Vol. 10 No. 6 (June 2000) pp. 355-357.
OVER THE WALL: PROTECTING RELIGIOUS EXPRESSION IN THE PUBLIC SQUARE by Frank Guliuzza, III. Albany, N.Y.: State University of New York Press, 2000. 219 pp.

Reviewed by John E. Finn, Department of Government, Wesleyan University.

Does public argument in the United States discourage contributions from people of faith? The question may seem peculiar to many of us. We live in an era when the political activities of many faith-based organizations are a familiar feature of civic struggle. In this book, however, Frank Guliuzza argues that we should distinguish between the frequency of participation in the public square and its weight. Increasingly, Guliuzza argues, argument grounded in faith is unwelcome and dismissed as fundamentally inappropriate in
public discourse because it is private in character. If we want to change this - and Guliuzza does little more than assume that we should - then one area of reform should be the Court's establishment clause jurisprudence. The connection between the two is at the heart of this interesting little book.

OVER THE WALL is a slender volume, but it is a contribution to our understanding of the religion clauses of the first amendment. Guliuzza begins with the premise - the "somewhat paradoxical" premise - that religious believers are more active than ever in politics, but "are taken less and less seriously." The marginalization of religious believers, he argues, is "evidence of a concerted effort. to produce not simply a secular NATION, but, indeed, a secular SOCIETY." In another place, he writes that academic and cultural elites are anxious to dismiss religiously grounded arguments from the public square altogether. Consequently, whatever the level of political participation of believers, they are not perforce "taken seriously, or even welcome in the marketplace." Moreover, this increasing secularization, he argues, has compromised the rights of believers and has led, in some cases, to religious persecution.

The reduction, or rather, the banishment of religious belief and expression to the private realm is largely a consequence of widely shared beliefs among elites that public forms of religious expression corrupt both religion and politics alike. One might note too that the premise that religion can be put in the private realm without damaging faith claims represents a particular understanding of what faith is and means.

These are interesting, and not obviously correct, claims. For the most part, Guliuzza does not do much to put them into question. Instead, he prefers to take them at face value, supporting them only with extensive bibliographic references to other scholars who have bemoaned the fate of religion in the public square.

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Guliuzza's contribution is to mesh these concerns about the deliberate secularization of society with a particular doctrinal approach to the establishment clause. He suggests that the "separationist" approach to the establishment clause is "a part of the pathway to secularization through privatization." Consequently, many of the supporters of social secularization, Guliuzza notes, are defenders of the separationist approach to the establishment clause. By this, he means that such folks embrace the doctrine of the high wall of separation articulated by the Court in EVERSON v. BOARD OF EDUCATION (1947).

Guliuzza thus finds a strong connection between the concepts of secularization and separation. Invoking the work of Professors Audi, Swomley and Sullivan, for example, Guliuzza argues that efforts to secularize civil society often rely explicitly upon a doctrinal approach to the establishment clause that insists upon the wall of separation. Guliuzza finds the same explicit connection, albeit with somewhat different understandings about what "separation" means and how it should be effected -- in decisions by JusticesFrankfurter in McCOLLUM v. BOARD OF EDUCATION (1948) and Stevens in WEBSTER v. REPRODUCTIVE HEALTH SERVICES (1989).

This is not a novel claim, as Guliuzza admits. He points, for example, to the argument by Michael McConnell that the Court's decisions have "seemed to view religion as an unreasoned, aggressive, exclusionary and divisive force that must be confined to the private sphere" (p. 68). What have been the consequences of this privatization through separation? Guliuzza identifies two
important ones. First, it has led to doctrinal confusion and instability. Second, and less obvious, "de jure or de facto separation works to silence the religious voice in the public square" (p. 72) and to the rights of religious people. Examples of such "persecution"-it is Guliuzza's word-are "contemporary, ongoing, and abundant" (p. 85). Perhaps. The evidence he offers is anecdotal.

If the doctrine of separation is at least partially to blame for the silencing of religion in the public square - and for the persecution of some folks of faith - then one might search for salvation in some other doctrine. Guliuzza does just that, proposing that separation be replaced with a doctrinal approach he calls "authentic neutrality"(p. 107). Similar in its fundamental respects to Chief Justice Rehnquist's "nonpreferentialism," authentic neutrality requires that government be "neutral" toward competing religions, churches, and beliefs. When aid is given, as it may be, it must be given to all "without preference" (p. 125). What of the rights of nonbelievers, secular humanists, and atheists? In chapter three, Guliuzza argues that "passionate appeals for the secularization of the public square"
should be treated as competing "religious" or "faith" claims "unable to be verified or disproven factually" (p. 35).

What would change if the Court were to substitute the authentic neutrality doctrine for the doctrine of strict separation? Guliuzza briefly suggests a number of different results in specific cases. In a discussion that is far too cryptic, he concludes a moment of silence might pass constitutional muster, as might on-campus released time programs. On the other hand, state-sponsored prayers are probably still unconstitutional, in part because under

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Guliuzza's approach, the beliefs of secular humanists and atheists must be treated as "a competing religious truth claim."

A more important question, though, must be how, if at all, the authentic neutrality approach will slow the secularization of the public square. On this point Guliuzza is too quiet. Presumably the new doctrine, and new case law, will over time "catapult us 'over the wall'" (p. 148). But that prospect, if it is desirable at all, is at least as likely to be a consequence of two other factors. The first is the possibility, indeed, a reality in the Clinton administration, which a defense of religious liberty, might originate in the executive branch. Similarly, skirmishes between the Court and Congress over the RELIGIOUS FREEDOM RESTORATION ACT suggest that protection for religious freedoms might find more substantial support in the political branches than in the Supreme Court. The second possibility is that the Court might protect a wide range of religious freedoms by treating them as speech claims. Guliuzza discusses both possibilities, but concludes - I'm not entirely sure why -- that neither offers the kind of guarantee needed to adequately protect religious freedom.

There is much to commend in this work. It's thoughtful, careful, and exceptionally well written. But if I may be forgiven a bad pun, it speaks to the converted (like me). In the end, we have only anecdotal evidence that religiously grounded arguments are unwelcome in the public square. We have no way to know whether the proponents of secularization through privatization find their cause advanced in any significant way through the separation doctrine. Similarly, we can only guess whether an alternative, "nonpreferential" jurisprudence will improve the standing of religiously-grounded arguments in the public square. Finally, there is nothing here that
really makes the argument that we should take positions grounded in faith more seriously. First principles are more a matter of faith here than of argument.

CASE REFERENCES:

EVERSON v. BOARD OF EDUCATION, 330 U. S. 1 (1947).

McCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1948).

WEBSTER v. REPRODUCTIVE HEALTH SERVICES,492 U. S. 490 (1989).