Religion & Law

From the "better late than never" file:  Keith Pavlischek has this post, over at First Things, asking whether it "violates the First Amendment" to "oppos[e] radical Islam".  He writes:

Since the Islamists believe they are permitted, indeed obliged, by their canonical religious texts to use terrorism to advance their agenda, you would think that it would be in the national interest of the United States that ?moderate Islam? prevails in this internal struggle. In fact, as just about any expert will tell you, the primary goal of public diplomacy efforts should be to separate the jihadists from the broader non-jihadist Muslim population. To put it crudely, we want one side of this controversy within Islam to win and another to lose.

But that creates a problem because if, as a matter of public policy, we want the moderate (non-Islamist) side to win we would be promoting with public money one religion (moderate Islam) over another (radical Islamism). But if we promote one religion over another we have, according to some of our more brilliant Constitutional scholars, violated the First Amendment?s prohibition on laws respecting the Establishment of religion.

Similar issues and questions have come up in the domestic context.  For example, some "Safe Space" training materials, used at Georgia Tech, tried to help gays and lesbians feel more safe and comfortable on campus by -- in Eugene Volokh's words -- "taking stands on quintessentially theological questions -- e.g., the true meaning of the Bible, and the 'legitimacy' of various interpretations of 'Biblical texts.'"

Does the government have any interest in what Justice Brennan called "the development of doctrine"?  Or is it, again quoting the Justice, a "matter[] of purely ecclesiastical concern"?  As I see it -- for (a lot) more, see this paper -- the answer is tricky.  One the one hand, we should not be surprised if and when the government tries to push religious doctrine in ways that are more congenial to the government's understanding of the public good or public interest.  We would be kidding ourselves if we thought that a government could ever really be "neutral" with respect to what citizens believe and in what moral traditions they are formed.  That this is true, though, does not mean we (who value religious freedom) should not worry about the implications of this fact:

[F]ar from being a "purely ecclesiastical concern," the content of religious doctrine and the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.