A Church-State Solution

By NOAH FELDMAN

*I. THE EXPERIMENT *

For roughly 1,400 years, from the time the Roman Empire became Christian
to the American Revolution, the question of church and state in the West
always began with a simple assumption: the official religion of the
state was the religion of its ruler. Sometimes the king fought the
church for control of religious institutions; other times, the church
claimed power over the state by asserting religious authority over the
sovereign himself. But the central idea, formally enshrined at
Westphalia in 1648 by the treaty that ended the wars of religion in
Europe, was that each region would have its own religion, namely that of
the sovereign. The rulers, meanwhile, manipulated religion to serve
their own ends. Writing just before the American Revolution, the British
historian Edward Gibbon opined that the people believed, the
philosophers doubted and the magistrates exploited. Gibbon's nominal
subject was ancient Rome, but his readers understood that he was talking
about their world too.

All this changed with the radical idea, introduced during the American
Revolution, that the people were sovereign. This arrangement profoundly
disturbed the old model of church and state. To begin with, America was
religiously diverse: how could the state establish the religion of the
sovereign when the sovereign people in America belonged to many faiths
-- Congregationalist, Anglican, Presbyterian, Baptist, Quaker?
Furthermore, the sovereign people would actively believe in religion
instead of cynically manipulating it, and elite skeptics would no longer
be whispering in the ears of power. Religion would be a genuinely
popular, even thriving, political force.

This model called for a new understanding of church and state, and the
framers of the American Constitution rose to the occasion. They designed
a national government that, for the first time in Western history, had
no established religion at all. The Articles of Confederation, which
were drawn up during the Revolutionary War, had been silent on religion
-- itself something of an innovation. But the Constitution went further
by prohibiting any religious test for holding office. And the first
words of the First Amendment stated that ''Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof.'' If the people were to be sovereign, and belonged to
different religions, the state religion would be no religion at all.
Otherwise, the reasoning went, too many religious denominations would be
in competition to make theirs the official choice, and none could
prevail without coercing dissenters to support a church other than their
own -- a violation of the liberty of conscience that Americans had come
to believe was a God-given right. Establishment of religion at the
national level was prohibited. Religious diversity had ensured it. The
experiment had begun.

*II. OUR PRESENT PREDICAMENT *

During the two and a quarter centuries since America's founding, the
experiment has progressed fitfully. The nonestablishment of religion,
with a simultaneous guarantee of its free exercise, was an elegant
solution but not a complete one. Generation after generation, fresh
infusions of religious diversity into American life have brought with
them original ideas about church and state -- new answers to the
challenge of preserving the unity of the sovereign people in the face of
their flourishing spiritual variety and often conflicting religious needs.

Consider the influx of Catholic immigrants that followed the Irish
potato famine in the 1840's. In the overwhelmingly Protestant world of
the framers' America, there was a common belief that taxation for
religious purposes violated religious liberty. As a result, when public
schools were invented a few decades later, they featured only
''nonsectarian'' Bible reading and prayer. But Catholic immigrants soon
protested that the schools' nonsectarianism -- in which the Protestant
King James Bible was free to be interpreted by the individual student
but not by the teacher (let alone a priest) -- was in fact sectarian
Protestantism in disguise. The unsuccessful struggle of Catholic
immigrants to have their own schools publicly financed or, failing that,
to take the King James Bible out of the public schools, generated half a
century of vituperative and sometimes deadly struggle.

In our own era, two camps dominate the church-state debate in American
life, corresponding to what are now the two most prominent approaches to
the proper relation of religion and government. One school of thought
contends that the right answers to questions of government policy must
come from the wisdom of religious tradition. You might call those who
insist on the direct relevance of religious values to political life
''values evangelicals.'' Not every values evangelical is, technically
speaking, an evangelical or a born-again Christian, although many are.
Values evangelicals include Jews, Catholics, Muslims and even people who
do not focus on a particular religious tradition but care primarily
about identifying traditional moral values that can in theory be shared
by everyone.

