Spiritual Exercise #1

5/21/2013– – There are different ways to develop spiritual life. Meditation is one. Seeing and describing may be another.

I’m sitting here in the easy warmth of a spring warm spell in my shoebox courtyard with its brick floor, brick marked planting areas, back dominated by the great oak tree and the carport, empty now but reminiscent of Patt. I can see there’s always a breeze but the sun blocking house also blocks the wind, except when I can hear the leaves rustle. It’s too warm for the pugs, but maybe too lazy. Lazy, except for the workman shouts in the alley and the airplanes that motor overhead. On first glance it’s all mostly green—this short tree and the tall branching tree and the grasses and the plants—but on closer look very different shades of red everywhere—the brick the flowers, droopy now in the heat, and the flowerpots and the covers. Even the brown fence seems red. Then there is the silver and dirty white of the big wind chime and the hammock chair hanging from the tree. The chair now turned round to face the fence as if some invisible man has no interest in conversing today. I left out the chirping birds. They are always there, but quiet and happy. You only hear them when you think about it.

Religion, the Decline of Magic, and the Rise of Rationalism

5/19/2013 – – In today’s New York Times book review section, Hilary Mantel, the author of Wolf Hall, says that the book she most presses on other people is Religion and the Decline of Magic by Keith Thomas. I have not read Thomas’s book but you can get a pretty good idea apparently of its content, though not its quality, from the title. The book traces the struggle of 18th century Protestantism in England against magical practices and by extension against the sacraments and rituals of the Catholic Church.

[The struggle between magic and religion has contemporary manifestations as well. That struggle is one of the reasons that references to Christmas sound so jarring in the Harry Potter novels and movies. Those witches and wizards might fit Halloween, which is sort of about them, but their universe is completely alien to the Christ saga]

The reference to Thomas’s book suggested to me that you could easily write a sequel entitled Science and the Decline of Religion. The idea would be that just as Christianity struggled to rationalize monotheism by placing everything in the hands of God, science proceeded to rationalize still further by placing everything in the hands of natural laws. Or, in other words, just as earlier it turned out that you did not need magic to explain the world, it later became clear that you did not need religion either. Or something like that.

It turns out however that Thomas actually wrote both books. This is pointed out by a reviewer at Amazon who suggested the title of this post as an alternative title for Thomas’s book. This was no interpretive leap. This reviewer quoted Thomas toward the end of the book, page 765, as follows: "when the Devil was banished to Hell, God himself was confined to working through natural causes."

Up to this point, my so-called rationalist friends and critics would be nodding approval. Now, they would say, all we need is science.

The problem is that the science in question is, as the reviewer also notes, “mechanical philosophy.” It is the science of Newton. It is a science of billiard balls. It is, it has been said, the science of the mechanistic American constitutional structure. But this kind of science no longer exhausts science. It is not the science of quantum physics. It is not the science of the perhaps untestable multiverse. Nor, it should be added, is it the science of human experience.

This desire to treat mystery, meaning and telos as extrinsic to the universe is doomed to failure. The universe just is a place of mystery, meaning and telos. It turns out that mystery, meaning and telos cannot be banished, whether they are called magic or religion or even science.

Was Schempp Such a Triumph?

5/16/2013 – – On the weekend of September 27–29, 2013, the Department of Religious Studies at Indiana University–Bloomington is hosting a conference to examine the legacy of Abington v Schempp, the case that held mandatory Bible reading in public school unconstitutional 50 years ago.

The conference is interested in Schempp from the perspective of its authorization of the academic study of religion. This is perhaps an idiosyncratic view of the case. Certainly, the main thrust of Schempp was to banish the Bible from public school. Its implications for graduate study and University study of religion are really beside the point.

I have submitted a proposal for the conference that probably misses the focal point the organizers are interested in. For me, the question is, what was the ultimate meaning of banishing the Bible from public school?

On one level, Schempp was a triumph. After all, the reign of mandatory Bible reading was discriminatory and offensive to Catholics, Jews, other minority believers and of course to nonbelievers. Schempp ended all that and for that we must be grateful.

But Schempp also ushered in the era of value free education in public school. It is not at all clear that that era has been a success. Here is how I put that question in my proposed paper.

Challenging Law’s Nihilistic Vision for the Public Schools

The fiftieth anniversary of Schempp’s ban on Bible reading in the public schools is not cause for celebration. Although the case introduced the now familiar distinction under the Establishment Clause between teaching the truth of sectarian religious traditions and teaching about those traditions in an academic sense, Schempp can also be seen as the first step on the road to radical value skepticism in public school curricula. Bible reading was defended in Schempp on substantive moral grounds—as countering societal materialism—not just as a religious exercise. It is no surprise that the ban on teaching the Bible became, in 1992 in Lee v. Weisman, a ban on teaching in the public schools “that there is an ethic and a morality which transcend human invention.” The consequence of Schempp was that any assertion of moral realism was considered to be religious.

It is doubtful that the Justices on the Supreme Court were aware of their descent into value skepticism. Their nihilism was unconscious and unthought. But their unconscious skepticism was evidently shared by school districts nationally. Even the modest curriculum of comparative religion and the literary study of religious texts suggested in Schempp did not emerge. Today, Schempp’s shadow clouds all efforts in the public schools at character formation and the promotion of the meaningfulness of existence. Even the controversy over the teaching of evolution can be understood not as the insistence on biblical literalism, but as a protest against an aggressive scientism that presents life and its development as accident and contingency, denying the possibility of any telos in the universe, however secular and scientifically grounded its form. The time has come to challenge Schempp and Schempp’s later developments by introducing an expressly value laden, nonsectarian curriculum into the public schools.

Is Obama Nixon?

5/12/2013 – – I was disappointed when Obama’s foreign policy turned out to reflect the foreign policy of George Bush. But I am really outraged if Obama’s domestic policy turns out to reflect the policies of Richard Nixon.

It was Nixon, you might remember, who sought to use the IRS to intimidate and harass political opponents. Nixon was not impeached and removed from office for doing this. But it was of a piece with his other activities that ultimately led to Watergate. He resigned in the face of almost certain impeachment and removal.

I did not see a story in the New York Times today about The IRS targeting Tea Party groups. This omission itself is troubling. You can only imagine that the story would have had legs if liberal groups were targeted by a conservative administration in the same way. In any event, I don’t really know what happened. There was a column by Ross Douthat in today’s New York Times that suggested that a “low-level” employee at the IRS was involved. If that is the case, then that person and that person's supervisors should be fired.

But if the White House was in any way involved, then Obama should face impeachment and removal. I would like to see some assurance that the White House knew nothing about this. But the truth is that the Obama administration is so politically savvy that I have a hard time believing that they White House was not involved.

It would be nice if for once people could approach an issue like this without regard to partisan politics. There is nothing more dangerous than an administration that uses the government bureaucracy that should be strictly nonpartisan for partisan ends. The idea that the IRS might treat a political opponent of the President at all differently from everybody else is a short route to dictatorship. And I don’t know why the President’s supporters, of which I count myself, are not much more enraged by this story.

It is possible that what happened here was a sincere belief by low-level officials that Tea Party organizations were misusing 501c(3) designations. In other words, these conservative organizations generally did not deserve tax exempt status under the law.

But it is a genuine threat to democracy when political opponents of the party in power are treated differently from everyone else. Even if this suspicion was the motivating factor behind these actions, the actions are still corrupt in a political sense. In other words, it is easy for a politician to believe quite sincerely that her opponents generally act unlawfully. Because it is so easy to believe that, it is extremely dangerous when politicians act on such suspicions.

Secular Discomfort at Shaming

5/9/2013 – – Yesterday, Judge Lester Nauhaus sentenced former Supreme Court Justice Joan Orie Melvin to 3 years house arrest to be followed by 2 years probation and a $55,000 fine. In addition, Judge Nauhaus required that the defendant apologize to former staff members and colleagues through a letter of apology to the entire judiciary accompanied by a photo of the former justice in handcuffs.

The sentence was controversial. I understood part of the controversy. Many people feel that she should have been sentenced to jail. What I find difficult to understand is the discomfort some people feel at the use of a sanction of shaming.

