Richard J. REGAN. The American Constitution And Religion. Washington D C.: Catholic University of America, 2013. Pp. 282. ISBN 978-0-8132-2152-6 ppb. Reviewed by James R. KELLY, sociology emeritus Fordham University, Bronx, NY 10456
The reader looking for what a distinguished Catholic, and Jesuit, legal analyst has to say about the recent Supreme Court decision about gay marriage and what it should say about the reproductive health components of Obama’s Affordable Care Health Act will not find it here. The book came out too soon. But Regan will provide the reader with the moral and legal analytic tools for wise reflections on the relationship between law, culture, and society that aim at a moral equilibrium in complex legal areas in the intersections of conscience, religion, and the public order. The key orienting chapters are #1 “The Regime Principles of the Constitution,” #2 “The First Amendment and Religion, #3 The Fourteenth Amendment and the First,” and the Appendix: “A Typology of Conflicts between Individual Conscience and Public Law.” Regan also has an amazingly succinct 26 pp. last chapter entitled “Western Traditions of Conscience,” which crystalizes the lasting contributions of all the major (western) cultural influences on the legal embodiments of morality, including – hold your breath – the Hebrew Bible, St. Paul, Democritus of Abdera, Socrates, Plato, Aristotle, Cicero, Thomas Aquinas, Martin Luther, Thomas Hobbes, John Locke, David Hume, Immanuel Kant, Jean-Jacques Rousseau, Darwin, Herbert Spencer, Karl Marx, Friedrich Nietzsche, Freud, Kierkegaard, John Henry Newman, Lord Acton, Henry David Thoreau, and the logical positivists. Has he forgotten anyone?
His intermediary chapters contain descriptions, the rulings, and Regan’s own judgments on the Justices’ reasoning on all the relevant religion and constitution cases, such as aid to religious activities in public schools and colleges, government aid to church-related schools, the teaching of creationism, military chaplains, tax exemption for religions, church property disputes, Sunday laws, menorah and Christmas crib decorations on public property, religious proselytism, public school children saying school prayers, refusing to salute the American flag, military personnel wearing yarmulkes and turbans, the religious freedom restoration act, conscientious objection – both pacifist and selective – to military induction, and personnel discrimination by tax exempt religious organizations. And what is Regan’s overall hermeneutic?
In his “Regime Principles of the Constitution” Regan focuses on the framers’ notions of federalism, their fear of concentrated power, and the legitimating core of the consent of the people. He postulates that the text of the Constitution controls its interpretation. But he notes that the texts and most of its provisions are phrased in general terms that require on-going interpretation. For example, the clauses on religion in the First Amendment include the well know phrase law respecting an establishment of religion and free exercise of religion. Not only do these terms require constant scrutiny, they are also often enough in tension, thus the ongoing disagreements between “strict” and “loose constructionists.” A particularly important development, he argues, was the 1947 Court decision Everson v. Board of Education which expanded the meaning of the establishment clause in a way that prohibits not only the preference of one religion over another but also the preference of religious belief over unbelief which means that the Court has made government neutrality between religious belief and unbelief constitutionally normative. The author’s overriding concern in this book is to show that while “democratic polities may, and even should, endorse the principle of governmental neutrality toward religion, they cannot and should not be indifferent toward religion.” Why not? Regan covers a whole lot of legal, philosophical, and social science perspectives showing why a collective legal indifference to the cultural and social well-being of religion is both counter to the Constitution and to wisdom. It’s worth reading.
Given Regan’s “regime principles” and his interpretation of “government neutrality” it comes as no surprise that at the end of his text-booky analysis of the many dozens of Supreme Court cases his most frequent judgement is that the wisest course is, in effect, for the Court “to back off.” In various ways he says (p. 158), “If, as I believe, fostering the moral integrity of citizens is both a secular and a rational objective of government, then the Court has no business imposing its own judgment about the relative weight of the conflicting public interests. By doing so, the Court constituted itself a superlegislature over what is an essentially regulation of the marketplace.”
For us to trust the Courts the Courts must first trust us.