20. Will Herberg, Protestant-Catholic-Jew: An Essay in American Religious Sociology (Chicago: University of Chicago Press, [1955] 1983), 87.
21. See Noll, America’s God, 367–438.
22. Bellah, The Broken Covenant, 142.
23. Bellah, The Broken Covenant, 153. See also 162 (“The present spiritual condition of America is not very cheering”).
24. James Davison Hunter, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991), 43–44.
25. See Hunter, Culture Wars, 120–25.
26. Hunter, Culture Wars, 128.
27. Hunter, Culture Wars, 59.
28. For an update and debate, see James Davison Hunter and Alan Wolfe, Is There a Culture War? A Dialogue on Values and American Public Life (Washington, DC: Brookings Institution Press, 2007).
29. See, e.g., “Political Polarization in the American Public,” Pew Research Center, June 12, 2014, http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public.
30. Hunter, Culture Wars, 50–51.
31. Hunter, Culture Wars, 52.
32. When the conflict is described as one for “domination,” of course, neither side may seem especially attractive. Americans, with their historic commitment to liberty, are unlikely to sympathize with a party that strives for “domination.” Advocates on both sides take advantage of this fact. In this vein, Martha Nussbaum accuses the Religious Right of wanting to “lord it over” their fellow citizens; Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2009), 8, 28, while Jonah Goldberg describes the progressive agenda as one of “liberal fascism”; Jonah Goldberg, Liberal Fascism (New York: Doubleday, 2009). It should be remembered, though, that in a culture war, as in other kinds of war, the likely alternative to dominating is being dominated. We may be more sympathetic if we recognize that both sides are struggling to avoid being dominated, culturally and politically.
33. Hunter, Culture Wars, 58.
34. Hunter, Culture Wars, 147.
35. See above, 172–76.
36. Benedict Anderson, Imagined Communities (London: Verso, 2006).
37. Hunter, Culture Wars, 58.
38. Hunter, Culture Wars, 47, 86–88.
39. Hunter, Culture Wars, 48, 42.
40. Hunter, Culture Wars, 120.
41. Hunter, Culture Wars, 124.
42. The point is developed in Isaac Kramnick and L. Laurence Moore, The Godless Constitution: A Moral Defense of the Secular State (New York: Norton, 2005), 150–206.
43. Peter Brown, Power and Persuasion in Late Antiquity: Towards a Christian Empire (Madison: University of Wisconsin Press, 1992), 120–21.
44. “Portraits & Designs,” U.S. Department of the Treasury, last updated December 1, 2015, https://www.treasury.gov/resource-center/faqs/Currency/Pages/edu_faq_currency_portraits.aspx; see also Derek H. Davis, Religion and the Continental Congress, 1774–1789 (New York: Oxford University Press, 2000), 138–40.
45. See, e.g., Everson v. Board of Education, 330 U.S. 1 (1947); Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); School District of City of Grand Rapids v. Ball, 473 U.S. 373, 373 (1985) overruled by Agostini v. Felton, 521 U.S. 203 (1997).
46. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989); Walz v. Tax Commission, 397 U.S. 664 (1970).
47. See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984); Allegheny County v. ACLU, 492 U.S. 573 (1989); Van Orden v. Perry, 545 U.S. 677 (2005); McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970); Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996); Newdow v. Lefevre, 598 F.3d 638, 640 (9th Cir. 2010); Newdow v. Peterson, 753 F.3d 105, 106 (2d Cir. 2014); O’Hair v. Murray, 588 F.2d 1144 (5th Cir. 1979); Town of Greece v. Galloway, 572 U.S. ___ (2014); Elk Grove School Dist. v. Newdow, 542 U.S. 1, 35 (2004); Trunk v. City of San Diego, 629 F.3d 1099, 1118 (9th Cir. 2011); Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010).
48. See Allegheny County, 492 U.S. 573; Lynch, 465 U.S. 668.
49. See, e.g., Allen v. Morton, 495 F.2d 65 (D.C. Cir. 1973); Citizens Concerned for Separation of Church & State v. City & County of Denver, 481 F. Supp. 522, 532 (D. Colo. 1979); Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982).
50. Abington School District v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
51. Cf. Frederick Mark Gedicks, “The Ironic State of Religious Liberty in America,” Mercer Law Review 46 (1995): 1158 (commenting on the “theologically vacuous nature of most organized public school prayers”).