In the story in today’s Post-Gazette by Paula Reed Ward, Stephen Garvey, an expert on such sanctions, noted that these sanctions can be objected to on moral grounds – – that you should not humiliate and demean people. Then there was a comment by Gershen Kaufman to the effect that shaming causes psychic harm and and humiliates the whole kinship clan. This sanction was designed just to humiliate her.

Well of course it was. That was the whole point. Are we now at the point where sophisticated opinion is uncomfortable at proclaiming moral superiority even over a felon? This appears to me to be an instance of secular relativism gone mad.

I grant that there are fifth amendment issues. Even someone convicted of a crime has the right to maintain her innocence. However, Justice Orie Melvin was perfectly willing to say she was sorry in court in hopes of a lighter sentence. Why is this apology any different?

So, What Is Science As We Know It Is at an End?

5/5/2013–– There is a book review in today’s New York Times of Lee Smolin’s book, Time Reborn, From the Crisis in Physics to the Future of the Universe. The reviewer, Alan Lightman, is disturbed by Smolin’s book. For Lightman, asking the question of the conditions that made the Big Bang possible is both a triumph and a defeat. It is a triumph because previous generations had neither the wherewithal nor the accomplishment even to ask these questions. But it is also a defeat, because “if we must appeal to the existence of other universes – – unknown and unknowable – – to explain our universe, then science has progressed into a cul-de-sac with no scientific escape.”

What does Lightman mean by a “scientific escape”? Does he mean that there is no escape within the methodology of scientific materialism? Perhaps it is that kind of scientific method that is at limit. That would not necessarily mean an end, however, to scientific discovery and advancement.

I guess what I mean is that we may be coming to the end of everything narrow and fragmented. All the methodologies of positivism, including of course the methodologies of law, will have to be rethought in view of the interconnectedness of all things shown by quantum physics and argued by Smolin.

In particular, in regard to science, Martin Heidegger referred to the realms of Geist in Introduction to Metaphysics. But these realms did not include science. Science was limited, at least in that part of Heidegger’s thought, to reactionary cultural values or modern service to technology. There was no sense of Geist in regard to science. But maybe the mysterious connectivity of all things to which Smolin refers is Geist.

Nihilism and Science

5/2/2013 – – In a way, our current moment can be described as the intersection of nihilism and science. Both are powerful images and resources. Nihilism gives a sense of something ending in our time. The reliable sources of meaning, such as God, truth and reason, no longer seem so reliable. It is not clear to what the young give their loyalty and in what they hope. We have left many of the old forms, particularly the old forms of religion, behind. The many ongoing effort to obscure that are not persuasive. Nothing seems to have power to build civilization.

And yet there is science. I don’t mean by that the technological behemoth or even the intricate gadgetry of modernity. Nor am I paying homage to materialism, which is not an adequate account of reality. I mean basic science and basic exploration, such as the Mars probe. Science is the one realm that still delights and still surprises.

But how are these two phenomena related? Science was also part of the old world. Why has it not been discredited? Nor has nihilism been rendered impotent by scientific investigation.

The one who pointed the way to putting these two together – – nihilism and science – – is Martin Heidegger. Heidegger pointed out in Contributions to Philosophy that being is no thing, being is nothing. And nothing, or the nothing (das nichts), is more than just a nullity. The more the nothing is enriched, the more simple is being.

I don’t know how these fit together, if they do. But certainly nihilism has to do with the nothing. The question is, is science the search for being? Scientific materialism certainly is not that. But the kind of science that we can associate with Teilhard de Chardin may be. The quantum void before the Big Bang was nothing, but it was a roiling nothing, filled with hints, intimations and promise.

We Don’t Need Secularists, We Need Democrats

4/28/2013 – – A story today on the front page of the New York Times illustrates how unrealistic and out of touch our foreign policy has become in the Middle East. The story explains that the orientation of all the rebels in Syria toward Islam was making life difficult for the United States and reducing its influence. The United States has been looking for a secular opposition to the Asad regime. But in the end there was no secular opposition. All of the opposition represented the Sunni majority seeking a more Islam friendly Syria.

This fruitless search for secularists in a conservative, highly religious region, is doomed to failure. Obviously in this context a genuinely popular movement is going to be religious in some sense. We have made this mistake now in Egypt and Iraq and Afghanistan and most recently in Syria.

More significantly, the problem is not just that secularist popular movements don’t exist, but that the United States has no reason to be concerned about them. We should have one policy in the Middle East and elsewhere – – that policy should be the promotion of democracy. In the long run, only democracy will bring both public legitimacy and peace. It is true that in the short run genuinely popular movements are going to be more anti-Israel and anti-American than the autocratic regimes we have been supporting. But that will only be true the in the short run. In the long run, a democratic regime is going to seek peace with Israel because such a peace will be in the long-term interests of its people.

There is an issue about Islam and democracy. Morsi in Egypt is not yet reassuring about whether democracy can survive an Islamicly oriented government. But that is the question, not the fruitless search for secularists. The United States should be busy selling democracy among the rebels in Syria, not secularism.

The Coming Secularization of Islam

4/25/2013 – – Whether the end of the Wars of Religion in Europe, which began with the start of the Reformation in 1517, is reckoned as 1648 with the Peace of Westphalia, or as might have determined the worldview of the framers of the United States Constitution, with the Glorious Revolution in Great Britain in 1688, there was eventually an exhaustion and revulsion in Europe against the bloodshed sparked by religious differences.

This exhaustion at what religion had brought was a key element in the rapid secularization of Europe. In other words, religion, specifically Christianity, which had loomed so large in the Wars of Religion, caused secularization because of its fanaticism. By 1700, something like the secular society of Europe, in the sense of a secular public square, is emerging. With the onset of the American Revolution in 1776 and the French Revolution in 1789, a thoroughgoing public secularism is established. Religion is still important, crucially important, to millions. But never again is religion in Europe or in North America the source of universal bloodshed. Nor is it ever again the source of universal inspiration. Religion, Christianity, is secularized.

These thoughts are sparked by the carnage in Boston. We still do not know, or at least I do not, what motivated these two brothers to attack innocent runners and onlookers, what dark visions they served. But I am guessing that it had something to do with Chechnya and something to do with Islam. And even if that turns out not to be the case, it will still be understood as having been the case.

The relationship between Boston and the Wars of Religion is this: just as the bloodshed of the Wars of Religion discredited religion and convinced people generally that religion had to be tamed, privatized, and banished in a sense from the public square, just so the time is coming when Islam will be thoroughly discredited in the eyes of the world. Even in the eyes of believers. For Islam has brought an endless reign of violence, just as Christianity in Europe brought an endless reign of violence.

The secularization of Europe, which proceeded so rapidly to undermine the dominance of Christianity in Europe, could never have been predicted from a vantage point of 1648 or 1688. From that vantage point, Christianity seemed monolithically dominant. But once people began to judge Christianity as dangerous, its decline was inevitable.

In the same way, Islam today seems enormous and well-established and dominant. But what the world sees is that the most vociferous devotees to Islam take up not only war, not only violent resistance to political oppression, but mindless and cowardly destruction of public buses and the murder of innocent eight-year-olds and women who are merely watching a race. The justice or injustice of these campaigns, their roots in genuine national self-determination, are all eventually beside the point, just as the justice of the individual Wars of Religion in Europe and the grievances of each side were eventually seen as irrelevant.

And so, what I expect to happen is a rapid revulsion and turning away from Islam. That turning away will not immediately manifest in decline in numbers of adherents to Islam, just as it did not so manifest immediately in Europe. The turning away will manifest in an increasing willingness to endorse a secular public square, a concept totally alien to Islam today.

I do not mean by any of this to suggest of Islam is a violent religion or that these murderous fanatics are fair representatives of the tradition. I don’t mean that anymore than I believe that Christianity is a violent religion. It is not. It is a beautiful religion. But Christianity was still responsible for the Wars of Religion. And Islam is still responsible for the terrorism committed in its name. And, for that matter, Judaism is responsible for the settler movement in Israel, which manifests generally in this principle: the more committed one is to Judaism, the more likely it is that one refuses to recognize the legitimate rights of the Palestinian people. What could be more likely to discredit religion in the eyes of the young?

