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Contending for the Future: Overcoming the Pfefferian Inversion*

Published online by Cambridge University Press:  24 April 2015

Richard John Neuhaus
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Extract

“One area of intense controversy concerns the First Amendment Religious Liberty clauses, whose mutually reinforcing provisions act as a double guarantee of religious liberty, one part barring the making of any law ‘respecting an establishment of religion’ and the other barring any law ‘prohibiting the free exercise thereof. … Religious liberty is the only freedom in the First Amendment to be given two provisions. Together the clauses form a strong bulwark against suppression of religious liberty.”

— The Williamsburg Charter

We are contending for the free exercise of religion in a democratic and pluralistic society. We would not be contending for it if we thought the free exercise of religion is adequately understood and protected at present. Critical to this contention is rethinking the religion clause of the First Amendment, and the larger part of this article is devoted to that rethinking. I will then offer some observations on the forces shaping this contention in the public arena today, and comment on the goal of a religiously informed public philosophy for our society's democratic experiment in republican governance.

Type
I. Commentary on The Williamsburg Charter
Information
Journal of Law and Religion , Volume 8 , Issue 1-2 , 1990 , pp. 115 - 129
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1990

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Footnotes

*

This article is based on a paper read at a conference on “The First Amendment Religious Liberty Clauses and American Public Life,” at the University of Virginia, April 11-13, 1988. An earlier version of this article appeared in This World, No. 24 (Winter 1989) and is reprinted with the permission of the author and the publisher.

References

1. Levy, Leonard, The Establishment Clause: Religion and the First Amendment (Macmillan, 1986)Google Scholar.

2. See Noonan, John T., The Believer and the Powers That Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government 123 ff. (Macmillan, 1987)Google Scholar.

3. Tribe, Laurence H., American Constitutional Law 823 (Foundation, 1978)Google Scholar. In the second edition of his treatise Professor Tribe expressly states that “different results are arguably mandated by the two religion clauses” and purports to oifer help to “identify the zone in which the free exercise clause dominates the intersection, permitting the accommodation of religious interests.” American Constitutional Law 1169 (Foundation, 2d ed 1988)Google Scholar.

4. Levy, , The Establishment Clause, at 163 (cited in note 1)Google Scholar.

5. Id.

6. Pfeffer, Leo, An Autobiographical Sketch in Wood, James E., ed, Religion and the State: Essays in Honor of Leo Pfeffer 487, 529 (Baylor, 1985)Google Scholar. Editor's note: see review of these essays, 663 below.

7. See, e.g., Kurland, Philip, Of Church and State and the Supreme Court, 29 U Chi L Rev 1 (1961)CrossRefGoogle Scholar.

8. See, e.g., Gaffney, Edward M., Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 St Louis Univ L J 205, 219–23 (1980)Google Scholar.

9. Sullivan, William M., Reconstructing Public Philosophy (California, 1982)Google Scholar.

10. Sandel, Michael J., Democrats and Community, 198 The New Republic 20–23 (No. 8, 02 22, 1988)Google Scholar.

11. Dewey, John, A Common Faith 87 (Yale, 1934)Google Scholar.

12. 410 US 113 (1973).

13. Id at 159.

14. See, e.g., Ely, John Hart, The Wages of Crying Wolf: A Comment on Roe v. Wade 72 Yale U 920 (1973)CrossRefGoogle Scholar.

15. Augustine, , Concerning The City of God Against the Pagans (Penguin, 1972)Google Scholar.

16. See, e.g., Glenn, Charles, The Myth of the Common School (University of Massachusetts, 1988)Google Scholar.

17. See, e.g., Miller, Robert T. and Flowers, Ronald B., Toward Benevolent Neutrality: Church, State, and the Supreme Court 378–452 (3d ed 1987)Google Scholar.