The New Republic
Books about law and religion often follow a familiar pattern. There is first a rapid and perfunctory nod to the text of the First Amendment: yes, yes, we all know—no state interference with the free exercise of religion and no religious establishments. There is next an earnest expression of dissatisfaction with what is universally deemed a legal wasteland. Usually this portion of the book is developed in a bleak doctrinal tour d’horizon punctuated by moans about the law’s messiness, its chaos, its incoherence and misguidedness, and its failure either to live up to the founding generation’s ideals or to respond to contemporary urgencies, or both. This is followed by an admonition that things must be made right, and soon, lest something really awful happen. Finally, there is an offer to resolve these problems with the shopworn instruments of liberal political theory. An ideal philosophical vision of the proper relationship among citizens, religious institutions, and the state is proposed and defended. As a general matter, one or two, or perhaps a very few, values are assigned priority. Not long ago, strict church-state separation was the favored value; today, equality and neutrality are the most common contenders. The typical book then proceeds to describe in detail the nature of the perfect theoretical resolution and its salutary, improving effects on the law and our lives.
How refreshing, then, to see an entirely different kind of book in The Agnostic Age, by constitutional scholar Paul Horwitz. Horwitz writes convincingly that the prevailing academic approach to law and religion, in which abstractions like equality and neutrality are taken as foundational touchstones for resolving religious liberty conflicts, has led to a stale and unedifying impasse. There were impeccable historical reasons for theorists of religious liberty to assiduously keep their distance from the black dragon of religious truth. Centuries of war and blood-soaked religious persecution are evidence enough. But the “liberal consensus”—one of whose primary tenets is that the state ought to remain resolutely neutral on the nature of the good and the true, and certainly on the question of religious truth—shows signs of strain from without and within. From without, religious people have for some time complained that the naked public square short-circuits any place for religion in public life. From within, assorted nonbelievers charge that liberal neutrality displays a pusillanimous incapacity to destroy what Voltaire knew needed destroying—écrasez l’infâme!