What all values evangelicals have in common is the goal of evangelizing
for values: promoting a strong set of ideas about the best way to live
your life and urging the government to adopt those values and encourage
them wherever possible. To them, the best way to hold the United States
together as a nation, not just a country, is for us to know what values
we really hold and to stand up for them. As Ralph Reed recently told an
audience at Harvard, ''While we are sometimes divided on issues, there
remains a broad national consensus on core values and principles.''

On the other side of the debate are those who see religion as a matter
of personal belief and choice largely irrelevant to government and who
are concerned that values derived from religion will divide us, not
unite us. You might call those who hold this view ''legal secularists,''
not because they are necessarily strongly secular in their personal
worldviews -- though many are -- but because they argue that government
should be secular and that the laws should make it so. To the legal
secularists, full citizenship means fully sharing in the legal and
political commitments of the nation. If the nation defines itself in
terms of values drawn from religion, they worry, then it will inevitably
tend to adopt the religious values of the majority, excluding religious
minorities and nonreligious people from full citizenship.

Despite the differences, each approach, values evangelicalism and legal
secularism, is trying to come to terms with the same fundamental tension
in American life. The United States has always been home to striking
religious diversity -- diversity that has by fits and starts expanded
over the last 230 years. At the same time, we strive to be a nation with
a common identity and a common project. Religious division threatens
that unity, as we can see today more clearly than at any time in a
century in the disputes over stem-cell research, same-sex marriage and
end-of-life issues. Yet almost all Americans want to make sure that we
do not let our religious diversity pull us apart. Values evangelicals
say that the solution lies in finding and embracing traditional values
we can all share and without which we will never hold together. Legal
secularists counter that we can maintain our national unity only if we
treat religion as a personal, private matter, separate from concerns of
citizenship. The goal of reconciling national unity and religious
diversity is the same, but the methods for doing it are deeply opposed.

Yet neither legal secularism nor values evangelicalism has lived up to
its own aspirations. Each promises inclusion, but neither has delivered.
To make matters worse, the conflict between these two approaches is
becoming a political and constitutional crisis all its own. Talk of
secession of blue states from red in the aftermath of the 2004 election
was not meant seriously; but this kind of dark musing, with its implicit
reference to the Civil War, is also not coincidental. It bespeaks a
division deeper than any other in our public life, a division that
cannot be healed by the victory of either side.

*III. CLOSING THE RIFT *

The split between legal secularism and values evangelicalism was not
born in a day. Legal secularism arose in the post-World War II era,
reflecting a growing concern about the need to protect religious
minorities, especially newly visible Jews who were arguably excluded by
public displays of Christian religion like crèches or recitations of the
Lord's Prayer. But instead of attacking religion directly, as some
antireligious secularists did earlier in the century with little
success, organizations like Americans United for Separation of Church
and State and the American Civil Liberties Union argued more narrowly
that government ought to be secular in word, deed and intent. In 1971,
in Lemon v. Kurtzman, the Supreme Court made this position law,
requiring all government decisions to be motivated by a secular purpose,
to have primarily secular effects and not to entangle the state with
religious institutions. This new standard -- known thereafter as the
''Lemon test'' -- did much more than simply reaffirm a deeply rooted
American norm of no government money for religion; it prohibited school
prayer and Bible reading, which had been practiced in the public schools
since their founding, and in many instances it removed Christmas
decorations from the public square. The framers had neither known nor
used the category ''secular'' as we understand it, but the court made
secularism an official condition of all acceptable government conduct.

In many quarters of religious America, there was outrage at this
court-mandated secularism, which to many believers soon came to seem of
a piece with the Supreme Court's 1973 guarantee of abortion rights in
Roe v. Wade. By 1980, the televangelist Jerry Falwell and the Moral
Majority, the political organization he founded, succeeded in mobilizing
this frustration to help elect Ronald Reagan president. In time,
Reagan's judicial nominees began to roll back the advances of legal
secularism by allowing the government to pay for religious education and
other activities via vouchers or other neutral and generally available
government programs. In a particularly ingenious twist, evangelicals won
these cases by depicting themselves as a minority subject to
discrimination by secularists who wanted to deny them government support.