The Third Church/State Issues Symposium in Philadelphia

4/21/2013 – – Yesterday, the Lower Valley Chapter of Americans United for Separation of Church and State held a fabulous church state issues symposium. It was an all day affair with very impressive speakers. The keynote address was given by Barry Lynn, executive director of Americans United. He was witty and insightful as always.

I will have more to say about the symposium as I think about it but I was particularly taken by the openness of the speakers at the end of the program: Rogers Smith, Thomas Beers and Michael Meyerson. The speakers were wrestling with the potential for common ground between believers and nonbelievers. And the audience, composed remember of people dedicated to the separation of church and state, was very willing to listen and engage. I left the program was much greater hope that I have experienced before.

Here is my abstract from the program. As you can see, I was also speaking about common ground:

Are We All Really Mostly Religious?

Bruce Ledewitz

Americans are fighting today over religion. We always have. But today, that fighting contributes to the partisanship and anger, even hatred, in American political life.

On one level, we are fighting over government use of religion as a violation of the Establishment Clause and over laws that burden religious belief as a violation of the Free Exercise Clause.

But, at a deeper level, we are fighting over religion itself: whether it is good or bad, rational or irrational, reliable or illusion. We are struggling over whether we will be a religious or a secular nation. That fight cannot be settled. It can only be fruitlessly fought. I hope that through my question—are we all really mostly religious?—that fight can be transcended.

My question is tendentious. As someone who left Judaism, I know that, for many secularists, not being religious is crucial. Similarly, many liberal believers know they are religious, but still want strict separation of church and state and limits on religious exemptions.

But if we recognize religion as the matrix from which the questions surrounding the meaning of existence emerge, we will have more empathy for the differing paths that our questioning takes. Our hatreds may lessen.

The scope of religion requires that in the context of Free Exercise, practices that are not traditionally religious, must be protected. The Supreme Court has recognized this. But this same broad scope of religion also requires that some forms of religion must be permissible under the Establishment Clause.

Once, contesting an anti-abortion law, Ronald Dworkin called the law unconstitutionally religious because the government was claiming that human life is inherently valuable. That is a religious claim. But such a claim embraces almost all of us and cannot be banished from political life.

Boston

4/18/2013 – – I’ve been waiting to write about Boston to see if we might learn who was responsible for this crime. I admit that I have been hoping that the genesis of the act was domestic rather than foreign. I did not want to see all of Islam blamed for an attack perpetrated by a small group of criminals. We don’t yet know what happened. But there are larger issues so I thought it best to go ahead.

What does the violence of modern life mean? Each act, of course, has its own cause-and-effect. But what does the whole pattern mean, whether it is a movie theater or Newtown, Connecticut or the Boston Marathon?

Martin Heidegger called all of this in 1935 the “darkening of the world, the flight of the gods, the destruction of the earth, the reduction of human beings to a mass, the hatred and mistrust of everything creative and free… .” (Introduction to Metaphysics, 40) Heidegger linked all of this to Nietzsche, who wrote about the death of God. This death of God had nothing to do with atheism. God for Nietzsche was a representation of the entire ideal realm. He meant that we had lost, at least in the West, all sense of measure by which to orient ourselves. We no longer have a real answer to the question, What’s the use? All the old measures that we trot out, including God and including Reason, are not convincing anymore.

Heidegger attributed all this to what he called the forgetfulness of Being. But neither you nor I are ready yet for that. It is enough for now to know that we have lost something, something important, and we lack the means to retrieve it. We don’t even know what it is we have lost.

Cherry Picking Religious Liberty

4/13/2013 – – Catholic judges routinely grant civil divorces, even between two Catholic partners who had been married in the Church. Does it not seem that this is a direct challenge to the religious liberty of the judge? After all, the State is requiring the judge to undo the work of the Church in rather direct contradiction to the teachings of the Church.

This thought comes to mind because, increasingly, I have been thinking that Catholic opponents of gay marriage, who are insisting on religious exemptions from nondiscrimination laws with regard to gay married couples, are being awfully inconsistent. As a matter of law, there is nothing surprising and unusual in such inconsistency. The United States Supreme Court has reminded us that the government is not to try to enforce a theological consistency on the claimant for religious liberty. Nevertheless, the presence of inconsistency in this area could have a political implication as well as suggesting that religious liberty may not be as at stake as claimants for exemption have suggested.

It was an April 8 column by Ruth Ann Dailey in the Pittsburgh Post-Gazette that started me down this road. Daily has been suggesting for quite some time that the way out of the gay marriage problem is for the government to provide for civil unions for everybody. Marriage, on the other hand, would be the exclusive prerogative of religious bodies.

I admire Dailey’s effort. I’m not sure Church authorities would be very happy if their religious rituals had no secular effect, which is what Dailey’s proposal suggests to me. In other words, after I married in the Church, I would still have to go to the civil authorities for civil union – – perhaps I would only have to file a form. The churches have benefited from being granted secular authority to marry people in the eyes of the state. They would lose this authority if I understand Dailey’s proposal correctly.

I’m not sure that Dailey’s proposal solves the problem that she is dealing with. If the government granted civil union status to everybody, including gay couples, would Catholic charities then allow the gay couple to adopt?

But on another level, Dailey is suggesting that in the eyes of Catholics, gay couples cannot marry and this is the reason that some Catholics do not wish to cooperate in any way with gay marriage. But if that is the case, then how can such a Catholic cooperate in my marriage – – that of a once divorced Jew? Indeed, how can the Catholic cooperate with the nonmarried heterosexual couple who live together? I am referring to the well reported Washington state florist who refused to provide flowers for a same-sex wedding and is now being sued by the state of Washington. How come the florist would provide flowers at my wedding? And indeed how can the Catholic judge divorce a Church-married Catholic couple?

I belong to a small group of law professors who urge state legislatures to recognize gay marriage laws, but to provide religious exemptions. I joined this group out of a mix of pragmatic and principled grounds. The pragmatic ground is that religious exemptions promote acceptance of gay marriage. But I am no longer so sure of the ground principle. I’m no longer certain just why religious believers cannot cooperate with gay marriage when they can cooperate with other instances of apparent but religiously inauthentic marriages.

The Broadway Show, The Book of Mormon, is Sick

4/7/2013 – – I just came from watching the national tour version of The Book of Mormon. I left at the intermission and I feel I should take a shower. I admit I was worried about a show whose premise is making fun of Mormons, but the first part of the first act is pretty funny. It’s a jokey atmosphere because not that much is at stake. Making fun of the good-natured goofiness that these writers see in the Church of Latter-Day Saints can be very funny. It also helps that the Church advertises in the show bulletin, so the Mormons are not offended. Well, presumably.

But when the mission in the show gets to Uganda and there is real misery, I began to feel uncomfortable at the jokey atmosphere. And I guess I don’t find it that funny that people in their misery sing a song that translates, F* you God.

Then, toward the end of the first act, in order to set up a dramatic tension, a man is shot dead in the face and a dictator threatens female mutilation of every woman in the village. And it is still a jokey atmosphere. That’s when I left. And by the way I would like to apologize to a former student who asked me as I left the building how I liked the show and I told him. That was, as they say, self-righteousness walking.

At least the play The Producers understood that the jokes about Hitler were in terrible taste and the movie never showed any actually evil acts being performed. I don’t think Springtime for Hitler would’ve been regarded as funny if Jews were being gassed as it was being sung. Well, the Show the Book of Mormon is like that. I don’t know why everyone did not leave.

There can be humor in terrible conditions. Indeed humor in such a circumstance can be a saving grace. But, even so, misery itself is not funny.

Why Tolerate Religion?

4/4/2013 – – There is an odd disconnect in secular thinking about the relationship of religion in the public square. The disconnect appears prominently in the upcoming symposium, Why Tolerate Religion?, that will be held on Saturday, April 27 in Washington DC, sponsored by the Center for Inquiry Institute. I am sorry not to be attending.

