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My name is Richard John Neuhaus, and I am a priest of the Archdiocese of New York. I am also president of the Institute on Religion and Public Life, a nonpartisan, interreligious research and education institution here in New York City. In addition, I am editor in chief of FIRST THINGS, a monthly journal of religion and public life, which is the nation's premier forum for the intellectual exploration of the role of religion in contemporary society, with particular attention to the First Amendment and church-state relations. I am the author of more than ten books dealing with the questions before your committee, including The Naked Public Square: Religion and Democracy in America. I served as chairman of the drafting committee of the 1988 "Williamsburg Charter on Religious Freedom," a statement that has elicited the support of a very broad range of religious, political, and legal leaderships in the country. In sum, for more than twenty-five years, the relationship between religion, society, and the state in the American constitutional order has been a primary subject of my research and writing.
Permit me to make several points as briefly as I can, and then I would welcome any questions from the distinguished members of this panel.
First, I am not here to advocate or oppose a constitutional amendment with respect to the free exercise of religion. As a nation, we have a very serious problem in this connection. The problem was largely created by Supreme Court decisions of recent decades, and it might be best if the Court could remedy the problem. The proposal for a constitutional amendment has arisen because many thoughtful people believe such remedy is not likely to come from the Court. That is essentially a political decision which I leave in the responsible hands of you, the elected representatives of the people.
Because, in fact, religion is flourishing in America, many people find it hard to believe that we have a serious problem with the free exercise of religion. There are, however, numerous instances in which religious speech and behavior is penalized by government policy, and they are by no means limited to religion in public schools. I strongly urge that the panel consider with care the actual cases supplied to you by Prof. Michael McConnell in his testimony of June 7.
As important as these specific instances of hostility and discrimination against religion are, however, there is a deeper problem that poses a major threat to the future of democratic governance in America. The jurisprudence and public policy of recent decades has contributed to creating what I have called "the naked public square." By that phrase I mean public policy and public life that is denuded of the deepest convictions of the American people convictions that are, for most Americans, derived from and unavoidably associated with religion.
Why does this threaten the future of democratic governance? The democratic practice and theory of our republican form of governance assumes that "sovereignty" is derived from the people as in "We the People." The people decide, albeit through representative institutions that are, in turn, accountable to the people. Aristotle defined politics as "free persons deliberating the question, How ought we to order our life together?" I suggest that that is the best definition of politics available to us. The "ought" in that definition indicates that politics is a moral enterprise; that is to say, it is the deliberation of inescapably moral questions such as, What is just? What is fair? What serves the common good?
For the overwhelming majority of Americans, moral judgment is, however confusedly, derived from religion. By declaring that religion is an exclusively private matter that cannot be allowed to impinge upon our political deliberation and public action, the twisted jurisprudence of recent decades has driven a wedge between the moral judgment of the American people and their public role as citizens who must deliberate how we are to order our life together.
As the late Chief Justice Warren Burger, among many others, pointed out, we have turned the Religion Clause of the First Amendment on its head. Grammatically and historically, it is one clause, the clear purpose of which is the free exercise of religion. In recent decades, however, the Court has pitted the "no establishment" provision against the "free exercise" provision, in effect making no establishment the chief purpose, at the expense of the very free exercise of religion that the First Amendment was supposed to guarantee.
The unhappy result is that, wherever government goes, religion must retreat, lest there be a forbidden "establishment" of religion. And in the modern world, government goes almost everywhere. The unhappy result is that "the separation of church and state" has come to mean the separation of religion from public life. In the language of the social sciences, this is a sure formula for the "moral delegitimation" of our form of constitutional government. The naked public square cannot be democratically sustained, as witness the concerns that have brought these hearings into being.
I would be pleased to respond to any questions or observations.