U.S. church-state model faces new challenges, speakers say

by John Thavis

ROME ñ The traditional U.S. model of church-state relations has been praised by Pope Benedict XVI as a form of"healthy secularism,"but it risks being eroded by those who want to limit religion’s influence in public life, speakers at a Rome conference said.

The conference Jan. 13 marked the 25th anniversary of formal diplomatic relations between the United States and the Holy See. It was the last of a series of five encounters sponsored over the past year by the U.S. Embassy to the Vatican on the theme of religious liberty.

The U.S. ambassador to the Vatican, Mary Ann Glendon, introduced the program by pointing out that there are competing models of religious freedom in the United States, and that the future direction of church-state relations is a subject of intense debate.

Speakers agreed that there are persistent efforts in the United States to restrict religion to the private sphere ñ something not intended by the framers of the Constitution.

Philip Hamburger, a professor at Columbia Law School in New York, said the original U.S. idea of"disestablishment,"which prevented the government from establishing an official state church, has been increasingly replaced by the notion of strict separation between church and state.

This concept of separation developed not from the Founding Fathers but in later times, first as a form of discrimination against religious minorities, including Catholics, and later as a way to limit all religious influence in society, he said.

Mr. Hamburger said a second challenge was the trend toward regarding religious freedom more as a legal concession and less as an inalienable right.

He said the original U.S. church-state model defined religious liberty in relatively narrow terms as freedom from government interference and penalty. That was a good thing, he said, because it meant this freedom was unconditional and equal under law, regardless of one’s religion.

But Mr. Hamburger said there’s a modern tendency to broaden the understanding of religious freedom to include the so-called right of religious exemption, in effect giving individuals different degrees of freedom depending on their religion.

Religious freedom thus becomes"freedom from law,“instead of”equal freedom under law,"he said. This model ends up legitimizing religious opposition to law and making the Constitution an instrument of religious discrimination, he said.

Richard W. Garnett, a professor at the University of Notre Dame Law School in Indiana, said there were three competing concepts of religious freedom in the United States today. He described them as freedom from religion, freedom of religion and freedom for religion.

Freedom from religion accepts religion as a social phenomenon but sees it as a danger to the common good, and therefore tries to limit its expression to the private realm, he said. Freedom of religion emphasizes government neutrality toward religion, in which no special favor or accommodations are shown to religious groups or individuals.

Freedom for religion, Mr. Garnett said, sees religion as valuable and good, and worthy of public support. In this model, government will not only guarantee the conditions necessary for the free exercise of religion, but also look for ways to accommodate religions, he said.

Mr. Garnet said the freedom-for-religion model was closest to the ideas of the U.S. Founding Fathers.

The U.S. Constitution, he said, was clearly designed for a religious people, and its authors did not"want to push religion to the margins in the hope that it will wither."Rather, they sought to distinguish between the authorities and structures of religion and those of government, mainly as a safeguard against state interference in religious life, he said.

Joseph H.H. Weiler, a professor at the New York University School of Law, told the conference that a nation’s cultural identity often includes religious history. In that sense, he said, it is a mistake to strip religious elements in order to maintain a strictly secular state.

That kind of secularism makes democracy a very unattractive option for many countries, he said.

“If democracy means that the state cannot think of itself with religious iconography, we have excluded a big part of the world as candidates for that model of democracy,”he said.

Ms. Glendon, who was finishing her term as ambassador Jan. 19, said that after the pope’s remarks in praise of the U.S. model of religious freedom the embassy began getting inquiries asking for a"five-minute"explanation of that model.

“I regret to say there does not exist anywhere any brief, simple explanation of one of the most complex, controversial areas of American law,”she said.

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