Half of the program is devoted to the new and developing free exercise question of religious accommodation to generally applicable laws. This is the issue in cases involving a ministerial exception to disability laws or religious exemptions from the contraception mandate. Brian Leiter argues in his book, Why Tolerate Religion?, that there is no persuasive reason to treat religion any differently from any other claim of conscience.

Leiter would not see his proposal as an attack on religion. It is only a challenge to religion as a preferred realm. Leiter would say it is an equality model.

Leiter’s premise is probably false. Since the Vietnam war draft cases, deep, more or less nonreligious, claims of conscience have generally been recognized under religious exemptions. What perhaps has changed, is that nonreligious people, unlike the draft exemption applicants, are unwilling to apply for an exemption that is denominated as religious.

But whether Leiter is right or wrong, in practice his proposal is an attack on religion. For there is in Leiter’s work another premise, which is that even these claims of conscience, religious or secular, should generally yield to the claims of the state. Thus, as religious believers have often predicted, the result of lessening religious liberty is to lessen liberty for all. Equality is the starting point but the ending point is dominance by the state.

The disconnect is that at the same time the first part of the program challenges and interferes with private religious practice when that practice conflicts with generally applicable law, the second part of the program examines Legal and Political Challenges to Secular Government. The topic here presumably is the usual one of government use of religious images in the public square.

What is missing is any sort of consistency in neutrality and separation. For if government is to be genuinely secular, it should have nothing to do with religion. That would mean leaving churches and religious organizations alone. They should be free to choose their own ministers without interference by the state. They should be free to offer or not offer contraception benefits to their employees. The idea of secular government only makes sense when there is a private square in which religion is free to flourish on its own terms. But I’m pretty sure that this sense of room for religion will be entirely missing from the CFI Symposium.

The New Face of Nihilism

3/29/2013 – – David Brooks wrote an op-ed in the New York Times today entitled The Empirical Kids. He was describing the current generation of elite college students through the lens of a paper written by a student at Yale, where he is teaching.

The current generation of college students differ from those who grew up in the 1990s whom Brooks had described back in 2001. That earlier group was smart, hard-working and cautious.

Unlike them, however, current students did not grow up in the prosperity of the 1990s nor in the enthusiasm over the fall of the Soviet system. The current generation of college students grew up in the shadow of 9/11. They were seven or eight in 2001. They grew up with the moralistic rhetoric of President George W. Bush that led only to interminable conflict and, says Brooks, national humiliation.

Because of these experiences, the current generation distrusts moral claims. Instead, it is suggested, these students look for small gains that can be empirically verified, which generally they cannot be.

These students also experienced the financial crisis and came to view the capitalist system as brutal and unpredictable. They have also absorbed a feeling of national decline in which they lack confidence that they can compete in the global economy.

The most revealing quote in the piece is this one: “We are deeply resistant to idealism.” The promise of social movements does not seem to this group of students likely to be filled. Occupy Wall Street led to nothing. The Arab Spring seems mired in internecine conflict.

Brooks and this student writer apparently call this generation empirical. But that term does not seem to me at all to capture the spirit that Brooks describes. Rather this seems to me to be the new face of nihilism. This group of students does not really believe in anything and has no reason to. Things are a lot worse than I thought if this is the spirit of undergraduates at Yale.

Happy Passover and Holy Week

3/27/2013 – – Because I no longer celebrate the Passover holiday I lose track of the days of the Seder. Of course, no one in America can fail to note Good Friday and Easter, especially since I teach at a Catholic law school and school closes for the holiday.

So I want to wish all my religious readers the very happiest of holidays. I can see all around me how families reunite during this time of year.

I cannot myself say that I miss the Seder. I always found the food part to overwhelm the theology and religious teaching. I enjoyed Seders in my youth, especially singing them with my Dad, and I enjoyed them with my own children, of course.

For me, the most important line in all of the Old Testament concerns Passover, Exodus 23:9: “you shall not oppress a stranger: for you know the heart of a stranger, seeing you were strangers in the land of Egypt.”

It’s a little hard to believe that Jews and Muslims are at each other’s throats in the Middle East given this injunction. But just as clearly this teaching is for all of us and applies to the homeless here in Pittsburgh as much as it does in international affairs.

At the FSU Conference on Religion and Law in American History

3/23/2013 – – I will blog more tonight and tomorrow, when the conference is over, but the FSU Conference on Religion and Law in American History has just been fabulous. There were three panels yesterday: Intra-Religious Debates and Legal Identity; Islam, Rights, and Freedom; and Faith-based Initiatives in the Secular Age.

The first panel was rooted in mostly American legal history. The second was a very searching investigation of how Islam and Muslims are treated in the United States. It is not a pretty picture. Professor Winifred Sullivan, the well-known authority on lawn religion, responded to the second panel by raising the question of whether a greater sensitivity to religious beliefs, as opposed to changing the way people are treated in general, would improve matters.

The third panel race questions very close to those I have been discussing in Church, State, and the Crisis in American Secularism. The question was the use and role of religion in schools and prisons. Leslie Ribovich from Princeton discussed Thomas Lickona’s Educating for Character in terms very consonant with higher law secularism.

The scholars here are young and very accomplished. And the tone is very different because it is a conference sponsored by the Department of Religion rather than by law school. In other words this is a conference of religion and law, not law and religion.

Ronald Dworkin Seeks Common Ground for Religion

3/13/2013 – – In The New York Review of Books issue that arrived today, (April 4, 2013), there is an excerpt from a book by the late Ronald Dworkin that will be published later this year: Religion without God. In the excerpt, Dworkin argues for what he calls religious atheism, basically a commitment to objective values without the existence of a supernatural God.

In some ways, Dworkin is arguing for the kind of higher law secularism that was at the heart of my book, church, state, and the crisis in American secularism. Dworkin seems to be arguing that the commitment to objective values unites theists and many atheists. Of course, I have been seeking that kind of common ground for several years now.

I look forward to reading the book and I need to peruse the excerpt more closely. But there are two things about Dworkin’s argument that seem odd. First, it was Dworkin who, in 2006, pose the great divide between religion and non-religion. He asked whether we should be a religious society that tolerates nonbelief or a secular society that tolerates religion? There was nothing about him then that was seeking any sort of common ground.

Second, Dworkin relies heavily on David Hume’s distinction between fact and value. This distinction forces Dworkin to treat the existence of God as a fact, as opposed to a matter of value. But is God really like that? God would seem to be beyond the fact/value distinction, although Hume certainly agrees here with Dworkin.

In any event, Dworkin seems to be saying to theists and atheists, we disagree about God but can we not agree about the objectivity of values? Dworkin says faith in values is more important than beliefs about God. I’m not sure that anyone will agree about that.

I agree that most of us are religious. But I mean by that that belief in God and belief in values are similar beliefs. Dworkin is arguing that they are different. But then why is not the objectivity of value itself a fact?

The Executioner in Chief

3/10/2013 – – The hypocrisy of the Democratic Party, and the left generally, was spectacularly on display over the issue of drone attacks on American citizens on American soil. I saw this hypocrisy before, during the Clinton administration. Then the hypocrisy was the refusal to condemn a Democratic Party president over his sexual harassment of an internal. This time, of course, the hypocrisy is in service to a much more serious violation of American traditions, norms and law.

It should be an embarrassment that it took a Republican Party senator, Rand Paul, to confront the Obama administration over its unwillingness to renounce the right to kill American citizens by drone attacks on American soil, without arrest and without trial. And I would like to make it clear that I have always felt this way. I referred in class, before the Paul filibuster, to Pres. Obama as the executioner in chief.

The justifications offered for this “right” to execute Americans by drone are not at all convincing. Specifically, there is already authority for something like the necessity of shooting down a pirated airplane that is heading into an occupied area, as was the case on 9/11. Similarly, there is already authority in criminal law to shoot to kill and escaping criminal suspect under certain limited circumstances. There is no reason this could not be done by drone as well as by gun. But the authority to shoot and escaping suspect comes after the attempt to arrest the suspect, not instead of an attempt to arrest the suspect. A drone attack, conversely, is not a failed arrest but an assassination.

