A New Marxism

1/28/2012—When I was asked by Religion Dispatches what I expected to be working on next, after Church and State, I responded "I hope to be able one day to write a serious book challenging the assumptions of capitalism on behalf of a resurgent Marxism." So, as I wrote last September, I have been pondering what a resurgent Marxism might be like.

Well, I don’t have to ponder this question anymore. I just bought Envisioning Real Utopias by Erik Olin Wright. Wright is a Professor of Sociology at Wisconsin. In fact he is the current President of the American Sociological Association.

I have only read a few pages, but I can already tell this is a great book. Very readable. Very accessible. Wright’s basic themes are hope and democracy. Things can be different from the way they are and there are things we can do and actions we can take.

The problem with Occupy Wall Street was always its lack of vision. I don’t mean details but even hints. Did the protestors want a new world or a 25% marginal tax rate for the rich?

I have come to the conclusion that a new world must be the goal. Capitalism has done great things, but all in all, from its climate changing consumption, to its dehumanized consciousness, to its roller coaster recessions, to its outsized inequality, to its international competition, I don’t think it is worth it. There must be a better way.

I had an email exchange with Wright about the role of religion in all this. I told him that the secular/religion divide seemed to me to preventing the formation of a genuinely radical political coalition. I don’t think he will mind my repeating here part of his response: “it is important to transcend the false dichotomies of secular/religious is forging coalitions for social justice and social transformation. At the level of the deepest meanings that make life coherent and humane the distance between religious and secular sensibilities is often negligible.”

I couldn’t have said it better. In fact I never have said it better.

Who is Ready to be Secular?

1/25/2012—I am now working on a series of reflections that will become a paper for the April 13, colloquium at Duquesne Law School, at which representatives from three law schools will present forms of works in progress. My contribution will be entitled The End of Religion in Law, and it will flow from a précis I posted here at the end of December (see below).

There are three parts to the end of religion, just as Charles Taylor suggested different aspects of a secular age that he labeled secularity 1, 2 and 3, in his book, A Secular Age. In one sense, the end of religion refers to the decline of influence of religious ways of thinking and being—and that is the aspect I am referring to here.

Who is best suited for considering law in such a secular age? Among law professors, you run into three types in terms of foundations of law: the altogether secular, who want to ground law without religious foundations, the liberal religious, who may follow a religious traditions (or at least their kids go to synagogue or church) but for whom religion is irrelevant to public life (including law) and the religious who have come to the conclusion that God is not intervening directly in the world so their accounts of law cannot refer directly to religious categories. The fourth category of religious groundings of law exists, but I don’t run into it.

Of these three, it is the religious effort at secularity that is the most promising. The effort is like that of the pious physicist, who wants to understand the purely natural workings of the universe because it is God’s gift to us and His wish for us. (which is what most scientists in the West had traditionally been like—see Newton). This perspective ensures that science does not become reductively materialist and amoral.

The same is true in law. Without the trace of religion, law becomes arid and pointless, if not evil. I believe you can have that trace without belief in God. Buddhists have it and are not always theists (sometimes they are theists despite claims to the contrary). But first secularists have to see the value in such religious traces. Then you can start to have a hallowed secularism.

Jesus Hopped the 'A' Train

1/22/2012—Saturday night, I saw a play at the New Hazlett Theater on the Northside in Pittsburgh, just a few blocks from our house. It was a powerful experience. The play is set largely at Rikers Island and examines the relationship among two prisoners—Angel Cruz and Lucius Jenkins—a lawyer representing Cruz and two prison guards, D’Amico and Valdez.

It shows that I have religion on the brain that to me the central issue in the play is the role of religion, which was not much mentioned in Ben Brantley’s review of the play in the New York Times in 2000. On the other hand, why this title if not to suggest a look at religion.

The setup is that Jenkins is a serial killer about to be extradited to Florida for execution. He acts very much like he has found God and forgiveness since the killings, but we are not sure and the hint of Lucifer in his name just increases our doubts. Meanwhile, Cruz has shot a fraudulent cult leader in a sort of protest of the brainwashing of a friend. When the man dies later in the hospital, Cruz faces a serious murder trial that he has a good chance of winning. But Cruz feels tremendous guilt over his actions and, excessively, over everything wrong he has ever done. Before he leaves Rikers Island, Jenkins tempts Cruz to confess his guilt in the shooting in order to get right with God.

In the end, nothing seems to have been gained. The good guard is blind to Jenkins’ faults, the bad guard is filled with hatred, the lawyer whose motives are mixed is disbarred for suborning perjury, Jenkins is executed while high on drugs and Cruz is prison for a long stretch without achieving any forgiveness from the God he longs to touch.

Religion as portrayed in this play is a powerful, flawed crutch. Strong enough to mask pain for Jenkins and strong enough to push Cruz past gaming the system, but not good enough or true enough to bring redemption and transformation. The one character who protests the misuse of religion is Valdez, the bad guard, but his righteous protestations mask his own sadism.

On the other hand, religion is the only thing these characters have. The characters who lack religion—D’Amico, the good guard and Cruz’s lawyer—lack any sense of who they are and may be the furthest from transformation. Or maybe they need it less, in which case religion is a problem rather than a help.

Without religion, Jenkins is just demons. Cruz, a street vigilante. With religion, they might be more.

One Market Under God

1/21/2012—Kevin Kruse, Associate Professor of history at Princeton, hyped his upcoming book, One Nation Under God: Corporations, Christianity, and the Rise of the Religious Right, by writing a piece on January 17, on the New York Times blog, Campaign Stops. I hope the book is better than the column.

The basic idea is that the rich try to align their good fortune with the will of God. That is certainly true and is a criticism that has often been made of Protestantism in particular under the rubric of the Gospel of Prosperity.

While the idea that God loves the rich is a weird deformation of Jesus’ message—putting the camel before the horse, actually—there is a serious theological case to be made against the state-worship of the left, which would have horrified Marx. (Marx was at base a kind of libertarian, at least in theory).

But nothing of all this has anything to do with one Nation under God in the Pledge of Allegiance. I told the story of how that happened in Huffington Post last May, but it bears repeating apparently:

There used to be a tradition, adhered to by some presidents, of honoring Abraham Lincoln's birthday by sitting in Lincoln's pew at New York Avenue Presbyterian Church on the Sunday nearest February 12. On February 7, 1954, President Eisenhower was in that pew and listened to a sermon by George MacPherson Docherty in which Docherty repeated the -- possibly apocryphal -- story that Lincoln added the words "under God" to the Gettysburg Address to show that America's might lay not in military power, but in its spirit and higher purpose and that these same words should therefore be added to the Pledge of Allegiance. Eisenhower agreed and apparently arranged for a bill to be introduced to that effect the very next day.

Clearly, Docherty was referring to Lincoln, not corporations. I’m not claiming that this is unrelated to limited government and to freedom, which was precisely Lincoln’s hope—“that this nation, under God, shall have a new birth of freedom.” But Docherty was not specifically referring to capitalism.

This is why Kruse’s column is so confused, moving from one Nation under God to “freedom under God” to “government under God.” But these don’t all suggest the same thing. Maybe the book will be coherent.

But Why Can’t People Just Practice a Scientific Way of Life?

1/18/2011—I was talking to members of the Center for Inquiry in Pittsburgh about the power of religion, and its capacity to promote healthy ways of life, when someone asked the above question, why can’t we all practice science? I answered that the practice of science is inevitably only for an elite, not for everybody. I couldn’t practice it, for example.

I have been reflecting on this question, which now seems to me to be central to the implications of the growth of secularism. What would it mean to “practice” science as a way of life? In the final scene of the comic book about Richard Feynman by Jim Ottaviani, (as told by Freeman Dyson in the New York Review of Books, July 14, 2011) “Feynman is walking on a mountain trail with his friend Danny Hillis. Hillis says, ‘I’m sad because you’re going to die.’ Feynman replies, ‘Yeah, that bugs me sometimes too. But not as much as you think. See, when you get as old as I am, you start to realize that you’ve told most of the good stuff you know to other people anyway. Hey! I bet I can show you a better way home.’ And Hillis is left alone on the mountain.”

Telling good stuff you know to others is the life of a teacher. And it is a way of life, maybe even a scientific way of life. And it is perhaps open to more people than I would have thought.

But now consider the work of the writer Ann Beattie, reviewed in that same issue by Meghan O’Rourke. Listen to the wistfulness in the following:

“[T]he recent stories may be less radical than Beattie’s earlier work, but they also feel more substantial—full as ever of the old wit, they wrestle more openly with stark, affecting situations of loss, as the characters deal with a parent’s dementia (in ‘The Rabbit Hole as Likely Explanation’) or the death of a spouse (in ‘Coping Stones’). The men in ‘The Confidence Decoy’ and ‘Coping Stones,’ alone and heading into their late years, are trying to figure out something about themselves. In ‘Coping Stones,’ Cahill, an aging widower in Maine, discovers that his tenant (who has become a friend) is a child molester. It’s a crushing blow, and after his tenant is put in jail, Cahill reflects honestly on his own life, and his wife’s complaints that he never really ‘got involved’:

‘The sadness of family life. The erosion of love until only a little rim was left, and that, too, eventually crumbled. Rationalization: he had been no worse a father than many. No worse than a mediocre husband. That old saying about not being able to pick your family until you married and had your own…’”

Alone and aging. That is when the stories that religion tells and the community that it builds can bring some measure of peace with our human lives. This is what secularists dismissingly call “comfort.” But I doubt we are going to get very far as a civilization without something like it.

