Stanley Fish on Church and State

The kaleidoscopic Stanley Fish has written a piece for the New York Times defending the substance of Rick Santorum’s recent claims about the nature of church-state relations being more fluid than strict separationists would have Americans believe. While Fish doesn’t endorse Santorum’s views, he points out that “nothing the candidate has said about the relationship between church and state is beyond the pale, and much of it is standard, if contested, fare in the courts and the law reviews.” Fish goes on to give a mini-bibliography of eminent thinkers who question the “wall of separation”:

On the academic side, the Stanford professor Michael McConnell (formerly a federal judge) insists that “religion is under no special disability in public life” (“Accommodation of Religion,”1985 Sup. Ct Rev. I). McConnell cites the “historical record” as evidence that “accommodations of religion in the years up to the framing of the First Amendment were frequent and well known, and no one took the position that they constituted an establishment of religion.” He derides the separationist mandate as “the narrow ideological position of the secular elite,” a position that “relegates the large majority of the American public . . . to second-class citizenship” (“Accommodation of Religion: An Update,” George Washington Law Review, 1992).

McConnell is hardly unique in his views. Stephen Carter of Yale Law School, Douglas Laycock of the University of Virginia School of Law, Philip Hamburger of Columbia Law School, Michael Perry of Emory University School of Law, Frederick Mark Geddicks of Brigham Young’s J. Reuben Clark Law School, Steven Smith of the law school at San Diego University, Jeff Powell of the Duke University Law School and the late Richard John Neuhaus, author of “The Naked Public Square,” are just a few of the many who have argued that the wall of separation thesis is historically, morally and politically indefensible. (I neither join nor dissent from this argument; I merely point out how widespread and respectable it is.)

Elsewhere in the article, he does a commendable job breaking down misconceptions about Supreme Court judgments, admits that there exist “severe” thinkers whose ultimate goal is to completely drive religion out of our shared national discourse, disagrees that the only alternative to a kind of American  laïcité  must be theocracy, and generally makes a lot of sense.

Fish, who made his name as a Milton scholar and possesses a degree of sympathy for religious claims uncommon in his circles, deserves much credit for this piece, which one also imagines might provoke a not-insignificant percentage of  Times  readers.

Read the entire piece over at the Opinionator blog .