But the values evangelicals did not succeed entirely in reversing the
Supreme Court's embrace of legal secularism. Throughout the 90's, in a
series of 5-4 decisions in which Justice Sandra Day O'Connor provided
the swing vote, the Supreme Court refused to permit the government to
take any symbolic action that might be seen to ''endorse'' religion,
thus preserving and even expanding the ban on school prayer. The other
eight justices on the Rehnquist Court held that government financing and
state-sponsored religious symbolism should be treated the same way:
either both were permissible or both weren't. But since those justices
were split 4-4 on whether to allow more of each or less of both,
O'Connor's compromise -- allowing some government financing of religion
but no government endorsement of religious symbols -- has been the law
of the land for the last two decades.

The resulting doctrine has been the cause of the major church-state
controversies of recent years. In 2004, for instance, when a California
man named Michael Newdow pressed the court to find that the words
''under God'' in the Pledge of Allegiance impermissibly endorsed
religion, the court ducked the issue. The more liberal justices seemed
afraid to rule the pledge unconstitutional yet were unwilling to embrace
the view (advanced awkwardly by O'Connor, given her usual opposition to
endorsing religious symbols) that there is no endorsement when the
religious symbol is longstanding and common.

During the same Supreme Court term, a young man named Joshua Davey asked
the court to require the state of Washington to let him use his public
scholarship money to pay for his studies as a theology major at an
evangelical college. But the court, including Chief Justice William
Rehnquist, refused to overturn the state's policy against paying for
religious courses of study, even though Davey was as much the victim of
''discrimination'' as were earlier evangelical plaintiffs whom the court
had granted access to government money to pay for their student
publications. In essence, the court, divided itself and uneasy about
O'Connor's fence-sitting, is unwilling or unable to take a unified stand
on what the Constitution really means when it comes to the relation
between religion and government. It will be surprising if the Ten
Commandments cases just decided by the court bring to an end the
judicial wrangling over the church-state question.

The O'Connor compromise between values evangelicalism and legal
secularism may be unsatisfactory, but the truth is that neither approach
deserves to prevail. Both are self-contradictory: they fail precisely
where they want to succeed, namely in reconciling religious diversity
with unity. The values evangelicals want to find shared values, but that
leads them to rely on the unexamined assumption that deep down,
Americans agree on what matters. The trouble is that ''we'' often do not
agree. The Ten Commandments may appeal to Jews and Christians, but to
Muslims, they are an imperfect revelation superseded by the Koran, and
Buddhists and Hindus find no appeal in the Commandments'
self-attribution to the single God who took the Children of Israel out
of Egypt.

Even a joint commitment to ''the culture of life'' turns out to be very
thin. Catholics and conservative Protestants may agree broadly on
abortion and euthanasia; but what about capital punishment, which Pope
John Paul II condemned as an immoral usurpation of God's authority to
determine life and death but which many evangelical Christians support
as biblically mandated? To reach consensus, the values evangelicals have
to water down the ''values'' they say they accept to the point where
they would mean nothing at all. They are left either acknowledging
disagreement about values or else falling into a kind of relativism (I'm
O.K., you're O.K.) that is inconsistent with the very goal of standing
for something rather than nothing.

Meanwhile, the legal secularists have a different problem. They claim
that separating religion from government is necessary to ensure full
inclusion of all citizens. The problem is that many citizens -- values
evangelicals among them -- feel excluded by precisely this principle of
keeping religion private. Keeping nondenominational prayer out of the
public schools may protect religious minorities who might feel excluded;
but it also sends a message of exclusion to those who believe such
prayer would signal commitment to shared values. Increasingly, the
symbolism of removing religion from the public sphere is experienced by
values evangelicals as excluding them, no matter how much the legal
secularists tell them that is not the intent.