Visiting the Center for Inquiry

1/15/2012—It was a great deal of fun speaking to the Pittsburgh Chapter of the Center for Inquiry last Thursday night. My topic was a defense of the objectivity of values and a challenge in the relativism of American secularism—the same topic of my book, Church, State, and the Crisis in American Secularism.

But when I finished, the widespread reaction was, “we don’t know what secularists you’ve been speaking to, but we are committed to the scientific tradition, so of course we accept the concept of truth. And we don’t doubt that truth can apply to morality as well as to other realms of knowledge.”

So we talked about religion and truth. The people in this group are much more open to new ideas than are most of us. It turns out that there is real appreciation of the power of religion—and not in a negative sense—by a number of members, despite the reputation of the Center for opposition to religion.

In fact, one person told a story about an event honoring Daniel Dennett and his book, Breaking the Spell. A speaker told the assembled one hundred or so people to pinch themselves. Then they all stood up and sang Amazing Grace. Afterward, the pinches were repeated. And they did not hurt.

This story illustrates the power of myth and art and community. And it led me to ask how secularism is going to duplicate this power, this fulfillment. How is secularism going to teach love and self-sacrifice?

The Thursday event also led me to wonder, if the people of the Center can appreciate religion for its good qualities, even though critical of religion as well, then why celebrate a Daniel Dennett at all? Why root for the end of religion? To paraphrase Gamliel in the Book of Acts, if it is to be then it is to be.

The New Foundations of the Ministerial Exception

1/12/2012—There was something odd about the wonderful panel at the AALS Convention that debated the ministerial exception that the Supreme Court has now unanimously upheld. Two of the panelists arguing in favor of the exception, Chris Lund and Douglas Laycock, would not be considered pro-religion in the conventional sense—both believe for example that the Pledge of Allegiance is in principle unconstitutional. Their support of the ministerial exception could not really be based on history or the need for an unfettered religious presence in society. So, upon what was their support ultimately based—what underlying worldview was being urged? (It also struck me as odd that two supporters of employee rights would want to see the ministerial exception overturned, since the predictable consequence would have been to ultimately weaken employments rights for everyone, much as Justice Harlan once pointed out that applying the jury trial right to the States just meant the right no longer required a jury of twelve).

Although only mentioned once on the panel, I think the worldview at stake was the “two realms” understanding—that the State and the Church operate in separate domains. But there are problems with this view. First, we as a society do not really believe it. The King’s criminal law now reaches into the churches, fortunately, and a capitalist society will always ensure that ministers’ contracts are honored by churches, in court if necessary (as the majority opinion in Hosanna-Tabor predictably reserved).

But neither do religious believers accept the two realms. For separate realms can also mean marginalization of religion into a private realm. The next time believers want a national motto with the word God in it, the objection will be raised that State and Church are indeed separate, as the ministerial exception seems to imply.

The basis of the ministerial exception has to be something quite different—that it is precisely because churches do not operate in a separate realm that the ministerial exception stands for a limit on the omnipotence of the State in any of its activities (and this has been a defense of the symbolism of one Nation under God as well). Of course if this is the case, then in principle the ministerial exception could be available to groups that are not now considered religious and it suggests that Smith was wrongly decided since the Free Exercise Clause also stands for the proposition that the government is not omnipotent even in its legitimate activities. Smith’s justification is that, as a practical matter, judges do not know how to harmonize robust religious liberty with the legitimate needs of government.

The Ministerial Exception Must be Put on New Foundations

1/10/2012—I will be reporting a number of insights from the annual meeting of the AALS, the Association of American Law Schools, in Washington D.C. One important one for purposes of this blog is the future of the ministerial exception, being considered now by the Supreme Court in the employment discrimination case, Hosanna-Tabor v. EEOC.

Traditionally, churches enjoy a great amount of autonomy in their internal decision-making. The most obvious example is that while a private employer could not usually limit an employment class to one gender, the Roman Catholic Church can do exactly that in permitting only males to become Priests. Gender and other discrimination laws do not apply.

The question is, why is this the case? Hosanna-Tabor is a disability retaliation case, but the facts do not matter until one decides whether there even is a ministerial exception. Nothing in statutory law exempts churches and while people might have assumed that churches are protected by the free exercise clause of the Constitution, since 1990, the Supreme Court has held that there is no free exercise protection against generally applicable laws, that is, laws not aimed at the practice of religion.

The AALS held a panel on this topic on Saturday. Two law professors who filed an amicus brief in the case (Leslie Griffin and Caroline Corbin) argued that there is no ministerial exception. Churches are protected only to the extent that any other organization would be—either by the right of association enjoyed by all expressive groups or by employment law itself, which allows discrimination where the job qualifications require it.

On the other hand, one professor (Robert Tuttle) argued a relatively narrow ground for the ministerial exception based on an Establishment Clause prohibition against the government, including the courts, deciding religious questions.

But the most widely held position was argued by the remaining two professors (Christopher Lund, the moderator, and Douglas Laycock) that church autonomy is grounded in the inherent and traditional separation of the realm of the state from the realm of the church.

Undoubtedly, this last position is what most religious groups want the Court to say in the case. But there are two problems with it. First, this kind of basic separation has implications for government involvement with religion that churches usually oppose. If the church realm is separate and government must stay out, then church groups cannot have it both ways in the sense of faith-based providers receiving public funds or government putting up Ten Commandments displays. Of course this is also why staunch secular separationists might favor the separate realm approach—Lund advocates a fairly strict separation as does Laycock in the area of government use of religious imagery.

But the other problem is that we as a society do not practice the separate realm approach. As Tuttle pointed out, if a church simply refused to pay its minister her contractual salary, even on the basis that on reflection the past sermons had not been truly Christian, the minister would certainly be able to sue in an ordinary contract case. And, of course, we all know that the government’s criminal law now reaches into the churches, as it did not during the Middle Ages with the tradition of refuge from the law in the church itself.

Where this will end up I’m not at all sure. The Supreme Court is not going to strike down the ministerial exception and those who wish it to would be unhappy if it did. The result would then be a general weakening of employment discrimination law as courts bent over backward to protect church autonomy. On the other hand, the Middle Age are over.

I Have a Soft Spot for Rick Santorum

1/6/2012—Although I have been critical of Rick Santorum over the years—see 9/11/2010 below—I have a soft spot for him because of his commitment to fighting global poverty. While he was in the Senate, I don’t know of any campaign to help Africa that did not have his full support.

Unlike other Republican candidates for President, Santorum is not a capitalist first. And he is obviously sincere in his commitment to the poor, whatever differences one may have over tactics. I don’t know the specifics of his platform, but this is not a man who will lightly cut welfare and food stamps.

This is important to note because I am increasingly wondering about the commitment of the left to issues of economic justice, the occupy Wall Street movement notwithstanding. Ever since Bill Clinton ended welfare as we know it to the resounding silence on the left, the question arises whether the left is anything more than abortion and gay rights (for purposes of disclosure, I am pro-life and pro-gay marriage).

This comes to mind because of the hatchet job just done on Santorum by Sarah Posner, senior editor at Religion Dispatches (Santorum from the Religious Angle). The story skewers Santorum for all the usual reasons, but unconscionably for a story ostensibly about Santorum and religion, does not even mention his religious commitment to fighting poverty. Is poverty just not important to the left anymore unless we are talking about increasing taxes on the wealthy?

The story is unfair in other ways too. Santorum believes that secularism leads to a loss of social morale and low birth rates in Europe. All Posner does is make fun of that claim. But it is an empirical claim and is either correct or incorrect or a matter of interpretation. Loss of social morale does lead to low birth rates and Europe’s non-Muslim population is shrinking. It is not something to make fun of but discuss.

I am beginning to wonder about Posner and by extension Religion Dispatches, for which I have written quite happily in the past. Can they any longer write reasonably about conservative religion or is it now all polemic?

Jacques Berlinerblau’s anti-Religion List

1/3/2012—Jacques Berlinerblau, Director of the Program for Jewish Civilization at Georgetown, has listed on the Washington Posthttp://www.blogger.com/img/blank.gif On Faith blog, his list of Top 10 religion stories to watch. Two of these stories illustrate the needlessly adversarial tendencies of the academic left when it comes to religion.

The first is his praise of the decision of New York Mayor Michael Bloomberg not to allow clergy to speak at the tenth commemoration of the 9/11 attacks. What is so wonderful about that? Why is it not like saying he kept away poets? No wonder religious people believe that religion is under attack in America. Berlinerblau will not be satisfied until all religious images and references are banned in the public square.

Aside from that, it is likely that this principled stand that Berlinerblau admired had nothing to do with the separation of church and state and was simple prejudice to keep a Muslim cleric from speaking at the event. Berlinerblau is praising bigotry.

Number six on Berlinerblau is the failure of the effort by Bronx Household of Faith, from holding its Sunday services at Public School 15, where it has worshiped since 2002. The denial of a community group to use public property available to everyone else merely because the group is religious and its proposed use is religious is probably unconstitutional. We shall see.

But whether it is unconstitutional or not, this is discrimination against the private expression of religion. What business is it of the government what use I intend to make of public property when it is available to all? What’s next? Government censorship of unpopular messages at public parks? The use was on Sunday when any community group is permitted to use the space. If you don’t want religion, don’t open up government property to everyone else.

