1. Elsewhere I have questioned the principle of religious equality as applied to certain legal questions arising under the Establishment Clause. See Conkle, Daniel O., Religious Purpose, Inerrancy, and the Establishment Clause, 67 Ind L J 1 (1991)Google Scholar. My primary focus here, by contrast, is not on the legality of religion in American public life, but rather on its propriety or value. Needless to say, this latter question is influenced—though not controlled—by the constitutional and legal structure of our society, and the provisions of the First Amendment are obviously important in this respect. See below, notes 38-41 and accompanying text.

2. Herberg, Will, Protestant-Catholic-Jew (Doubleday, 1955)Google Scholar.

3. See Goldman, Ari L., Portrait of Religion in U.S. Holds Dozens of Surprises, NY Times Al col 1 (04 10, 1991)Google Scholar. Commissioned by the Graduate School of the City University of New York, this survey of 113,000 people from around the nation is described as “the largest and most comprehensive effort to draw a portrait of religion in America.” Id.

4. See Melton, J. Gordon, The Encyclopedia of American Religions (Gale, 3d ed 1989)Google Scholar. This source actually lists 1,588 such bodies, but these include some from Canada.

5. See Goldman, NY Times (cited in note 3).

6. Religion and Politics, Los Angeles Times Survey, Question No. 61 (July 1986) (available on microfiche).

7. Gallup, George Jr., The Gallup Poll: Public Opinion 1990 at 67 (Scholarly Resources, 1991)Google Scholar.

8. Id at 68.

9. See Berman, Harold J., Religion and Law: The First Amendment in Historical Perspective, 35 Emory L J 777, 779–83 (1986)Google Scholar; Noonan, John T. Jr., The Constitution's Protection of Individual Rights: The Real Role of the Religion Clauses, 49 U Pitt L Rev 717, 718–19 (1988)Google Scholar.

10. See Cantwell v Connecticut, 310 US 296 (1940) (Free Exercise Clause); Everson v Board of Educ, 330 US 1 (1947) (Establishment Clause).

11. Story, Joseph, 2 Commentaries on the Constitution of the United States § 1874 at 630–31 (Little Brown, 5th ed 1891)Google Scholar.

12. Id at 631. See also § 1871, at 628 (“[I]t is impossible for those who believe in the truth of Christianity as a divine revelation to doubt that it is the especial duty of government to foster and encourage it among all the citizens and subjects.”). This is not to suggest that the rhetoric of religious equality was entirely absent in the founding period. See Hall, Timothy L., Religion, Equality, and Difference, 65 Temp L Rev 1, 2–3 (1992)Google Scholar.

13. Church of the Holy Trinity v United States, 143 US 457, 471 (1892).

14. United States v MacIntosh, 283 US 605, 625 (1931). Compare Berman, , 35 Emory L J at 779 (cited in note 9)Google Scholar (suggesting that prior to World War I, the United States thought of itself “as a Protestant Christian country”).

15. See Engel v Vitale, 370 US 421 (1962); School Dist. of Abington Township v Schempp, 374 US 203 (1963).

16. See Civil Rights Act of 1964, Pub L No 88-352, Title II, § 201, 78 Stat 241, 243, codified at 42 USC § 2000a (1988) (public accommodations); id, Title VII, § 703, 78 Stat 241, 255, codified as amended at 42 USC § 2000e-2 (1988) (employment).

17. See Fair Housing Act of 1968, Pub L No 90-284, Title VIII, § 804, 82 Stat 73, 83, codified as amended at 42 USC § 3604 (1988).

18. Everson v Board of Educ., 330 US 1, 15 (1947). Based on this principle, the Court has ruled that government action preferring certain religions over others should be subjected to strict judicial scrutiny. See Larson v Valente, 456 US 228, 244-55 (1982).

19. See, for example, Wallace v Jaffree, 472 US 38, 113 (1985) (Rehnquist dissenting) (government is precluded “from asserting a preference for one religious denomination or sect over others”); Cord, Robert L., Separation of Church and State: Historical Fact and Current Fiction (Lambeth Press, 1982)Google Scholar. See generally Smith, Rodney K., Nonpreferentialism in Establishment Clause Analysis: A Response to Professor Laycock, 65 St John's L Rev 245 (1991)Google Scholar (discussing possible variants of “no preference” notion).

