When ‘Current Law’ Is Not Enough

Tom Flynn

I may be reading too much into the November 2012 elections, but they seem to have genuinely altered the drift of American political discourse. Minority groups from Hispanics to the nonreligious played central roles in the reelection of President Barack Obama and in numerous congressional, state, and even local races. (Obama arguably owes his election to an ad hoc coalition of women and minority groups, because Mitt Romney won the votes of a majority of white males.) I can’t help hoping that the great sociopolitical pendulum that’s been swinging relentlessly toward the right for close to forty years now has finally reached its end point. Maybe, just maybe, it’s actually begun to swing back.

If this is so—if our country has entered, or is about to enter, a new period of leftward movement—then secular humanists, atheists, and other freethinkers need to recalibrate their strategies. For so long our activism has been focused on resisting conservative efforts to roll back the rights won during the 1960s, in the New Deal, or even the Progressive Era. We’ve been so intent on preserving our rights that it’s been years since most of us gave serious thought to seeking to expand them.

If the sociopolitical pendulum has reversed direction, or if it is about to, then maybe it’s time to reopen the conversation about how we’d like to enhance the rights enjoyed by unbelievers in religion. In doing so, we will also be contributing to a fresh dialogue about how to carve out newer, more robust protections for those Americans who are devout religious believers but not Christians.

This comes not a moment too soon. After all, the last great expansion in the rights of non-Christians arguably began with the U.S. Supreme Court decisions on public-school prayer and Bible reading in 1962 and 1963. There followed two heady decades during which both legal theorists and the public expected that the historic privileges enjoyed by Christian Americans would continue eroding, even as the freedoms enjoyed by non-Christian Americans would swell.Liberals began to anticipate, and conservatives to dread, a move toward a “naked public square”—toward the exclusion of all religious symbols and religious expression from public spaces and public institutions. This trend seemed real enough that in 1984, the conservative intellectual Richard John Neuhaus made his reputation by publishing an influential book fighting back against it. Its title, of course, was The Naked Public Square.

Neuhaus was far and away the most urbane and literate thinker on the religious Right. In the short term, he would be successful in his quest—so successful that it would be a Democratic U.S. president who would pronounce the elegy for the expansion of non-Christians’ rights. Introducing a significant restatement of church-state law at a speech in Vienna, Virginia, in 1995, President Bill Clinton tragically proclaimed, “Some school officials and teachers and parents believe that the Constitution forbids any religious expression at all in public places. That is wrong.” Clinton’s education department then issued a set of national guidelines about religion in public schools that interpreted the church-state law of that time very modestly—many would say timidly. The effect of all this was to declare on behalf of the American Left that the balance between the rights of Christians and those of non-Christians as it existed in 1995 was the best that could be wished for and that no further expansion in the rights of non-Christians should be pursued.

Indeed, church-state law has been relatively stagnant for nigh on twenty years now. Stagnant, though not wholly static: traditionalists have won cases here and there; secularists have won a few others. But at the highest level, the balance between the Christian majority and non-Christian minorities (including the nonreligious) as encoded in church-state law has changed very little.

Given the strong rightward current in American law and politics during this period, it is no small achievement that this balance stayed the same. Vast efforts by conservatives to turn back the clock were successfully thwarted. But here’s the problem: while church-state law has stagnated, religious diversity among Americans has expanded enormously. According to the 2010 U.S. Religion Census, a private survey, Muslims now make up almost 2 percent of the nation’s population. Hindus and Buddhists make up about 1 percent each. And the American body politic includes swelling delegations from just about every religious tradition on Earth. Then there’s the real demographic elephant in the room—us. People with no religious identification made up 8 percent of the population circa 1990; the latest surveys peg that figure at 20 percent, and it is higher still among the young.

The nation’s religious composition is vastly different today than it was in, say, 1995—yet current law regarding separation of church and state and the rights of religious minorities has changed scarcely at all. American public life is no less redolent of Christianity, no less steeped in illegitimate privilege for the orthodox, today than it was in the 1990s.

If a nearly-forty-year period of conservative retrenchment has drawn to a close—as November’s election prompts me to hope—perhaps it’s time secular humanists got thinking about how American life can be made significantly more accommodating toward the swelling numbers of citizens who are either notChristian or not religious at all. Perhaps it’s time to dust off that old ideal of the naked public square—to chart a new course toward this shore that we approached but failed to reach, decades ago.

In a future America where religion would be by law a private matter, where public schools and parks and courthouses would be closed to the vocabulary of faith, people of every religion—and none—could cherish the so-called naked public square as a buffer zone, a social “safe area” where we could all encounter one another as citizens, not sectarians. In a country where old majorities are becoming minorities, where diversity continues to skyrocket,nothing less may suffice to ensure that tradition doesn’t go on arrogating excessive privilege to a Christianity that is no longer nearly as central toAmerican life as once it was.

At the very least, this is a topic we need to begin discussing. When it comes to church-state separation and religion in public life, it’s clear that“current law” is not enough. We need to dream boldly and to remember that when public values change markedly enough, the law is capable of radical course changes.

Strong secularists might draw courage from two historical examples. In 1857 the U.S. Supreme Court buttressed slavery with its infamous decision Dred Scott v. Sandford. No doubt about it, 1857 was a terrible year to be an abolitionist! Still, those committed to seeking an end to slavery could hope that one day Dred Scott would be overturned—as it was, by the Fourteenth Amendment, though at the cost of a stunningly destructive civil war. Advocates of racial equality felt similar frustration in 1896, when Plessy v. Ferguson enshrined the principle of “separate but equal” public education for blacks and whites.As the abolitionists had before them, they dared to dream that a principle they knew to be wrong would one day fall—as it did, fifty-eight years later, inBrown v. Board of Education (1954).

Likewise, we who seek to maximize the rights and privileges of non-Christian Americans look disapprovingly on current law. We who dream of a naked public square must hope for our own Brown decision without having any clear vision of what it might contain. Surely the first step should be to begin a conversation. If we don’t have to settle for the status quo on church-state separation indefinitely, what should we hope fo
r? In which directions should we begin to bring such pressure as we can exert?

I look forward to hearing from readers. Please send comments to Letters Editor, Free Inquiry, P.O. Box 664, Amherst, NY 14226-0664, e-mail aszalanski@centerforinquiry.net.


Tom Flynn is the editor of Free Inquiry and the executive director of the Council for Secular Humanism.

Tom Flynn

Tom Flynn is editor of Free Inquiry, executive director of the Council for Secular Humanism, director of the Robert Green Ingersoll Birthplace Museum, and editor of The New Encyclopedia of Unbelief (2007).

I may be reading too much into the November 2012 elections, but they seem to have genuinely altered the drift of American political discourse. Minority groups from Hispanics to the nonreligious played central roles in the reelection of President Barack Obama and in numerous congressional, state, and even local races. (Obama arguably owes his election …

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