Anti-Theocracy and the Rule of Law

by Neil H. Buchanan 
Yesterday, The New York Times op-ed page ran the latest column from one of their very best (if not the best) opinion writers, the former Supreme Court reporter Linda Greenhouse.  The piece's title, "God Has No Place in Supreme Court Opinions," if anything undersells the import of Greenhouse's coolly impassioned and incisive reaction as the United States "lurches toward theocracy."
As it happens, just the day before, I had stepped a bit outside of my usual lanes and published a Verdict column discussing this very issue: "What Would the Church-State Divide Look Like If I Were God? (Irony Alert)."  I typically encourage readers of Dorf on Law to click on my Verdict columns.  Today, I encourage all of you first to read Greenhouse's column and only then to read mine, if you have time.  I believe that my column is worth reading (as one might expect), but I know when to acknowledge a master at work.

Here, I want to discuss some overlap as well as some differences between the two columns (written entirely independently, I should add; Greenhouse and I have never met, and the writing and editing schedules for the columns guarantee that neither of us were influenced by the other's words -- not that I imagine that I am on her RSS feed).  The bottom line in both columns is that the intensifying theocratic repression that dominates this country is truly frightening.
I am on record arguing (at length) that his country's days as a constitutional democracy are numbered.  Greenhouse's arguments should remind us that, even if I am later proved wrong and our system survives, this country desperately needs to re-establish a robust separation of church and state.  If voter suppression and gerrymandering do not doom us, uncontrolled theocrats will.

Greenhouse offers this telling observation:
Religion is American society’s last taboo. We can talk about sexual identity, gender nonconformity, all manner of topics once considered too intimate for open discussion. But we have yet to find deft and effective ways to question the role of religion in a public official’s political or judicial agenda without opening ourselves to accusations of being anti-religious.
This hit especially close to home, because I had devoted a large section of my column to an effort (surely in vain) to prevent myself from being accused of being anti-religious.  Even by the standards of my relatively informal writing style, in which I often share personal details and anecdotes, the column went to great lengths of self-protection, noting that I was raised in a religious (but not at all fundamentalist) Christian home with a father who was a Presbyterian minister, explaining how and why I became an atheist (gasp!), but assuring everyone that I respect other people's religious choices.  I also pointed out that very religious people have long advocated the strict church/state divide that I am endorsing.
The message was, in essence: "I'm about to say some things against religion in public life, but hear me out, because even though I'm not religious anymore, I know a thing or two about this; and I'm not criticizing anyone for continuing to believe."

As hard as I tried not to sound too defensive, of course I was being defensive.  I knew, as we all know, that any words that in any way oppose religious influence in the U.S. will invariably be twisted and described as an attack on "the faithful," whose views must not be criticized.  And that discomfort in our political discourse -- where "polite conversation" firmly excludes legitimate questioning of religion's impact on the country -- has real effects by closing off legitimate objections to allowing a religious minority to drive the nation's policy agenda.
Or, in Greenhouse's more elegant phrasing: "Who let God into the legislative chamber? The answer is that we did. Our silence has turned us into enablers of those who are now foisting their religious beliefs on a country founded on opposition to an established church."  And later in the column: "It’s incumbent on the rest of us to call out those who invoke God as their legislative drafting partner."
Indeed, I framed my column not as a way to stop the religious right from controlling American political life, because I have long since stopped imagining that politicians will be brave enough (and it is pathetic that something so minimal merits the word "brave") to say that the religious zealots who are now openly running the show in the Republican Party are dangerous and should be opposed.  Democrats and others will disagree with the religious right on particular policies (abortion, for example) but will step ever so lightly, for fear of being called anti-religious commies.

Instead, my column is set up as a futuristic hypothetical, asking what we might do differently if we ever get the chance to restore a sane society.  That is, given that the largest driver of the Trumpification of the Republican Party was the religious right, and given that the Republican Party has effectively ended constitutional democracy, I suggested that a good starting place to build a post-post-democracy democracy would be to create a very bright line between church and state.

As much as the religious right in this country enjoys posturing as the victims of an anti-religious larger society, they are anything but silenced.  Greenhouse offers this illuminating example:
When Amy Coney Barrett was a law professor at Notre Dame, the university’s Faculty for Life, of which she was a member, unanimously denounced the university’s decision to honor then-Vice President Joe Biden, a Catholic, with an award recognizing “outstanding service to church and society.” The faculty group’s specific objection was to his support for the right to abortion. “Saying that Mr. Biden rejects church teaching could make it sound like he is merely disobeying the rules of his religious group,” the Faculty for Life’s resolution stated. “But the church’s teaching about the sanctity of life is true.” 
So much for pluralism.  These professors tell us that when someone "rejects church teaching," he is going beyond saying that not all people in this country should be governed by teachings with which many people disagree.  No, he is rejecting The Truth.  Imagine if a Democratic president nominated someone -- not just to the Supreme Court but to any court, or even to a position requiring Senate confirmation that does not come with life tenure -- who had signed onto something saying that Roman Catholic teaching is false.  Or even short of that, what if the nominee had once said, say, that "people who use religious doctrine to assert absolute truths should not be taken seriously"?

We can only imagine what would happen in a situation, because it would never happen in real life.  This is the defensive crouch in which Democrats have lived for decades.  No Democratic president would nominate such a person in the first place.  Indeed, although I would not be considered for a confirmation-required position for any number of reasons, that Verdict column alone (admitting out loud that I am an atheist!?) would guarantee that I would never be tapped.  In fact, because I would never want to serve in such a position, and because writing things that are insufficiently solicitous of the religious right's sensibilities is a guaranteed method of staying off of any politician's shortlist, I can view that column ex post as a smart career move.

Greenhouse is right: We are all at fault, because it was always easier to say, "Let me prove I have nothing against religion by bending over backward to say that I have nothing but respect for sincerely held beliefs."  In due course, we allowed the religious right to run riot.  Most saliently at this moment, women in Texas are feeling the brunt of our failure to show backbone.  But our collective cowardice is affecting everyone who disagrees with former Professor Barrett and her colleagues about what is true.
We should make a mental note: Next time we get a chance to create a political system, let us be careful not to mix church and state.  It does not end well.