Anyone who loves to grapple with the issue of religion in public life will enjoy Notre Dame professor Vincent Phillip Muñoz’s new book God and the Founders: Madison, Washington, and Jefferson, which painstakingly lays out the agreements and differences among these key figures and then applies their thought to the central church-state issues that have faced the Supreme Court over the past few decades. Muñoz himself articulates a view he believes captures the best in their three approaches, a system he summarizes as “no legal privileges, no legal penalties”: The state would be allowed to acknowledge religion in symbolic fashion, but not in such a way as to “affect individuals’ rights.” His discussion of the singling out of religion in our current context is quite interesting:

Given modern identity politics . . . Madison’s prohibition against state recognition of religion can appear to single out religious persons or groups for unfavorable treatment. . . . If the state promotes Black History Month (officially the month of February), Asian/Pacific Islander Heritage Month (officially the month of April), and Gay Pride Week (usually in June) but cannot take cognizance of religious celebrations such as Christmas, religion seems subject to unequal treatment. In a more libertarian age when the state was not involved in the promotion of culture and identity, noncognizance would not have the same impact. But given modern identity politics, the prohibition against state recognition seems unnecessarily hostile toward religion. “No legal privileges, no legal penalties” would allow religion the same type of symbolic state acknowledgement that other identity and cultural groups receive.

I’ve never taken seriously the idea that there is a “War on Christmas”: Some people want to say “Merry Christmas,” others want to say “Happy Holidays,” and I say “Let freedom ring” for both of them. Nonetheless, I can understand the concern of many religious folk that their ideas and identity are treated — in controversies like that one — with an unfair level of hostility. To this, it can certainly be objected that some of the Founders made a point of singling out religion as an especially important potential source of social rancor, and that we religious people should therefore simply take our lumps. Fair enough: But I think Muñoz articulates well a way we can understand the Establishment Clause’s restrictions on the potentially dangerous encroachments of church on state, while not singling out the religious for treatment we would consider unfairly discriminatory if applied to any other group.