About Our Guest
Micah Schwarzman is Edward F. Howrey Professor of Law at UVA. He received his BA from the University of Virginia, his doctorate in Politics from the University of Oxford where he was a Rhodes Scholar and his JD from the University of Virginia School of Law. Micah Schwartzman then clerked for Judge Paul V. Niemeyer of the United States Court of Appeals for the Fourth Circuit. Prior to joining the law school faculty at the University of Virginia, he was a postdoctoral research fellow at Columbia University’s Society of Fellows in the Humanities. He has also been visiting professor at UCLA School of Law. Professor Schwartzman has published in the fields of law and religion, political philosophy and jurisprudence. He recently coedited The Rise of Corporate Religious Liberty from Oxford University Press in 2016 and he is currently coauthoring a forthcoming case book on constitutional law and religion from West Publishing Company.
Jan Paynter: Hello. I’m Jan Paynter and I would like to welcome you once again to our program Politics Matters. Today we are very pleased to welcome Professor Micah Schwartzman, Edward F. Howrey Professor of Law at the University of Virginia School of Law to discuss the complex issue of the separation of church and state in our United States. Welcome, Professor Schwartzman.
Micah Schwartzman: Thank you.
Jan Paynter: Going forward, in your view Professor Schwartzman, can we resolve the dilemma of accommodating the free exercise of religion with free speech and still maintain the separation of church and state or does this longstanding dilemma remain with us as a nation?
Micah Schwartzman: Oh, that’s a big question. There are a few examples which are very much in the public’s attention right now. So we’ve got cases in which, for example, Florida sort of bakers who don’t want to be involved in same sex marriage ceremonies are saying, ‘To require me to serve gays and lesbians who want to have weddings, that infringes my freedom of speech,’ and they…some of these service providers are claiming free exercise accommodations. They want exemptions from anti-discrimination laws on the grounds of their religious belief and sometimes on the grounds that they have rights of free speech. And so there is a kind of conflict here and maybe there are other areas of conflict that you have in mind but that one is very difficult I think. And to date, as far as I know, no courts, certainly no Superior Court, has held that religious believers have a right to an exemption over an anti-discrimination law but we’re now seeing legislation in the states which would prohibit those state governments and courts from enforcing anti-discrimination provisions against people who have religious objections. So for example, in North Carolina, and there’ve been efforts in other states, to craft exemptions for people in the wedding industry and in other areas and we also have legislation that’s been introduced in Congress, the First Amendment Defense Act, it’s called FADA, the acronym that’s been used for it, which also include various provisions preventing the federal government from, as the act puts it, discriminating against people with religious objections in this area. So there are these conflicts and I think we’re going to see this worked out over the next decade or so.
Jan Paynter: Yeah. Well, the Hobby Lobby is another one having to do with birth control and religious grounds or the objections to providing that.
Micah Schwartzman: Right. So Hobby Lobby is a very important decision. It involves the Religious Freedom Restoration Act, which is a piece of federal legislation that was introduced in the 1990s, and that law says that any federal law or action…government action that imposes what’s called a substantial burden on religion has to be justified by the government. That is, the government has to come forward with what the statute calls a “compelling governmental interest” and that is, the government has to have a really powerful reason for the law and it has to show that the law is “the least restrictive means” of achieving that interest. So it has to be tailored to achieving it. And the court said in Hobby Lobby that the government could not require Hobby Lobby to pay for contraception, that the requirement, so-called contraceptive mandate requirement that that company pay for contraception and that there were other ways of going about making sure that employees could get contraception aside from requiring that company to pay for it. And that…it sparked a major controversy. It was a very aggressive interpretation of RFRA, of the statute, and it has led, I think, to uncertainty and to deep concern in other areas of the law.
Jan Paynter: Is it reasonable do you think, Professor, to believe that there will always be an inherent tension between the First Amendment’s Establishment Clause and the Free Exercise Clause?
Micah Schwartzman: I do think there are tensions, I do think they’re inherent because there will always be a question of how much accommodation or how much exemption from the law can the government permit without creating conditions of favoritism between one religion and another or between people who are religious and people who are not and hopefully we’re able to manage that kind of conflict so that it doesn’t become widespread, that we’re able to limit it in various ways so that the interests of all the relevant parties are met but it’s very difficult.
Jan Paynter: Now turning to elections and the political arena, we’re seeing First Amendment issues of separation, free exercise and Article 6’s admonishment against religious tests being played out. Looking at the latest Pugh Center results regarding Americans’ attitudes toward religion and the 2016 political campaign are interesting. It’s viewed as very important that the President hold strong religious beliefs. An atheist, as I think most people know, is still a strong political liability. Only six percent of people say they’d vote for a non-believer. 51 percent said they would not vote for a non-believer. But it is fascinating and we talked about this before the program, that neither Trump nor Clinton are seen as particularly religious but yet they have to in a sense shore it up with the constituency, each of them respectively, picking Pence, an Evangelical, and Kaine who did missionary work and is a strong Catholic, in order to really round out the ticket and appeal to voters. Through it the voter judges the candidate’s moral foundation and as Amy Sullivan notes in The De Facto Religious Tests in American Politics, Americans wouldn’t accept an ethnic or gender test for office, why then do so many voters impose a de facto religious requirement on their candidates? What do you think about that?
