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2 Notre Dame Professors Weigh In

SOUTH BEND, Indiana, JULY 01, 2005 (Zenit) - Given the cultural and historical particularities of the United States and Europe, it is hard to say that one model of church-state relations is "better" than another.

So say Paolo Carozza and Richard Garnett, both professors at Notre Dame Law School. In this joint interview, they shared with us how countries on both sides of the Atlantic could benefit from a sustained exchange about religious liberty and the range of possible ways to uphold it.

Q: Before he was elected Pope, Cardinal Ratzinger spoke admiringly of the U.S. system of separation of church and state, as opposed to European models that seem openly antagonistic toward religion, especially Christianity. Do you share his view?

Garnett: As Cardinal Ratzinger -- now Pope Benedict XVI -- recognized, there is much to admire in the American approach to religious-freedom questions. Properly understood and reasonably implemented, the church-state arrangements set up by the U.S. Constitution are, in my judgment, good for religion -- or, more precisely, for religious freedom.

That said, these same arrangements have too often been misunderstood. In many cases, and in the work of many scholars, the Constitution's declaration that Congress "shall make no law ... respecting an establishment of religion" has been inaccurately converted into an ahistorical rule that there is and must be not merely independence of religious institutions from government, but a high and impregnable "wall of separation" between religion and the public square.

In fact, however, our Constitution "separates" church and state primarily and fundamentally by disabling the state: Government may not establish a church, not because religion is unworthy, but to protect religious faith and freedom.

Put differently, the Constitution protects religious freedom by prohibiting state "establishments" and by protecting "free exercise." It is a set of constraints on government; it does nothing to constrain or regulate the worship and faith of citizens.

Carozza: I also agree with Cardinal Ratzinger's comment in broad outline. But just as Professor Garnett emphasizes the need to see the American side of that comparison with some nuance that captures both the virtues and the shortcomings of U.S. law in theory and practice, so too do we need to be attentive to the complexity of the European models.

There are many very important divergences among the European states on the question of religious freedom. In quite a few of them, the relationship of church and state has in some specific contexts been more accommodating to the public presence of religious believers than in the United States.

For instance, several of the European constitutional systems permit religion to be taught in public schools and permit, or even require, the state to fund private religiously affiliated schools; they support religious communities and their works through public taxation and expenditures; or they involve the state in cultural activities together with religious communities in ways that might be considered unconstitutional in the United States.

Even in France, which we routinely point to as an example of a very rigid model of separation, the state owns and cares for vast amounts of property that is dedicated to religious uses -- something that I do not think would be possible under the American constitutional scheme.

At the same time, there have been a number of recent examples in Europe suggesting that those systems could profit from re-examining their basic constitutional assumptions about the place of religion, and that they could in particular benefit from being attentive to the American understanding of the relationship of religion to freedom.

In short, those of us on each side of the Atlantic can look across the ocean to learn from different models, but we must try to understand them in their specific cultural, historical and political contexts, not merely in the abstract.

Q: What are some key advantages or disadvantages you see in the U.S. model of church and state? Has the pendulum swung too far one way or the other?

Carozza: As I mentioned earlier, one of the principal advantages that I see in the American approach to church-state relations is its emphasis on the relationship between religion and freedom -- both the freedom of individuals and the freedom of smaller communities within the overall political society.

Implicit in that is a greater space for those communities, united by religious commitments, to generate culture, to take initiative and to construct a common life. A more equality based and statist approach, which characterizes many of the European systems, risks losing sight of the way that an authentically lived religious life is creative and fruitful in responding to human desires and needs.

Garnett: A disadvantage, and a danger, that I associate with the American model is a tendency toward "privatization" of religion.

Over time, religious faith and observance has, in many decisions, been conflated with -- or reduced to -- the "freedom of speech." This development has, it is true, resulted in several important "pro-religion" rulings.

Still, if faith is framed entirely in terms of speech, expression and conscience, it becomes too easy for governments and laws to confine faith, and religious freedom, to the "private" sphere, to the interior realm of conscience.

Obviously, the freedom of conscience -- the freedom to believe -- is crucial to the freedom of religion. But there is more: Religious freedom has, like religious life, a social dimension. It is lived in community, has implications for public life and makes demands on conduct.

