What started (and continued) as some good natured trash talk with writer and former top Norquist aide Jim Rowen developed into a conversation about the relationship between religion and politics. The death of Jerry Falwell seems like a good excuse for further bloviation.
Social and religious conservatives are known for acting as if they are fighting against a tide of secularism, but there are all sorts of signs that the other side is on the defensive. Two recent publishing trends (and a guy who spends what I do with Amazon and Borders is going to know these things) are warnings against imminent theocracy and insistent apologetics that this God-thing has to be false, false, false! Atheism and secularism (not the same things) have gone all evangelical on us.
There is a sense, I suppose, in which both sides can be right. Secularism, if not a de facto atheism, has been the predominant public posture of the educated elite and still is. So those who oppose the naked public square still feel like they have a lot of heavy lifting to do.
But there have been inroads made among what Justice Scalia called the "law-profession culture" (similar to the reigning sensibilities in universities and editorial boards). Those opposing a secular society have developed their own countervailing intelligentsia and, among the great herd, this God-fellow just won't go away.
So secularists feel harried as well.
I think there are at least two reasons for this.
The first is the utter poverty of arguments for a uniformly secular public discourse such as John Rawls' concept of "public reason." The argument that people ought to put their bedrock principles and way of seeing the world in a desk drawer before they venture outside is intellectually bankrupt and impossible in practice.
The second is the way in which our Establishment Clause jurisprudence has devoured itself. Put simply (but not overly so), we have tried to enforce governmental neutrality between religion and irreligion. We do not want, as Justice O'Connor argued, anyone to feel like a disfavored member of the political community.
That might work if government did no more than it did in 1787. But as it becomes involved in educating children (and taking that education past the basic 3 Rs) and trying to solve a variety of social problems, it injects itself into areas of life in which, according to many, there can be no exclusion of faith. To tell such people that all views are welcome but theirs is not neutral and certainly causes them to feel disfavored. To read a recent and scintillating exposition of this, see Richard M. Esenberg, You Cannot Lose If You Choose Not to Play: Toward a More Modest Establishment Clause, 12 Roger Williams L.Rev. 1 (2006)
But make sure you have some coffee first.
Obviously there is much more to it than this (S & S is a general interest blog) and the debate is nowhere near over. As Marquette lawprof Scott Idleman recently said (I paraphrase) the only things that are certain in life are death, taxes and disputes over the religion clauses of the First Amendment.
12 comments:
Pertinent:
The Locke theory upholds Natural Law that squares with the view of the majority. That is the variant of Natural Law that has permeated the system, not the original view of Alexander Hamilton who believed in absolutes. Basically a skeptic in metaphysics, Locke could not attain certainty in moral philosophy, an extension of metaphysics. His moral philosophy, had he worked it out, would have been a barren utilitarianism identical to that of Jeremy Bentham. If one follows Locke, one cannot say for certain what is right or wrong when the majority says otherwise.
From Tom Roeser here:
http://www.tomroeser.com/ (scroll to 5/15's "Personal Asides" a Lockean...
Roeser's take: that SCOTUS is in the Ying phase, having gone through 40 years (or so) of Yang.
Put simply (but not overly so), we have tried to enforce governmental neutrality between religion and irreligion.
"Irreligion" is something of a loaded term, since it implies what Justice Scalia has hyperbolically condemned as "hostility to religion" in the Court's Establishment Clause jurisprudence.
I don't buy that. A better comparison would be between "some religion and no religion."
If the Establishment Clause forbids official government endorsement of one religion over another, or one sect of one religion over another sect, that means it's forbidden from officially endorsing any religion or sect, period.
The effect of that command is that the government is necessarily forbidden from endorsing some religion over no religion.
But that's not the same thing as claiming that the government must positively endorse "no religion," as in thoroughgoing secularism or atheism.
Forgive me if I'm reading too much into your comments, but I'm catching the whiff of a burning strawman.
As for your observation that the government's tentacles are considerably more entangled with social policy than they were in the Framers' day, it's well taken.
I'm sure that's one of the reasons for a jurisprudence that might charitably be described as chaotic.
Incidentally, given such writings as Justice Scalia's ludicrous dissent in Edwards v. Aguillard, and Justice Thomas's solitary anti-incorporationist musings in Elk Grove v. Newdow, neither of the Court's most strident accommodationists can be credited with attempting to alleviate the chaos.
In the meantime I'll seek out your law review article. If it's anywhere near as cogent and scholarly as Prof. Idleman's work -- he is one of the handful of truly outstanding faculty at the law school -- then I shall return with the appropriate kudos.
Falwell and his ilk have always puzzled me about the "conservative" movement. He and his, of course, were not "conservatives" in any way that the word relates to a political philosophy. Quite to the contrary, he and his were advocates of radical changes.
