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American Exceptionalism And The Separation Of Race And State (Revisited)

Randolph Bell, formerly special envoy in the Bureau of European Affairs at the State Department and now a columnist for the Richmond Times Dispatch, has an interesting column today discussing the differences between religious diversity in Europe and the United States. ?Europeans,? he writes, ?have a different view than do we of religious diversity and of the role of religion in the 21st century.?

Because the U.S. First Amendment establishes separation of church and state and free exercise of religion, there has prevailed in this country for more than two centuries a free market in religion ? one which is often as assertive and competitive as is our free market in matters economic. That free market is as much anathema to many European elites as is the free market in fast food. To be sure, I recently visited a McDonald?s in the heart of Bordeaux wine country and found it mobbed ? and Pentacostalism is experiencing a rapid growth in many European countries ? but you are unlikely to get elected to the European Parliament by advocating fast food and hot religion.

The fact that freedom of belief and conscience is a matter of constitutional law has had the effect of widening and strengthening those freedoms here. The fact that European freedoms are more often culturally anchored lends a surprising degree of arbitrariness to them. Most Germans expect themselves to be either Evangelical Lutheran or Roman Catholic, and cultural bureaucracies have proceeded cautiously in permitting evangelical denominations ? let alone Scientologists ? to organize. Statist and Roman-law traditions mitigate against that kind of free-market religious diversity. In cultures wherein the first names one may give one?s children must be drawn from an officially approved list, it is simply unseemly that there should be ?cults? out and about in the land. Freedom of thought and belief are therefore less often advanced by the courts in Europe than they are in the United States.

I do have one quibble. When Bell argues that we have ?a free market in religion? because of the First Amendment and that we have ?a very different legal ? and hence cultural ? framework in which to deal with matters like religious and ethnic diversity than do Europeans,? I believe he puts the legal cart before the cultural horse. That is, as I argued at some length a while ago in Separation of Race and State, the particular and unique American tradition of religious freedom

derives not so much from the text of the Constitution as from something deeper in the very structure of our society. That something is the overriding fact of religious pluralism, a pluralism that in the absence of official neutrality [that is, the separation of church and state] would lead to constant strife and conflict.

The balance of that older post (which, of course, I urge you to read ? or better yet, re-read ? now) developed the argument that all the compelling arguments in favor of separation of church and state are equally compelling arguments for separating race and state, for requiring the same governmental neutrality regarding racial and ethnic groups that we properly demand regarding religious groups.

?If the very structure of American society requires a principle of neutrality that in turn requires a separation of church and state,? I argued,

should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time "ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history." (Post-Ethnic America, Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as ?divisive? today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.

After quoting heavily from dissents by Justice Breyer and others in a 2002 case upholding vouchers in Cleveland to religious schools, I concluded:

Perhaps Justice Breyer and his like-minded brethren, on and off the Court, can be called on to explain why they fear ?the risk? of ?potential? divisiveness in what they see as religious preferences but not the clear and present divisiveness of racial and ethnic preferences. Or, in the alternative, they could explain why a principle that they believe justifies racial preferences does not also justify religious preference, for certainly they recognize that religion provides as good or better basis for ?diversity? as race. Would they look on religious preferences in admissions and hiring with the same favor they bestow on racial and ethnic preferences? What is it precisely that would make a preference for Arabs acceptable but for Muslims unacceptable? Are not evangelical Christians ?underrepresented? among the students and on the faculties of our elite, selective universities? Why must the Michigan law school have a ?critical mass? of blacks and Hispanics but not of Missouri Synod Lutherans? Why was the old quota system that restricted the number of Jews in the Ivy League (presumably) wrong, but the de facto quota system that restricted the number of Asians admitted to Berkeley and UCLA under the reign of preferences not wrong?

In short, perhaps it is time to insist on a separation of race and state, to insist in the ethnic and racial sphere, as well as the religious, that government must be neutral, that it protect all of its constituent groups but prefer none ? not because the First Amendment compels neutrality in this sphere, but because of the same social reality that led to the First Amendment in the first place.

In short, I believe Randolph Bell?s favorable comparison of the American tradition of a vigorous, unregulated free market in religion to the European tradition in which ?[s]tatist and Roman-law traditions mitigate against that kind of free-market religious diversity? is shrewd, perceptive, and persuasive. That?s why I think it?s all the more unfortunate that we abandoned our own best traditions and the lessons of our history when ?affirmative action? and a misunderstanding of the dictates of ?diversity? led us to what we have now, an overweening and oppressive state regulation of the racial and ethnic markets.

Full post as published by Discriminations on December 04, 2009 (boomark / email).