The structure of First Amendment doctrine, however, and its focus on expression and conscience, can have a troubling pedagogical effect; it can communicate to American religious believers that religion is entirely a private matter, and one that should therefore be kept out -- voluntarily or even through law -- of public life and debate. On this view, religion is "free" so long as it stays in its place.

Q: Which country would you consider to be the best model for church-state separation?

Garnett: In my view, the lesson for Americans regarding religious freedom is not that any particular other country is or should be a model. Instead, the lesson from abroad is that there are many institutional arrangements, legal rules and policy practices that are broadly consistent with a commitment to religious freedom.

Often, American court cases involving questions of church-state relations exhibit overwrought, near-apocalyptic rhetoric and dire warnings that theocracy and tyranny lurk just around the corner. For example, many justices have, over the years, attempted to justify American's anomalously skittish approach to parochial-school funding by invoking the specter of religious warfare, of Northern Ireland and the Middle East, of division and tumult.

In fact, though, nearly every liberal democracy on the planet permits some form of tuition assistance or scholarships for children attending religious schools, and -- whatever their shortcomings -- these societies are not totalitarian or theocratic. There might well be good arguments against school-voucher programs -- for example, they might compromise the integrity of religious schools -- but a comparative study should remind us to tone down the rhetoric.

Carozza: I agree with Professor Garnett that given the cultural and historical particularities of the different peoples in question, between the United States and Europe it is difficult to say that one model is in a general way "better" than another.

The debate about crucifixes on the walls of public school classrooms in Italy is not the same as the debate about the Pledge of Allegiance to the American flag in an American classroom, and they should not be conflated. But both examples do represent certain specific manifestations of the broad structural problem of church-state relations in the modern world.

Thus we would all benefit from a sustained trans-Atlantic exchange about our common commitment to religious liberty and the range of possible ways to give it effect. In addition to testing hypotheses about the actual consequences of one legal model versus another -- as Professor Garnett illustrates -- such comparisons can deepen our understandings of the central importance of religious freedom to a flourishing human life, and they can open our imaginations to the range of reasonable possibilities for reconciling religion, pluralism, freedom and democracy.

Especially to the extent that those principles are put to the test by new realities -- for instance the increasing significance of Muslim minorities in Europe -- the experiences of other constitutional systems will be valuable resources.

Q: Many Europeans are surprised -- and at times critical -- of the frequency with which God and religion are mentioned in U.S. political life. Is all the talk just talk? Or does it reflect something deeper in the American psyche?

Carozza: It is very hard for many Europeans to understand the pervasiveness of religious discourse in American public and political life as anything more than a cheap manipulative ploy to win over an unsophisticated audience. And that is extremely unfortunate, because that incapacity is a great source of misunderstanding between Europe and the United States.

There are, to be sure, times when the presence of "God-talk" in U.S. politics is, if not cynically instrumental, at least illustrative of the way that Christianity risks being culturally captured by the dominant powers and mentalities of the world.

But that shouldn't obscure the much more important truth that religion is a sincere and vital part of the fabric of American life. It is a presence and reality that shapes many peoples' lives and gives reason to their actions, their commitments and their understandings of the world. Given that reality, it would be unreasonable to artificially segregate all references to religion into some "private" sphere.

Whatever model of church-state relations we deal with, this is something that must be accounted for if we are to respect human beings in the totality of their concrete lives. Otherwise, the separation of church and state becomes a mere ideology -- that is, a form of violence rather than an instrument of freedom.

Q: In the coming years, is there something particular in the U.S. system that will impact greatly the quality of religious life and discourse?

Garnett: The church-state headlines in recent years have tended to focus, first, on the tricky line between neutral funding programs and illegal state-sponsored "indoctrination"; and second, on the perceived dangers that attend "religious" expression by government actors or in the public square. So, we've discussed and litigated issues concerning school vouchers, the Pledge of Allegiance, the Ten Commandments and so on.

However, perhaps the most pressing church-state issue in the American context involves not matters like these, but challenges to the independence and freedom of religious communities and associations. Although, in the American tradition, the focus has generally been on the religious rights of individuals, the danger today is to the freedom of the Church.

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