Stanley Fish's column in yesterday's NYTimes brushes up against a key, if fragile, principle of church-state jurisprudence: the secular purpose test. One element of the Supreme Court's Lemon test says that to be constitutional, government action must have some "secular legislative purpose". Of course, as Fish suggests in his discussion of Steven Smith's new book, "The Disenchantment of Secular Discourse", it's not always easy to mark a bright line between our secular aims and our religious ones. Many of them overlap! How do we know for sure when a purpose is secular? Exploring Smith's thesis, however, Fish goes a step or two beyond that: what if in fact there is no such thing as secular purpose?
Stanley Fish's column in yesterday's NYTimes brushes up against a key, if fragile, principle of church-state jurisprudence: the secular purpose test. One element of the Supreme Court's Lemon test says that to be constitutional, government action must have some "secular legislative purpose". Of course, as Fish suggests in his discussion of Steven Smith's new book, "The Disenchantment of Secular Discourse", it's not always easy to mark a bright line between our secular aims and our religious ones. Many of them overlap! How do we know for sure when a purpose is secular? Exploring Smith's thesis, however, Fish goes a step or two beyond that: what if in fact there is no such thing as secular purpose?
[S]ecular discourse, in the form of statistical analyses, controlled experiments and rational decision-trees, can yield banks of data that can then be subdivided and refined in more ways than we can count, it cannot tell us what that data means or what to do with it. No matter how much information you pile up and how sophisticated are the analytical operations you perform, you will never get one millimeter closer to the moment when you can move from the piled-up information to some lesson or imperative it points to; for it doesn’t point anywhere; it just sits there, inert and empty.
Once the world is no longer assumed to be informed by some presiding meaning or spirit … there is no way, says Smith, to look at it and answer…questions like “what are we supposed to do?” and “at the behest of who or what are we to do it?”
Whether you think secular purpose can't exist because all values reflect some transcendent world-view, or you think it is just hard to define, this discussion reflects a very real dilemma lurking behind important church-state distinctions, one we shouldn't sugarcoat. Our laws are filled with echoes of our societal values and deeply-held beliefs, many of them the same values as those preached in sacred texts and houses of worship for thousands of years. How are they substantively different, those fundamentals values that define our relationship to God, and those that define our relationship to fellow citizens? Perhaps more importantly, who gets to decide how to mark that difference?
Still, as worthy of reflection as that dilemma may be, I'm not one who believes it derails the secular-religious distinction that is so central to many of our religious liberty protections. After all, believing that your values flow from a religious foundation – or that they come from somewhere else, or nowhere at all – is a right to choose that is fundamental to the First Amendment's guarantee of religious freedom. Our laws reflect our values. That much seems indisputable. That the belief systems behind those values may guide with something of an unseen, incalculable hand does not in itself make them religious, at least not by any definition that guides our church-state concerns.
We protect the liberty of all Americans when we allow the rhetoric of secular values to guide our laws and to occupy a space that is distinct from the overtly religious. That the line between them can sometimes blur does not lessen the importance of the separation. It ensures that the distinctly religious can be proudly proclaimed as such, and without disrupting the civility between diverse religious beliefs that has served the country well for more than 200 years.
