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Steven H. Shiffrin - The Religious Left and Church-State Relations

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Steven H. Shiffrin The Religious Left and Church-State Relations
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In The Religious Left and Church-State Relations, noted constitutional law scholar Steven Shiffrin argues that the religious left, not the secular left, is best equipped to lead the battle against the religious right on questions of church and state in America today. Explaining that the chosen rhetoric of secular liberals is poorly equipped to argue against religious conservatives, Shiffrin shows that all progressives, religious and secular, must appeal to broader values promoting religious liberty. He demonstrates that the separation of church and state serves to protect religions from political manipulation while tight connections between church and state compromise the integrity of religious institutions.Shiffrin discusses the pluralistic foundations of the religion clauses in the First Amendment and asserts that the clauses cannot be confined to the protection of liberty, equality, or equal liberty. He explores the constitutional framework of religious liberalism, applying it to controversial examples, including the Pledge of Allegiance, the governments use of religious symbols, the teaching of evolution in public schools, and school vouchers. Shiffrin examines how the approaches of secular liberalism toward church-state relations have been misguided philosophically and politically, and he illustrates why theological arguments hold an important democratic position--not in courtrooms or halls of government, but in the public dialogue. The book contends that the great issue of American religious politics is not whether religions should be supported at all, but how religions can best be strengthened and preserved.

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THE RELIGIOUS LEFT AND CHURCH-STATE RELATIONS

Copyright 2009 by Princeton University Press
Published by Princeton University Press, 41 William Street,
Princeton, New Jersey 08540
In the United Kingdom: Princeton University Press, 6 Oxford Street,
Woodstock, Oxfordshire OX20 1TW
press.princeton.edu
All Rights Reserved
Second printing, and first paperback printing, 2012
Paperback ISBN 978-0-691-15619-4
The Library of Congress has cataloged the cloth edition of this book as follows
Shiffrin, Steven H., 1941
The religious left and church-state relations / Steven H. Shiffrin.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-691-14144-2 (hardcover : alk. paper)
1. Freedom of religionUnited States. 2. Church and stateUnited States. 3. Liberalism (Religion)United States. 4. Religion and politicsUnited States. 5. Religious rightUnited States. I. Title.
KF4783.S56 2009
342.730852dc22 2008054243
British Library Cataloging-in-Publication Data is available
This book has been composed in Sabon
Printed on acid-free paper.
Printed in the United States of America
10 9 8 7 6 5 4 3 2
For Neesa, Seana, Benjamin, and Jacob