The Conflict Between the Catholic Church and Government Regulations

12/31/2011—The Illinois adoption controversy illustrates an important difference between accommodating religion and discriminating against taxpayers. Religious accommodation occurs when generally applicable laws contain religious exemptions. The classic case of accommodation occurred during Prohibition when religious use of wine was permitted. Accommodation is no longer usually constitutionally required under Employment Division v. Smith (1990)—although that may change with the decision of a pending case involving the ministerial exception—but accommodation is still widely practiced and is often required by statute. Accommodation, such as not forcing doctors to perform abortions, enhance religious liberty.

But what Catholic Charities in Illinois is seeking is in principle quite different. When President George W. Bush expanded faith-based programming, he did so with the clear understanding that religious groups that took government money to provide services, must serve all clients without religious distinction. There was no accommodation in the original program, nor could there be since the point was to allow religious groups to participate in public programs on an equal basis.

In contrast, Catholic Charities takes public money to provide adoption services but wants to exclude same-sex couples who have a legal right to adopt. This is a case of taking taxpayer money to discriminate against taxpayers.

In any context other than gay rights, this idea would be instantly rejected. Imagine if a church that opposed interracial marriage wanted public money to provide adoption services only to same race marriages. The idea would be rejected, of course.

Undoubtedly the Church here is sincere and in general no one wants to exclude religious organizations from providing public services (or at least I don’t). But the exception for religious conscience being considered by the Illinois legislature—“to allow faith-based agencies like Catholic Charities to decline to provide foster care and adoption services to applicants who ‘would constitute a violation of the organization's sincerely held religious beliefs’ and refer them to other agencies” (quoting a story on Huff Post)—would allow all kinds of discrimination that the public would find repugnant and should not have to pay for.

Enlisting the Help of Sam Harris

12/28/2011—I’ve been reading Sam Harris’ book, The Moral Landscape: How Science Can Determine Human Values, in which Harris defends the objectivity of values against moral relativism. He is clearly an ally in my work. I called moral relativism the crisis in American Secularism in my book, Church, State, and the Crisis in American Secularism. Harris would agree.

Here is how he puts the general issue: “Many people believe that something in the last few centuries of intellectual progress prevents us from speaking in terms of ‘moral truth’ and, therefore, from making cross-cultural moral judgments—or moral judgments at all. Having discussed this subject in a variety of public forums, I have heard from literally thousands of highly educated men and women that morality is a myth, that statements about human values are without truth conditions (and are, therefore, nonsensical), and that concepts like well-being and misery are so poorly defined, or so susceptible to personal whim and cultural influence, that it is impossible to know anything about them.”

So, what is the problem? Harris has a bug about religion. Religious believers are not moral relativists, so one would think, as I do, that they are allies in this fight. But they are not for Harris because they take morality from sources other than their own experience, informed by science Harris claims generally, but he admits that informed by rational thought would be enough.

Harris just won’t compare good religion with good nonreligion. All religions I know emphasize experience and encourage the believer to look to the signs of the times, as Jesus says. In Christianity this is called general revelation and it is available to all human beings. In fact, the scientific tradition arose out of the religious commitment that God made the world for humans to understand and in understanding the world we would better know God.

The basic orientation of religion to truth creates a problem for Harris when he quotes Einstein. Harris tries to debunk the Einstein quote—“science without religion is lame, religion without science is blind.” Harris points out in a footnote that this does not mean Einstein believed in God or accepted unjustified belief. True enough. But just look at the quote Harris is forced to use: “[S]cience can only be created by those who are thoroughly imbued with the aspiration toward truth and understanding. This source of feeling…springs from the sphere of religion.”

Harris has the nerve to call this aspiration “the primitive urge to understand the universe.” But here he exposes his elitism. Religion is the urge to understand the universe. As is science. I doubt science will be better at it. We shall see.

Harris does not examine his own biases. For example, Harris makes several slighting references to stem cell research opposition and abortion to show how unreasonable religion, and the Catholic Church in particular, are. But he admits that the potential as well as actual well-being of conscious creatures is his definition of morality. He does not do crude addition to compare killing one person to the well-being of the many. So, why is it irrational to oppose the killing of human beings at the earliest stages of their lives? Harris’ answer is that these beings are not yet “sentient and suffering human beings”. But of course by this argument it is less immoral to kill babies than adults, which is ridiculous, as Harris would probably admit (or would admit except for its consequences to his argument).

The word “potential” here is everything. Once a human being is created, that being is valuable as human. Yes, I may have to kill it, as in the unfortunate living undeveloped twin inside a healthy baby that Harris discusses on page 171. But Harris is stuck in principle promoting fetal organ farms. (I don’t mean he admits this). This is all the result of Harris’ bias against religion. It keeps him from honestly developing his own thinking.

The Waning of Christian Culture

12/24/2011—At this most holy time of the year, with the end of the year and the darkest days and nights, and the potential birth of new hope, I note the waning of Christian culture, at least in my neighborhood and experience. I have never heard so little of the Christian message at Christmas time. It was a shock to read the Classic Peanuts reference to the Gospel of Luke yesterday (Linus at a Christmas pageant).

We are entering a new world, it seems to me. And I was inspired to write a one-page work in progress below:

The End of Religion

The end of religion is a question rather than a statement. But I want to put the matter provocatively. The end of religion has three aspects: the secularization thesis and its implications for secularism; the special place of religion in constitutional law and discourse; and, treating the word “end” as ambiguous, the goal or telos of religion, especially as it relates to religious legal theory.

I don’t intend to debate the secularization thesis. The evidence of the decline in the power of the Christian myth to serve as the ordering principle of the West seems so strong to me as to be beyond debate. (I see it anecdotally in the classic Peanuts comic strip that still appear—when Linus quotes the Gospel of Luke in a Christmas pageant, Charles Schulz is invoking a practice of the 1950’s and 1960’s—no current mainstream comic strip would do the same.) Nevertheless, I am less concerned to convince anyone of what the future will bring, as to consider the implications of this decline. The relativism of American secularism and the ethical rootlessness of Chinese society, from which religion has been effectively banished until recently, are warning signs that secularism needs to think toward a new myth, one that takes the mystery of existence and the search for meaning as its focus. Naturalism, materialism and empiricism are not sufficient. Nor is capitalism. Nor is technology. Nor is Rawlsian liberalism, for society must be able to assert some substantive truths.

The end of religion also refers to the controversy in constitutional law about the uniqueness of religion, recently exemplified in the debate at Georgetown between Michael McConnell and Noah Feldman. Technically, this debate is pointless. Religion will remain special because the term is in the text of the Constitution, both to protect its practice and to forbid its establishment. What the debate demonstrates, however, is that the search for meaning, as Martha Nussbaum emphasizes, is a human and not a specialized, religious endeavor. But the implications of that insight are not, as defenders of religion fear, to denigrate religion, but to show its unique power. Religion is the human tradition that molds the human search for meaning into ways of life. Healthy ways of life. Where else but religion could a secularist look for aid and models in the task of forging a new myth?

But the key question about the end of religion is religion’s goal and responsibility. Attention to the protection of the believer and the continuation of the protected status of religion threaten to turn religious legal theory into a special interest group. While the religious traditions must minister to their own flocks, their primary end today is to follow the example of Dietrich Bonhoeffer, leading the world into a future without God. My fear is that we shall have to enter that future without the aid of the religious traditions, in which case it will be a dark future indeed.

Religious Revival in China

12/20/2011—Secularists need to take a look at Ian Johnson’s review of several books describing religious rebirth in China in the December 22, 2011 issue of the New York Review of Books. (China Gets Religion!) The review makes two surprising points: first, that traditional religion had been almost eradicated in China after the 1911 and Communist revolutions and that this had led to “a nation without an accepted code of moral obligations” that has had serious and negative effects on personal and social relations. Second, that the religious revival has had the effect of promoting challenges to the authoritarian regime—for example, Christians dominate the weiquan, the human rights lawyers who take on politically charged cases.

Ian Johnson writes about religion and culture and he is certainly basically sympathetic to religion, although not always so. But he is primarily a reporter and I doubt that his observations are mere fantasy.

The two basic points—that lack of religion harmed Chinese society and that the resurgence of religion is politically liberating—challenges American critiques of religion. The member of the Center for Inquiry, where I will be speaking next month, would assume that the absence of religion in a society would be liberating and politically progressive. Certainly, they would not accept such a formulation for our own society.

Maybe we need a new, more nuanced, account of religion.

Christopher Hitchens R.I.P.

12/16/2011—I was very sorry to read today of the death of Christopher Hitchens from cancer. Hitchens had been suffering from the disease for some time and he faced his death with grace and courage. Well, why not? He was familiar with the classic sources and undoubtedly resigned himself to death years ago.

Hitchens was no fool. But his writing about religion was simplistic. And his error was apparent in the title of his most famous book—God is not great: how religion poisons everything. Hitchens, though he assuredly knew better, confused God with religion. Many crimes are committed in the name of God. But they are committed by people. And the name of the very human associations that commit these crimes—along with all the good—is “religion”. Religions are not God. Even the concept of religion in general, whatever that is, is not God. God is God.

If I remember correctly, Hitchens had little to say about all the different meanings of the word, God. He was interested only in impossible dogmas. He needed God to be as implausible as possible because only then could he debunk religion.