While much of your post is written in such high falootin' prose I can't understand it, I found the following interesting:
"The argument that people ought to put their bedrock principles and way of seeing the world in a desk drawer before they venture outside is intellectually bankrupt and impossible in practice."
This kind of thing adopts the strategy Falwell and others use to bring about the radical change they seek. NO serious person, including ardent supporters of the separation of church and state, me included, has ever suggested that people need to conceal their faith or practice in the public square. The point is that we don't want the government to adopt a particular faith or religious practice, we don't want to pay for it, and we don't want to be bound by it in our public lives.
These were and are the goals of Falwell and his ilk, a sort of theocracy lite.
The strategy has been brilliant, best exemplified by Foxnews' annual "War on Christmas" tripe. They scream about how hard it is to be a practicing Christian in the US and as examples point to the government refraining from paying for religious monuments on public property.
The notion that Christians are finding it difficult to freely practice in the US or that they face "oppression" for doing so is a simple lie. And, to someone such as myself that is a member of a religious minority that has, in fact, faced deadly persecution in modern times, it is entirely offensive.
Falwell and his ilks were and are radicals who simply want what they view to be the majority religious faith grafted into government institutions. How they got into a partnership with the small-gubmint types is absolutely beyond me? Where is Barry Goldwater when we need him?
They scream about how hard it is to be a practicing Christian in the US and as examples point to the government refraining from paying for religious monuments on public property.
Not quite true, Anony.
The ACLU sues to prevent governments from ALLOWING 'religious monuments' on public property.
And they usually win.
But the clause does not say that "Government shall not endorse religion." It does not say that "Government shall not allow religious displays." In fact, it does not state that "Government can not PAY for religious displays."
What it says is that the Federal Government may not ESTABLISH a religion (as the National Religion.)
It takes a fever and several pints of serious Paranoia Sauce to infer that allowing (or even paying for) a religious display in the public square violates that clause.
Fortunately, that sort of legal crap is very last-century.
IT
The distinction I think that you are trying to draw is one made by some heavy duty scholars in the area, such as Douglas Laycock, who try to get out of the box by defining the lack of neutrality toward religion as its explicit condemnation. In other words, as long as the government does not say that there is no God or Allah is not His Prophet, it's ok.
Laycock is a wonderful scholar, but I think that the problem with this particular view are manifold. First, generally , the courts have not required that type of overt hostility to create an establishment clause violation. A graduation prayer is unconstitutional whether or not it claims to make an exclusive truth claim, i.e., it does not have to say that its view is right and others are wrong. It need not endorse any particular sect or even any particular theistic concepts. As you know, some of the stuff that has been held to consititute an establishment has been pretty vanilla.
Second, telling people that we can and will acknowledge all other sorts of world views - but not yours - is not neutral. To say that we'll observe Earth Day and we will tell you that moral choices can be made without resort to God is not evenhanded. It absolutely makes believers feel like "disfavored members of the political community." That's why we have this set-to. Even with respect to the Christmas Wars, the extent to which we have embarked on an overweening - and often silly - removal of Christ from Christmas does suggest that the public expression of these views outside of a church or other limited settings is illegitimate.
The problem, I think, is that we have tried to do too much. We want to save people from being reminded that they are in a minority and the price is too high. Having to sit through a prayer at graduation because others would like to have one ought not to be a constitutionalized offense.
As for Anon 12:18's objection to paying for expressions of religious sentiment with which he or she does not agree, that might have been more cogent in an era (if it ever existed) in which government did not endorse a host of things with which many taxpayers do not agree. Even if you say religion is special, the existence of, for example, a Day of Silence promoting the moral acceptability of gay and lesbian practice, takes sides on a religious question. That it does not go a step further and explicitly say that the government believes that the claimed revelation on which some people base religious opposition to homosexuality (e.g., certain biblical passages and millenia of practice in the Abnrahamic faiths) is false seems to be a distinction without a difference - at least if the idea is to avoid offense based on one's religious beliefs. Obviously the government does believe that and is publicly saying so.
You may say that the government cannot act without giving such offense and I agree. That's my point. Whether offense is given or money is spent on something I disagee with ought not to be the test. Establishment needs to be more than that.
[T]he courts have not required that type of overt hostility to create an establishment clause violation.
This is a bit off the legal topic, but how in the world are either general disbelief or denying that Muhammed is Allah's only prophet acts of "overt hostility"? Christians deny the latter, obviously. Is that denial an act of overt hostility per se? No; your suggestion is pure hyperbole. And if basic Christian dogma really does represent "overt hostility" to Islam, then that is one more reason why the government should stay out of the religion business.
A graduation prayer is unconstitutional whether or not it claims to make an exclusive truth claim, i.e., it does not have to say that its view is right and others are wrong. It need not endorse any particular sect or even any particular theistic concepts.