20. Larson v Valente, 456 US at 244. See generally Garvey, John H., Freedom and Equality in the Religion Clauses, 1981 S Ct Rev 193 (finding equality principle inherent in Establishment Clause)Google Scholar; Lupu, Ira C., Keeping the Faith: Religion, Equality and Speech in the U.S. Constitution, 18 Conn L Rev 739, 741–55 (1986)Google Scholar (reading Establishment Clause to embody principle of “equal religious liberty”); Paulsen, Michael A., Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L Rev 311 (1986) (accord)Google Scholar. Compare Lupu, Ira C., Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U Pa L Rev 555, 580 (1991)CrossRefGoogle Scholar (“Equal religious liberty is simply one of a series of parallel constitutional commitments— equal respect for ideas, for consciences, for privacy, for racial, ethnic, or religious identity, and for voluntary associational choices.”).

21. See Sherbert v Verner, 374 US 398, 409 (1963) (“the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences”).

22. 494 US 872 (1990). Congress has attempted to repudiate Smith by statute. See Religious Freedom Restoration Act of 1993, Pub L No 103-141, 107 Stat 1488.

23. Justice Scalia's majority opinion in Smith contained conflicting statements on this point. On the one hand, Scalia apologetically stated that by leaving religious freedom largely to the political process, the Court's decision might actually engender a type of religious discrimination by “plac[ing] at a relative disadvantage those religious practices that are not widely engaged in.” Id at 890. At the same time, however, he suggested that free exercise exemptions were “a constitutional anomaly,” unlike the “constitutional norm” of “equality of treatment,” id at 886, and that the Court would continue to “strictly scrutinize governmental classifications based on religion,” id at 886 n 3.

Whatever the ambiguities in Scalia's rationale, his broad retreat from the granting of free exercise exemptions was joined by Justice Stevens, who provided a critical fifth vote for the majority opinion. In joining the Court's general renunciation of free exercise exemptions, Justice Stevens clearly was influenced by the principle of religious equality, on which he consistently has relied in arguing against such exemptions. See, for example, United States v Lee, 455 US 252, 263 n 2 (1982) (Stevens concurring in the judgment) (“[T]he principal reason for adopting a strong presumption against [claims for religious exemptions] … is the overriding interest in keeping the government—whether it be the legislature or the courts—out of the business of evaluating the relative merits of differing religious claims,” which can create the appearance of “favoring one religion over another.”); Goldman v Weinberger, 475 US 503, 512 (1986) (Stevens concurring) (reiterating the discriminatory potential of religious exemptions and noting “the interest in uniform treatment for the members of all religious faiths”).

(Justice O'Connor provided a sixth vote for the Court's judgment in Smith, but she wrote a separate opinion that rejected the majority's dramatic reconstruction of free exercise doctrine. See 494 US at 891-907 (O'Connor concurring in the judgment).)

For a recent and interesting discussion of the role of equality under both the Establishment Clause and the Free Exercise Clause, see Hall, , 65 Temp L Rev 1 (cited in note 12)Google Scholar.

24. I say “generally.” The Supreme Court's recent decision in Smith, grounded in part on the principle of religious equality, suggests that this principle may not always support religious diversity and vitality. See above, notes 22-23 and accompanying text.

25. Wood, James E. Jr., Religious Pluralism and Religious Freedom, 31 J Church & State 7, 12 (1989)CrossRefGoogle Scholar. “This is not to ignore the profound differences in teachings and practices that divide religions from one another,” the author continues, “but these differences are no basis for any form of legal discrimination between the various religions.” Id. Compare McConnell, Michael W., Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1109, 1139–41 (1990)CrossRefGoogle Scholar (arguing that religious differences are important and should be legally accommodated by treating religion more like handicap than like race).

26. Solum, Lawrence B., Faith and Justice, 39 DePaul L Rev 1083, 1092–95 (1990)Google Scholar.

27. Id at 1093 n 32.

28. “Raise a question concerning public morality,” writes the Rev. Richard John Neuhaus, “and the objection immediately comes: ‘Whose morality or whose values will be imposed upon whom?’” Neuhaus, Richard John, The Moral Delegitimization of Law, 4 Notre Dame J L Ethics & Pub Pol'y 51, 55 (1989)Google Scholar.

29. See generally Wuthnow, Robert, The Restructuring of American Religion: Society and Faith Since World War II, at 277–82 (Princeton Univ Press, 1988)Google Scholar (arguing that in recent decades, America's understanding of freedom has evolved to include an ethos of “radically relativized choice,” which “turns moral discourse into a mere discussion of personal preferences”).