52. Adam Samaha, “Endorsement Retires: From Religious Symbolism to Anti-Sorting Principles,” Supreme Court Review 2005, no. 1 (2005): 143. However, Samaha goes on to argue that the courts should care about public symbols.
53. Thus, while strongly urging a more committed embrace of public secularism, Jacques Berlinerblau criticizes “the obsession [of some secularists] with religious icons in public spaces,” and he reiterates Madison’s admonition not to waste time on “unessential points.” Jacques Berlinerblau, How to Be Secular: A Call to Arms for Religious Freedom (New York: Houghton Mifflin Harcourt, 2012), 51.
54. Oliver Wendell Holmes Jr., The Collected Legal Papers (New York: Dover, 2007), 270.
55. Max Lerner, “Constitution and Court as Symbols,” Yale Law Journal 46 (1937): 1290.
56. See above, 174.
57. See above, 174.
58. Lynch, 465 U.S. at 688 (O’Connor, J., concurring).
59. See, e.g., Jesse H. Choper, “The Endorsement Test: Its Status and Desirability,” Journal of Law and Politics 18 (2002): 499; Steven D. Smith, “Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the ‘No Endorsement’ Test,” Michigan Law Review 86 (1987): 266.
60. See Smith, “Symbols, Perceptions,” 305–9.
61. See Samaha, “Endorsement Retires,” 143 (“Nobody is losing the right to vote, or speak, or receive tangible government benefits; nobody is formally compelled to attend or not attend religious ceremonies; nobody is taxed to pay for substantial material benefits to religious causes”).
62. See Koppelman, Defending American Religious Neutrality, 47 (“It is not clear . . . how endorsement either threatens religious liberty or fails to respect diversity. Alienation is as inescapable a part of political life as division. In a democracy, somebody loses any vote and therefore feels like an outsider. Here, too, judicial intervention may simply make things worse”); Mark Tushnet, “The Constitution of Religion,” Connecticut Law Review 18 (1986): 712 (“Nonadherents who believe they are excluded from the political community are merely expressing the disappointment felt by everyone who has lost a fair fight in the arena of politics”).
63. See above, 261–63.
64. Cf. Samaha, “Endorsement Retires,” 137 (“Religious messages . . . can also signal the community’s character to non-members”).
65. Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015) (“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. . . . The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex”); Varnum v. Brien, 763 N.W.2d 862, 904 (Iowa 2009) (“The County’s silence reflects, we believe, its understanding [that religious sentiment] cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage”).
66. “Changing Attitudes on Gay Marriage,” Pew Research Center, June 26, 2017, http://www.pewforum.org/fact-sheet/changing-attitudes-on-gay-marriage.
67. The final decision, of course, was Obergefell, 576 U.S. __ , 135 S. Ct. 2584.
68. I have argued for the potentially contentious claims that follow at much greater length elsewhere. E.g., Steven D. Smith,
The Rise and Decline of American Religious Freedom (Cambridge, MA: Harvard University Press, 2014). For a much condensed version, see Steven D. Smith, “Political Decisions Must Be ‘Secular’? Since When?” Law and Liberty, July 31, 2014, http://www.libertylawsite.org/2014/07/31/political-decisions-must-be-secular-since-when.
69. See George Fletcher, Our Secret Constitution (New York: Oxford University Press, 2001), 102.
70. See below, 356.
71. For further discussion, see Steven D. Smith, “Goods of Religion,” in Dimensions of Goodness, ed. Vittorio Hösle (Newcastle, UK: Cambridge Scholars, 2013). See also Francis Beckwith, Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith (New York: Cambridge University Press, 2015).
72. See, e.g., Allegheny County, 492 U.S. 573.
73. See, e.g., Lambert, Religion in American Politics, 11 (“In this book religion is defined as a set of beliefs in a transcendent God, grounded in an authoritative sacred text, and expressed by a body of believers through the performance of certain rituals and adherence to a specific moral code”).
74. Cf. Abner Greene, “Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?” Harvard Law and Policy Review 9 (2015): 161, 174 (arguing that Ronald Dworkin’s conception of religion “is not a very good interpretation of religion in our constitutional culture” because “religion in America is primarily about theism, about faith in God and what follows from that”).
