Feldman's Solution

Thanks to Mike Perry for linking to Noah Feldman's upcoming NYT Magazine article.  Noah is a friend, and one of the smartest people I know.  I agree with a lot -- but not all -- of what he has to say.

His "church-state solution", in a nutshell, is this:  "[O]ffer 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 solution, he says, "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."  As he points out, "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."  In fact, Noah's proposals will almost certainly prompt more strong (and, unfortunately, hostile) reactions (and probably more from the "left" than from the "right," even though Noah is a person of progressive political commitments).

Again, I agree with many of Noah's arguments, and am drawn to many aspects of his proposed solution.  I hope every MOJ reader will read the full article.  That said, Noah's arguments against school vouchers are, in my view, misguided.  He writes:

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.

As I see it, the best reason to oppose vouchers is that they have the potential to water down the identity, and even to threaten the independence, of religious schools and churches.  But this does not appear to be the reason on which Noah relies.  With respect to the just-quoted paragraph:  First, even if it were the case (and it is not) that vouchers "undercut[] . . . cohesive national identity," that would not, in my view, be much of a moral argument against vouchers, if we believe that vouchers are needed to make meaningful our commitments to religious freedom and educational opportunity, which are more important, I would think, than "cohesive national identity."  Second, it just isn't the case -- as the research of my colleagues David Campbell and David Sikkink, among others, has shown -- that private schools (particulary Catholic schools) produce less engaged, less other-regarding citizens than other schools.  Indeed, it appears that the contrary is true.  (To be clear:  the reason I support Catholic schools is not because they produce good Americans; still, the fact -- and it is a fact -- that they do produce good, engaged, other-regarding citizens is a reason, I would think, to support school vouchers).

Noah says, of "private religious schools," that "[i]t is at least as likely that balkanized schools will generate balkanized values as that they will promote a common national project."  Well, "balkanized" is doing a lot of work here.  In any event, Catholic schools are not "balkanized," and do not generate "balkanized" values.  (Some might wish that Catholic schools *did* work harder at producing upsetting and counter-cultural values, but that's a different matter).  That voucher programs do tend to cause political divisions is the result, it seems to me, of their opponents' political and ideological commitments (and economic self-interest) that should not be privileged over the good reasons for supporting such programs.

In any event, Noah's proposal, article, and forthcoming book deserve careful study and consideration.

Rick

UPDATE:  Jack Balkin has a detailed response to Noah's proposal, here.