The nation’s cherished separation of church and state works best when it is never tested. Nonetheless, it has been tested repeatedly throughout American history.
That observation formed the core of “Religious Freedom and the Inadequacy of Conscience,” an address on April 11 from Stephen L. Carter, the William Nelson Cromwell Professor of Law at Yale Law School, where he has taught since 1982.
The acclaimed author of books such as “Reflections of an Affirmative Action Baby” and “The Culture of Disbelief,” Carter is a nationally recognized social critic and observer, as well as a best-selling novelist. His first novel, “The Emperor of Ocean Park,” spent 11 weeks on the New York Times best-seller list in 2002.
During his lecture at the Columbus School of Law, Carter focused on what he called the “game of aggression” as it applies to the conflict between church and state.
Based in conflict theory, this “game” occurs when there are two players, each able to either aggress or refrain. Carter noted that as a natural principle, if one player always backs away the other player will always aggress.
Throughout American history, there has been a pattern of the state testing the wall of separation between church and state, and the church backing away, or resisting through litigation and then abiding by the results of that litigation, which to Carter amounts to appeasement.
A recent example: the bitter fight between the Catholic Church and the Obama Administration over health care regulations that would force religious institutions to offer contraceptive services to their employees. Carter observed that such breaches rarely occur with the church cast as the “aggressor,” with two notable exceptions being the battle against slavery and the civil rights movement.
In resisting state encroachment into religious provenance, the strategy of the church in recent decades has been litigation. Yet, the church rarely succeeds, and when it does the decision is usually either based on grounds other than religious freedom or in such a way that room is left for the state to encroach the wall further.
As a result of this strategy of litigation, Carter said, “The only way to protect religious liberty … is to squeeze it into some tiny corner that the Courts will allow.” In game theory, “That isn’t aggression, it’s appeasement. That’s negotiating with a conqueror.”
Carter spoke of institutions that perform services benefiting both church and state. “A religious university sits right on the wall,” he noted.
The ability of an institution to straddle the wall, said Carter, leads to the formation of “the great translators,” those who are able to understand and speak to both sides, and who will play an important role in maintaining the “treaty” between church and state.
Carter is a former law clerk for the late U.S. Supreme Court Justice Thurgood Marshall, and widely published in the op-ed pages of major newspapers. He resides with his family in Connecticut.