But what if God is not implausible at all? The philosopher Ernst Cassirer, in the early Twentieth century, wrote about the new logic of Bertrand Russell. Cassirer argued that there must be a connection between math and experience. Only when we understand that the same fundamental syntheses on which math is based also govern empirical science will we be able “to speak of a firm lawful order behind the appearances… .”

What if God is the firm moral order behind the appearances? The irony is that Hitchens himself testified to his belief in such an ordering in many ways in his life. I’m just sorry he spent his life enjoying controversy rather than showing similarities.

The McConnell-Feldman Debate Over Religious Liberty

12/13/2011—I have just finished watching the 11/2 hour debate between Michael McConnell and Noah Feldman that was staged by the Berkley Center at Georgetown University under the heading, “What’s So Special About Religious Freedom?” McConnell argued that religion is special and should be given unique protections in law, while Feldman argued that religion is not different in any important way from other forms of conscience, specifically philosophical commitments, and that similar protections should be extended to them.

The debate was strangely theoretical. Feldman was not arguing that all these commitments are “religions” and should be protected under free exercise and/or restricted under establishment. And the people involved would often not want to make that claim since they are often secular in their orientation. So, protections for them would come, as they have been, from other portions of the first amendment, for example freedom of association. The point of the debate was whether, in theory, religion is different.

Yet for all the theory, we never heard what religion was. There was some dancing around that question, for instance there was discussion about whether Antigone was about a religious claim or a philosophical claim. But Feldman did not want to say that philosophy was religion, only that philosophy has just as good a claim for protection as does religion.

Missing from the debate was any relationship between philosophy and religion. It has often been said that Christianity was Plato for the masses, but you would never have known that.

There is something important in this debate, but I have not yet heard what it is. I am going to suggest that the commonality between religion and philosophy is in commitments to meaning in human life. But that would take this discussion in a different direction.

“But what if history has no logos?”

12/10/2011—I have been trying to show my fellow secularists, and religious believers, that there is common ground between us. This feeling people have that religion vs no religion is a chasm is quite false.

But what could this common ground be? I admit that there is a big difference between believing in God and an after life and not believing it. But I don’t mean by common ground that believers and nonbelievers really believe the same things.

I mean that believers and nonbelievers may be oriented toward reality in similar ways.

Here is a story that illustrates the point. It is the story of the disintegration of the neo-Kantian school of philosophy in Germany after WWI. But it is actually our story today, since we are heirs of this disaster.

Prior to WWI, the basic Enlightenment view in Germany was one of progress and potential in human life and history. The slaughter of the war made this view untenable. (The Civil War may have had something of a similar effect in the U.S.)

I am reading an intellectual biography of Ernst Cassirer, entitled The Last Philosopher of Culture. Cassirer was heir to the Marburg School of neo-Kantianism associated with Hermann Cohen, who died in 1918. It was this school's tradition in the person of Cassirer that lost out in the 1920's to positivism on the one hand and what the biographer, Edward Skidelsky, calls “irrationalism” on the other (he means Heidegger and I don’t think this is at all a fair view of him). Intellectually, this helped pave the way for the Nazis.

The Marburg school “displayed a quitessentially Hegelian confidence in the rationality and benevolence of the historical process”. (37) And that is true of most people in America today, indeed most people in the world.

The Weimar Republic came to grief because it could not answer the question—“But what if history has no logos? What if it is just the record of the crimes, follies, and vices of mankind?”

I want to bring this question to the Center for Inquiry. When we say, “In God We Trust” we are not just recognizing the historical commitment of monotheism—though we are doing that, which is the objection. We are also stating a commitment to the rationality and benevolence of the historical process. And if we don’t want to go the way of Weimar, that may be a commitment worth pondering. And I think worth making.

Why Do We Mourn?

12/5/2011—I’m in Florida looking at assets, thinking about my father and reading Leon Wieseltier’s 1998 book, Kaddish. Wieseltier is an orthodox raised, somewhat skeptical thinker, about my age. When his father died, he strictly followed the Jewish mourning custom of saying the mourner’s prayer, the Kaddish, three times a day in the company of ten Jews—only men in most of these synagogues.

I have mixed feelings about this book. The problem that it raises at its surface is whether or not to follow a very time-consuming tradition. This is a peculiarly Jewish issue, or at least an issue for certain Jews. It no longer makes sense to me. It’s like asking whether remodeling your house is spiritually enriching because it takes up all your time.

On the other hand, Wieseltier follows the path of his consciousness, which I am told is a blank spot for me. But couldn’t I just follow the path of my consciousness for a year?

Of course the Kaddish ritual adds Jewish religious philosophy to his thinking. But so does reading his book.

Here is an example of such philosophy. At the beginning of the book, Wieseltier quotes the Jewish Rabbi and thinker Nahmanides—“the religious genius of Spanish Jewry in the thirteenth century.” Nahmanides’s first answer to the question of why we mourn is this: “It was the destiny of man to live forever, but as a consequence of that ancient sin, human beings have gone down to the slaughter.” Death separates us from our true nature.

Wieseltier rejects this statement: it has little to do with the mourning of real people. But I think he is wrong about this. In my father’s case, no one could be sad that he finally died because he was frustrated and suffering. What I feel sad about is his decline, not his death. And so mortality is the issue.

Alone among animals, humans think about themselves. And I think Nahmanides is right that we think about ourselves living forever in some form or other. This if why religion is so plausible. And even if we know this is impossible, we still think of ourselves as participating in the circle of life, which is just another way of living forever. (And sometimes we write books under the illusion that a piece of us will thus live forever).

The Rituals of Mourning

12/22011—My father was buried on Tuesday in a graveside ceremony conducted according to orthodox Jewish rites. It was tremendously satisfying. The ritual gave order and seriousness that felt right for the occasion. One practice stays with me—the mourners take turns putting earth back onto the coffin in the ground until it is covered.

The French atheist, Andre Comte-Sponville, writes in his marvelous book, The Little Book of Atheist Spirituality, “A human being can't be buried like an animal or burned like a log.” That is exactly right. And that is what the funeral did for me—it marked the occasion.

Public ceremonies are like that, too and the question of ceremony is one that the law has been quite wooden about—treating all such practices as either religious or not and not identifying satisfying public ritual.

But if one is secular, where do such ceremonies come from? I spoke at my old synagogue Wednesday night, after I had returned. A man asked, after I left Judaism, where did I end up? I told him frankly, nowhere. But that I was trying to live this nowhere to be faithful to secularism itself—to see what there is there.

The man was surprised. He was polite but unimpressed. Then you have no authority, he said. You are a rudderless ship. Why should anyone listen to you?

I felt he had described the situation very well. For a secularist, it is not a matter of authority. Reality is the authority and all human institutions that interpret reality are just that—human inventions. That includes religion but it includes everything else as well. This is not a comfortable place, but it is ours, or at least those for whom this is what they see.

I told the man, it is not a matter of authority but persuasion for those in the same boat.


12/22011—My father was buried on Tuesday in a graveside ceremony conducted according to orthodox Jewish rites. It was tremendously satisfying. The ritual gave order and seriousness that felt right for the occasion. One practice stays with me—the mourners take turns putting earth back onto the coffin in the ground until it is covered.

The French atheist, Andre Comte-Sponville, writes in his marvelous book, The Little Book of Atheist Spirituality, “A human being can't be buried like an animal or burned like a log.” That is exactly right. And that is what the funeral did for me—it marked the occasion.

Public ceremonies are like that, too and the question of ceremony is one that the law has been quite wooden about—treating all such practices as either religious or not and not identifying satisfying public ritual.

But if one is secular, where do such ceremonies come from? I spoke at my old synagogue Wednesday night, after I had returned. A man asked, after I left Judaism, where did I end up? I told him frankly, nowhere. But that I was trying to live this nowhere to be faithful to secularism itself—to see what there is there.

The man was surprised. He was polite but unimpressed. Then you have no authority, he said. You are a rudderless ship. Why should anyone listen to you?

I felt he had described the situation very well. For a secularist, it is not a matter of authority. Reality is the authority and all human institutions that interpret reality are just that—human inventions. That includes religion but it includes everything else as well. This is not a comfortable place, but it is ours, or at least those for whom this is what they see.

I told the man, it is not a matter of authority but persuasion for those in the same boat.

Death for the Hallowed Secularist

11/28/2011—If I remember correctly, Pope Benedict recently stated that modern people are in despair over death. Obviously, he was suggesting that the promise of Christian life could be an antidote to this despair.

I am on my way to the funeral of my father, Nathan Ledewitz. Even though he lived to ripe age of 94, and lived a good life according to his lights, his death inevitably reminds me of the decline and death of all of us.

What can be said by a secularist about death? All living beings die. For that matter, all reality is transient. Even the sun will die. This universe too as far as we know. It is part of the rhythm of being.

Why does the Pope think this is a matter for despair? Why should my little ego survive and live forever?

It cannot be simply a religious distaste for death. For much of its history, Judaism had no notion of life after death in any form. Abraham was not promised anything but that his descendants would be a blessing after his death. In other words, the ongoing blessing of life was crucial, not Abraham himself.

All we can do is live the best life we can. And we can be grateful for life itself, which is a mysterious blessing we did nothing to merit.