Micah Schwartzman: There’s a lot to think about. The first thing I would say is that Article 6, the religious test, is I think usually understood to impose a prohibition on any formal requirements. That is to say, the federal government or state government could not…here the federal government…could not impose a test, it couldn’t say, ‘In order to hold office you have to be a Catholic or Protestant or a Jew or a Muslim.’ All of that is forbidden under the Religious Test Clause. That’s not really I think what’s at issue here. It’s not so much that…except maybe for atheists, right? On that point it has very little to do with what any particular person believes, it’s just a lot of people in our country are unwilling to vote for someone who’s not religious in one way or another, whatever religious views they happen to hold but they have to express some religious viewpoint. What’s really going on I think is that people equate religious faith with a certain set of substantive views—substantive, moral and political views. And so they use religion as a proxy for a certain set of attitudes. Now there might be other things going on. There might be sort of in group/out group attitudes being expressed but to the extent that your religious faith shapes your moral views, a lot of people are going to think it matters for that reason. And I don’t think that the framers had objections to that way of considering religion in the role of public life but obviously we have some concerns about that because if the equation of people’s religious views and their moral views becomes too close, then you start to think that people are excluded solely in virtue of their religion and not in virtue of other beliefs and attitudes that they have.
Jan Paynter: Joseph Gerteis has a really thought provoking article from 2012 entitled The Social Functions of Religion in American Political Culture in which he observes that religion acts—and this goes to what we’re discussing—acts as a marker of trust and a sign of tribal identity, national solidarity but also a symbolic boundary between inclusion and exclusion, which I think is key.
Micah Schwartzman: So yeah, I think the point about tribal inclusion/exclusion is deeply worrisome.
Jan Paynter: It is.
Micah Schwartzman: We would hope that we have enough pluralism in our country that we have kind of cross cutting factions. We have…just to take examples, we have Catholics or Jews who are conservatives, who are liberals, who are all across the political spectrum and we don’t align our politics in a direct way with our religious viewpoints but that isn’t always the case and sometimes these things do come together. You mentioned earlier in your question about political parties and the selection of vice presidents so Trump picking Pence to shore up his evangelical vote and he was quite explicit about this and Trump basically indicated this. He said, ‘I dominated them on evangelicals,’ but I think that was certainly part of Pence’s appeal and Trump has acknowledged as much. I think saying that isn’t even controversial. In Kaine’s case, I’m not sure that it played much of a role in the selection. I think a lot of people think about it as an asset for Hillary Clinton that there is a progressive religious voice as part…represented inside the Democratic party that religion hasn’t played the role in the Democratic party that it’s played on the right for decades now, maybe not since the Civil Rights Movement.
Jan Paynter: I think that’s true. At the same time, I think she’s perceived—though she is Methodist—as I mentioned earlier in the program, as less religious. Whether that’s true or not, that is the perception and I think he certainly is a counterweight to that…to whatever degree they want to woo independent voters, people perhaps outside the tenet of the normal Democratic party.
Micah Schwartzman: Yeah. There are… Obviously the political strategists have many demographics to appeal to and I think that you’re correct that religion does play some role in that.
Jan Paynter: It’s kind of interesting, I was looking at…a cursory look at the styles of religious belief in various U.S. presidents. Leo Ribuffo in a 2000 article Does God Belong in a Stump, which I think is actually still really relevant, mentioned some things and I wanted to just tick through it ‘cause I thought it was interesting. Washington was conventionally religious, added to the presidential oath ‘so help me God’. Jefferson obviously, as we’ve discussed, is more secular and issued religious ritual. Lincoln was accused by one foe of being an infidel because while he didn’t deny scripture he didn’t really affirm it either. Roosevelt, and I wasn’t aware of this, apparently doubted the divinity of Jesus. Taft as Unitarian did to some degree, which is interesting. Kennedy, of course, and this has come up with Kaine, both being devout Catholics, at the time as we all know he was the first Catholic president. I believe still the only one. And he did state that he would not put public duties before his personal faith. Kaine has ascribed to the same idea. Carter obviously is one of the more religious presidents we’ve had—lay theologian, born again Baptist. And Reagan, while he quoted evangelicals, ‘I believe that God blessed America,’ actually raises this issue of American exceptionalism, again, which is interesting but a little troubling and I wanted to ask you about this. If you are exceptional by virtue of your connection to the Creator, what does that do to the separation?
