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Guldmann on Secularism, Neutrality, & the Establishment Clause

By Lawrence Solum

Rony Guldmann (Stanford Law School) has posted Beyond the Jurisprudence of American Exceptionalism on the Impossibility of the Establishment Clause on SSRN. Here is the abstract:

It is a well known lament of conservatives that the intellectual classes have, through the courts alongside other means, instituted a regime, perhaps a religion, of secularism or secular humanism, the advancement of which is predicated upon the disparagement of traditional religion and its devotees. While some liberals would agree that the courts have at times been insufficiently sensitive to the nature and needs of religion, the liberal instinct is to dismiss as extravagant these more robust claims to the effect that the public schools have been infiltrated by an evangelizing, quasi-conspiratorial secular humanism, or that the Establishment Clause has become a tool of oppression operating surreptitiously in the service of this and other plots.

To these claims, secular liberals respond that, assuming some sense can be given to the notion of a secular religiosity, this is a label best reserved for countries like Turkey or France, which have sometimes directly suppressed certain forms of religious self-expression, like the wearing of headscarves. But since such policies and the attitudes underlying them would never be tolerated in the United States, warnings about the encroachment of an ideological secularism are dismissed as merely another iteration of conservatism?s politically expedient false populism.

But these dismissals are, I argue, facile. For doctrinal disagreements about what qualifies as genuine religious neutrality ? as opposed to, say, ?hostility toward religion? or a ?religion of secularism? ? are necessarily a function of a broader set of philosophical and historical disagreements concerning whether secularity is best conceived as the bare elimination of religion ? what Charles Taylor calls ?subtraction stories? ? or instead as the outgrowth of ? as the secularization of ? particular religious traditions, which, though having become secularized, retain an underlying religiosity. Conservative grievances about the surreptitious encroachment of ?secular humanism? or a ?religion of secularism? become more intelligible when interpreted against the backdrop of this second theory of secularity, which casts the case law in a different light than does the first.

Full post as published by Legal Theory Blog on July 26, 2010 (boomark / email).