Despite the gravity of the problem, I believe there is an answer. Put
simply, it is this: offer greater latitude for religious speech and
symbols in public debate, but also impose a stricter ban on state
financing of religious institutions and activities. This approach, the
mirror image of O'Connor's compromise, is drawn from the framers' vision
and the historical experience of separating church and state in America.
The framers might well have been mystified by courthouse statues
depicting the Ten Commandments, but they would not have objected unless
the monuments were built with public money. Having made a revolution
over unfair taxation, they thought of government support in terms of
dollars spent, not abstract symbols.

From this logic, it follows that a moment of silence to begin the school
day should not be invalidated just because it is intended to let
children pray if they wish. Though it will never be easy to determine
when schoolchildren are being coerced by peer pressure, at least some
older students at optional events like a Friday-night football game
surely are not being forced to pray when others are doing so
voluntarily. Intelligent-design theory, itself a product of the
ill-advised demand that religion disguise itself in secular garb, should
be opposed on the educational ground that it is poor science, not on the
constitutional reasoning, which some secularists have advanced, that it
is a cover for religious creationism. If its advocates can persuade a
local school board to put it in the curriculum, the courts need not
strike it down as an establishment of religion. On the other hand,
charitable choice, which permits billions of dollars in federal money to
support faith-based organizations, should not be a vehicle for allowing
government to pay for programs that treat alcoholics by counseling them
to accept Christ. Schools that teach that Shariah (or Jewish rabbinic
law or canon law) is the ultimate source of values should not be
supported by tuition vouchers.

Such a solution would both recognize religious values and respect the
institutional separation of religion and government as an American value
in its own right. This would mean abandoning the political argument that
religion has no place in the public sphere while simultaneously
insisting that government must go to great lengths to dissociate itself
from supporting religious institutions. It would mean acknowledging a
substantial difference between allowing religious symbols and speech in
public places (so long as there is no public money involved) and
spending resources to sustain religious entities like churches, mosques
and temples. Public religious symbolism expressed in statues, oaths and
prayers reflects citizens' desires to see their deeply held beliefs
expressed in those public situations where moral commitments are
relevant: legislatures, schools and, yes, courthouses and statehouses.
Religious proclamations or prayers may open sessions of Congress without
costing anyone a dime.

But government money, even when nominally available equally to all,
inevitably creates political competition between religious groups over
how and where scarce money will be spent. Zero-sum appropriations drive
zero-sum politics. A tuition voucher is never priced out of thin air:
its amount is set by a political process that favors some schools (for
example, Catholic schools that already have infrastructures and support
from a centralized church) at the expense of others.

In the courts, the arrangement that I'm proposing would entail
abandoning the Lemon requirement that state action must have a secular
purpose and secular effects, as well as O'Connor's idea that the state
must not ''endorse'' religion. For these two tests, the courts should
substitute the two guiding rules that historically lay at the core of
our church-state experiment before legal secularism or values
evangelicalism came on the scene: the state may neither coerce anyone in
matters of religion nor expend its resources so as to support religious
institutions and practices, whether generic or particular. These
constitutional principles, reduced to their core, can be captured in a
simple slogan: no coercion and no money. If no one is being coerced by
the government, and if the government is not spending its money to build
religious-themed monuments or support religious institutions and
practices, the courts should hold that the Constitution is not violated.

Admittedly, this approach goes against the trends of the last several
decades, which are for stricter regulation of public religious symbolism
and more permissive authorization of government financing and support
for religion. At first blush, then, the proposal may strike both sides
of the current debate as mistaken, since it requires each to give up
some victories in exchange for an alternative solution. Nonetheless this
approach is not only faithful to our constitutional traditions; it also
stands a chance of winning over secularists and evangelicals alike and
beginning to close the rift between them.

*IV. FAITH IS NOT A CONVERSATION STOPPER *

The solution I have in mind rests on the basic principle of protecting
the liberty of conscience. So long as all citizens have the same right
to speak and act free of coercion, no adult should feel threatened or
excluded by the symbolic or political speech of others, however much he
may disagree with it. If many congressmen say that their faith requires
intervening to save Terri Schiavo, that is not a violation of the rules
of political debate. The secular congresswoman who thinks Schiavo should
have the right to die in peace can express her contrary view and explain
why it is that she believes a rational and legal analysis of the
situation requires it. She may lose the vote, but she is not excluded
from the process or from the body that votes against her, any more than
a Republican would be ''excluded'' from a committee controlled by
Democrats.