The larger lesson in the drone controversy, however, is a reminder that the suspicions of the right about government are by and large justified. This is not shocking. The ACLU exists after all because the left knows perfectly well that government is a dangerous enterprise. Nor is this a condemnation of government regulation or government redistribution of income. It is a reminder, however, that even in these endeavors government is not inherently trustworthy.

This is one reason why a basically private economy is preferable to one of government owned resources. Today in the New York Times, David Segal, in his column entitled the Haggler, savagely criticized the customer service actions of the Whirlpool Corporation. Segal could do this, and Whirlpool must really respond, because Whirlpool has competitors. And Whirlpool cannot respond by investigating Segal or by harassing him, at least not in any obvious way.

But what if Segal had been criticizing a government service instead? In part it would have been somewhat the same. But not entirely so. Charles G. Koch, who is so wrong on so much, likes to say corporations don’t have power. Only government has power because power means the power to coerce. It is a lesson worth remembering even though it does not mean everything that the Koch brothers believe it to mean.

On taking Ronald Dworkin Seriously

3/8/2013 – – Ronald Dworkin died on February 14, 2013. He was unquestionably a giant of postwar American jurisprudence, particularly constitutional jurisprudence. Dworkin’s insight that constitutional interpretation must apply fundamental moral principles constituted the major liberal counterweight to the various forms of conservative constitutional interpretation, such as original intent or textualism.

Dworkin’s commitment to moral principle was very much a higher law perspective. Thus, in a general way, Dworkin’s approach was always compatible with the underlying understanding of higher law upon which most of my work rests. Thus, in a sense, I am a follower of Ronald Dworkin.

The problem with Dworkin’s thought, however, is that over time, especially in his popular writing, such as in the New York Review of Books, Dworkin became nothing more than an apologist for conventional liberal commitments. At a certain point, he ceased having any original or interesting insights.

Dworkin was particularly insensitive to religious liberty. And, in my view, this was only because he viewed religious commitment as antagonistic to his favored position on abortion. That is an example of how result oriented he became.

Still, Dworkin’s accomplishments were great. And there is no other voice on the American left to counter conservative commitments that are justice result oriented and justice little thoughtful and creative.

Charles Taylor’s Error

3/6/2013 – – The greatness of Charles Taylor’s achievement in his book, A Secular Age, in 2007, is that Taylor allows us to see an error that he makes, which is also an error that everyone else is been making. Taylor assumes that as religion recedes—as the public realm becomes less religious, as people go to church less, as belief in God becomes merely a cultural option—what emerges is simply the secular. In other words, Taylor assumes that the secular is what you have when you no longer have religion. He assumes that the secular in this sense is the opposite of religion.

But if Taylor’s account were accurate, then the secular would become more firmly established as religion recedes. This, however, is not the case. The best way to describe the secular today is that “everything is up for grabs.” In the current era, in which, as Taylor writes, religious commitment is merely an option, all commitments have become merely an option.

The proper term for this age, therefore, is not A Secular Age, but the age of nihilism. From the perspective of nihilism, the religious and the secular are in the same boat. Both the religious and the secular are oriented toward ultimate meaning and are directed to opposition to nihilism.

Instead of a world divided between religion and the secular, it is more fruitful to see religion and the secular as 2 ways, not identical but related ways, of seeking the good, the true and beautiful. Thus, we should speak not of the secular and the religious, but rather of the secular/religious.

In contrast to the secular/religious, there is nihilism and all the forms of dealing with nihilism. The forms of dealing with nihilism have numerous manifestations, but they all deny that there is Truth.

In this new description, the New Atheists, seem pretty clearly on the side of the secular/religious, rather than coming out of nihilism. They all seem pretty committed to absolute truth, even if they lack a proper term for it.

An Open Letter to David Brooks

3/5/2013—Yesterday, the Pittsburgh Post-Gazette published 2 columns concerning the crisis in American secularism. One column was by Bishop David Zubic. It was entitled an oversupply of ‘nones’. Bishop Zubik lamented the growth of nonbelief and non-affiliation with religious traditions among so many Americans. But I think it is fair to say that Bishop Zubik had no strategy for reaching out other than to be open to reaching out. He treated Catholicism as a settled dogma and invited people back to it. This is of course generous and open on his part but essentially irrelevant.

New York Times columnist David Brooks, on the other hand, specifically contrasted American and Chinese approaches to education. (See column here). The column was entitled Learning Virtues. Brooks argued that Chinese understanding of education combines moral and ethical self-development along with cognitive achievement. American education, on the other hand, tends to ignore not only morality but self-development altogether. American education treats what is to be learned as objective and outside the person.

For Brooks, the cause of this division in the West is the tension between religion and science that we learned from the Greeks. Brooks contrasted the Western division of the good and the true with the holistic approach of Jewish study and Confucianism. I emailed to Brooks the open letter below not to disagree with his observations about American education, but to locate the cause of this phenomenon in capitalism and monotheism itself.
***********************
Dear Mr. Brooks:

Although I agree with your column in the Pittsburgh Post-Gazette on March 4, 2013, that American education, in contrast to Chinese education, separates self-development from knowledge—the good from the true—I’m sure that I am not the first to point out that your assumption of what caused this difference is probably incorrect. You laid the cause of this division in education to the skeptical scientific inquiry of Greek culture. But, according to Pierre Hadot, in the book What is Ancient Philosophy?, Greek learning strongly manifested the trait of self-development that you identify with Chinese education.

I am no expert in these matters, but undoubtedly the cause of the difference in educational approach between America and China must have something to do with the two great traditions that separate them: monotheism and capitalism, the two traditions to which you give loyalty.

The role that capitalism plays in dividing the true from the good would seem fairly obvious. Capitalism rewards achievement. It does not care about virtue. There are no sages in a capitalist society.

With regard to monotheism, you claim that Jewish Torah learning in general fuses the moral and the academic. I would not deny that that this is so in certain isolated aspects of that tradition, such as the Musar movement. But in general, Talmud learning was premised on a legal positivist style, not on the fusing of the good and the true. And in the texts that followed the Talmud, such as the Little Talmud and the Shulchan Aruch, the tendency to legal positivism only increased. This tendency may have come about, as it does in Islam today, because monotheism emphasizes obedience to the will of God.

When will you allow, Mr. Brooks, your sharp inquiring eye to develop into serious critique? If there is something wrong with American society, it is likely to be caused by something serious and widespread. It is likely to be caused, in other words, by something most people support. Your moderate criticisms are never going to be of any help.

Bruce Ledewitz

What is the Meaning of Faith Today?

3/3/2013--In 1935, Martin Heidegger presented a lecture course entitled Introduction to Metaphysics. Heidegger considered this work to be the fitting companion to his master work Being and Time. In Introduction to Metaphysics, Heidegger grapples with the question, “why are there beings at all instead of nothing?”

This question is the fundamental question for philosophy. But Heidegger asks whether “anyone for whom the Bible is divine revelation and truth” can really ask this question since such a person already has the answer. The answer to the question, why are there beings at all instead of nothing, is God.

But then Heidegger seems to suggest that the kind of faith that answers this fundamental question so easily is perhaps not faith at all. He writes, “if such faith does not continually expose itself to the possibility of unfaith, it is not faith but a convenience. It becomes an agreement with oneself to adhere in the future to a doctrine as something that has somehow been handed down. This is neither having faith nor questioning, but indifference – which can then, perhaps even with keen interest, busy itself with everything, with faith as well as with questioning.” (8)

Thus Heidegger gives us a kind of hierarchy. There is the philosopher, who does not claim to be a believer. The philosopher can, perhaps, with great effort and discernment, engage in genuine questioning. Then there is the religious believer, the Christian, who has a ready answer from the tradition to any possible question. Heidegger suggests that this is not genuine religious faith because it never can question. In fact what looks like faith is instead indifference. Finally, there is genuine faith, which proceeds in effect only from the possibility of unfaith. Thus Jesus can ask, why have you forsaken me?