Happy Secular Thanksgiving

11/24/2011—We all have blessings to give thanks for. And if we disagree about the nature of the giver, or even if the word giver makes any sense, we certainly cannot disagree about “gift” itself. We did not invent ourselves and we are not responsible for all that we are and have. If, as I hope. we are surrounded by love, we should give thanks, for we are not the agents of our good fortune. And if this is not a matter of good fortune, but of the graciousness of reality itself, then we should give thanks for that mystery as well.

Obama to Side With the Bishops

11/23/20111—That is how Sarah Posner put the matter yesterday in Religion Dispatches. (Story here). Posner’s report is remarkably harsh considering that what is at stake is coverage for contraceptive and abortion procedures that are not that expensive and are not likely to deter anyone from, for example, having an abortion. It is also a little surprising given that the opposition to these procedures is a matter of long-standing Catholic Church doctrine and is not being hyped to oppose Obamacare.

Posner, who is clearly speaking for many on these points, makes three basic claims. First, these institutions are not churches, which are already exempt, but “nominally religious employers” could claim the exemption. Second, non-Catholics, and liberal Catholics, are being bound by the religious beliefs of others. Finally, caving in to the Bishops sets a dangerous precedent for specious claims of religious liberty. Posner also observes that Democrats for Life, which made a statement about the intentions of President Obama, doesn’t really represent anybody.

Let’s ask first what is at stake here. Should the government require people to take actions that violate religious conscience? I assumed that the answer for everybody was no, not if we can help it. But now that I have read Posner, I am not sure. I now have the impression that Posner so hates either religion or the Catholic Church in particular that the answer to that question is no. (I would like to see broader, not narrower exemptions—not based on religion at all, but on conscience generally—even though that would raise difficult sincerity issues).

Who is Posner to call an institution nominally religious? The institution has to claim the exemption, so it presumably views itself as religious. This is not a context in which people who don’t care about religion are trying to gain some economic advantage, so it’s not a question of anyone lying.

But what about the non-Catholics and liberal Catholics who are being bound by the religious beliefs of others? But we’re not bound. I say we because I am a secularist teaching at a Catholic University. This is fortunately not a matter of conscience versus conscience. No one feels they have to have funding for these services mandated as a matter of their religion. They just don’t feel that using contraception or having an abortion violates their religion.

But the employer does feel that offering these services violates the religion of the institution. Those who work there already work pursuant to a religious calendar they do not believe in. We have chosen to work for an institution who religious beliefs, or in the case of Catholics for choice, whose interpretations of those beliefs, we do not share. But our rights are not infringed unless you believe we have a right to force others to act in violation of their beliefs—a very peculiar belief indeed.

There is no precedent set here in terms of other, weaker claims of religious liberty—such as faith based services. These religious institutions are afraid of being required to pay for medical services that violate their religious beliefs. Isn’t it disingenuous on the one hand to deny Republican claims that Obamacare expands abortion funding and then to oppose exempting religious institutions from a requirement that they actually pay for abortions for their employees?

And as for the snide observation that Democrats for Life does not represent anyone, Posner and others should not be so quick to take comfort in that. There are liberals who oppose abortion. I like to think I am one. Those are votes Democrats may need next November.

The Duquesne Secular Society

11/18/2011—Today’s Tribune Review continues a story that I first read about in the Duquesne Duke. The Student Government Association denied formal recognition to a group calling itself the Duquesne Secular Society, a decision the University supported.

The reason given by a University spokesperson was that “formally recognizing a student group whose main purpose is opposition to belief in God is not aligned with our mission”. The reason actually seemed reasonable to me, but that did not seem like a fair description of such a group.

I wrote to Nick Shadowen and suggested that if the group made it clear that its concern is not with religious believers but with students who are not believers and that the group’s purpose is to explore the resources of depth and meaning for people who are not religious believers, I thought the University would be happy to recognize the group. Nick wrote back that the purpose of the group is “open discussion on the existence of god”.

So, the university did not mischaracterize the purpose of the group. I’m sorry that once again, secularists think they are the truth and religion is the problem. Maybe we secularists should look at ourselves for a change.

[Readers of this blog will be aware that I have edited it to remove a reference to an email exchange betweeen Nick Shadowen and me that he felt both misrepresented the purposes of the group and made public an exchange that he considered private. I apologize for that and unlike the rest of the Internet, I'm pretty sure that this quiet corner will allow matters to disappear. I have also removed his comment in case it was prompted by the offending quotations. Of course Mr. Shadowen if free to comment again and I hope he will. I hope he does not consider his comment on the purpose of the group to be private and in any event it is consistent with public statements in the media.

That said, I repeat my main point. The purpose and thrust of all these secular organizations, including the one at Duquesne, is, as some secularists see it, to expose the falacies of religion to the light of reason. When called on it, these secularists insist they are not attacking religion, but all they mean is that the discussion should be fair and open.

There will not be a genuine secular society until religion is not in its mind at all. There will not be a secular society until its focus is entirely on the nature and potential of a secular society.]

A Secular Defense of Religious Exemptions

11/16/2011—The religious exemption front is heating up. Word is that Belmont Abbey College, a religious institution, is suing the Federal Government over restrictions on the religious exemption currently contained in Obamacare (that plans must offer contraception and sterilization with a current religious exemption deemed by the college to be too narrow). On a related front, the Department of Health and Human Services did not award a new contract to treat victims of sex trafficking to the U.S. Conference of Catholic Bishops under the National Human Trafficking Victim Assistance Program, because the USCCB refused to refer victims it treated for reproductive health care, including abortion and contraceptives.

As for law, there is some statutory obligation by the government to offer religious exemptions, but they have probably not been violated. Nor is there any right to government funding for faith-based services if the religious organization cannot for religious reasons offer all the services the government wants to contract for.

But the issues here are not really legal.

These stories are heating up in part because of the partisan atmosphere in Washington. Democrats and secularists generally are aware of the Catholic Church’s increasingly partisan stance. There is a perception that the Church has allowed its concerns over abortion to be used by purely political opponents of Obamacare.

But beyond that current political context, there are many secularists who have had it with religious exemptions. As far as they are concerned, if churches want to be employers, they should have to live with the law like everyone else. Many of their employees are not members of their faith and even those who are apparently would like the benefits the law specifies.

But let’s step back a bit. On a practical level, religious institutions have to be accommodated on Obamacare because there is no mandate to offer healthcare. Religious institutions apparently can opt out and offer money equivalents instead and their employees (like me) would then shop in the insurance exchanges, undoubtedly much worse off than at present. In addition, religious organizations offer terrific services under government contract and always have. The taxpayers usually get more bang for the buck with faith-based services.

On a deeper level, “conscience” exemptions don’t just favor religious believers. Since the Vietnam era draft cases, religious exemptions have been (or can be in the future) read as conscience clauses (“religion or its equivalent”). My concern is that such exemptions may prove unworkable in the future. But I certainly favor them in theory and I’m surprised that more secularists do not see the benefit in such conscience clauses. Of course, for me, this is all part of finding common-ground between believers and non-believers.

Veterans Day 2011

11/11/2011—A Somber Veterans Day to my readers. This culture is odd when it comes to veterans. We seem either to ignore them or to sentimentalize them. There are two reasons for this.

One is that, unlike the aftermath of WWII, when most people were either veterans or were the loved ones of veterans, veterans today are a special group. Therefore they can be used as support for certain kinds of issues or policies. So, Veterans Day can be a day to support American foreign policy or lobby for increased benefits for combat. In earlier times, when no group could readily “claim” veteran status for its own purposes, it was a day to reflect on the meaning of our country and the tragedy of human violence and terror.

The other reason is a related one. Because most of us are not veterans, we have little connection to war. So, it is difficult to relate in a serious way to the experience of war. This is a serious problem because it allows the culture to treat war as unreal. It is this lack of wartime experience that blithely allows torture of prisoners and drone killing and promotes unrealistic nationalism. The real experience of war is why Senator John McCain, a war hero, is a sometime critic of current policies. Perhaps it takes an Eisenhower to remind us that we cannot win a land war in Asia.

But for all that, I sense that people are grateful for the sacrifices we impose on our small group of warriors. I know I am. And I do grieve for the deaths of young people that we no longer publicly recognize for fear that it will undermine support for our wars.

So, I am at least going to try to thank a veteran today. Whatever we may think of American policy in the world, it would take a real optimist to think the world would be better off without our military.

Do Atheists Use the Word God?

11/9/2011—Chris Lund raised a very good point during the Establishment Clause Symposium at Duquesne last week. He was objecting to my suggestions that God is a word of rich meaning that nonbelievers can understand and relate to on nonreligious terms—that one Nation under God, for example, can mean a nation subject to standards of right and wrong (might does not make right). Chris said, “I don’t know any atheists who use the word God”.

I responded as I usually do, with examples. Readers of this blog have seen numerous examples, perhaps most recently—August 28, 2011, below—a blog post about the American Geologist Kinsley Fletcher Mather, who could represent an entire generation of religious naturalists. For such persons, the word God had a rich resonance suggesting regularity and benignity in reality.

Einstein is perhaps the best example of this phenomenon, since he was utterly rational, not at all religious, and meant something natural when he said, or was translated as saying, “God does not play dice with the universe.” I believe in German he said, Die Alte, “the old one” but apparently that is a term for God in German.

This is a crucial point to me because it points to the possibility of shared meaning, shared vocabulary, and thus common ground between believers and nonbelievers.

