I recently read Mark DeWolfe Howe's "The Garden and the Wilderness," which
is widely regarded as one of the classic works on law and religion. The
book has many virtues. It is thoughtfully argued and often well written,
though the prose is encumbered by too much old-Harvard preciousness. But
it seems to me that there is a deep incoherence in the argument. Since
this august gathering is likely to include many who are familiar with the
book, I wanted to give my reaction a reality check, so here I am.
Howe, throughout the book, contrasts the Jeffersonian, secularist view of
separation, which he disfavors, with that of Roger Williams, who feared
"the worldly corruptions which might consume the churches if sturdy fences
against the wilderness were not maintained." (6) He takes, as evidence
that the Williams view better represents our traditions, what he calls the
"de facto establishment," which embraces "a host of favoring tributes to
faith" such as Sunday closing laws, the use of God on the currency,
legislative prayers, Thanksgiving proclamations, and so forth. (11) He
uses the term because "this social reality, in its technical independence
from law, bears legally some analogy to that ugly actuality known as de
facto segregation." (11)
What's puzzling to me about this is that what he describes isn't de facto
at all, but de jure. De facto segregation is segregation in which the
state does not officially give recognition to race at all. But what he
calls de facto establishment is a set of practices in which the state
behaves in overtly religious ways, and proclaims religious
truth. "Ceremonial deism" would be a better term for these practices. (In
fact, the Court has never used "de facto establishment," but there have
been a few references to "ceremonial deism" in the opinions.) When Justice
Brennan introduced that term, he wrote:
such practices as the designation of "In God We Trust" as our national
motto, or the references to God contained in the Pledge of Allegiance can
best be understood, in Dean Rostow's apt phrase, as a form of "ceremonial
deism," protected from Establishment Clause scrutiny chiefly because they
have lost through rote repetition any significant religious content.
Lynch v. Donnelly, 465 U.S. 668, 716 (1984)(Brennan, J., dissenting).
Perhaps ceremonial deism can be justified. But Roger Williams seems like a
strange authority to go to for support. Williams' suspicion of state
control over religion would appear logically to extend to any degree of
ceremonial support for religion. The draining of religious meaning through
rote repetition would appear to be just the kind of degradation of religion
that Williams was afraid of. That's why Rhode Island didn't have an
established church. If the state is incompetent to adjudicate religious
matters, then why should it be authorized to declare that there is one God,
and that the Hindus, Buddhists, and atheists are mistaken about this
question? As best I can tell, this question never really occurs to
Howe. Is he being inconsistent here?
________________________________________
Andrew Koppelman
Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611-3069
(312) 503-8431
mailto:[EMAIL PROTECTED]
________________________________________
_______________________________________________
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