Legal secularists may fear that when facing arguments with religious
premises, they have the deck stacked against them. If values
evangelicals begin by asserting that God has defined marriage as the
union of one man and one woman, then, say the secularists, the
conversation about same-sex marriage is over. But in fact, secularists
can make arguments of their own, which may be convincing: if the state
is going to regulate marriages, shouldn't they be subject to the same
equality requirement as every other law? Some might even go further and
ask the evangelicals how they can be so sure that they have correctly
identified God's will on the question. They may discover that few
evangelicals treat faith as a conversation stopper, and most consider it
just the opposite.

In any event, when the debate is over, the people will vote, and they
will decide the matter. Legal secularists cannot realistically expect
that they will win more democratic fights by banning the evangelicals'
arguments, which can usually be recast, however disingenuously, as
secular. Once in a while they may, if the composition of the Supreme
Court is just right, thwart the values evangelicals' numerical
superiority with a judicial override; but in the long run, all they will
accomplish is to alienate the values evangelicals in a way that
undercuts the meaningfulness of participatory democracy.

When it comes to religious symbolism, typically some group will ask the
state for a display or an acknowledgment of their holiday or tradition
-- a crèche or a statue, a song or pageant. Invoking Justice O'Connor's
endorsement test, legal secularists ordinarily object that if the state
acquiesces, then it is embracing the religious symbol and excluding
adherents of other religions. But this interpretation of what state
support would mean may not be the best or most natural one. The fact
that others have asked for and gotten recognition implies nothing about
the exclusion of any religious minority except for the brute fact that
it is a religious minority. There is no reason whatever for religious
minorities to be shielded from that fact, since there is nothing
shameful or inherently disadvantageous in being a religious minority, so
long as that minority is not subject to coercion or discrimination.

Take the fact that the government treats Christmas as a national
holiday. It would be absurd if Jews or Muslims or Hindus or Buddhists
felt fundamentally excluded from citizenship by this fact -- and I would
venture to suggest that very few do. Most Americans are still Christians
who celebrate Christmas, and the state acknowledges that fact, just as
the culture does through the songs on the radio and the merchandise in
the stores. The celebration may not always be deeply religious, but the
atmosphere corresponds to the realities of the Christian majority. Just
what is threatening to religious minorities about Christians celebrating
the holiday or singing carols in school? What, exactly, is the harm in
being wished Merry Christmas even if you're not celebrating? The state
has not made Christianity relevant to citizenship nor has it spent
taxpayers' money to advance the cause of the church. It has simply
acknowledged the preferences of a majority. Some members of religious
minorities may choose to spend December feeling bad that they are not
part of the majority culture -- but they would have this same problem
even if Christmas were not a national holiday, since Christmas would
still be all around them. The answer is for them to strengthen their own
identities and be proud of who they are, not to insist that the majority
give up its own celebration to accommodate them.


In the last 50 years, legal secularists have expressed concern that
public manifestations of religion marginalize religious minorities and
hence reduce the capacity of those minorities to participate in a common
national public life. And at times, that has been a valid complaint, as
with mandatory religious exercises in schools. But today the increasing
presence of other non-Christian religious minorities, and an attendant
atmosphere of religious multiculturalism, mean that public
manifestations of religion -- at least at the national level -- are
becoming increasingly pluralistic and inclusive. Consider the televised
memorial service led by President Bush on Sept. 14, 2001, a day he had
designated as a national day of prayer and remembrance for the victims
of the 9/11 attacks. With the cabinet, members of Congress and the
foreign diplomatic corps in attendance, the president assured the
congregation that God created a world ''of moral design'' and that ''the
Lord of life holds all who die and all who mourn.'' Suffused with
theology as much as any presidential address since Lincoln's second
inaugural, the speech took on the problem of evil while commending the
future of the republic to God's grace.