30. Gedicks, Frederick Mark, Some Political Implications of Religious Belief, 4 Notre Dame J L Ethics & Pub Pol'y 419, 421 (1990)Google Scholar. See also Smith, Steven D., The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U Pa L Rev 149, 169–78 (1991)CrossRefGoogle Scholar (arguing that the decline of public religion is not the product of declining religious commitment, but rather of the belief that religion is inadmissible in public debate). Compare Myers, Richard S., The Supreme Court and the Privatization of Religion, 41 Cath U L Rev 19, 59–60 (1991)Google Scholar (noting that Supreme Court justices who are suspicious of public religion tend to support the free exercise of private religion).

31. See Gedicks, , 4 Notre Dame J L Ethics & Pub Pol'y at 421–27 (cited in note 30)Google Scholar. Using judicial appointees as his example, Professor Sanford Levinson argues that those who would become public officials are forced to suppress their private, religious identities by “proclaiming] the practical meaninglessness” of their religious faiths. Levinson, Sanford, The Confrontation of Religious Faith and Civil Religion: Catholics Becoming Justices, 39 DePaul L Rev 1047, 1049 (1990)Google Scholar. See also Carter, Stephen L., The Religiously Devout Judge, 64 Notre Dame L Rev 932 (1989)Google Scholar.

32. Professor John Rawls, at least in his early work, can be read as the progenitor of this philosophical perspective on religion. See Rawls, John, A Theory of Justice (Belknap Press, 1971)Google Scholar. For a recent effort to defend liberalism's exclusion of religion from politics and law, see Solum, , 39 DePaul L Rev 1083 (cited in note 26)Google Scholar. For a critical and questioning account of this exclusion and its philosophical predicate, see Gedicks, Frederick Mark, Public Life and Hostility to Religion, 78 Va L Rev 671 (1992)CrossRefGoogle Scholar.

Professor Mark Tushnet has argued that the Supreme Court's religion clause decisions generally protect religious beliefs only when they have no socially significant consequences, thereby bringing the Court's doctrine roughly in line with modern liberal thought. See Tushnet, Mark, Red, White, and Blue: A Critical Analysis of Constitutional Law 257–72 (Harvard U Press, 1988)Google Scholar.

33. Carter, Stephen L., The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion 22 (Basic Books, 1993)Google Scholar.

34. Carter, Stephen L., The Inaugural Development Fund Lectures: Scientific Liberalism, Scientistic Law, 69 Or L Rev 471, 501 (1990)Google Scholar.

35. Gaffney, Edward McGlynn Jr., Politics without Brackets on Religious Convictions: Michael Perry and Bruce Ackerman on Neutrality, 64 Tul L Rev 1143, 1147n51 (1990)Google Scholar.

36. McConnell, Michael W., The Role of Democratic Politics in Transforming Moral Convictions into Law, 98 Yale L J 1501, 1505–06, 1509–11 (1989)CrossRefGoogle Scholar (book review of Perry, Michael J., Morality, Politics, and Law: A Bicentennial Essay (Oxford U Press, 1988))Google Scholar.

In his most recent book, Professor Perry defends, on theological grounds, his normative understanding of religion. Although he focuses mainly on religion as he understands it, he also recognizes that there are other prevalent understandings, and therefore that religion is not a generic phenomenon. Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics 100–12, 121–22, 139–41 (Oxford U Press, 1991)Google Scholar.

37. Tushnet, Mark, Comments on Gedicks and Ball, 4 Notre Dame J L Ethics & Pub Pol'y 457, 458 (1990)Google Scholar.

38. This discussion is drawn from a more elaborate analysis in Conkle, , 67 Ind L J at 5–10 (cited in note 1)Google Scholar. See also Conkle, Daniel O., Toward a General Theory of the Establishment Clause, 82 Nw U L Rev 1113, 1164–69, 1172–87 (1988)Google Scholar.

39. I say “generally.” Exceptions may be appropriate for certain government actions that are supported by historical tradition, as well as certain government actions that “accommodate” the free exercise of religion. On historical tradition, see Conkle, , 82 Nw U L Rev at 1183–87 (cited in note 38)Google Scholar. On accommodation, the most prominent academic spokesman is Professor Michael W. McConnell. Professor McConnell explains and defends the concept, and addresses its critics, in McConnell, Michael W., Accommodation of Religion, 1985 Sup Ct Rev 1Google Scholar; McConnell, Michael W., Accommodation of Religion: An Update and a Response to the Critics, 60 Geo Wash L Rev 685 (1992)Google Scholar.

40. As Dean M. Kelley has explained, “the formative religious traditions of the Western world—Judaism and Christianity-have for millennia embraced the conviction that their religious duty entailed active intervention in the ‘body politic’ “ Kelley, Dean M., The Rationale for the Involvement of Religion in the Body Politic, in Wood, James E. Jr., and Davis, Derek, eds, The Role of Religion in the Making of Public Policy 159, 168 (Baylor U Press, 1991)Google Scholar. As a result, “churches and synagogues can no more be silent on public issues than human beings can refrain from breathing.” Id at 188. See also Perry, , Love and Power at 81 (cited in note 36)Google Scholar (discussing “the essentially political nature of religion”).

