Harvard Center for Ethics and the Professions -- Seminar 1999

I dearly wanted to cover a conference, any conference, about religion and politics for this Millennium issue of RAM. But -- surprise, surprise -- nothing like that was scheduled for Nov./Dec. by any of the think tanks or public interest groups in Washington, D.C.

So I Amtraked up to Cambridge, Mass., where the Harvard Center for Ethics and the Professions had plastered the campus with leaflets advertising a Dec. 2 seminar called “The Role of Religion in Public Life.”

The seminar promised to be a veritable Rumble in the Academic Jungle. In the time-honored tradition of these things, it pitted two religion-and-politics heavyweights against each other -- Amy Gutmann and Michael McConnell.

Both are socially committed Baby Boomers born 5-10 years after 1946, which perhaps explains why they had the good sense to stay off the streets and focus on their academic careers. Now Gutmann is a chaired professor of politics at Princeton and co-author of books like Democracy and Disagreement (1996) and Color Conscious (1997, with Anthony Appiah; see RAM #1, p. 5). And McConnell is a leading constitutional law professor -- currently at the University of Utah, formerly at the University of Chicago (for 12 years) -- who’d tasted the Real World once as a Justice Department appointee.

The crowd was one of your wonderful late-winter Starr Auditorium crowds, tousle-haired and bright-eyed and all cramped together. The usual bouillabaisse of cashmere overcoats, blue jeans, stylish miniskirts, and work boots was made even more tasty by the fact that the seminar was free and open to the public, so a cross-section of Cambridge’s activists and independent scholars was rubbing elbows -- literally -- with people like Martha Minow (big deal at the law school) and Neil Rudenstine (President of Harvard).

McConnell went first, and he did not disappoint.

Jefferson’s famous “wall of separation between church and state” has become a “misleading and not very helpful” metaphor, he told his audience.

Suddenly everyone was on intellectual red-alert.

Maybe the “wall of separation” concept made sense in Jefferson’s day, at a time of limited government, he said in a voice that could have melted butter. But now the government’s intimately involved in education, charity, welfare, health, and many other aspects of our personal lives. And it’s using the “wall of separation” concept to drive religion out of our lives!

The government side of the wall is secular, not pluralistic, he said. Everything the government touches turns non-religious. And the wall is being pushed further and further outward every day. Religion is in retreat!

This is not a recipe for religious freedom or religious pluralism, he said as understatedly as he could.

The “wall of separation” has become an ideology in itself, he said -- an ideology called “secularism.” Its champions are groups like People for the American Way and the ACLU. Its goal is to eliminate religion from our common public life.

But a better approach is on the horizon, he declared.

On the benefits side, you could have equal access. The government would neither favor nor disfavor institutions on the ground of their being religious. So if the government decided to provide academic scholarships, for example, it need not confine those scholarships to secular institutions.

On the regulatory side, you could truly accommodate religion. For example, out west the government owns lands that are sacred to certain Native American tribes. The ACLU wouldn’t want the government to take this religious factor into account -- they’d call it “entanglement” with religion, or they’d call it discrimination on behalf of religion.

But an accommodation theory would require that before the government built logging roads, it would have to ask: Where are the sacred places? In what ways are they sacred? What routes could be used to avoid disturbing them?

So the “wall of separation” concept has outlived its usefulness, McConnell concluded (his eyes gleaming), and in its place we should put (1) equal access to benefits, and (2) accommodation of religious beliefs and practices wherever possible short of sacrificing truly important government objectives.

The Cambridge audience -- a secular bunch if ever there was one -- looked to Gutmann to rebut the distressingly spiritual McConnell (you could virtually hear them thinking, no wonder he’d moved to Utah!). And she did rebut him, sort of.

Once upon a time, she began in a deceptively coy and halting voice, we said to the church, Don’t ask for state support. And we said to the state, Don’t regulate churches.

But what McConnell is proposing is incredibly different!, she cried. To the church he’d say -- ask for state support the same way every other institution does. And to the state he’d say -- don’t regulate religious institutions like you do other institutions. “Accommodate” them instead.

Give me a break!, she said (in so many words). If you ask for state support like other institutions, you should be regulated like other institutions!

A couple of years ago, she said, the New York state legislature generously “accommodated” Orthodox Jews by giving them a separate school district. And guess what? Those who dissented from the Grand Rabbi’s positions in that district were harassed and even threatened. Eventually over 100 dissenters sued to break up the district! And they won in the Supreme Court, thank God.

You can’t count on people behaving themselves when religion and the state are combined, she said. We need the “wall of separation” now as much as ever.

A long and contentious discussion followed.

The high point, for me, came when a woman in the third row declared that she’d worked for Catholic Charities in New York City for seven years, and that they’d managed to work out a “practical,” seat-of-the pants accommodation between public funding and their spiritual orientation (e.g., “no forced prayer before meals”).

McConnell then added that it’s “actually amazing how many of these Free Exercise [of Religion] cases are ones where there were informal accommodations until somebody started making an issue out of it.”

But nobody made the obvious follow-up point, that of course ordinary people could be trusted to work out “practical” accommodations from the bottom up, if given clear guidelines and a bit of encouragement in the form of technical assistance.

It may have been altogether too inelegant (aka participatory-democratic) a solution to be seriously considered by the kinds of folks packed into the warm and friendly confines of Starr Auditorium. They seemed to want definitive rulings from on high. Perchance they dreamed of making them.

Harvard Center for Ethics and the Professions: 79 J.F.K. Street, Cambridge MA 02138, www.ethics.harvard.edu.

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