I understand the embedded references to the case law, but again, how in the world can a prayer not endorse any particular theistic concepts? A prayer is a theistic concept, by definition. Theism (as opposed to deism, for example) is belief in an interventionary deity, and prayer is a request for future intervention, or at least an expression of thanks for past intervention. The very act of saying a prayer endorses a particular theistic concept: that prayer is effective.
As you know, some of the stuff that has been held to constitute an establishment has been pretty vanilla.
Perhaps. But a lot of it hasn't. And I'd like to take this opportunity to point out that most of the leading cases were instigated by plaintiffs who were believers of some stripe, despite the David Bartons of the world obsessing over Madelyn Murray O'Hair and Michael Newdow.
One of the challenges that might be considered "pretty vanilla" (although it was ultimately unsuccessful) was to Ohio's State motto, "With God all things are possible." It was brought by a Presbyterian minister who was offended by the alleged words of Christ being reduced to the level of veneration afforded the State insect and the State igneous rock.
I say "alleged" words of Christ, incidentally, not as some backhanded reference to Bishop Spong and the Jesus Seminar, but rather an allusion to the 6th Circuit's finding of facts in its decision against the Presbyterian minister.
Second, telling people that we can and will acknowledge all other sorts of world views - but not yours - is not neutral. To say that we'll observe Earth Day and we will tell you that moral choices can be made without resort to God is not evenhanded. It absolutely makes believers feel like "disfavored members of the political community."
I have no idea what acknowledging Earth Day has to do with the Establishment Clause. Besides, it's a fact that moral choices can be made without resort to God. It's a fact that believers need to deal with, and one that many not only refuse to acknowledge, but positively embrace in their condemnation of non-believers as amoral hedonists. To say that moral choices can be made with or without resort to God is perfectly evenhanded.
Furthermore it's not the same thing as saying believers are somehow mistaken in relying on God for their moral stability (such as it may be, Reverend Haggard), and the suggestion that believers, who comprise upwards of 90% of the American polity -- not to mention apparently 100% of its elected and appointed officials -- would be made to feel like "disfavored members of the political community" is, frankly, preposterous.
Not quite as preposterous as the cries of "Christian persecution" from the likes of Janet Folger, David Limbaugh, and the rest of those clowns, but getting there.
What [the Establishment Clause] says is that the Federal Government may not ESTABLISH a religion (as the National Religion.)
It says that, and more: No law respecting an establishment of religion.
And the debate over incorporation (which your side lost several decades ago) is little more than an academic exercise at this point.
US President Tim Kalemkarian, US Senate Tim Kalemkarian, US House Tim Kalemkarian: best major candidate.
Besides, it's a fact that moral choices can be made without resort to God. It's a fact that believers need to deal with ...,
In other words, they have got to get with the secular program and the public school is just the place to learn that. Maybe they should and it is, but the point is that believers do not buy into that. They may see that people do make moral choices without God, but they believe that to do so is wrong and denied to them. They may regard things like "values clarification" and even some forms of environmentalism as fundamentally inconsistent with their faith.
If that's so, then why is their injury (if that's what it is) any different from the atheist who is forced to hear the G-word at graduation or the Presbyterian minister who does not like putting Christ's words on the things of Caesar?
As for "overt hostility," the point is that some people try to avoid this problem by saying that the state has not taken a position on a religious question as long as it does not expressly state that the religious view that is being excluded from public discussion is wrong. But telling believers that their God is unnecessary in forming beliefs about the origins of life, when to have sex and how to make moral decisions is tantamount to saying that their God does not or might as well not exist. They won't perceive this as neutrality and they should not. So if neutrality - or "nonendorsement" - is what we are after, we've blown it.
In other words, they have got to get with the secular program and the public school is just the place to learn that.
For the record, those would be your other words. That isn't what I said at all. I personally don't care much whether believers understand that it's possible to make ethical determinations without purported guidance from scripture or personal conversations with God. Millions of people all over the world do it all the time. Simple recognition of a brute fact implies no agenda, or "getting with the secular program," as you put it.
Now that you mention it though, I do favor ethical philosophy, logic, and even comparative religion courses in the public school curricula. Provided they don't have the effect of respecting an establishment of religion, of course. Facts are good things, and there's no reason to be afraid of them.
Maybe they should and it is, but the point is that believers do not buy into that.
Lots of them do. Others believe the universe is 6,000 years old. People believe all sorts of nonsense, and there are all sorts of demonstrable facts that believers do not buy into. So what? The point is, government is not the appropriate apparatus with which to codify articles of religious faith. The home is. The church is. Or the guy in the station wagon with the bullhorn that drives up and down Wisconsin Ave. all day. (I saw him in McDonald's once, not exactly treating his body like a temple [I Cor. 6:19].)