41. But compare Ackerman, Bruce A., Social Justice in the Liberal State 10 (Yale Univ Press, 1980)Google Scholar (“[N]obody has the right to vindicate political authority by asserting a privileged insight into the moral universe which is denied the rest of us.”); Audi, Robert, The Separation of Church and State and the Obligations of Citizenship, 18 Phil & Pub Aff 259, 284 (1989)Google Scholar (“[O]ne should not advocate or promote any legal or public policy restrictions on human conduct unless one not only has and is willing to offer, but is also motivated by, adequate secular reason, where this reason (or set of reasons) is motivationally sufficient for the conduct in question.”) (emphasis in original).

42. Professor Mark Tushnet, for example, has argued that the Christian belief in eternal life permits a philosophical anthropology that Jews might be unable to accept. See Mark Tushnet, , Flourishing and the Problem of Evil, 63 Tul L Rev 1631, 1649–50 (1989)Google Scholar.

43. In addition to religious texts, fundamentalists, as well as other religious believers, might invoke other religious sources, such as direct revelations or the statements of contemporary religious leaders. For convenience, I will focus on religious texts, which are the most commonly invoked religious sources of truth.

44. Falwell, Jerry, Listen, America! 63 (Doubleday, 1980)Google Scholar.

45. Ammerman, Nancy Tatom, Bible Believers: Fundamentalists in the Modern World 5 (Rutgers U Press, 1987)Google Scholar.

46. Id at 51. See also Hunter, James Davison, Evangelicalism: The Coming Generation 20–21 (U Chicago Press, 1987)Google Scholar.

47. According to survey data, approximately a third of the American people believe that the Bible is the “actual word of God and is to be taken literally, word for word.” Ammerman, , Bible Believers at 6 (cited in note 45) (40%)Google Scholar; Gallup, George Jr., Religion in America 47 (The Gallup Report No. 236, 05 1985) (37%)Google Scholar; Fewer Biblical Literalists, 109 Christian Cent 295 (1992) (32%)Google Scholar. According to the Princeton Religious Research Center, the percentage of Biblical literalists has declined in recent decades, having been as high as 65% in 1963. See Fewer Biblical Literalists (cited above).

48. This argument about the importance of dialogic decision-making is drawn from Conkle, , 67 Ind L J at 12–13 (cited in note 1)Google Scholar. There I make a stronger—and more problematic— claim than I am advancing here. In particular, there I suggest an interpretation of the Establishment Clause under which laws inspired by religious fundamentalism may sometimes be unconstitutional. My argument here, by contrast, does not depend on that interpretation of the Establishment Clause. To the contrary, here I am assuming that that interpretation is or should be rejected.

49. See May, Henry F., The Enlightenment in America at xiv (Oxford U Press, 1976)Google Scholar.

50. James Madison, for example, represented “the center of the American religious spectrum.” Id at 96. “He arrived at a consistent, lifelong defense of Christianity on the basis both of reason and intuition, shifting gradually like many contemporaries from the first to the second.” Id.

51. See Sunstein, Cass R., Beyond the Republican Revival, 97 Yale L J 1539, 1548–51 (1988)CrossRefGoogle Scholar; Sunstein, Cass R., Interest Groups in American Public Law, 38 Stan L Rev 29, 45–48 (1985)CrossRefGoogle Scholar. Republican theory, of course, is far more complex and diverse than my capsule summary might suggest. See generally Michelman, Frank I., The Supreme Court, 1985 Term—Foreword: Traces of Self-Government, 100 Harv L Rev 4 (1986)CrossRefGoogle Scholar; Symposium: The Republican Civic Tradition, 97 Yale L J 1493 (1988)Google Scholar.

52. Even if those reasons might be drawn from the arguments of interest group lobbyists.

53. Sunstein, Cass R., Naked Preferences and the Constitution, 84 Colum L Rev 1689 (1984)CrossRefGoogle Scholar.

54. It may seem ironic to prefer uncertainty to certitude in the lawmaking process. But the preference is only for a minimal sort of uncertainty; that is, a minimal willingness to consider contrary argument.