The term that I have used, that for me points toward the lack of faith that masquerades as faith, is politicized faith. Politicized faith can be conservative or liberal. Politicized faith proceeds from pre-existing commitments rather than from an encounter with the living God.

Almost everyone in America seems to manifest politicized religion. This is true of liberal religion that endorses the welfare state. It is certainly true of conservative religion that opposes the contraception mandate of Obamacare. As Heidegger says, it is an agreement to adhere to a doctrine in the future that has already been handed down.

It is an open question whether genuine faith is even really possible today.

Farewell to Pope Benedict

3/1/2013--Yesterday was Pope Benedict’s last day as Pope. Benedict was never really understood. Among many people in the West, Benedict was seen as conservative and doctrinally harsh. But the truth is that was Benedict, alone among recent popes who was able to engage secularity. It is impossible to imagine anyone but Benedict debating Jurgen Habermas concerning the role of religion in Western society. And it was Benedict who gave a theological justification for tolerance among all the religions. It was Benedict who wrote that the Christian could not decide that the path to salvation lay only in Christianity. That was for God to say, not a human being.

Benedict wrote two very accessible works during his time as Pope. These were his two books about Jesus. Benedict stated that he did not write these books out of the teaching authority of the papacy. He wrote them, as it were, as a scholar. I don’t know any Catholics who actually read these two books. But if the church has any hope to a future, these books will become part of the curriculum for young people to understand the Gospels.

And it was Benedict who dared to call Islam to account for its anti-rational stance toward God. All that is remembered now from that event is the controversy that his remarks created. But Benedict was presenting a serious theological challenge to Islam. As I mentioned above, it was not Benedict’s purpose to contrast Islam’s view of God with that of Christianity. Rather he challenged Islam on its own terms to deal with God as a rational being. Not as a willful tyrant. Benedict’s way, rather than the way of military confrontation, is the path toward a pacific Islam.

So I for one say farewell to Benedict’s papacy with great sadness. And with tremendous admiration. Benedict was a man who did not need to be Pope. But we needed him to be Pope.

Heidegger and the Jews

2/28/2013—If you believe, as I do, that Martin Heidegger is the philosopher/theologian for the 21st century, then you have to deal with the fact that Heidegger joined the Nazi Party shortly after his election as Rector of the University of Freiburg in April, 1933. In his inaugural address as rector on May 27 he expressed his support for a German revolution, and in an article and a speech to the students from the same year he even supported Adolf Hitler. He did not resign from the Party until 1945.

Heidegger never offered a public apology for his involvement with Nazism, though he reportedly called it privately "the biggest stupidity of my life."

I think I understand joining the Party. Heidegger was always opposed to the conventional and was never supportive of liberal thought. I’m sure he flattered himself that he could lead Hitler to greatness—-Plato’s error. It did not take long for him to see that this was a mistake. Heidegger resigned from the rectorate in 1934.

I also think I understand the failure of public apology. Heidegger thought that Nazism, Communism and Capitalism were fundamentally (ontologically) identical. To see this, imagine the following: before you can burn people in ovens, you must reduce them to the status of useful reserves. But the West began the process of that kind of thinking about the world long before Hitler. Heidegger could never have really explained himself without falsely supporting that which he thought was at the heart of the Nazi atrocities.

But I could not go along with a thinker who was anti-Semitic. Heidegger denied that at the time of his joining the Party. And there are plenty of references in Contributions to Philosophy, which he wrote in secret from 1936-1938 and did not publish until after the War, to show his negative feelings about Nazism.

Nevertheless, it is reassuring to read a short reference in Contributions in which he makes fun of the regime’s views of the Jews. I came across this passage yesterday. Heidegger is discussing the nature of science (127). He writes:

"Sheer idiocy to say that experimental research is Nordic-Germanic and that rational research, on the contrary, is of foreign extraction! We would then have to resolve to number Newton and Leibnitz among the 'Jews.'"

I’m glad he put "Jews" here in quotation marks. Not only is this idea of Jewish science ridiculous to Heidegger, but so is the whole notion of threat by the Jews against Germany.

Time Off for Minor Surgery

2/22/2013—Blogging will resume next week.

No One Believes in Separation of Church and State

2/16/2013—In April I will be speaking in Philadelphia to a regional meeting of Americans United for the Separation of Church and State. This group is unusually open given our political hyper-partisanship. They are willing to listen to me speak in a way that challenges some, not all, of what they believe in.

I am working on the talk now. It will be about the common ground that exists between what we call religion and what we call nonbelief.

But I will begin with the observation that no one really is committed to separation of church and state beyond certain narrow practices—like giving public money to churches, which everyone opposes.

Obviously the religious right does not believe in separation. They want God plastered on every public occasion. They want public piety to be ostentatious, despite Jesus’ injunction to pray in secret.

Yet the right is not consistent. When it comes to the Obamacare contraception mandate, they plead that religion is a separate realm and that the institutions of religion should be exempt from the demands of law. But if religion is in the public square, why should churches and all believers get any special treatment? That should only happen if religion is separate.

In similar inconsistent fashion, the left, including Americans United, want to banish religion from the public square. Religion is separate. But, when churches and their related institutions want separate protection from general law, suddenly religion is no longer a separate realm. Suddenly, religion is to be treated just like everything else.

Now, I also do not believe generally in separation. But my reason is different. I don’t believe there really are two realms at all. Most of us are believers. Most of us believe in a real but invisible realm of values, such as the true and the beautiful and the good. When we say slavery is wrong, most of us mean wrong inherently and forever, not wrong because humans finally agreed it is wrong. Wrong from the point of view of the universe. And that is a religious view.

The Absurdity of Corporate Religious Freedom

2/12/2013--Kevin C. Walsh, an attorney in Richmond, VA, has written a blog entry (here) arguing that the Religious Freedom Restoration Act protects for-profit corporations from laws that substantially burden the exercise of religion. It is quite well done.

But it is a textual argument about the word person in the statute. Generally person in federal law includes corporations. And many religious organizations are in corporate form.

This is true. But Walsh does not ask what sense this would make. Citizen’s United, the case that held that corporations were protected by free speech in making campaign contributions, at least had the virtue that the arguments made by corporations might be something that voters should hear.

Religious liberty is quite different. It is a matter of conscience. Corporations do not have consciences. Corporations do not have religious beliefs.

Human beings who run corporations do have religious consciences. And I suppose one can imagine a human being who so identifies with a corporation that when the corporation violates the tenets of the human’s religion, it bothers the human.

But could this really be true of General Motors? Could it be true of Chevron?

And even in the case of a more tightly held corporation, the human being does not really identify that closely with the corporation. That is why the human being does not pay the debts of the corporation. That is the point of the corporate form. Surely this human being cannot argue that the corporation is an alter ego when it buys medical insurance but not when it runs up debts.

Where would this end? I’m sure there are corporations who similarly sincerely feel that unions violate their religious liberty.

Nihilism at Sports Illustrated

2/9/2013—No, I don’t mean the swim suit issue. I mean “Does God Care Who Wins the Super Bowl?”

Here’s how SI describes the article I am referring to: “In a special piece for SPORTS ILLUSTRATED, Mark Oppenheimer (@markopp1), religion columnist for The New York Times, tackles the paradox of big-time football: The sport with the biggest Christian presence, most famous Christian athletes and most religious leaders affiliated with teams features a culture that seemingly goes against the values of Christianity.”

The story is monumentally hypocritical. There is no real showing of any inconsistency with Christianity. Athletes associated with organized Christianity are shown to be caring and sensitive. All the story suggests by way of inconsistency is that there are anecdotes about individuals who call themselves Christians while being willing to maim their opponents. But this is not true of the groups that support Christianity or the most well-known Christian athletes.

Of course the sport is violent and the players rich. In that sense, there is a general inconsistency. But it is not obvious to most people that Christians must be pacifists and poor. No more inconsistency here than in the military or business.

In addition, there are in the story the usual sly, secular criticisms, such as public school demonstrations of religious enthusiasm.

But aside from all that, the article illustrates the deep nihilism of our culture. Obviously, the answer the article assumes is no, god does not care who wins the Super Bowl. And, indeed, all the Christians interviewed answered just that way. Athletes don’t pray to win games. They pray for health or for a good game and so forth.