But I wonder if Chris might be right on another level. Just as in religious naturalism, there are today nonbelievers like me who do not shy away from the word God, while there are other nonbelievers (perhaps like Chris, but I don’t know if he is a nonbeliever) who would never use the term. And their underlying commitments and understandings of reality might, or might not, differ.

This difference needs to be explored. The question is, what do we mean when we refuse to use the word God? But the exploration has to take place in a secular context so there can be no misunderstanding. I need a metaphorical room of only nonbelievers who can then explore the limits of religious vocabulary—this shows the need for a secular caucus in law and beyond.

What is the Origin of the Separation of Church and State?

11/5/2011—In a sense, the separation of church and state goes back to the Two Cities of Augustine or even Jesus’ admonition to render to Caesar what belongs to Caesar and to God what belongs to God (except that Jesus probably thought everything belonged to God).

But the modern doctrine of separation probably goes back to the Reformation. As the story is told by James Reston, Jr. in his book, Defenders’ of the Faith, the Lutheran movement created the Augsburg Confession in June, 1530 in preparation for the Diet of Augsburg. The last article of the Confession was the separation of civil authority from church authority—“[T]he power of the Church and the civil power must not be confounded.”

Pretty clearly this article represented more than a theological commitment. There was a good chance that the Emperor, Charles V, would use military power to crush the Protestant movement and reimpose the authority of the Roman Catholic Church in Germany. The appeal to the separation of church and state was an attempt to preempt such an action.

It is true that such a mixing was felt to threaten the purity of the Church. But more important, the power of the sword should not be used to impose theological uniformity. The separation of church and state was, from the start, a protection of conscience.

The Establishment Clause in Shambles

11/2/2011-- [As a continuation of Saturday's blog entry] Just this past Monday, Justice Clarence Thomas, dissenting from the denial of certiorari review in a case involving the public display of crosses, [Utah Highway Patrol Organization v. American Atheists, Inc., __ S.Ct. __ (2011)] stated that “Establishment Clause jurisprudence [is] in shambles.” No one is going to dispute that statement. Not only is there uncertainty in doctrine in this field, but Supreme Court is buffeted by sociological and political trends, in which a growing American secularism seems eternally in conflict with an ever more assertive American religious commitment. It is not clear how social peace is ever going to be achieved in this highly contested area.

It is against this background that six scholars will gather tomorrow at Duquesne University School of Law to discuss the future of the Establishment Clause. I wish I could invite you all to be there, but we are actually full-up. (We should have picked a larger room). I will be blogging after the fact and for a few days afterward about the program and what I learned.

Roughly speaking, there are three divergent paths that the Supreme Court might take into the future. The Court might reinvigorate the dominant model of the past fifty years, variously referred to as government neutrality or separation. Or the Court might rethink that commitment and look anew at religion in the public square. A third possibility is one the Court has been utilizing recently—applying standing and justiciability standards in such a way as to preclude some plaintiffs from being heard in court.

For the names and backgrounds of the speakers, see the entry immediately below.

Why Any Change in the Establishment Clause?

10/29/2011—On Thursday, November 3, six legal scholars will gather at Duquesne University School of Law to debate the future of the Establishment Clause. Two speakers, Bruce Ledewitz, the author of this blog, and Christopher Lund, Assistant Professor of Law, Wayne State University Law School, will discuss possible futures for government neutrality toward religion. Two speakers, Samuel J. Levine, Professor of Law, and Director of the Jewish Law Institute, Touro College Jacob D. Fuchsberg Law Center and Zachary R. Calo, Associate Professor of Law, Valparaiso University School of Law, will address the future relationship of religion and government. Finally, Mark C. Rahdert, Charles Klein Professor of Law & Government, Temple University Beasley School of Law and Richard Albert, Assistant Professor of Law, Boston College Law School will consider the Supreme Court’s latest turn standing law to keep Establishment Clause cases out of court.

There is great interest in this event. Duquesne has had to close registration because we were receiving too many reservations for the space. There seems to be a feeling that we are on the verge of a momentous change in the way the courts decide issues of church and state.

Although all six scholars share the view, one way or another, that change in Establishment Clause jurisprudence is coming, I have begun to wonder just why I feel that way. Why can’t the Supreme Court just keep muddling through, lurching from one decision to the next?

Obviously, that could be the case. Nevertheless, there are several reasons to assume that some kind of change is imminent. For one thing, the Court seems to be closely divided between very different views, neither of which has managed to gain a coherent majority. Three Justices—Sotomayor, Kagan, and Ginsburg—seem ready to cut back on government religious expression. Four Justices—Scalia, Thomas, Alito and Chief Justice Roberts—seem ready to allow government to engage in more religious expression. Justices Kennedy and Breyer are harder to identify. If the latter Justices made up their minds, change would happen.

Second, the context seems unstable. Religion is politically dominant, but not so culturally. The culture seems increasingly hostile to religion or at least not mindful of it. But this is not so in the political realm. Can that continue to be the case?

Finally, there is a feeling among law professors that the only thing keeping the Court from moving is that no new approach seems to work. Therefore, law professors line up with their proposals.

The Election of “Islamist” Parties

10/25/2011—I read reports today that the “moderate” Islamist Party won the election in Tunisia. At the same time, a government spokesperson clarified remarks by the Interim Government in Lybia about basing future legislation in that country on the Qur’an. Western governments are said to be nervous about all this. There are continuing concerns about the influence of the Muslim Brotherhood in Egypt.

We should all be clear about what is and is not at stake in these issues. Islamic oriented parties are popular in the Arab world because these societies are pious and conservative. Islamic parties are genuinely popular and that is why they do well in elections. Insofar as these governments—or that of Turkey, which is in a similar boat—threaten an ally of the United States—Israel—or threaten violence against Americans or other westerners, America is entitled to have an opinion about these matters. But beyond that, it is really none of our concern.

What people are actually worried about is the fallout of genuine democracy. Insofar as elected governments pursue policies Americans don’t like, that is the business of the people of that country. Certainly we think, I think, that women should be treated equally and gays should not be discriminated against. But that is not going to be the case in these new democracies.

These discriminations are real and I am not minimizing them. I am only pointing out that they will come from democratic impulses in these societies. We have to have confidence that democracy itself will correct any abuses. I think history bears out this hope. Iran would have a very different government today if its people had real democracy.

The actual threat is that these Islamic parties do not have a long-tern commitment to democracy, that they intend one election only. But thus far, there is no evidence of that. Short of that threat, we should be happy that people are getting the policies they prefer. Democracy is the only long-term hope for peace.

Standing on God/Pleading With God

10/22/2011--I am in Chicago at the Loyola Law School Constitutional Law Colloquium. I gave a talk on the relationship between standing and pleading rules in Establishment Clause cases. I criticized the Supreme Court for its increasing refusal to hear Establishment Clause cases on the ground that plaintiffs lack standing. At a certain point, no one will be able to bring Establishment Clause cases, even against the very abuses of government endorsement of religion that inspired the Establishment Clause in the first place. I suggested that this is happening because of the difficulty of actually resolving the dilemma the Court is facing over the meaning of the Establishment Clause. The Court promised government neutrality toward religion and now perhaps wants to change that, but cannot muster a majority for any different approach.

I suggested that the answer is first a new understanding of the Establishment Clause that recognized the rich meaning of religious images, including their secular meaning. For readers of this blog, the substantive proposal is familiar from my new book, Church, State, and the Crisis in American Secularism, which I got to show around here at the Colloquium.

I added a technical twist yesterday, which I must admit will be of interest primarily to lawyers. If the meaning of the Establishment Clause changes, the nature of church/state legal challenges must change as well. Right now, a plaintiff can bring a purely legal challenge every time the government utilizes religious imagery. The ease with which this can be done perhaps explains the turn to standing to dismiss such cases.

But if religious images are sometimes permitted, and if the Supreme Court can explain coherently just when that is, the rules of bringing the challenges will change as well. The relevant case here is Bell Atlantic Corp. v. Twombly, which is a 2007 antitrust case that required pleading more facts before a claim can be brought.

Under my proposal, plaintiffs would have to plead facts to show that a particular use of a religious image is an endorsement of religion and not a nonreligious use. Some of the time that will be possible—as in the prominent and unique Christmas display that was mounted in the Allegheny County courthouse. But usually no such showing will be made because the government claims, plausibly, that the religious image in question is promoting nonreligious as well as religious values and there are no reasons to doubt that. Such cases would then be dismissed.

The Religious Exemption

10/19/2011—Stanley Fish wrote an op-ed column for the New York Times on Monday, entitled “Is Religion About the Law?” I’m not sure what point he really meant to make. Certainly the field is beset by difficulty, as he noted, but matters are not as problematic as he suggests.

In the first place, the headline is a classic case of putting the rabbit in the hat before taking it out. If there is a religious exemption to the reach of otherwise applicable law, such as the anti-discrimination law at issue in Hosanna-Tabor v EEOC, then the exemption is the law. Therefore, an exempted religion would not be above the law, but squarely within it. Thus, it is misleading to say the courts lack authority to look at church decisions. They may or may not but it is because the law so provides.

The second point is related. There may once have been an issue about separate sovereigns here, but no longer. If law recognizes a religious exemption, then it is only because the courts and the people have so decided. The jurisdiction of the modern state is not at issue. If you doubt it, try claiming refuge from the criminal law in a church, as once you could have done.