55. For a different argument reaching a similar conclusion, see Perry, , Love and Power at 100–05 (cited in note 36)Google Scholar (discussing the importance of “fallibilism” and “pluralism” to the maintenance of an “ecumenical political dialogue”). See also id at 139-41. For important critiques of Perry's position—critiques that could be extended at least in part to mine as well, see Levinson, Sanford, Religious Language and the Public Square, 105 Harv L Rev 2061 (1992) (book review)CrossRefGoogle Scholar; Smolin, David M., Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 Iowa L Rev 1067 (1991) (book review)Google Scholar. See generally Neuhaus, Richard John, Reason Public and Private: The Pannenberg Project, First Things 55, 57 (03 1992)Google Scholar (“So long as Christian teaching claims to be a privileged form of discourse that is exempt from the scrutiny of critical reason, it will understandably be denied a place in discussions that are authentically public”).

It may be that secular thinking can take on fundamentalist characteristics. Compare Carter, , 64 Notre Dame L Rev at 942 (cited in note 31)Google Scholar (suggesting that nonreligious as well as religious beliefs may be held in closed-minded fashion). If so, then the public role of this “secular fundamentalism” should also be viewed with skepticism.

In addition to the arguments that I have presented, there may be psychological and sociological reasons to be concerned about fundamentalist political involvement. For a provocative argument along these lines, see Marshall, William P., The Other Side of Religion, 44 Hastings L J 843 (1993)Google Scholar.

56. See General Assembly Special Committee on Human Sexuality, Presbyterian Church (U.S.A.), Keeping Body and Soul Together: Sexuality, Spirituality, and Social Justice (1991) [hereinafter Presbyterian Report]. For media discussions of the report, see, for example, Sheler, Jeffery L., The Gospel on Sex, US News & World Report 58 (06 10, 1991)Google Scholar; Steinfels, Peter, Alter Law on Sex, Panel Asks Church, NY Times A13 col 1 (03 1, 1991)Google Scholar; Steinfels, Peter, Sexuality Report Is Assailed at Hearing of Presbyterians, NY Times A14 col 1 (06 7, 1991)Google Scholar; Woodward, Kenneth L., Roll Over John Calvin, Newsweek 59 (05 6, 1991)Google Scholar.

57. See Presbyterian Report at 22 (cited in note 56).

58. Id at 10.

59. Id at 22.

60. See, for example, id at 14, 39, 41-46.

61. Id at 27.

62. Id.

63. Notice that the committee's first interpretive principle refers to the selective use of “Scripture,” whereas its second principle calls for the selective rejection not of “Scripture,” but rather of “biblical tradition.” However modernist the committee's report, it seems that the committee was reluctant to call for the rejection of Scripture as such.

64. Id at 39. The committee's report was overwhelmingly rejected by the General Assembly of the Presbyterian Church (U.S.A.). See Steinfels, Peter, Presbyterians Reject Report on Sex, NY Times A18 col 1 (06 11, 1991)Google Scholar. The General Assembly instead approved a pastoral letter that affirmed the authority of the Bible and the “sanctity of the marriage covenant between one man and one woman to be a God-given relationship to be honored by marital fidelity.” See id.

65. Professor Michael J. Perry's account of religion, for example, suggests a type of reconciler religion that leans in the modernist direction. “[T]he best theology of any period,” according to Perry, “speak[s] in a new voice, a voice of the present and accessible to the present” and “mediate[s] … the faith of the community in terms commensurate with what is deeply authoritative for the present, especially the reflective common sense of the present and the widely accepted yield of contemporary intellectual inquiry.” Perry, , Love and Power at 75 (cited in note 36)Google Scholar.

Professor Thomas L. Shaffer is another religious reconciler, one who is perhaps more centrist than Perry. In addressing the professional role of lawyers, Shaffer makes extensive use of Biblical teachings, especially those of the New Testament. Shaffer, Thomas L., On Being a Christian and a Lawyer: Law for the Innocent (Brigham Young U Press, 1981)Google Scholar. But as one of his central points, Shaffer argues that lawyers should follow “the ethics of care,” an ethical approach that emphasizes the importance of moral discourse and openness to change. Id at 21-33.

In addressing the problems that they see in contemporary American institutions, Professor Robert N. Bellah and his co-authors seem also to support some version of reconciler religion. See Bellah, Robert N., et al, The Good Society (Knopf, 1991)Google Scholar. Among their other arguments, Bellah and his colleagues claim that Biblical religion can help us address “the ultimate problem of meaning.” Id at 218. They endorse the use of the Bible as “a working document that doesn't give us pat answers but helps us struggle to make sense of the abyss that so often seems to be opening up around us.” Id at 219 (emphasis in original). On this view, “the Bible can speak to us today only if we do the hard work of making sense of it and seeing how it applies to our current situation.” Id.