Yet despite the high-Protestant venue -- the Episcopal Washington
National Cathedral -- the president was preceded in the pulpit by the
dean of the cathedral as well as by the Roman Catholic archbishop of
Washington, an African-American Methodist minister, Billy Graham, a
rabbi and an imam who quoted verses from the Koran. The display of
inclusiveness was driven not only by political imperative but also by
the recognition that this extraordinary national-religious moment must
reach out to America's religious diversity.

In this latest demographic version of a religiously diverse environment,
where Protestants may soon cease to be a majority in the United States,
the danger that Christmas crèches or prayer at high-school graduations
will marginalize non-Christians is substantially decreased. Some parts
of the country are still dominated by particular denominations or
trends; but even in the heart of the Bible Belt, diversity is growing as
a result of immigration and shifting population patterns. Indeed, the
Ten Commandments monument that Judge Roy Moore erected in the Alabama
Supreme Court was thought by its supporters, however inaccurately, to be
nonsectarian, on the theory that Jews and Christians alike respect the
ideals it represents. Although insensitivity and ignorance are still
very much with us, today we are unlikely to see the religious majority
refusing to allow religious minorities to display their symbols
alongside those of the majority. The five-times daily broadcast of the
Muslim call to prayer from a mosque may at first raise hackles, but when
the comparison to church bells is made, public acceptance is likely to
follow, as it did in the town of Hamtramck, Mich., last summer.

*V. WHAT INCLUSION REALLY LOOKS LIKE *

Atheists will doubtless maintain that any public religion at all -- like
''under God'' in the Pledge of Allegiance -- excludes them by endorsing
the idea of religion generally. But this misses the point: it is an
interpretive choice to feel excluded by other people's faiths, and the
atheist, like any other dissenter from a majoritarian decision, can just
as easily adhere to his own views while insisting on his full
citizenship. So long as no one is coerced into invoking God, it makes
little sense to accommodate the atheist's scruples by barring everyone
else from saying words that he alone finds to be metaphysically empty.
Complete subjective inclusion is impossible, so if our goal is to
include as many people as possible, we need to reach as widely as
possible by letting the ordinary democratic process take its course. The
Jehovah's Witnesses, who in the 1940's fought for the right not to
salute the flag, never insisted that the salute or the pledge should be
abolished altogether -- they just wanted their children to be exempt
from a mandatory ritual that violated their consciences and hence their
religious liberty.

In some instances, pluralistic, public expressions of religion even hold
out the possibility of enabling new religious minorities to participate
fully in the American public sphere. Muslims, Hindus and Buddhists, for
whom religion and immigrant status may be closely connected, may well
seek opportunities for the symbolic recognition of their citizenship
that can be gained in schools, legislatures and elsewhere. Acknowledging
holidays like the Muslim Eid al-Fitr or the Hindu Divali in what has
traditionally been a Christian country may validate a sense of belonging
in a way that no secular civic symbol can. Such an embrace of minority
faith might go beyond symbols like legislative prayers, which remain
legal despite secularist objections, and extend to celebrating holidays
in the schools or granting adherents those days off from work, which
would be of questionable constitutionality under current law.
Ultimately, the nation may have more success generating loyalty from
religiously diverse citizens by allowing inclusive governmental
manifestations of religion than by banning them.

Observing the political clout of the values evangelicals, many legal
secularists cannot imagine how the former could possibly feel
marginalized from American society. They must realize, however, that the
evangelicals' political strength has not often extended to the cultural
realm, about which values evangelicals care the most. These evangelicals
feel defensive not only because they believe they are losing the culture
war and have trouble enacting religious values into public policy --
though, in fact, they have made some strides on issues like abortion and
same-sex marriage -- but because they have difficulty making the
religious sources of their ideas acceptable in the cultural-political
conversation. To give a religious reason for passing a law is still to
run the risk of that law being held unconstitutional as serving a
religious rather than a secular purpose. So evangelicals end up speaking
in euphemisms (''family values'') or proposing purpose-built dodges like
''creation science'' that even they often privately acknowledge to be
paradoxical.