What Fish leaves out is the possibility of pretext. In HT, the teacher was allegedly fired for bringing suit against the school. Now if anyone else has brought suit without being fired, a jury would be justified in finding that the religious justification was not offered in good faith. Has anyone sued anyone other than the church without being terminated? Such evidence might not always be available, but it often will be and when it is, the tension of secular jurisdiction over a church is lessened.

The Catholic Church is clearly sincere when it refuses all women the right to be priests. No one doubts it. But what if, tomorrow, one Bishop refused one particular male who was disabled the right to be a priest? The Bishop says it is not because the man is disabled but because Catholic doctrine does not allow left-handed men to become priests. Yet there are left-handed priests now.

Some people would say that the courts cannot examine pretext even here, but I think the ministerial exemption requires sincerity and that there is limited authority in the courts to ensure it.

Are Things Getting Worse or Better?

10/13/2011—Since I am a critic of things—whether it is what I call the crisis in secularism in my book, or my call for a new look at Marx—it is good to be reminded of just how much progress there actually has been in human affairs over the past few centuries. The book is The Better Angels of Our Nature: Why Violence Has Declined, by Steven Pinker, professor of psychology at Harvard. The book was reviewed in the New York Times on Sunday, October 9, by the well-known professor of bioethics at Princeton, Peter Singer. As Singer puts it, “[t]he central thesis of [the book] is that our era is less violent, less cruel and more peaceful than any previous period of human existence.” According to Singer, to whom this argument does not come easily, Pinker makes a careful and persuasive case.

Not as clear, even to Pinker, are two questions that are more important than how we are doing right now. First, if Pinker’s claims are accurate, how and why did they happen? A lot of it has to do with the Enlightenment, according to Pinker, which is important, considering how much bad press the Enlightenment has been getting.

Second, will these positive trends continue? Pinker thinks they will, but he is not certain about that and admits that they may not.

But I want to raise a different issue, without having read the book. Just judging by the review—and I have a lot of confidence in the thoroughness and integrity of Peter Singer—there does not seem to be much in the book about the current environmental crisis. Yes, there may be less physical violence, but if we cannot manage to avoid ruining the Earth’s capacity to sustain human life well, that decline will not mean much.

What if the same Enlightenment thinking that has given us so much, is also at the heart of our inability to appreciate the common good that the earth represents? After all, the Enlightenment gave us, or helped give us, individualism and it is individualism that is hindering us from seeing this collective threat.

Why Does There Need to be a Ministerial Exception?

10/9/2011—For years, the lower courts have applied the so-called ministerial exception to allow churches and other religious groups to avoid application of some anti-discrimination laws. So, for example, a sex discrimination challenge by a woman who wanted to become a Catholic Priest would fail.

The courts have done this, however, in direct contradiction to a 1990 case, Employment Division v. Smith, in which the Supreme Court, in an opinion by Justice Scalia, of all people, held that generally applicable laws can never violate the Free Exercise Clause. The relationship between the ministerial exception and Smith has never been clear.

So, it was mildly amusing to note Justice Scalia's surprise at oral argument last week when the United States urged the Court to jettison the notion of a ministerial exception altogether and go to a balancing test instead, in Hosanna-Tabor v. EEOC, in which a woman charged that she was wrongfully dismissed from a teaching position at a Lutheran school. I believe that the teacher claimed she was dismissed because of a disability and the school claimed it was because she did not accept church teaching. Although denying that there was any discrimination, the church claims that anti-discrimination laws should not apply in this situation.

The odd thing about all this is the question of just where the ministerial exception comes from. The obvious answer is the Free Exercise Clause of the First Amendment, although Patrick Garry, the author of Wrestling With God, might say that it comes from the Establishment Clause (he argues that free exercise protects individual liberty, establishment protects institutional autonomy). But Smith says that the Free Exercise Clause has no application since anti-discrimination laws are generally applicable.

It is time for the Court to get out of the common law constitutionalism it is doing here and get back to the text, which is a strange thing to have to say to Justice Scalia. Time to overrule Smith and get the Free Exercise Clause back into the Constitution.

How Does Forgiveness of Sins Work?

10/6/2011—Today is eve of Kol Nidre (the eve of the eve of Yom Kippur). During the ten days between Rosh Hashanah and Yom Kippur, the Jew is supposed to engage in an intense activity of self-examination. Here is an example from an email I received from Alissa Flores at Beyt Tikkun, which is a Jewish Renewal Congregation associated with Tikkun publisher Rabbi Michael Lerner:

“Yom Kippur gives us the tremendous blessing and opportunity to contemplate death before it occurs-- to even rehearse our deaths by wearing white, by fasting, by abstaining from material pleasures--so that it doesn’t hit us by surprise. It gives us the opportunity—once a year-- to tie up the loose ends, to finish unfinished business, to say our ‘I’m sorry’s’, ‘I forgive you’s’ and ‘I love you’s’, which, when we come to our death beds, we’d wished we’d said. And it gives us the opportunity to reflect honestly on our lives—to contemplate if we are where we want to be and if not, what we’d like to change. It’s an opportunity for a wake-up call without having to go through the kind of catastrophic event that often wakes people up.”

The apparatus of Yom Kippur—fasting, prayer, silence—is helpful in achieving self-examination, of waking up as Alissa puts it. But the holiday is also pretty useless. As the liturgy notes, every year the same sins reemerge to be noted.

This raises two issues that are perhaps related. How is self-examination practiced? And how does forgiveness of sin happen?

The problem of self-examination is that I am the same smug person who committed the sin in the first place. If I recognize it now, I probably recognized it at the time. And if I didn’t then, I probably won’t now. The problem of forgiveness is that there is no person/god to forgive me, so what is all this about?

And yet forgiveness of sin happens as I know personally. And the myth of a god who forgives is a crucial step in forgiveness. If I believe in confession and the possibility of forgiveness, then forgiveness is possible.

This fact tells us something about reality. For the link between self-examination and forgiveness of sin is what Heidegger called gelassenheit. When I trust in God, I am free to let all my defenses down. This helps me see myself warts and all. And I am free to trust God to forgive me, no matter what. This frees me to self-insight I could not otherwise achieve. I empty myself of pretension before God.

Is this kind of trust in reality possible without the God myth? I think so, but maybe only if I have been trained in that myth or an alternative myth first. Certainly secular life needs forgiveness.

The Problem of Nonpreferentialism

10/1/2011—Professor Patrick Garry is coming to Duquesne Law School on Octobe 5 to speak to the Federalist Society on church/state issues. Professor Garry is the author of Wrestling With God: The Courts' Tortuous Treatment of Religion. He argues that the Constitution is pro-religion, not pro-secularism and that the Establishment Clause protects religious institutions from government interference; it does not protect nonbelievers from the establishment of religion in a general sense.

This position is called nonpreferentialism. It was well enunciated in American law in the dissent by then-Justice Rehnquist in Wallace v. Jaffree in 1985, the case prohibiting public schools from promoting silent prayer. According to Justice Rehnquist, the Establishment Clause was “designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects . . . [not as] requiring neutrality on the part of government between religion and irreligion.” I wrote the following about that dissent in 2009 in an article in Saint Mary’s Law Journal.

“This position--that government is permitted under the Establishment Clause to aid and endorse religion as against irreligion but is not permitted to discriminate among religions--is known as nonpreferentialism. It is a position with serious support in the legal academy, albeit with more critics Yet, even critics of nonpreferentialism seem resigned that the Court will move toward nonpreferentialism in the future.”

But I suggested in that article that this might not actually happen. Nonpreferentialism does not work in a genuinely pluralistic society.

“It turns out, however, that Jaffree was an anomalous case that masked the inherent contradiction within nonpreferentialism. As critics have noted, in practice nonpreferentialism cannot resolve the tension between endorsing religion over nonreligion and not discriminating among religions. Unfortunately, preference for religion over non-religion usually leads to discrimination among religions.”

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“The dilemma can be seen in Justice Scalia's dissent in McCreary County. [a case striking down a Ten Commandments display] Based on a fairly one-sided reading of American history, Justice Scalia argued in favor of nonpreferentialism in much the same way that Justice Rehnquist had done in Jaffree. As a kind of summary, Justice Scalia described the ‘principle that the government cannot favor religion over irreligion” as ‘demonstrably false.’

Immediately after that assertion, though, Justice Scalia was forced to confront the criticism that upholding a publicly owned Ten Commandments display ‘violates the principle that the government may not favor one religion over another.’ Obviously, this was a more significant challenge in the context of a biblical symbol like the Ten Commandments than of the silent prayer at issue in Jaffree. There are obviously religions that do not revere the Ten Commandments.

In responding to the religious discrimination challenge, Justice Scalia stated that the nondiscrimination principle is binding in some contexts but that it ‘necessarily applies in a more limited sense to public acknowledgment of the Creator.’ Even though some religions do not acknowledge such a divine Creator, ‘it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.’

Lest the reader imagine that Justice Scalia could not have meant what he seemed to be saying and that he surely meant to reinterpret ‘God’ language more broadly…Justice Scalia emphasized that he did indeed mean to privilege essentially the God of the Bible and, to be fair, maybe the God of the Qur'an, as well. Justice Scalia responded to the criticism in the majority opinion that his understanding of God was too small by observing:

‘This reaction would be more comprehensible if the Court could suggest what other God (in the singular, and with a capital G) there is, other than “the God of monotheism.” This is not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not); but it is inescapably the God of monotheism.’