66. For an excellent introduction, see Voskuil, Dennis N., Neo-Orthodoxy, in Lippy, Charles H. and Williams, Peter W., eds, 2 Encyclopedia of the American Religious Experience: Studies of Traditions and Movements 1147–57 (Charles Scribner's Sons, 1988)Google Scholar.

67. Representative of Niebuhr's many important works are The Nature and Destiny of Man: A Christian Interpretation (Charles Scribner's Sons, 1949)Google Scholar; Moral Man and Immoral Society: A Study in Ethics and Politics (Charles Scribner's Sons, 1932)Google Scholar. The general themes that I discuss in the text run throughout Niebuhr's writings.

68. Livingston, James C., Neo-Orthodoxy, in Gentz, William H., ed, The Dictionary of Bible and Religion 733, 734 (Abingdon, 1986)Google Scholar.

69. Moorhead, James H., Theological Interpretations and Critiques of American Society and Culture, in 1 Encyclopedia of the American Religious Experience, at 101, 113 (cited in note 66) (describing the position of Reinhold Niebuhr)Google Scholar.

70. In contemporary America, reconciler religion seems far less prominent than either fundamentalism or religious modernism. See Hunter, James Davison, Culture Wars: The Struggle to Define America (BasicBooks, 1991)Google Scholar; Wuthnow, The Restructuring of American Religion (cited in note 29). “In part what has happened,” observes Professor Robert N. Bellah, “is that we have lost the middle ground and the voices, such as that of Reinhold Niebuhr and John Courtney Murray, who could articulate it.” Bellah, Robert N., Small Face-to-Face Christian Communities in a Mean-Spirited and Polarized Society, New Oxford Rev 17, 19 (06 1992)Google Scholar. If my argument here is sound, it is important to bring reconciler religion back to the forefront, a process that may require the retrieval or rejuvenation of religious traditions such as Neo-Orthodoxy. For a sophisticated recent effort along these lines, see Tinder, Glenn E., The Political Meaning of Christianity: An Interpretation (La St U Press, 1989)Google Scholar.

Working from what I would call a reconciler perspective, Professors Elizabeth Mensch and Alan Freeman have attempted to retrieve theological arguments from earlier in this century, including Neo-Orthodox as well as natural law arguments, as they relate to the issue of abortion. See Mensch, Elizabeth and Freeman, Alan, The Politics of Virtue: Is Abortion Debatable? (Duke U Press, 1993)Google Scholar.

71. It may be that further conditions or standards, in some sense “procedural” in nature, should also be satisfied before we applaud and encourage the political activity of religious reconcilers or other religious believers. Professors Kent Greenawalt and Michael J. Perry, among others, recently have offered some suggestions.

Professor Greenawalt argues that in making political choices, citizens and lawmakers should rely on religious reasons only if nonreligious, “publicly accessible” reasons—“reasons whose relevance is generally acknowledged”—are inadequate to resolve the issue in question. Greenawalt, Kent, Religious Convictions and Political Choice 24 (Oxford U Press, 1988)Google Scholar; see also id at 56-76. As Greenawalt explains, however, “publicly accessible” reasons are inadequate to resolve many of our most important and most contentious questions of public policy, and this condition therefore leaves much room for religiously motivated politics and lawmaking. See id at 98-202. Even so, Greenawalt also argues that religious believers generally should cast their political arguments in secular terms, although he offers a number of significant exceptions to this proposition. See id at 215-30. For Greenawalt's most recent explication of his views, see Greenawalt, Kent, Religious Convictions and Political Choice: Some Further Thoughts, 39 DePaul L Rev 1019 (1990)Google Scholar. Compare Tushnet, Mark, The Limits of the Involvement of Religion in the Body Politic, in Wood, and Davis, , eds, The Role of Religion in the Making of Public Policy, at 191–220 (cited in note 40)Google Scholar (arguing that it is permissible for lawmakers to rely on religious reasons, but only if the laws they adopt are independently justifiable on secular grounds).

Professor Perry criticizes Greenawalt's position, including especially Greenawalt's general preference for arguments cast in secular terms. See Perry, , Love and Power at 16–22Google Scholar (cited in note 36). Perry offers his own suggested conditions or standards for an “ecumenical political dialogue” that would include religiously-grounded public discourse. His “situational or contextual” prerequisites include a common political-moral language grounded on a set of shared normative premises. See id at 84-98. His “existential” prerequisites for persons engaging in this dialogue include cognitive competency, respect for interlocutors, honesty and sincerity, the “attitudes” of “fallibilism” and “pluralism,” and the “dialogic virtues” of “public intelligibility and public accessibility.” See id at 99-112. Compare Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse 172 (Free Press, 1991)Google Scholar (“political speech has to be intelligible to a wide assortment of individuals who increasingly share few referents in the form of common customs, literature, religion, or history”); id at 181-82 (discussing the possibility of “translating” particular religious discourses without a loss of religious distinctiveness).