75. See, e.g., Stephen B. Epstein, “Rethinking the Constitutionality of Ceremonial Deism,” Columbia Law Review 96 (1996): 2083–2174.
76. Allegheny County, 492 U.S. 573.
77. However, the Court found that a Jewish menorah standing next to a Christmas tree beside an entrance to the building had been acceptably secularized.
78. Texas v. Johnson, 491 U.S. 397 (1989).
79. Johnson, 491 U.S. at 418.
80. Johnson, 491 U.S. at 420. For his part, with the assistance of extensive quotations of patriotic poetry, Rehnquist expounded on the “almost mystical reverence” that the flag elicits in many citizens (at 429 [Rehnquist, J., dissenting]). Justice John Paul Stevens arguably acknowledged the sacralizing function as well, albeit indirectly. Stephens argued that the American flag, unlike many other flags and many other symbols of nationhood, is much more than just a symbol, but he had difficulty explaining just how this was so. Destruction of the flag, he said, is offensive to patriotic Americans; this may be true, but the flag is hardly unique in this respect (at 436 [Stevens, J., dissenting]). Stephens’s intuition that the flag is much more than a symbol might plausibly be understood as an inarticulate gesture toward its sacralizing function.
81. Sheldon Nahmod, “The Sacred Flag and the First Amendment,” Indiana Law Journal 66 (1991): 511.
82. Allegheny County, 492 U.S. 573; Trunk, 629 F.3d at 1118; McCreary County, 545 U.S. 844.
83. See, e.g., Aronow, 432 F.2d 242; Gaylor, 74 F.3d 214; Newdow v. Lefevre, 598 F.3d at 640; Newdow v. Peterson, 753 F.3d at 106; O’Hair, 588 F.2d 1144.
84. Van Orden, 545 U.S. 677. Critics (and supporters) found this ruling especially puzzling insofar as on the same day the Court ruled invalid some displays containing the Ten Commandments in some Kentucky courthouses. McCreary County, 545 U.S. 844.
85. Town of Greece, 572 U.S. ___.
86. Elk Grove School Dist., 542 U.S. at 35 (O’Connor, J., concurring).
87. Elk Grove School Dist., 542 U.S. at 33–44 (O’Connor, J., concurring).
88. See, e.g., Douglas Laycock, “Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty,” Harvard Law Review 118 (2004): 235 (observing that “this rationale is unconvincing both to serious nonbelievers and to serious believers”); Steven H. Shiffrin, “The Pluralistic Foundations of the Religion Clauses,” Cornell Law Review 90 (2004): 70–71 (“I am sure that a pledge identifying the United States as subject to divine authority is asserting the existence and authority of the divine”).
89. Caroline Mala Corbin, “Ceremonial Deism and the Reasonable Outsider,” UCLA Law Review 57 (2010): 1589.
90. See, e.g., Allegheny County, 492 U.S. 573 (invalidating Christmas crèche display); Trunk, 629 F.3d at 1118 (finding that a publicly displayed cross, despite its historical context, conveys a message of government endorsement of religion that violates the establishment clause).
91. See, e.g., Elk Grove School Dist., 542 U.S. at 31–33, 40–42, especially the concurring opinions by Justice O’Connor and Chief Justice Rehnquist, defending use of the words “under God” in the Pledge of Allegiance.
92. See Ronald Dworkin, Religion without God (Cambridge, MA: Harvard University Press, 2013), 31–43.
93. See, e.g., Elk Grove School Dist., 542 U.S. 1.
94. Kent Greenawalt, Religion and the Constitution, vol. 2, Establishment and Fairness (Princeton: Princeton University Press, 2008), 95–102; Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2009), 308–16.
95. See, e.g., Allegheny County, 492 U.S. 573 (invalidating a Christmas crèche in a courthouse while upholding a Jewish menorah); but cf. Town of Greece, 572 U.S. ___ (approving city council prayers in which Christian language was mixed with more generic religious language).
96. “The Court and Its Procedures,” Supreme Court of the United States, accessed August 19, 2017, https://www.supremecourt.gov/about/procedures.aspx.
97. Holy Trinity Church, 143 U.S. at 470 (emphasis added).
98. See above, 274–75.
99. Kyle Harper, From Shame to Sin: The Christian Transformation of Sexual Morality in Late Antiquity (Cambridge, MA: Harvard University Press, 2013), 85.