They may see that people do make moral choices without God, but they believe that to do so is wrong and denied to them.
Huh? Nobody's denying anyone anything. And there's your unsupported assertion again, that neutrality places restrictions on believers, or denies their participation in policy making. Ridiculous. Where's my atheist Congressperson?
They may regard things like "values clarification" and even some forms of environmentalism as fundamentally inconsistent with their faith.
Undoubtedly. So what? I'm sure there are people for whom the entire concept of civil government is inconsistent with their faith. Tax protesters, for example. Or Fred Phelps. Or the Posse Comitatus fruitcakes that are continually filing tediously verbose, incoherent "motions" against local assistant district attorneys.
Anyway, you're all over the map. Now you're into Free Exercise territory, an entirely separate body of doctrine addressing diametrically opposed concerns. I'll check out your law review article and see if there's a series of connected premises in there.
The criticisms that I offer here are not really new with me and, as inconvenient as it might be to acknowledge, they are not limited to wild-eyed fundamentalists. They can't be addressed by the invocation of creationists and Fred Phelps (don't you get tired of that?) or the wielding of adjectives. I may be wrong but lots of very smart people have made vartiations of the same argument and it cannot be dismissed as "ridiculous."
The problem is the ambitious nature of the establishment clause in the era of Lemon and O'Connor's endorsement test. We require very little for establishment. Essentially, we want to say that no one needs to be exposed to any religious point of view if it is expressed by an actor or in a forum too closely associated with the state.
If what we want to do is establish secularism, that works and there are people who argue for precisely that. Perhaps you are one of them. But that's not what we purport to be doing. We claim to be after neutrality.
But how can we be neutral if government proposes to become involved in all sorts of things (and forget by young earth creationism) - character education, human sexuality, rehabilitation of criminals, treatment for addiction - which believers say cannot be addressed without reference to their faith. (Incidentally when I say that making moral choices without God is "denied to them," I mean that they believe they are not free to do so. It's not other people who deny them this, it is God that does so.)
You seem to be suggesting that there's no problem as long as they can practive their faith at home. But this really does confuse free exercise with establishment. Atheists can listen to a graduation prayer and then go home and be atheists. They still have their right of free exercise. But we haven't found that to be a sufficient response to an establishment clause claim.
Modern establishment clause theory says that response is insufficient because, in sponsoring the prayer, government has broken neutrality.
That isn't self-evident. The nonbelieving graduate needn't participate. He hasn't even been told by the state that it regards the prayer as true or as saying something that all should subscribe to. Yet simply being expsoed to something from which he might infer the believers are "favored" is constitutionally problematic.
That's biting off quite a piece. If the government that bans the school prayer turns around and says that it is going to teach kids how to think about sex or gender roles or whatever - but there are no religious perspectives allowed, hasn't it broken neutrality again? As Michael McConnell has written "if the public school and all its teachings are strictly secular, the child is likely to learn the lesson that religion is irrelevant to the significant things of this world ... Studious silence on a subject that parents may say touches all of life is an eloquent refutation."
I say that the answer to this is to give up. A neutrality that sensitive is impossible. We need a less ambitious definition of establishment.
The criticisms that I offer here are not really new with me and, as inconvenient as it might be to acknowledge, they are not limited to wild-eyed fundamentalists. They can't be addressed by the invocation of creationists and Fred Phelps (don't you get tired of that?) or the wielding of adjectives. I may be wrong but lots of very smart people have made variations of the same argument and it cannot be dismissed as "ridiculous."
What I characterized as ridiculous is the suggestion that neutrality, or non-endorsement, or whatever separationist doctrine you care to invoke has the effect of disenfranchising believers from the policy making process. I never said your criticisms per se are ridiculous.
What I did say is the fact that damn nigh 100% of our elected and appointed officials are believers of some stripe pretty much defeats that claim. The government, or the polity, for that matter, didn't suddenly become militant atheists upon the issuance of Everson or any of its progeny.
With or without our Establishment Clause jurisprudence, and with or without Justice Scalia's late night horror movie metaphors, candidates for every office in the land – including Democrats -- will be trumpeting the relative quality of their “faith” as a component of their suitability for election, and the vast majority of electors will accord it serious weight.
When James Inhofe gets on the Senate floor and asserts that U.S policy toward Israel should be crafted a certain way because YHWH (or was it the Elohim) “said so” in the Book of Genesis, no doubt the “Amens” outweigh the eye rolling by a considerable margin.
Even appointing nine Richard Dawkins' to the Supreme Court isn't going to change that. And no, I never get tired of invoking creationists, for several reasons, chief among which is their centrality to the religion clause debates. Fred Phelps, not so much.
I'll reply to the rest of your post, which engages some good points, at my own blog, since it's getting buried here.
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