Rick Santorum Still Isn't Crazy The comments on my column about Rick Santorum and the separation of church and state were voluminous and often passionate. Once we set aside those readers who call religion a disease, a superstition and an obstacle to serious thought, and discount those who think that by identifying Santorum as a Republican and Justices Scalia, Thomas and Rehnquist as conservatives they've made an argument, and disqualify those who describe me as an "indoctrinated Catholic" (who knew?) and a "right wing kook" (please tell Fox News), we are left with some serious questions about the history of religion clause jurisprudence, the scope of the establishment clause, the status of secularism as a middle or common ground and the accuracy of Santorum's account of John F. Kennedy's speech to the Houston Baptists. Before turning to those matters, however, I want to respond to a common misreading that has me agreeing with Santorum's position on separationism ("Why have you chosen to serve as his apologist in chief?" (Didymus Thomas), whereas, in fact, I only point out that it is a position held by respectable jurists and academics and is therefore within the parameters of standard views. That, my critics retort, doesn't make it right. I didn't say it did. All I said was that Santorum is not the outlier some of his detractors take him to be. I ventured no opinion on the substantive issue. Isn't that my job? "If Fish is not going to use his column/blog (whose common title is "The Opinionator") to offer his well-educated opinion on public issues, why bother to write for the NY Times at all?." I have answered that question many times, but once more won't hurt. I have little interest in offering opinions about anything. I am interested in analyzing the structure of public debate, not in joining it. Bill in Tucson makes my point eloquently. My kind of analysis, he says, "appears to be incomprehensible" to those who want everything to be presented in "a pro and con shape." He asks, "Shouldn't analysis precede taking a position?" Exactly! If you want opinions, there are plenty of places to get them (just read the 269 pages of comments). I'm trying to do something else. Some of those who insist on pushing me into a pro or con cul de sac note that the Supreme Court opinions I invoke are on the losing rather than the winning side, and they remind me that it is "good practice when citing legal decisions to prove your point that the justices you name-drop were writing the dissenting opinion!" (michael.gormally). That would be apposite only if I were citing the opinions in an effort to "prove" that the position they announce was either right or generally believed or politically triumphant. That, however, was not my "point." My point was that Supreme Court justices - not the man in the street or a ranter on a fundamentalist Web site or your fanatical brother-in-law - are adherents of the view it is said that no one but Santorum and his fellow crazies holds. And besides, why are dissenting opinions less creditable and worthy of citation than majority opinions? Modern first amendment doctrine was forged in dissents written by Brandeis and Holmes. Later their position became the majority position. It is a familiar story. I would bet that the posters who fault me for referencing dissenting opinions cite with approval Justice Stevens's dissent in Citizens United and hope that it will eventually become law. It is also the story of the establishment clause. JW declares that "No serious legal mind advocates abandonment of the long line of cases dictating separation of church and state." BG exclaims, "How strange to see more than 200 years of court opinions establishing our current doctrine of separation simply swept under the rug." Show me those opinions! In fact, as Bill observes, the "modern" - i.e., separationist - "view of church and state is only 75 years old (Everson decision)," and I would add that the sunrise of that view didn't survive the decision. It is true that the wall-of-separation doctrine was eloquently and forcefully affirmed by Justice Hugo Black in his majority opinion when he said that neither a state nor the federal government "can pass laws which aid one religion, aid all religions, or prefer one religion over another." He ended his peroration with this ringing statement: "In the words of Jefferson, the clause against establishment of religion ... was intended to erect a "wall of separation" between church and state." Nevertheless, Black immediately breached the wall when he held constitutional New Jersey's reimbursing of money expended by parents to transport their children to Catholic parochial schools on the grounds that the state's benefits should be extended "to all its citizens without regard to their religious beliefs." The move (some would say sleight-of-hand) Black performs is to replace an establishment clause concern (is the state entangling itself with religion by supplying to a religious institution much more than the "three pence" Madison thundered against?) with a concern for equality (is the state acting in an even-handed manner toward both religion and non-religious constituencies?) Equal treatment rather than the maintaining of an arm's-length, hands-off policy with respect to religion had suddenly become the standard. The four dissenters in Everson are prophetic when they complain that if the establishment clause can be circumvented by recasting the question as "promoting the general cause of education" rather than as securing the separation of church and state, there is no constitutional bar to the state's affording "full appropriation for support of private, religious schools." All the state has to do is ask whether the aid given to religion was also given to non-religion and if the answer is yes, it's O.K. And that is what happened in the next 65 years as the supplying of books, the payment of teachers, the erection of buildings, the funding of tuition, the sponsoring and support of proselytizing student magazines, the floating of municipal bonds and a host of other benefits flowed to religious organizations under the rubrics of even-handedness, private choice (if the funds first go to parents, who choose to funnel them to religious entities, the hand of the state isn't involved), non-discrimination and neutrality. As Justice David Souter put it in Zelman v. Simmons-Harris (2002), "The establishment clause" - and with it the doctrine of separation - "has largely been read away." When Steven Mazie accuses Santorum of pretending that the establishment clause "doesn't exist," one might reply that Santorum doesn't have to pretend because, for all intents and purposes, it doesn't. The big exception is the school prayer decisions, which are anomalous in the context of the general trend. Of course it remains the case that no one is going to argue for establishing a