Micah Schwartzman: It’s a wide diversity of religious beliefs you’ve just mentioned across different presidents’ generations, even now centuries and I think that this ebbs and flows the religiosity of the nation and it’s reflected in our presidents. Think of Bill Clinton versus presidents from early in the 1900s. There’s just I think a different sensibility of the role of religion in our politics. And that is especially true again on the right with the rise of the Moral Majority in the 1980s with responses to Roe v. Wade and abortion entering into our politics. In answering your question about Reagan about whether…there is a kind of presidential rhetoric I think that includes a religious tenor to it and our country has a long history of that. You mentioned Lincoln of course, certainly was steeped in the Bible and it’s reflected in his rhetoric. So I don’t think that in discussing our Creator, Reagan is exceptional even in his attribution of exceptionalism linked to the divine. I think that’s quite common.
Jan Paynter: What I was interested is when the idea of exceptionalism became more prominent in our national conversation and I wondered if perhaps in part at least we could trace it back to the general tenor of Reagan.
Micah Schwartzman: To a sense that America has some kind of divine role or mission.
Jan Paynter: Exactly.
Micah Schwartzman: Yeah.
Jan Paynter: Just interested in your thoughts about that.
Micah Schwartzman: Yeah. I think certainly there is a strain of the American political tradition that use the country in that way going back to the founding that it sees the country as sanctified in that sense. I think as the country becomes increasingly diverse and ever more so, this is a difficult part of our tradition to broaden and to make ecumenical enough to de-fully inclusive but it’s certainly there.
Jan Paynter: It is interesting the list…the different focuses that various presidents have that I read and it goes back to what we discussed at the beginning which is it…what did the founders intend? Well, it depends who you ask.
Micah Schwartzman: Right.
Jan Paynter: How does a president approach religion? Well, it depends what era and which president you’re speaking about.
Micah Schwartzman: Sure.
Jan Paynter: Might one then argue, Micah, that to believe in a particular candidate is itself an act of faith and thus more that the candidate…the more the candidate asserts his or her faith, the more the voter is likely to believe them? And of course this could work in reverse if you had a very secular voter.
Micah Schwartzman: I’m not sure how to generalize over that. I would hope that that’s not the case, that people can make decisions about political candidates on the basis of a broad range of reasons, many, maybe most of which don’t have direct connections to their religious viewpoints or even if they do that those viewpoints could be shared by people with a wide diversity of religious views. I think it’s worrisome if the only reason you vote for a candidate is because that candidate shares your religious perspective and you realize that other people might not then I do think you begin to blur the boundaries between religion and state in a way that should concern us.
Jan Paynter: Pugh notes that a majority of Americans see religious life as losing its influence. About 50 percent say the religion’s declining influence is bad for a society. Two-thirds of Democrats say the GOP coopted religious conservatives and not surprisingly, two-thirds of Republicans believe that secular liberals have too much power. So we are definitely in a 50/50 split both religiously and politically which is interesting. 43 percent see the Republican party as friendly toward religion compared with only 29 percent of the Democratic party. But according to Pugh in 2015, the nones, the so-called religiously unaffiliated, are growing not only with millennials but with older baby boomers as well. At the same time, the evangelicals are growing at about the same rate. So there are now as many evangelicals as nones, so-called, in America.
Micah Schwartzman: Right. N O N E S not the Catholic kind, the non-believers. Yeah, right.
Jan Paynter: Yes. But it is interesting because Bible believers tend to vote, from the point of view of politicians, in much higher numbers than the millennials. Again, in your view, all of the above stats make clear that politicians from both sides of the aisle are paying close attention to burnishing their religious bonafides. Does this practice…is this practice, in your view, consistent with the Constitution’s ban on a religious test?
Micah Schwartzman: I don’t think it’s directly prohibited by a test. I think again, as I said earlier, I think that test is a formal one but there is a question about what’s the principle behind the test. Why would you include a test of that kind and one thing you might think is, we don’t want to pick our government officials solely on the basis of their religious identity. To draw their identity that closely to their government function is a mistake, that we should have some more loose relationship between our religious, moral and political perspectives and the roles that officials occupy in the government. It’s an interesting question what’s driving the rise of the so-called nones, people who don’t affiliate with any particular religious denomination. There are different sociological explanations being offered for this trend. It seems to be a sustained trend. One story is that religion has become affiliated with conservatism and the right and that some people are disaffected with the conservative movement in our country and so are reacting against it by becoming less religious. Another story that has been told is that there’s just a general disassociation with institutions in our society. It’s not just religious institutions but other kinds of organizations and institutions so this de-affiliation that’s happening is a more broader catholic in the lower C sense trend that we’re seeing. But in either way, there’s now going to be a constituency of people who don’t have conventional religious views and I think that trend is likely to continue.