Preface
THIS BOOK HAS BEEN AN adventure. After spending most of my scholarly career writing about freedom of speech and press, I decided it was time to turn to the religion side of the First Amendment. I did not come to the subject unaffected by my past. I have been influenced not only by teaching about the subject for more than thirty years, but also by a checkered theological background, more than two decades of teaching and writing about other aspects of the First Amendment, and by a commitment to progressive politics. I was raised as a Catholic and left the church during college. Subsequently, I became a member of a congregationally independent Protestant church. For many years, I was an agnostic. My wife is Jewish and two of my children have been bar mitzvahed. I have spent my fair share of time in temples. When I began this project, I was a secular humanist attending an interfaith chapel and a Unitarian church. Before I finished the project, I returned to Christianity and thought about becoming a Methodist or an Episcopalian. Instead, I returned (in a sense) to Catholicism. I am very happy with my local congregation and enormously unsatisfied with the all-too-conservative leaders of the Catholic Church. I suppose I am a radical Catholic or a Catholic of conscience, the kind whom those beholden to authority deride as cafeteria Catholics.
Initially, in moving to a different part of the First Amendment, I thought I had broken sharply with the past. But the past has its grip. In writing about freedom of speech, I have inveighed against the systematizers, those who think that it is possible to build a grand theory of freedom of speech in which problems can be solved by resort to a single value or a small set of values. In my view, free speech problems involve the clash of values in too many complicated contexts to be able to hope or imagine that a single value or small set of values could emerge as a talismanic solution. After pursuing that theme for over a decade, I proceeded to argue that the social practice of dissent should receive special weight in determining the outcome of free speech cases. So flag burners are at the heart of the First Amendment; commercial advertisers are not.
Although my theological commitments have varied and my emphasis in writing about the First Amendment has moved around, I have consistently been committed to a pragmatic progressive politics. In the context of religion and the Constitution, this has always meant that I favor strong protection for the free exercise of religion and oppose tight connections between church and state. In arguing for strong protection of the free exercise of religion and opposing cozy connections between religion and the state, I once again oppose the system builders. I do not think the religion clauses of the Constitution should or can be reduced to a single value or a small set of values. In my writings on freedom of speech, I have lobbied for dissenters. Here too I think that laws placing burdens on religious minorities are of special concern. As will be clear, I believe the religious Right has mistaken legal, theological, and political views. I try to show that. But my main concern is to participate in a dialogue with secular liberals concerning how best to think about and defend free exercise of religion and separation of church and state. As I will argue at length, I believe that the religious Left has a more politically attractive argument than that put forward by the secular Left.
With respect to grow out of an article that appeared in volume 90 of the Cornell Law Review, pp. 995, entitled The Pluralistic Foundations of the Religion Clauses (2004), though they have been updated and revised.
The original idea for grow out of an article in volume 11 of the Cornell Journal of Law and Public Policy, pp. 50351, entitled The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers (2002), as an outgrowth of a symposium sponsored by that journal. Those materials have also been updated and revised.
has benefited from a presentation at the Central Meeting of the American Philosophical Association in Chicago, a plenary address to the Conference on Philosophy and the Social Sciences in Prague, presentations to the law faculties at Cornell Law School, Seattle University, and the University of Utah, and presentations to the Cornell Campus ministers and also to the Campus Ministers of the Ivy League.
I owe special thanks to many people who read or reacted to parts of the book manuscript: Greg Alexander, Fred Appel (who gave me some good early advice about the books focus), Ed Baker, John Blume, Margaret Chon, Jesse Choper, Christopher Eisgruber, Richard Fallon, Cynthia Farina, Martha Fineman, Richard Isomaki (who did an outstanding job of copyediting), Rick Garnett, Kent Greenawalt, Sheri Lynn Johnson, Lily Kahng, Doug Kysar, Chuck Myers (who also shepherded the book through the Princeton evaluation process, recruiting readers who offered outstanding commentary), John Mitchell, Frank Michelman, Trevor Morrison, Eduardo Penalver, Eva Pils, Margaret Powers, Annelise Riles, David Skover, Gary Simson, Father Robert Smith, Madhavi Sunder, Lee Teitelbaum, Valerie Hans, and Brad Wendel. Nancy Ammons and Jan Rose did wonderful work in getting the manuscript in better form.
I also owe thanks to several members of my family. Neesa Levine set me straight about many things, mainly questioning assumptions I made about the psychology of real human beings. Over the years, Benjamin and Jacob Shiffrin have argued with me about many of the subjects I discuss in this book. I recall with fondness a conversation about the McCullom case in
Introduction
FEW PERSONS ARE INDIFFERENT about the role of religion in American law or politics. I have been teaching the First Amendment since 1977. Students have always been excited about issues like obscenity, libel, flag burning, racist speech, commercial advertising, and the role of money in politics. But my students become even more lively when we discuss constitutional issues like a city putting up a religious display during the Christmas season, whether a school rightly included under God in the Pledge of Allegiance, whether a state could fund religious schools, and whether the Amish had a right to take their children out of the schools. Often the debates between my students involve a confrontation between those who are hostile to religion and those who favor religion. Those who are hostile to religion routinely favor separation of church and state. Sometimes, however, the debate is between members of the religious Right and the religious Left: The Right favoring tight relations between church and state; the Left opposing such connections.
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