72. H. Richard Niebuhr addressed similar questions in his classic work, Christ and Culture, in which he identified five types of Christian approaches to the relationship between Christ and culture. See Niebuhr, H. Richard, Christ and Culture (Harper & Bros, 1951)Google Scholar. Although he addressed pre-modern as well as modern periods, and although he focused exclusively on Christianity, there are affinities between Niebuhr's categories and the discussion that follows. At the risk of oversimplification, Niebuhr's models of “Christ Against Culture” and “The Christ of Culture” are to some extent analogous, in the modern period, to what I call fundamentalist and modernist responses to modernity. The “Christ Against Culture” model also includes a strong isolationist tendency. Niebuhr's remaining three models—“Christ Above Culture,” “Christ and Culture in Paradox,” and “Christ the Transformer of Culture”—can be seen as examples of reconciler religion.

Using Niebuhr's typology as her starting point, Professor Angela C. Carmella has argued that an appreciation of the variety of religious approaches to culture could help inform our understanding of the First Amendment's religion clauses. See Carmella, Angela C., A Theological Critique of Free Exercise Jurisprudence, 60 Geo Wash L Rev 782 (1992)Google Scholar.

73. See above, notes 32, 51-54, and accompanying text (discussing liberal and republican political theory).

74. American Protestant Fundamentalism, for example, arose from a militant opposition to modernity. See Marsden, George M., Fundamentalism and American Culture: The Shaping of Twentieth-Century Evangelicalism: 1870-1925 (Oxford U Press, 1980)Google Scholar.

75. A religion may respond differently to different manifestations of modern thought and modern life. Thus, in this structural sense, a religion may be fundamentalist on certain matters, but modernist on others. Many of the prominent televangelists, for example, preach a message that is fundamentalist in many respects, but they do so through a sophisticated use of modern technology.

76. Simons, Marlise, Pope Is Urging Drive for Converts, Even Where Muslims Prohibit It, NY Times A2 col 3 (01 23, 1991)Google Scholar.

77. Id.

78. The Durham Declaration: To United Methodists on Our Church and Abortion, New Oxford Rev 23 (05 1991)Google Scholar.

79. Id at 24.

80. Id at 23.

81. This kind of premillennialism was a prominent theme in the development of American Protestant Fundamentalism. See Sandeen, Ernest R., The Roots of Fundamentalism: British and American Millenarianism 1800-1930 (U Chicago Press, 1970)Google Scholar.

82. See above, notes 38-41 and accompanying text.

83. Compare Niebuhr, H. Richard, Christ and Culture at 6 (cited in note 72)Google Scholar (Christianity can direct individuals' “hopes toward another world, and so seem to deprive them of motivation” either to conserve or to change their existing social circumstances).

84. On the other hand, it may well have an influence on questions of religious freedom. See, e.g., Wisconsin v Yoder, 406 US 205 (1972) (exempting Amish from compulsory school-attendance law).

85. See above, notes 11-17 and accompanying text.

86. Prominent examples of Black minister-politicians include Adam Clayton Powell, Jr., Walter Fauntroy, Andrew Young, William Gray, Floyd Flake, and Jesse Jackson. A large number of other Black clergy have pursued or been elected to less visible offices, often at the state or local level. In addition, Black clergy often make individual or collective endorsements of political candidates and facilitate the use of Black churches as a source for campaign funds. See Smith, R. Drew, Afro-American Protestants and the New Systemic Black Politics 3–6 (1991) (unpublished manuscript on file with author)Google Scholar.

87. See Hertzke, Allen D., Representing God in Washington: The Role of Religious Lobbies in the American Polity (U Tenn Press, 1988)Google Scholar.

88. See Benson, Peter L. and Williams, Dorothy L., Religion on Capitol Hill: Myths and Realities (Harper & Row, 1982)Google Scholar.

89. For a general study of religious outsiders in American history, see Moore, R. Laurence, Religious Outsiders and the Making of Americans (Oxford U Press, 1986)Google Scholar.

90. See Hopkins, Charles Howard, The Rise of the Social Gospel in American Protestantism 1865-1915 (Yale U Press, 1940)Google Scholar.

91. King, Martin Luther Jr., Letter from Birmingham Jail, in Why We Can't Wait 76, 85 (Harper & Row, 1964)Google Scholar.

