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The waning phase of the acrimonious Bush era features a newly aggressive secularism, reflected in bestsellers that cast sophomoric scorn upon believers of all faiths. According to a New York Times Book Review critic, it looks like America's ballyhooed culture war is petering out as the Religious Right suffers "the thrashings of a dinosaur that can do a lot of damage even in its final throes."
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Or on the contrary, have evangelicals "joined the American elite," as the subtitle of a forthcoming book from Oxford University Press contends? Indeed, as a couple dozen other books warn, have believers grasped so much power that "fascists" or "Christocrats" or "Christianists" or "theocons" threaten to supplant American democracy with theocracy?
There is related confusion over religion's legal status. In his impassioned book The Last Freedom: Religion from the Public School to the Public Square, Joseph P. Viteritti, director of Hunter College's graduate program in urban affairs, asserts that religious freedom is being suppressed by cultural elites—an assessment echoed by many observers. But from other circles we get a sharply contrasting view: in God vs. the Gavel (Cambridge Univ. Press), for example, Marci A. Hamilton of Yeshiva University's law school argues that religious liberty has gotten out of hand as agitators twist the Constitution to unfairly claim "broad sway to violate the vast majority of laws."
With one-vote U.S. Supreme Court majorities on so many religious and moral disputes, the next president's nominees are likely to tip the balance. Viteritti counts among the experts who are dissatisfied with the Court's religion jurisprudence these past 60 years, though they reach no consensus on a solution. The prime example of this literature is Separation of Church and State (Harvard) by Philip Hamburger of the Columbia University Law School, who believes that the First Amendment, though written in order to limit government intrusion, has been interpreted so as "to constrain religion." In Religious Freedom and the Constitution (Harvard Univ. Press), Princeton University Provost Christopher L. Eisgruber and Lawrence G. Sager, law school dean of the University of Texas at Austin, argue that the familiar demand for a high wall of separation between church and state is "silly and incoherent." They advocate instead "equal liberty" that gives religion neither special privileges nor disabilities. In Divided by God (Farrar, Straus and Giroux), Harvard Law's Noah Feldman would tolerate bland public religious symbols (e.g., "under God" in the Pledge of Allegiance) but takes a tougher line against any public aid to "faith-based" schools or charities.
The Constitution famously forbids federal laws "respecting an establishment of religion, or prohibiting the free exercise thereof." Viteritti thinks the idea that this requires complete church-state separation would have been "unfathomable" to founders Jefferson and Madison. In outlawing Mormon polygamy in 1879, the Supreme Court ruled that while freedom of belief is absolute, religious actions may be curbed if they subvert the social order. In a 1940 Jehovah's Witnesses case, the Court for the first time extended the Constitution's religion demands to state and local governments. After that, Viteritti contends, the Court used the "establishment of religion" clause to protect purported interests of government or non-believers over against the "free exercise" of religious believers. A 1947 dictum held that governments cannot "pass laws which aid one religion, aid all religions, or prefer one religion over another." A 1971 elaboration stated that laws must have a "secular legislative purpose" and a "primary effect … that neither advances nor inhibits religion," and cannot foster "excessive" entanglement between church and state. Coherent application of those standards has proven elusive.
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