Wexler is looking closely at the nation’s behavior as it pertains to the United States’s so-called “Establishment Clause.” He’s a professor at Boston University School of Law, so in a position to provide a capable assessment of the existing law. He does that, in a highly readable way, with his own wry assessments of how that law came to be written:
In my first book, I wrote that legal scholars generally agree that Justice Burger wrote his lackluster majority opinion in Marsh “in about five minutes while sitting on the can,” but in retrospect I think this was inaccurate because there’s no way he spent that long working on the decision.
However, this book is — as the complete title suggests — not a dry overview of case law, but a zesty, opinionated assessment of how non-Christians should actually behave, given the way that the particular clause of the First Amendment to the Constitution manifests itself in national daily life. According to Wexler, despite an increasing percentage of non-Christians in the United States, Christians of many types are using an increasing amount of public money to fund their activities. This is his argument: some people want a complete separation of Church and State, but that’s not happening; in fact, in legal ways, the Christian majority are both smartly and dumbly monopolizing state platforms; given that this is the case in our tolerant, pluralistic nation, others need to join in.
The relevant constitutional text from the First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” While historically the sentiment makes a lot of sense, the wording is neither intended to be precise, nor is it. Early immigrants to the continent fleeing from religious persecution did not want to set up a whole new country with an oppressive religion, yet in their broad declaration they did not specify how that prohibition should play out. The confusion is especially pronounced given the intertwined nature of the nation’s history and the Christian provenance of its historical leadership. Without raising the question of whether those visionary framers of freedom and slave-owning sexists should, in fact, be lauded, it’s true that Christian texts, icons, and artifacts have been a part of American history. So when is elevation of a particular religious tradition just recognition of American history?
Wexler outlines the different ways that government assets could arguably be used by religious groups: forums for prayers before public meetings, funds for social aid activities, public school buildings to be used for after-school religious classes, or public ground for the erection of religious monuments. And he explains how different courts weigh the provision for the public good, the equal rights of different religious groups, and the ways in which provisions or restrictions might be seen as unfair endorsements or prohibitions. He considers thousands of Good News Clubs running Christian after-school programs as close to regular school classes as possible, Hare Krishnas running homeless shelters, Wiccan pentacles on veterans’ gravestones, atheist invocations before local town meetings, the relation of the 10 Commandments to American tradition, Satanist statues on public grounds, and many more cases.
The book is structured logically and satisfyingly. It begins by laying out the basic groundwork, and then proceeds through Pagans, secularists (in towns), Satanists, Muslims, and atheists (especially in context of schools), before hammering home the conclusion to his argument. He also considers certain cases involving Hindus, Hare Krishnas, Jews, the Summum (just Google them, or read Wexler’s account of Corky Ra in chapter one), Scientologists, and believers in the Flying Spaghetti Monster. As he himself notes, lumping all these minorities together is an oddity; including atheists (the largest group and a non-religion) is probably the oddest thing of all. But Wexler’s point is that as any dominant religion will use its market share to dominate the public square, so all others who have a right to be heard in the public square should make use of that right to ensure that dominance is not monopoly — not natural, not missionary.
There are a few minor weaknesses in the book. Wexler is so committed to his breezy style of writing that he sometimes overdoes the informality in ways that are tonally maladroit: “The chances that the Court will now reverse course on the Establishment Clause are basically zilch.” The power of his core argument scoots us past a number of elements that could bear further scrutiny. Though he flags and leaves the subject, certain elements of Christian diversity seem material — for example, how does Catholicism work in this context? Mormonism is mentioned to say how he’s not even mentioning it as a quirky minority case. And, to my Jewish eyes — especially for Wexler, who was brought up Jewish before he sought other credos — it’s odd that he omits the efforts of the quintessentially American religious minority to be invisible or visible in turn.
Further, politics is barely mentioned as a dynamic project in the future. For Wexler, the Trump election is an elevation of division and bigotry and the end of any possibility of the separation of Church and State, but not the herald of further erosions of the rights of minority religions. He also ignores ways in which, given the current ignorance of the citizenry and the unscrupulous political will to exploit that, existing laws could be amended to reduce diversity of all types. Surely, a 2019 political response to Wexler and friends pushing the legal broadening of religious access would be to narrow the legal definitions as much as possible. Given the rampant prejudice against Islam (as well as, on a smaller level, Satanism), alongside the existence of laws that prohibit denigration of others’ beliefs, it would be easy to imagine laws banning Islam and Satanism on the spurious and hypocritical grounds of intolerance. Today’s Supreme Court has, after all, ratified the Muslim Travel Ban.
But these are cavils. Were you only to read the chapter on Paganism, or the one on Satanism, you would have a more subtle understanding of either of those religious systems than the vast preponderance of the American electorate. You would share Wexler’s gentle appreciation of the diversity of Paganisms that persist in the United States, drawing on a tradition that predates all forms of Christianity. You would understand to what extent The Satanic Temple is an activist in the model that Wexler promotes, and to what surprising extent that is only a small part of a broad and well-intentioned, inclusive religious system quite distinct from Aleister Crowley and the myths of the “Satanic Panic” of the late 20th century.
By visiting exemplars of such beliefs with curiosity and openness, Wexler performs the action that he advocates: that is, making heard a “cacophony” of voices in public life so that different viewpoints get brought to the fore. Rather than the silence brought about by the absolute separation of Church and State supported by many who might normally be his fellow travelers, he welcomes a noisy public space where monotheistic, polytheistic, and atheist ideas are expressed. In that raucous marketplace of ideas, beliefs and practices would be questioned, empty rhetoric called out, and inconsistencies challenged. Most importantly, even if people held fast to their beliefs, every single person would know that their choices made them each deliciously and exquisitely diverse.
Dan Friedman is the director of content and communications at the Shalom Hartman Institute of North America. He is also a contributing editor to 8by8Mag.com and the author of an ebook about 1980s rock group Tears for Fears.