92. Id at 86.

93. Id at 92.

94. See Smith, Afro-American Protestants and the New Systemic Black Politics (cited in note 86).

95. Id at 7.

96. See Ball, Milner S., Normal Religion in America, 4 Notre Dame J L Ethics & Pub Pol'y 397 (1990)Google Scholar.

97. Compare Neuhaus, First Things at 59 (cited in note 55) (“The question is whether the Christian message is true. And the testing of the truth of the matter must be in conversation with the ways in which we test the truth of other matters.”) (emphasis in original); see generally Adler, Mortimer J., Truth in Religion: The Plurality of Religions and the Unity of Truth (Macmillan, 1990)Google Scholar (arguing that religious claims of truth can and should be evaluated in a manner similar to other claims of truth).

98. See above, text accompanying note 1.

99. See Conkle, , 82 Nw U L Rev at 1164–69 (cited in note 38)Google Scholar.

100. Compare Smith, Steven D., The Restoration of Tolerance, 78 Cal L Rev 305, 333 (1990)CrossRefGoogle Scholar (arguing for a legal regime that is tolerant but not neutral, a “tolerant regime [that] does not assure dissenting citizens that it regards their beliefs as equally true or valuable”).

101. Niebuhr, Reinhold, The Children of Light and the Children of Darkness: A Vindication of Democracy and a Critique of its Traditional Defense 135 (Charles Scribner's Sons, 1944)Google Scholar.

102. Id.

103. Id at 137.

104. Benson, Peter L., et al, Effective Christian Education: A National Study of Protestant Congregations 15 (Search Institute, 1990)Google Scholar. This three-and-a-half-year study involved in-depth surveys of over 11,000 participants within six major denominations: Christian Church (Disciples of Christ); Evangelical Lutheran Church in America; Presbyterian Church (U.S.A.); Southern Baptist Convention; United Church of Christ; and United Methodist Church. See id at 2-3. See also Cornell, George W., Religious Beliefs Survey Brings a Few Surprises, Chicago Trib B10 col 2 (02 9, 1990)Google Scholar (describing this study as “one of the largest, most comprehensive studies ever made of faith and its development among Americans”).

105. Benson, Peter L., Building a Faith for the 90s, The Lutheran 9, 10 (01 3, 1990)Google Scholar (author of study commenting on its findings).

106. Id.

107. See Gedicks, , 4 Notre Dame J L Ethics & Pub Pol'y at 432–39Google Scholar (cited in note 30). Compare Perry, , Morality, Politics, and Law at 181–82Google Scholar (cited in note 36) (arguing that religious convictions are self-constitutive and that “[t]o ‘bracket’ such convictions is … to bracket—to annihilate—essential aspects of one's very self”).

Some individuals hold religious beliefs that themselves require significant political forbearance. For these individuals, of course, the problem of internal conflict is substantially reduced. See, for example, Calhoun, Samuel W., Conviction Without Imposition: A Response to Professor Greenawalt, 9 J Law & Relig 289, 315–17 (1992)CrossRefGoogle Scholar.

108. In their recently published book, Frederick Mark Gedicks and Roger Hendrix contend that religious alienation resulting from privatization, especially as experienced by religious fundamentalists, has created grave dangers for our political system. See Gedicks, Frederick Mark and Hendrix, Roger, Choosing the Dream: The Future of Religion in American Public Life (Greenwood Press, 1991)Google Scholar. “The most recent turn to religion,” they write, “will inevitably spawn a crisis in American government and politics.” Id at 4. “These are critical times,” they continue. “If religion is not accepted into American public life, then ultimately religious Americans could become so frustrated in their assaults upon the secularism of public life that they would threaten the viability of the current social order—they might revolt.” Id. Although the authors concede that religious violence is unlikely, they contend that conflict and polarization might nonetheless destabilize American society and seriously undermine our political conventions. See id at 21-33. For this reason, among others, Gedicks and Hendrix argue that America must admit religion, including fundamentalist religion, as an equal participant in American public life, thereby accommodating the demands of the religious citizens who currently feel excluded.

Although I sympathize with much of what Gedicks and Hendrix say in their book, I do not share their fear of an impending crisis of political stability. As a result, I do not share their apparent belief that the need for political stability should be of paramount importance as we determine the proper role for religion in American public life. In any event, I do not believe that the need for political stability requires that we treat all religious arguments as equally valuable, as long as we continue to respect the legal rights and personal dignity of all our citizens, and as long as we proceed with caution and sensitivity as we evaluate the merits of competing religious claims.

109. See, for example, The Random House Dictionary of the English Language 1612 (Random House, 2d ed, 1987)Google Scholar.