right-wing cant.
Or consider the current mantra of “diversity.” Harvard law professor Christopher Edley — former White House aide, co-author of President Clinton’s “mend it, don’t end it” review of affirmative action policies, advisor to Clinton’s race commission, fervent advocate of racial preferences (he described Stephan and Abigail Thernstrom’s AMERICA IN BLACK AND WHITE as “a crime against humanity”), and advisor to the 2000 Gore campaign — has written that “our rich religious diversity” provides a model for racial diversity. “We are fairly united as one of the most religious nations on earth,” Edley wrote, “but we worship differently, celebrate that fact, and recognize that religious differences should play only a limited role in our social and economic lives. Perhaps a model along these lines is what is needed in race.” (Edley, “Why Talk About Race?” Washington Post OpEd, 7 December 1997, p. C1.)
Indeed it is, but this “model” suggests a conclusion that Edley and other preferentialists will not like. If ethnic and racial groups are now analogous to religious sects, why should it be permissible for the state to grant preferences to the former when it is clearly prohibited from doing so to the latter?
Perhaps Justice Breyer and his like-minded brethren, on and off the Court, can be called on to explain why they fear “the risk” of “potential” divisiveness in what they see as religious preferences but not the clear and present divisiveness of racial and ethnic preferences. Or, in the alternative, they could explain why a principle that they believe justifies racial preferences does not also justify religious preference, for certainly they recognize that religion provides as good or better basis for “diversity” as race. Would they look on religious preferences in admissions and hiring with the same favor they bestow on racial and ethnic preferences? What is it precisely that would make a preference for Arabs acceptable but for Muslims unacceptable? Are not evangelical Christians “underrepresented” among the students and on the faculties of our elite, selective universities? Why must the Michigan law school have a “critical mass” of blacks and Hispanics but not of Missouri Synod Lutherans? Why was the old quota system that restricted the number of Jews in the Ivy League (presumably) wrong, but the de facto quota system that restricted the number of Asians admitted to Berkeley and UCLA under the reign of preferences not wrong?
In short, perhaps it is time to insist on a separation of race and state, to insist in the ethnic and racial sphere, as well as the religious, that government must be neutral, that it protect all of its constituent groups but prefer none — not because the First Amendment compels neutrality in this sphere, but because of the same social reality that led to the First Amendment in the first place.
“This is America,” someone should remind the president. If “[t]he principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are,” as I believe it is, then for the “writ of the Founders” to “endure” it is also and equally necessary that people of all races and ethnicities must “not be treated differently by their government” because of who they are.
President Obama seems, at least on this occasion, to understand the principle. Now let him practice it.