But why should it be assumed that God Does Not Care Who Wins? The God of the Bible cares about everything. He knows every hair on my head. God wanted to look good vis a vis the gods of Egypt when he freed the Hebrews. Why would not the team with the most Christians win the game? (Some people thought that Tebow was being favored by God in this way.) If winning is irrelevant to God, why is not someone getting hurt equally irrelevant?

The story and the expected result is all part of our atheism. God is not really real to us. That is why we can say of something important to us that God does not care. If there is a God, He might care. And anyway, if there is a God, we cannot know what He wants.

Why Tolerate Conscience?

2/6/2013—The Center for Inquiry is conducting a symposium on Saturday, April 27, 2013 in Washington D.C., entitled, Why Tolerate Religion? The Symposium of course features Brian Leiter discussing his new book by that name.

The argument that religion deserves no special treatment compared to other claims of conscience sounds fair to most secularists. But listen to the rest of the description of Leiter’s argument in the program—“in his controversial new book Why Tolerate Religion? philosopher and legal scholar Brian Leiter argues that governments are wrong to single out religion and religious demands as deserving any special legal protection. Leiter contends that the reasons for tolerating religion are not specific to religion, and instead apply to all claims of conscience—and that governments are not required to grant exemptions of any kind, religious or otherwise, from laws that promote the general welfare.”

If this description is correct, a constant criticism by religious believers turns out to be correct. They have always said that first the government will oppress believers and then the government will go after everyone else. Well, that progression is just what this description sets forth. It is one thing to say that everybody should be protected in a sincere claim of conscience. Leiter’s general argument can be understood that way. But it now looks like Leiter’s position really is that no one should be protected from any law passed by the government.

Why this unquestioned devotion to the State? If we can grant accommodation to sincere claims of conscience against certain laws, why not do so?

Maybe this is not really Leiter’s point. But he undoubtedly allowed this description to go out. It brings to mind a variety of the statement by pastor Martin Niemöller. In this case, first they came for religious believers, but I wasn’t a religious believer. But then they came for me

The Response to Obama’s Contraception Initiative

2/3/2013—It’s been a disappointing reminder of the America’s hyperpartisanship to hear the grudging and resisting tone of the response to the Obama Administration’s new offer on the contraception mandate. Of the critics and litigation parties, only the Catholic Bishops have offered anything like openness to see whether any new rules might work as a compromise.

The most important aspect of the new proposal is its expansion of the exemption from the contraception mandate. The old proposal covered only churches, essentially, and now many and maybe most religiously affiliated nonprofits, like my own Duquesne University, appear now to be covered, or at least accommodated.

Of course some people say that the compromise itself is suspect because the requirement that insurance companies pay for the coverage without raising prices for the institution is impossible. But that position is ideological. The burden will be on those complaining to show actual costs to the institution.

And it is also true that for-profit businesses are still not covered by the exemption. That issue is going to have to go the US Supreme Court, since it would create an incentive to opt out for financial reasons and create quite a broad precedent for businesses that object on religious grounds to public policies—like union rules and nondiscrimination policies.

Having been a movement lawyer in death penalty cases, I wonder about the legal ethics of the Becket Fund for Religious Liberty. According to news reports—which may not be accurate—Kyle Duncan stated that the proposed rule “does nothing to protect the religious liberty of millions of Americans.” In context he may only have meant for-profit businesses, which is true. But Becket represents some parties who are included in the rule expansion. Their lawyers owe their clients strategies to benefit them and not just score political points. Two points made on the Becket website are

“For other religious non-profits, HHS proposes a convoluted ‘accommodation’ that may not resolve religious organizations’ objections to being coerced into providing contraceptives and abortifacients to their employees.

Finally, the long-awaited rule provides no concrete guidance for religious groups that are self-insured.”

Note the weasel words—“may not” and “concrete”. Some of their clients “may” be included and the self-insured "may" get relief when details are hashed out. A real lawyer would praise the expansion and try to get her client included—-not bash it and avoid negotiation. Death penalty lawyers take plea bargains when they can get them. They don’t litigate to show how unfair the death penalty is.

I guess I should not be surprised at the rejection by the National Right to Life Committee. They are only using the religious objection to aid their opposition to the whole idea of contraception coverage. They would only be satisfied if contraception were dropped from healthcare altogether.

Even the reactions of law professors broke down on essentially party lines. Where are the religious liberty proponents who will welcome the continuing efforts of the Obama Administration to carve an effective compromise? Of course by insisting on everything, religious liberty proponents may lose everything. But, as I heard at the AALS meeting last month, they expect to win in the Supreme Court. Maybe they will. Yet by resisting efforts to compromise and refusing to offer alternatives in negotiation, the cause of religious liberty may be the ultimate loser among the public.

Mind and Cosmos

1/30/2013—There is a new book out by Thomas Nagel, University Professor of Law and Philosophy at NYU, that is supportive of the general thrust of Hallowed Secularism. The book is entitled Mind and Cosmos: Why the Materialist Neo-Darwinian Conception of Nature Is Almost Certainly False. I have not yet read the book, as usual in these posts, but I have read H. Allen Orr’s review of the book in the New York Review of Books, in the February 7, 2013 issue (and I will be reading the book).

Nagel’s book seems to have three thrusts. First, that the Neo-Darwinian account of evolution fails to account for some or much of process of evolution. Second, that the laws of natural teleology in the universe may account for the rest of the process. And third, that any form of materialist reductionism cannot account for consciousness and therefore is seriously incomplete as a theory of the universe. These three claims are related but I cannot quite see the structure of the book simply from the review.

The book Hallowed Secularism begins with the notion of a telos for human beings. The Introduction quotes Sarah Blumenthal, a character in E.L. Doctorow’s novel, City of God, speaking about God as evolving. We human beings pursue a teleology, an ultimate purpose that we do not know but one that “has given us only one substantive indication of itself—that we…live in moral consequence.”

As for consciousness, Hallowed Secularism argues that materialism cannot account for it from a simple material explanation. There is something uncanny about any physical arrangement giving birth to self-consciousness. And materialism will never be able to explain it. There is no direct physical explanation.

Unlike Nagel, I don’t claim in the book, because I don’t know enough to say, that Neo-Darwinism has actually failed as an enterprise. I’m not sure that this is required before one can assert that there is more to the universe than the material.

What Was President Obama’s Speech About?

1/24/2013—President Obama’s Second Inaugural Address was pretty short on specifics. But such speeches usually are. Two references brought to mind the excitement he raised in 2008 when he acknowledged nonbelievers as part of the national fabric—the first time any President had done so on such a public occasion.

This time the acknowledgments were of gay rights and global warming—Obama called it climate change (I have never understood or supported that alternative term). But while nonbelievers really did not need much more than acknowledgment, that is not true to the same extent of gays and climate issues.

It is true to some extent. Both issues have been taboos, which of course they now no longer are. But both issues require action. In the case of gays, repeal of the Defense of Marriage Act. In the case of global warming, lots of actions. So we have to wait to see Obama’s substance.

Probably the most significant part of the President’s speech was his implied promise to defend “Medicare, and Medicaid, and Social Security.” Obama said we need to deal with the deficit, but how can that be done if changes to these big three entitlements are off the table? David Brooks criticized this aspect of Obama’s speech as “effectively to sacrifice the future to the past.” To some extent it seems that way to me also.

Jeffrey Tucker Defends the Morality of Markets at Duquesne University Talk

1/20/2013—Jeffrey Tucker, the Executive Editor at Laissez Faire Books, spoke at Duquesne University Friday night on the topic, Markets: Unjust or Moral? Unfortunately, I had to leave by 8 pm and missed the end of the talk and the Q&A. But what I heard before I left was very good indeed.

But the talk was not really about morality, but about the misconceptions many Catholics have about Catholic Social Teaching. The origin of this thrust from the Church beginning in the 19th century (often dated at 1891 with the issuance of the Encyclical Rerum Novarum by Pope Leo XIII, but, Tucker argued really originating somewhat earlier) was opposition to Marxism and nationalism. Pope Leo was defending civil society and liberty against these forces, much as economic conservatives do today in the face of overbearing government. Far from supporting what passes today for liberalism, Catholic Social Teaching originated as an effort to enhance morality and restrain the State. Rerum Novarum in particular embraced private property, free association and freedom of worship.