A better approach would be for secularists to confront the evangelicals'
arguments on their own terms, refusing to stop the conversation and
instead arguing for the rightness of their beliefs about their own
values. Reason can in fact engage revelation, as it has throughout the
history of philosophy. The skeptic can challenge the believer to explain
how he derives his views from Scripture and why the view he ascribes to
God is morally attractive -- questions that most believers consider
profoundly important and perfectly relevant.

This kind of exchange need not produce agreement on abortion or same-sex
marriage or anything else. To the contrary, hard moral questions will
remain controversial. But acknowledging a moral debate as a moral debate
in which all sides deserve a say will have the effect of communicating
to evangelicals that their voices count. In the long run, this approach
is more likely to focus our national debates on substance instead of
procedure -- on what God or reason or whatever source of values teaches
about human life and intimate choices, not about whether God belongs in
the conversation at all. Secularists who are confident in their views
should expect to prevail on the basis of reason; evangelicals who wish
to win the argument will discover that their arguments must extend
beyond simple invocation of faith.

*VI. THE PROBLEM WITH MONEY *

If we are to progress toward reconciliation of our church-state problem,
it will not be enough for legal secularists to re-evaluate their
attitude toward religious symbols and religious discourse. Values
evangelicals must also change their ways and give something up -- by
reconsidering their position in favor of state support for religious
institutions. The reason they should be prepared to do so is that such
state support actually undercuts, rather than promotes, the cohesive
national identity that evangelicals have wanted to restore or recreate.
When filtered through vouchers distributed by the government and
directed by individual choice, state financial aid for religious
institutions like schools or charities does not encourage common values;
it creates conflict and division.

Today's voucher programs, like the one in Florida that is currently
under challenge before the Florida Supreme Court, focus on helping kids
in failing schools. But imagine a broader voucher system. Many or most
parents might well use the vouchers to send their children to private,
mostly religious schools; more than half the beneficiaries of the
Florida program do exactly that, and in other, more focused plans, the
numbers have been upward of 90 percent. Because we value religious
liberty so highly, most Americans would surely agree that it would be
wrong to regulate and supervise religious schools closely enough to
ensure that they teach some version of prescribed American values. That
is precisely why the Constitution has been interpreted to protect the
right to educate your children in private religious schools altogether.
But given this right to educate according to your own values, what is to
ensure that the curriculum in state-supported religious schools will
promote common values? It is at least as likely that balkanized schools
will generate balkanized values as that they will promote a common
national project.

While the great majority of schools run by most religious groups do
encourage loyal citizenship by their lights, we cannot simply assume
that any school of any religious denomination will teach shared American
national identity or values. Some schools will teach that the best form
of life is to prefer your fellows -- whether Protestants or Jews or
Muslims or Catholics -- to other Americans. No religious tradition is
without at least a hint of such particularism, which is just one
mechanism by which common citizenship may be undermined by some forms of
religion. Different religious schools will also teach disparate values,
increasing national disagreement when it comes to controversial issues.
There is nothing inherently wrong with that type of values diversity, of
course. Private schools unsupported by vouchers can in any case teach
whatever they want about citizenship and loyalty. But while values
evangelicalism claims to advocate national unity and inclusion through
shared values, school-voucher programs cut exactly the other way,
promoting difference and nonengagement. Permitting schools supported by
private money to teach that there is no common American undertaking is
not the same as encouraging that teaching through state subsidy.

Now consider what will happen when some delegate in a state legislature
rises to argue that voucher payments should not be extended to schools
that teach racism, or anti-Americanism, or sexism. Under the law as it
is developing, the state cannot pick and choose but must pay for all the
schools or none. Cutting financing for the offending school would
require cutting it for every school. There will then inevitably ensue a
debate about whether the outrage of financing this one school outweighs
the benefits of financing all the others. In essence, this will be a
debate about how bad the teachings of the religion under attack are, and
how good the others.

