Using religion for government purposes

[Brownstein, Alan]

I think that Eugene's mention of the fact that the government's accepted use of religion occurred at a "pretty ecumenical level" has to carry a lot of weight here. It's not that there weren't countervailing cultural, political, and legal aspects of our history. Certainly, contempt for Native American faiths, anti-Semitism, anti-Mormonism and anti-Catholicism are a part of our heritage. But our constitutional culture had a strong foundation in inclusive and non-preferential church-state relationships and has increasingly evolved toward increased inclusivity. Today, given the diversity of beliefs in our society, these parallel themes of inclusivity and anti-preferentialism on the one hand and some limited use of religion by government on the other are increasingly difficult to reconcile.

Alan Brownstein 
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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
Sent: Friday, March 27, 2009 8:51 AM
To: Law & Religion issues for Law Academics
Subject: Using religion for government purposes

Chip Lupu writes:

> Second, our government is supposed to
> be "under God," not one with God, or identified with a particular
conception of God.
> Totalitarian states co-opt God, and loyalty to God, for their own
purposes; the
> Establishment Clause forbids that in the U.S.

        I wonder where the "supposed to" comes from.  As I understand
it, throughout much of history it was understood that the government was
supposed to use religion -- at least at a pretty broad level -- for its
own purposes.  That seems pretty clear in the invocations of God in the
first and last paragraphs of the Declaration of Independence and nearly
all state constitutional preambles.  It also seems to be pointed to by
the Northwest Ordinance ("Religion, morality, and knowledge, being
necessary to good government and the happiness of mankind, schools and
the means of education shall forever be encouraged") and other legal
rules.

        To be sure, there was long the understanding that there should
be limits on this (though for a long time they were exclusively
prudential political limits rather than judicially enforceable ones),
and in particular that co-opting loyalty to God works best when one puts
it at a pretty ecumenical level.  But the notion that people's
religiosity -- and God talk more broadly -- can legitimately be used as
a government tool seems to have been pretty broadly accepted throughout
most of American history.  And I take it that it's still accepted pretty
broadly by many Americans.

        Now maybe the "is supposed to" refers not to original meaning or
tradition or current consensus, but the judgment (perhaps the correct
judgment) of some influential groups within modern legal elites.  But I
think it would require more defense than just the historical-sounding
"is supposed to."

        As to totalitarianism, some totalitarian states (e.g., Iran)
co-opt loyalty to God, others (e.g., the USSR and other Communist
countries) rejected it, and for others (e.g., Nazi Germany) it seems not
to have played much of a role.  Likewise, some non-totalitarian states
(e.g., the U.S.) have historically co-opted loyalty to God, at least in
a relatively ecumenical way.  So I'm not sure that history at that level
of abstraction tells us much.

        Eugene
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