Religion Naturalized: The New Establishment
25 Pages Posted: 16 Aug 2008
Date Written: August 14, 2008
This essay is a draft chapter for inclusion in Courtney Bender and Pamela Klassen, eds., After Pluralism (forthcoming Columbia 2009). The chapter explores the idea that a new naturalization of religion is present in U.S. legal contexts. Using recent decisions in FFRF v. Nicholson and Hein v. FFRF, the chapter argues that there is an increasingly distinct move away from the high separationism of the mid-twentieth century toward what we might call a post-pluralistic acknowledgment of religion as natural or universal. While this move is seen as establishmentarian by some, by others it is seen as a benignly so, permissible because no longer tainted by religious bigotry. A legal division between the church and the state, or between persons of faith and persons not of faith, ontologically speaking, on which separation law depends, no longer makes sense, descriptively, if it ever did. Such a division can only be made on a doctrinal basis by established religious or legal authorities who define insiders and outsiders. Such authorities no longer exist in the U.S. Virtually all Americans, however orthodox their asserted religious identities, Protestant or Catholic or Jewish or Muslim, or, claim the right to associate themselves with religious communities and practices associations at will, and to mix and match religious traditions. That right is understood to be authorized by political, legal, and theological narratives and texts. There are no churches left to establish or to disestablish. In their place, the human, every human, is now imagined by law as being in need of spiritual care.
Keywords: First Amendment, establishment clause, Hein, religion
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