A liberal legal academic writes about “church and state” in a cover story for the New York Times Magazine–and it’s actually a pretty good essay. My standards for this particular genre are admittedly low: It’s enough that he writes about evangelical Christians without being totally freaked out or hostile. My disagreements, however, start with his title: “A Church-State Solution.” I start out with the prejudice that relations between governments and churches do not involve a problem, or small set of problems, that can be “solved,” so much as a lot of tensions and difficulties that can be managed or accommodated in various ways.

Feldman argues that the Supreme Court has been more and more latitudinarian on the question of government funding for religious organizations while becoming ever more strict about symbolic governmental endorsements of religion. He thinks it should take the exactly opposite tack. “Legal secularists” should recognize that they are wrong to denude the public square of religious symbols in the name of including religious and irreligious minorities, because that campaign ends up making “values evangelicals” feel excluded. The values evangelicals, on the other hand, should give up government funding–even indirect government funding, such as school vouchers–because the funding necessarily creates divisive religio-political battles and undermines national unity.

As a policy matter, I don’t care at all about governmental endorsements of religion. Public displays of the Ten Commandments neither offend nor please me. I’ve never quite understood why other people get so worked up about these things. So a deal that gives up school vouchers–a program that, I think, could actually improve American life in several ways–in return for more such exhibits has no appeal to me.

Feldman argues straightforwardly for his policy as the most sensible compromise available, and therefore urges the Supreme Court to adopt it. His argument that his compromise is what the First Amendment actually commands is sketchy at best. He thinks that the no-endorsement doctrine was a mistaken detour by the post-World War II court. But if we’re rethinking that detour, maybe we should also rethink this business about the Supreme Court’s policing the financial entanglements of state and local governments with religious institutions.

Policing religious funding would involve the same kind of micromanagerial decisions that the no-endorsement test does. If vouchers are unconstitutional, what about tuition tax credits? Or the use of Pell Grants at Georgetown? There’s another possible problem with Feldman’s proposal: It means that every expansion of the welfare state is automatically a contraction of the religious sphere of influence. Government-run health care, for example, would have to mean the end of religious hospitals. (Unless I’m missing something.) Wouldn’t that set-up tend to inflame political divisions?

(A side note. His argument against vouchers is that you’d have to let government funds go to all kinds of kooky or scary sects’ schools or have legislators discriminate among the sects. Either solution would be divisive and undermine national unity. But since there are kooky and scary non-religious philosophies, wouldn’t Feldman’s arguments run against any voucher scheme that was restricted to secular schools? His First Amendment wouldn’t block such a scheme. You could make an argument that religion is uniquely divisive, but even if that is true it is true only in general. And what’s the justification for making the avoidance of division the lodestar of First Amendment jurisprudence?)

Okay, this has become about four times longer than I had originally intended. I’ll make one last point in a new post.