100. Geoffrey R. Stone, Sex and the Constitution (London: Norton, 2017), xxvii.
101. The point is emphasized in Stone, Sex and the Constitution, 4–12.
102. Harper, From Shame to Sin, 67.
103. See above, 121–25.
104. Harper, From Shame to Sin, 139. Hereafter, page references from this work will be given in parentheses in the text.
105. Robert E. Rodes Jr., On Law and Chastity (Durham, NC: Carolina Academic Press, 2006), 9.
106. Rodes, On Law and Chastity, 14.
107. Rodes, On Law and Chastity, 22.
108. Rodes, On Law and Chastity, 20–21. See also Helen M. Alvare, “Religious Freedom versus Sexual Expression: A Guide,” Journal of Law and Religion 30 (2015): 477: “In the United States, before approximately the 1970s, the state took an interest in maintaining the links between sex, marriage, and children via laws restraining even consensual sexual expression; these included laws banning fornication, cohabitation, and adultery. These laws were enforced quite unevenly, if at all, while at the same time, judges did not hesitate to affirm the legitimacy of the state interests underlying them.”
109. Poe v. Ullman, 367 U.S. 497 (1961).
110. John D’Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America, 3rd ed. (Chicago: University of Chicago Press, 2012), 239–42.
111. Rodes, On Law and Chastity, 3.
112. D’Emilio and Freedman, Intimate Matters, 333.
113. D’Emilio and Freedman speak of “sexual revolutions,” in the plural, in describing changes in sexuality over the course of the twentieth century (Intimate Matters, 301). Geoffrey Stone enthusiastically chronicles attitudes of sexual libertinism in eighteenth-century America (Sex and the Constitution, 80–87).
114. D’Emilio and Freedman, Intimate Matters, 327.
115. D’Emilio and Freedman, Intimate Matters, 343.
116. Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), 78.
117. See, e.g., Obergefell, 135 S. Ct. at 2596; Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).
118. Mary Eberstadt, “The First Church of Secularism and Its Sexual Sacraments,” National Review, June 15, 2016, http://www.nati
onalreview.com/article/436602/sexual-revolution-secular-quasi-religion.
119. Harper, From Shame to Sin, 21.
120. D’Emilio and Freedman, Intimate Matters, 277.
121. See, e.g., Reno v. ACLU, 521 U.S. 844, 885 (1997); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258 (2002).
122. See, e.g., Nancy Jo Sales, “Tinder and the Dawn of the ‘Dating Apocalypse,’ ” Vanity Fair, September 2015, http://www.vanityfair.com/culture/2015/08/tinder-hook-up-culture-end-of-dating.
123. D’Emilio and Freedman, Intimate Matters, 329. See also Leigh Ann Wheeler, How Sex Became a Civil Liberty (New York: Oxford University Press, 2013), 222 (remarking on the “increasingly sex-saturated public sphere that renders sex anything but private”).
124. These characters were played by, respectively, Kelsey Grammar, David Hyde Pierce, John Mahoney, Peri Gilpin, and Jane Leeves.
125. A more recent and in one sense even starker example is the popular and still running drama Blue Bloods, about a New York police commissioner, Frank Reagan (played by Tom Selleck), and his family. One son, Danny (played by Donnie Wahlberg), is portrayed as being faithful to his wife, but Frank, another unmarried son (Jamie, played by Will Estes), and divorced daughter Erin (played by Bridget Moynahan) have occasional brief sexual relationships. Although the show is fraught with moral challenges and dilemmas, these occasional sexual interactions are not treated as morally problematic (except insofar as, for example, sexual intimacy with one’s police squad partner might create issues in a working relationship). Although sexual relationships are far less common and less prominent as a theme than in Frasier, what makes the absence of moral reflection or concern on the subject striking is that the family in Blue Bloods is portrayed as deeply Catholic and highly traditional: they meet often for family dinners, always begin the meals with prayers, often explicitly addressing Jesus. And yet there is no evident concern about traditional Christian teachings on sexual morality.
126. Ferdinand Mount, Full Circle: How the Classical World Came Back to Us (New York: Simon and Schuster, 2010), 104.
127. Mount, Full Circle, 103. In sum, “the twenty-first century is the century of recreational sex, gourmet sex, sex as lifestyle, sex as fulfilling relationship, anything but sex as sacrament” (112).
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