state church or for compelling citizens to make religious affirmations (although the pledge of allegiance with the phrase "under God" arguably does that), but short of those extreme and unlikely eventualities, the wall of separation has not only been breached but dismantled. So once again I have gotten Santorum into the mainstream, where he keeps company not only with Supreme Court dissenters, but with Supreme Court majorities. And once again I will acknowledge that that doesn't make him or the majorities right. There remains the issue of Santorum's criticism of John F. Kennedy's famous speech about his religion and the obligations of the office he sought. Santorum has said that Kennedy "threw his faith under the bus." What did he mean? I think he meant that when Kennedy tried to assuage fears that as president he would take his orders from the Vatican, he went too far by promising that the performance of his official duties would have no relationship to his faith. When he declared, "I believe in a president whose religious views are his own private affair," he signed on to a private/public distinction that is more Protestant than Catholic. He traded the corporate structure of the Catholic Church for the loose structure in which the relationship between the individual and his faith, rather than being mediated by an institution and a hierarchy, is direct, personal and internal, his own business, no one else's. That was good politics - after all, Kennedy was speaking to Protestant ministers and, beyond them, to a majority Protestant country - but it is a questionable Catholicism, and one might say, with some justice, although with little verbal felicity, that he threw his faith under the bus. Santorum is not the only Catholic made uneasy by Kennedy's speech. In an essay published in 2011, Michael McConnell finds the words "I am the Democratic party's candidate for president, who happens also to be a Catholic" somewhat "jarring" because "religion is too deeply a part of moral and intellectual identity to be dismissed as a happenstance" (Notre Dame Law Review). He has similar misgivings about the phrase "private affair" and the assertion by Kennedy that his religion "is important only to me." The suggestion, which McConnell resists, is that religious views are only intermittently and occasionally influences on behavior and can be put away or relaxed when entering public life. It's not surprising that McConnell also takes issue (as Santorum does) with Kennedy's pronouncements on the separation of church and state, preferring to that phrase the vocabulary of "free co-operation between government and religious bodies." If Kennedy said otherwise, he was, according to McConnell, either "misleading his audience, or he was embracing a radically secularist vision of the First Amendment." The first option is the more likely; this was a strategic speech and the speaker was more interested in negotiating a political minefield than in being faithful to a theological vision. Those readers (and there were many) who found Santorum's account of the speech a distortion would no doubt point to the occasion and the intention animating the speech and object to regarding it as if it were delivered at a scholarly panel on religion. But there is no reason why it cannot be put under that lens and assessed accordingly. While McConnell pays tribute to the effectiveness of the speech - it "neutralized anti-Catholic sentiment while rallying Catholics" - he chooses "to reflect upon [it] not as a political campaign tactic, but as the first and most important statement by a member of a religious minority for high political office." From that perspective, he finds the speech wanting, as do others he cites in his article. Santorum's critics write as if no one before him had expressed strong reservations about Kennedy's speech - an enshrined icon in liberalism's museum - just as they write as if no respectable person holds his views on the separation of church and state. They are wrong on both counts. So far I have avoided venturing into substantive waters, but one issue raised by several readers tempts me. It is the issue of "common ground." Susannah insists that only by seeking a "tolerable middle ground" can we ward off "tribal warfare." And Sarah D. finds that middle ground in secularism. Secularism is what allows us to live together. Ken Kaye explains that because "there are so many conflicting religions ... we're better off basing all laws on the collective conclusions about right and wrong ... than on anyone's belief about a higher law." This is a concise summary of the liberal political project as it has been formulated by everyone from Locke and Kant to Rawls. You begin by acknowledging the pluralism of views on substantive matters and resolve to take them off the political agenda, leaving only those rules and regulations that neither depend on nor impinge on anyone's moral/theological views. And what might these be? There's the rub. It turns out that it is very difficult to identify them. Hobbes observed that the only reason no one disputes the laws of geometry is that that they did not yet, but could one day, "cross any man's ambition." One might say that about driving on the right side of the road (in this country), and the specifying of a red light to mean stop and a green light to mean go. Beyond such merely formal examples (and even they are not invulnerable to being politicized), it is hard to find anything that is not, or might not someday be, a flash point of disagreement. Who would have thought 50 years ago that recourse to the personal pronoun "he" as a default usage could acquire political and ideological resonance? But it has, and so could other practices we today regard as things indifferent and therefore as suitable for fashioning a common ground. Apart from the most trivial level of everyday behavior - eating with utensils, putting on shoes one foot at a time - there is no common ground; or if there seems for a moment to be one, it is an ideology that, like the ideology of the pronoun "he," is waiting to be unmasked. There is another problem. A public sphere purged of ideological/religious commitments would have little in it, would be substantively thin, as would be the personages (citizens) who inhabited it. When you ask men and women of faith to check their beliefs at the door, you ask them to become different and, in their eyes, impoverished persons. Why should they agree to that? The usual answer is that in return they get to live a life that is free of doctrinal strife. The reasoning is coherent, but it is understandable if some find the price too high. That's what this debate (which I had pledged not to enter, but abstinence is hard) is all about. One last little thing. Of all the criticisms sent my way, the one that sticks in my mind is "well researched drivel." I'll take that as a compliment.