This situation, reminiscent of 19th-century legislative debates about
the supposed ills of the Catholic Church, captures precisely the sort of
divisiveness in politics that institutional separation aims to avoid.
Only this time it will probably not be Catholicism in the dock but
something else -- Islam, say, or polytheistic Hinduism, or some religion
so new that it still seems like a cult. The framers' innovation of
nonestablishment was designed so that the sovereign people should not
spend their legislative sessions debating the relative merits of
different faiths and their compatibility with American values. That is a
recipe for real and deep division.


The tradition of institutional separation that must be reasserted goes
beyond blocking money for religious schools. All attempts to use
government resources to institutionalize religious practices countermand
the American tradition of nonestablishment, grounded historically in the
belief that government has no authority over religious matters. When
government pays for social programs through the rubric of charitable
choice, the programs must not be ones that rely on faith to accomplish
their goals -- or else the government is institutionally sponsoring the
religious mission of the church in question. This is also why the state
itself must not compose or mandate public prayers, which then take on
the shape of state-imposed religious exercises in a way that is very
different from voluntary prayers chosen and led by individuals in public
contexts. The founding father James Madison himself understood that
paying the chaplains of the House and Senate out of the public till was
a constitutional anomaly, and he wisely, if belatedly, suggested that
the members of Congress ought to pay for their services from their own
pockets.

Surprising as it may at first sound, the changes from existing laws and
practices that I'm advocating have a realistic chance of being adopted
and even embraced by values evangelicals. It may already be possible to
glimpse a growing recognition among values evangelicals that voucher
programs do not necessarily promote common values but may do just the
opposite. The ballooning of school-voucher programs that some expected
in the wake of the Supreme Court's 2002 decision holding them
constitutional has not come to pass. Faith-based charities have not yet
managed to crowd out secular service providers, although more extensive
government financing for faith-based social services remains a stated
goal of the Bush administration. Given that voucher programs have not
spread, it should be relatively easy for values evangelicals to abandon
them -- especially since they will be getting something in return,
namely greater recognition and acceptance for their values-based
arguments and the corresponding symbols of public religion.

Government financing of religion is, after all, a relative latecomer to
the ideology of values evangelicalism. The movement from the start drew
its energy from symbolic questions of culture and morality, not from any
desire to see a merger of church and state. Catholics may have pressed
hard from within the movement to make vouchers an important issue, but
even they turn out to be relying little on those voucher programs for
educating their own children; the voucher students in Catholic schools
in Milwaukee or Cleveland are heavily inner-city non-Catholics.
Evangelicals should also be prepared to acknowledge the historical fact
that our constitutional tradition, flawed though it assuredly is, has
always made institutional separation the touchstone of nonestablishment.

*VII. THE EXPERIMENT REVISITED *

The proposal is a simple one -- and it looks backward to history in
order to look forward. If we could be more tolerant of sincere religious
people drawing on their beliefs and practices to inform their choices in
the public realm, and at the same time be more vigilant about preserving
our legacy of institutional separation between government and organized
religion, the shift would redirect us to the uniqueness of the American
experiment with church and state. Until the rise of legal secularism,
Americans tended to be accepting of public, symbolic manifestations of
faith. Until values evangelicalism came on the scene, Americans were on
the whole insistent about maintaining institutional separation. These
two modern movements respectively reversed both those trends.

The novelty of these developments does not mean they are wrong, of
course. But in an America grown so religiously diverse that it can no
longer easily be called ''Judeo-Christian,'' we need to learn from our
history if we are to have any hope of constructing a single nation that
will endure. Muslims, Buddhists and Hindus will have to join
Protestants, Catholics, Jews and atheists in finding a resolution to our
church-state problem that all can embrace. A solution that will work for
our generation must bind us to the past. But like all successful
nation-building, it will work only if it also sets a foundation for our
future.

Noah Feldman is a professor at the New York University School of Law and
a fellow at the New America Foundation. His book ''Divided by God:
America's Church-State Problem -- and What We Should Do About It,'' from
which this article is adapted, will be published later this month by
Farrar, Straus & Giroux.