Jan Paynter: It is interesting because even in these surveys to which I was referring, if you talk to millennials for instance who are unaffiliated by and large, they still believe it’s a good thing to have a religious affiliation which is fascinating.
Micah Schwartzman: Right or at least they’ll tell you that they think it’s a good thing in surveys. There is some question about sort of what the sincerity is here, what’s the proper response to give to questions when someone asks you whether you should be religious. Sometimes the idea is, well, you associate religion with a certain kind of virtue. I think you get similar answers in Europe which is much more secularized. In the United States people will still generally tell you that some kind of religious affiliation is, again generally speaking, a good thing. But it’s…but the trend lines have been sustained now for a few years and it will be interesting to see what happens with the nones over time, whether they will continue to maintain their disaffiliation or come back in or whether we’ll see religious movements that try to meet them and invite them back into the fold so to speak.
Jan Paynter: It is fascinating. I notice that in one of my readings the press tends to think that people who are conservative are necessarily religious, that this is something that the press has been focusing on for a long time, which of course shapes what we hear, shapes our views on the same.
Micah Schwartzman: Right.
Jan Paynter: In a 2011 article on Twitter, Jonathan Turley, who I really enjoy reading, notes that listening to today’s political debates “could easily lead voters to believe that they are listening to a campaign for Ecclesiastical office rather than presidential office.” He notes that “like his Republican counterparts, President Obama stated that seculars are wrong when they ask people to leave their religion at the door.” Again, I will ask this question of you, does this comport with the constitutional requirements…
Micah Schwartzman: So Obama’s view is an interesting middle weight I think. So in his written statements on this and his speeches on religion and in some work in one of his books on this issue, he said, ‘Certainly people on the progressive side of things, on the left in the Democratic party, should not exclude religious voices. There’s a role for the faithful in our politics.’ But Obama said, ‘But those who come from a religious tradition or have some tradition of faith, have to translate their religious views into a public or secular language. They have to be able to explain their reasoning to people who don’t share their religious perspectives. So they have some work to do to meet people of different faiths and of different traditions.’ So I think Obama was trying to thread a middle way in between two perspectives. One says, ‘Of course religion has a role to play in our politics,’ and another says, ‘It should have less of a role to play,’ and Obama says, ‘It should have a role to play but there is still a concern for civility, still a concern for mutual respect and toleration that we have to be able to speak to others who don’t share our perspectives.’ And that I think is a healthy perspective. It’s a way of coming at these problems that tries to forge some middle ground, whether that’s the case in our contemporary presidential campaigns. I don’t find either of the major campaigns to be all that religious. Maybe they’ve delegated it out to their vice presidential candidates but they’re not. I think this was more true maybe when Turley was writing this but in past election cycles, especially in the last few presidential elections, I think religion’s had more of a role to play than it does in this one.
Jan Paynter: Which is so fascinating because religious groups are voting in droves for a candidate who’s not perceived as religious at all.
Micah Schwartzman: You’re talking about Donald Trump now.
Jan Paynter: Speaking to Donald Trump. So that is intriguing to me.
Micah Schwartzman: Yeah. I don’t have a good explanation for this effect. I think you’ll have to find someone who knows more about the public opinion of the religious right.
Jan Paynter: It’s just kind of fascinating. Another thing I wanted to ask you about and we’re getting close to needing to close here but both Bush and Obama supported faith-based programs. In your view, are these programs strictly constitutional?
Micah Schwartzman: Oh. The Court has in a number of cases held that religious funding of faith-based organizations is permissible when the government is funding secular services and there is a concern—this was borne out in our last segment, we talked about the Lemon test—there’s a concern that if the federal government is funding services, it’s also funding the religious mission of various kinds of organizations and federal legislation is designed to ensure that—depending on how the funding is directed—that federal monies are used to promote secular social services. I think if that’s…if that line is respected, then it can be done in a constitutional way but this is a really difficult line to hold and I think it’s one that will remain contentious in the near future and we’ll have to see again depending on the composition of the Court whether there will be future challenges.
Jan Paynter: I would like to close today’s program with Bill Moyer’s words in his forward to Peter Montgomery’s Twelve Rules for Mixing Religion and Politics. “We Americans have wrestled from the very beginning of our country with the best ways to protect the church and state from encroaching on each other. Some of our forbearers feared the church would corrupt the state. Others feared that the state would corrupt the church. Over many years of covering these issues, I know that Americans can talk about their belief in public without polarizing religion or polarizing the community. I have seen and heard them do it. From experience, I know that seriously religious people can press their argument in the public sphere without advocating injury to others. We can disagree passionately about things that matter without surrendering our own principle beliefs.” Professor Schwartzman, thank you so much for joining us for these two programs on separation of church and state. It has been a wonderful learning experience for all of us.
Micah Schwartzman: Thanks for having me.
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