...Justice Scalia put a candid stake in the heart of nonpreferentialism. According to Justice Scalia's approach, the words ‘under God’ in the Pledge of Allegiance would not be understood as including all believers, let alone nonbelievers. Seven million American non-monotheistic religious believers would be expressly excluded from our ‘One nation.’ Whatever this position is, it is certainly not nonpreferentialism. Justice Scalia is proposing a quite different resolution of the Establishment Clause crisis, and his proposed resolution demonstrates the failure of nonpreferentialism.”
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Douglas Laycock once wrote that “any answer to religious questions is religion.” And what are religious questions—I suppose they revolve around the mystery of existence. Ludwig Wittgenstein once called addressing this, living seriously.

Professor Garry rightly sees this kind of argument as usually manifesting cultural hostility toward religion—-because religion is everything, it is nothing. But I see it differently. I see instead that we are mostly all religious. The traditional religions, then, are advanced in dealing with the perennial questions of human existence. They are in a position to teach the rest of us.

The End of Religious Legal Theory

9/28/2011--the organizers of the third annual religious legal theory conference have graciously accepted my proposed paper for a panel presentation. I say graciously because the premise of my paper is the possibility that the category of religious legal theory is now outdated--either too broad if we really mean the God of the Bible or too narrow because belief can no longer be helpfully contrasted with nonbelief. We are all secularists or all religious now. Here is the paper proposal:

Paper Proposal: Does the Evolution of Religion Undermine Religious Legal Theory or Fulfill It?

Religious Legal Theory is premised upon an intelligible distinction between what is religious and what is not religious. But in a society in which ever larger numbers of people, especially among the young, claim to be “spiritual but not religious”, this distinction has become problematic. This paper will explore the implications of this new context for law and religion.

Some legal theorists, notably Christopher Eisgruber and Lawrence Sager, have elaborated equality models that would have the effect of transforming religious legal exemptions into exemptions based on “conscience” and otherwise argue against any special status for religion. Defenders of religion, for example Steven Smith, have opposed this tendency, wishing to maintain a special place for religious freedom.

Both sides have overlooked the inconsistency of equality approaches with the existing, special Establishment Clause prohibitions on the use by government of religious imagery. In the Establishment context, the sides tend to exchange their positions, with secularists arguing the special power/danger of religion and religious theorists arguing for equal treatment for religious imagery in government speech.

What is missing from this debate is a fresh consideration of the healthy possibilities that might emerge from ceasing to consider religion a category separate from other aspects of reality. The separation of church and state in a secular sense is a Christian invention. Other religious traditions do not conceptualize political life this way and, even within Christianity, voices like Dietrich Bonhoeffer and Raimon Panikkar have emphasized the sacred quality of this world without relying on a separate, religious realm.

As America becomes both more religiously diverse and more secular, it should become easier to treat traditional monotheistic claims as referring to this world, without sacrificing their supernatural meaning for monotheistic religious believers. One advantage of mixing religion and political life in this way is that secular thinking would not be as cut off from traditional religious insight as it is today and might thus develop stronger resources against materialism, relativism and despair. There might even be “a discovery of a hidden meaning of the present” available to all. On that day, religious legal theory would no longer be a species of special pleading for an interest group but would again become a source of spiritual sustenance for believers and nonbelievers alike.

Justice Scalia at Duquesne Law School

9/25/2011—Justice Scalia came to Duquesne Law School yesterday as the speaker at our centennial celebration. He was just as advertised: witty, charming, ideologically determined to root out all the influences of his “old friend” William Brennan from American constitutional law.

I had the same reaction to Justice Scalia’s claimed textualism yesterday that I have always had: it is not a method of interpretation, but an ideological form of politics masquerading as a method of interpretation. Therefore, it is not applied consistently, but selectively.

Why is inconsistency so damaging to Justice Scalia’s position? Because, as he would be the first to admit, a method of interpretation that one chooses on some occasions without clarity of rule about when it is to be invoked is no improvement on the nakedly normative to interpretation that Brennan practiced. It is not a method that removes normative judgment from judging.

Actually, Justice Scalia has already admitted that he is making normative judgments. Once, somewhere in his non-judicial writings, he called himself a minimal textualist who probably would not follow through if the results were sufficiently damaging to the Republic. This marks him as a sane judge, but also as a practitioner of the living constitution school. (Justice Scalia also looks to tradition since the Constitution or a provision was adopted, which is also a direct contradiction of textualism and something he refused to do with regard to guns in Heller, but I am making a different attack here).

Here are four examples from the caselaw of what I consider inconsistencies in method. To interpret “establishment” in the Establishment Clause, Justice Scalia looks to practices extent at the time of adoption of the first amendment. They worshipped God, therefore so can we. But they either did or certainly would have if the matter had come up, punished burning the American flag. So burning the flag cannot be free speech. But Justice Scalia held that it was protected.

Two: Equal Protection did not protect women from the discriminations of the common law—married women could not own property for example. Now of course it does. Justice Scalia admits that it does.

What has happened in these two examples is that we have come to see that the conceptions the founders had of speech and equality were faulty, so we have improved on them. That is the living constitution at work. Why not say that their conception of cruelty was faulty as well and find the death penalty unconstitutional? It would be the same “method”. (I could have made the same point about so-called regulatory takings, which I believe were unknown to the Constitution).

My third example is more technical. Justice Scalia interprets standing narrowly and makes no pretense of linking that conception of standing to any form of history or text. His view of standing is purely a political theory of limits on the judiciary. (and maybe a good one) The common law allowed much broader conceptions of who could sue and I doubt the modern, narrow approach can be justified.

Finally, Citizens United and the notion that corporations have constitutional rights. Here Justice Scalia has tried to say two things about history and text: that nothing in history allows the government to regulate the speech of persons in an association, including the corporate form. Second, that the text of the first amendment points to speech not speakers.

To be sure I am fair, here is how Wikipedia puts the Scalia dissent: Justice Scalia joined the opinion of the Court, but wrote a separate concurrence, joined by Justice Alito and by Justice Thomas in part. Scalia addressed Justice Stevens's dissent, specifically with regard to the notion that the court's decision was not supported by the original understanding of the First Amendment. Scalia stated that Stevens dissent was "in splendid isolation from the text of the First Amendment. It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form." He further considered the dissent’s exploration of the Framers’ views about the "role of corporations in society" to be misleading, and even if valid, irrelevant to the text. Scalia principally argued that the first amendment was written in "terms of speech, not speakers" and that "Its text offers no foothold for excluding any category of speaker."

As to the first point, Scalia’s history is wrong: at the time of the adoption of the Constitution and for a good while after, corporations were considered creatures of the state and could not have had rights against it. As to the second point, I scorn it because it should lead the Court to strike down political spending limits on China in American Presidential campaigns. Such a holding will never happen and Scalia knows it, so he can take his position in complete inconsistent irresponsibility.

More important than the failure of Scalia to follow textualism or originalism is the reason why he does not. His writing about corporations is instructive. He does not want the government to be able to silence the most trenchant critics of state policies, which are often corporations. This is a perfect example of the living constitution. The world has changed and if we are to keep our Republic, we now need corporations to counter government hegemony.

Maybe this is true. We could argue it. But it is not his claimed method. It is political philosophy. Justice Scalia: the new Bill Brennan.

Unions and the Separation of Church and State

9/22/2011—Peter Laarman, executive director of Progressive Christians Uniting, a network of activist individuals and congregations headquartered in Los Angeles and former labor organizer, wrote a piece on September 18 about religion and labor. ("Case Against Church-State Separation From Unlikely Source") (hyperlink unavailable: go to http://www.religiondispatches.org/archive/politics/5129/case_against_church-state_separation_from_unlikely_source/)

Laarman was discussing an article from the Journal Democracy entitled “The Church of Labor” written by Lew Daly, the author of God’s Economy, a 2009 book that argued in favor of the faith-based services initiative of President George Bush.

Daly has bigger fish to fry this time. His argument is that separation of church and state is connected to a predominantly Protestant ethos of individualism that is fundamentally hostile to all collective action, including unions. According to Laarman, Daly presents a “critique of the intertwining of free-market liberalism/Social Darwinism and ur-Protestant ideas about individual responsibility… .”

Daly’s basic idea is that rights based liberalism is a part of this individualist worldview. Unions, on the other hand, are founded out of a different view of the world—one that is based in human solidarity.

To this point, Laarman is in basic sympathy with Daly. He parts company over the connection Daly draws to the separation of church and state. In Daly’s prescription, legal and financial support for churches is also supportive of other associations, such as unions. Here is a quote from Daly’s article:

“In corporatist thinking, natural associations—including the family, religious bodies, occupational guilds and trade unions, and various other communal structures—should be legally enfranchised in their corporate nature, empowered as both subjects and creators of public policy, and protected as vital instruments of the common good.”

I can see why Laaarman is skeptical about support for churches leading to support for unions. Daly is describing a proposed cultural change and such changes do not proceed in a linear, cause and effect way. You might well end up eviscerating the separation of church and state and doing nothing at all for unions.

For me, Daly’s thinking and Laarman’s response raise two issues. First, just why is it that American Protestantism is so individualistic? Perhaps the greatest 20th century Protestant thinker, Karl Barth, was a Christian socialist and that has been a powerful movement in European history.

The second issue is cultural. Capitalism seems to require and foster individualism. This individualism may be destroying the notion of a common good and enshrining selfishness. How is that to be changed?