Tucker did not deny Pope Leo’s emphasis on the right to a just wage—nor for that matter Pope Benedict’s indictment of the excesses of financial capitalism. But Tucker emphasized that the Church could be incorrect about how markets are best regulated or wages best adjusted. There is no implied fallibility in the Church’s views on economics and public policy and no Pope since Pius IX has tried to claim such expertise.

I hope Tucker was questioned closely on his presentation. If I had been there, I would have asked him whether he viewed global warming as theft—Pope Leo did so view socialism and global warming seems to have similar characteristics (my acts deprive you of your property without your having any say).

I also wanted to ask him about his theory that there is no inherent conflict between nature and human development. Are humans then entitled to make any changes in nature and its creatures that they wish? Does nature then have no inherent independent dignity?

According to Duquesne Professor Antony Davies, Tucker’s talk is just a first step in an ongoing dialogue between Catholic Social Teaching and the philosophy of freedom. I will note on this blog what future programs are being offered.

I Agree With Some of the Words of Pastor Louie Giglio

1/17/2013—There are a lot of things said by Giglio in the anti-gay sermon from the mid-1990’s that led to his resignation from involvement in President Obama’s Inauguration. I don’t agree with much of it—that homosexuality is a sin, that it can be reversed through Jesus and so forth.

But what about this quote from the sermon that everyone cites as a large part of the problem with Giglio? “We must lovingly but firmly respond to the aggressive agenda of not all, but of many in the homosexual community. … Underneath this issue is a very powerful and aggressive moment. That movement is not a benevolent movement, it is a movement to seize by any means necessary the feeling and the mood of the day, to the point where the homosexual lifestyle becomes accepted as a norm in our society and is given full standing as any other lifestyle, as it relates to family.”

I hope that the gay rights movement is powerful and aggressive and is seizing the mood of the day by any means necessary so that homosexuality is given full standing as it relates to family. Isn’t that exactly what the gay rights movement and its straight allies are striving for? Full and complete acceptance of gays as citizens with the rights of all other citizens.

I know of course that Giglio meant what he said negatively, as something to be defeated. But at least this part of his sermon was not prejudice—it was acknowledgment of the stakes of the struggle over gay rights.

But those are the stakes. If you give gays an inch—overturning anti-sodomy laws, let’s say—they will take a mile—insisting on full equality. That is why Justice Scalia counseled keeping the anti-sodomy laws. But when our opponents claim that the goal of the gay rights movement is not just tolerance and acceptance, but full and equal rights, they are not being insulting, they are correctly describing the situation.

Why Tolerate Religion? Because Secularists Need It

1/13/2013—I have not finished Brian Leiter’s new book, Why Tolerate Religion?, in which he argues not that religion should be prohibited, but that religion is just another form of conscience driven behavior that deserves a certain level of protection in a liberal society. (I think he will argue later in the book that all such claims are subject to the needs of public policy, so this protection may not be very great). But I can already make a few points.

First, I have to say that I agree with Leiter’s definition of religion to a great extent. Leiter states that the religious state of mind is distinguished by two factors—that there are some beliefs so central to the religion that they issue in “categorical demands” of action no matter what the arguments of the nonreligious world and these beliefs do not answer ultimately to evidence and reason as understood by science. (34).

By this definition, Dworkin is right that the belief in the objective value of human life is essentially religious. What Leiter fails to see is that by this definition, the draft cases were rightly decided and most of us are religious. Most of our beliefs are not based on evidence and reason, but on something deeper.

Second, two other claims for religion recognized by Leiter but not developed, show how much secularists need religion to be reminded of the possibilities of human existence in reality. Religion provides a “metaphysics of ultimate reality” (47) and is “pervaded by a sense of mystery.” (52). This is why, as Leiter acknowledges, religious people are more willing than anyone else to sacrifice themselves and provide counter-cultural witness, both for good—opposition in Nazi Germany and South Africa—and evil—blowing up abortion clinics and buildings and buses. (36-37). Religious life is lived at a greater depth.

But this is why we secularists need religion and need to protect it. You don’t have to have belief in the supernatural to live life this way, but maybe you need people who do have such beliefs or others like them to be reminded of this way of living.

I want to stand Leiter on his head. The crucial claims of conscience are in fact religious, even by his lights. We need to tolerate religion and do not generally need to tolerate anything else.

Rest of Taking Nihilism Seriously , Parts 4&5

1/11/2013--4. Nihilism cannot be defeated. The world tries and fails to defeat nihilism. Heidegger assures his readers that substitutes for the authority of the suprasensory realm do emerge. Conscience. Historical progress. Earthly happiness for the greatest number. The creation of a culture or the spreading of civilization. Creativity. And finally, the business enterprise. But even all these ultimately “suffer the loss of their constructive force and become void.” Even science becomes mere technology.

--The world also tries to find a new and improved metaphysics. In Heidegger’s interpretation, however, nihilism cannot be combated out of some new and improved metaphysics—out of some higher and more certain value—because the ground of nihilism’s essence lies in metaphysics itself. And this is so even when sincere opposition to nihilism assumes a defensive vehemence out of the believer’s self-righteous superiority. Note that the “believer” here is not the Christian, or even the religious one, but any commitment to the ideal realm. Nihilism is the failure of the ideal realm itself—the devaluing of highest valuation. Valuing itself belongs to the will to power. And that includes positing God as the highest value.

--Nihilism devalues God too, of course, which is why nihilism is announced as the death of God. But it is not the devaluing of God by critics that is the heaviest blow, according to Heidegger, but elevating the God who is held to be real to the mere status of the highest value. And this elevation is accomplished not by atheists but by theologians seeking to defeat nihilism. This kind of theology strikes down that which is as such, in its being-in-itself. That is sheer blasphemy, not a thinking in a godly way about the divine essence. As a friend of mine says, it is not letting God be God in God’s own way. It is the believer’s desperate act of seeking control over God, of forcing God to appear.

--Given all this, can the draft help defeat nihilism? Isn’t the draft’s very tone of insistent Christian restatement a merely human impatience with the way of the world today? And thus just another human assertion in the face of nihilism? Both the authors of the draft statement as well as its anticipated opponents would be understood by Heidegger as entangled in assertions of their own wills.

--While I do not know the way out of nihilism, that way cannot be the way of the draft, which is merely a way back.

---Why can’t we just go back to Aquinas? Because that would not explain how we got from Aquinas to here. The draft fails to give an account, out of Christian understanding, of how the current, positivist state of world has come about. The draft’s understandings of law and government at one time defined the West. Something evidently happened to that Christian conception, which even the draft assumes is no longer normative for the culture. It is fair to ask what happened and, further, to inquire how a mere restatement of the classic Christian position, which is what the draft sets forth, could possibly be an appropriate response to the historical event of nihilism? To that nihilism to which Christendom somehow led us.

--Dietrich Bonhoeffer did not flinch at providing such an account. He wrote that God was teaching humanity to get along without Him—was Bonhoeffer wrong? Then let the draft give us some other explanation of how we got here.

-- The draft reminds me of the last chapter in Charles Taylor’s book, A Secular Age. After all the analysis and even critique of the history of secularization in the West, all Taylor can denominate as a way out of what he sees as an impasse, is a chapter entitled “Conversions” that describes the trajectories of certain persons who found their way back to Christianity. After all that Taylor had written, this response is ludicrous. Western civilization is not, in some act of collective will, going to reconvert to classic Christian truth. And if did, that assertion of will really would be an act of human autonomy at the expense of truth. It would be a great universal posit. Such an act would be precisely a human assertion.

5. Without claiming to know any way out of nihilism, I believe there are three appropriate responses.

--First, we must remind ourselves of our common humanity and common starting point. We should be erasing borders between us. Christians should be echoing Dietrich Bonhoeffer’s call for a religionless Christianity and recognizing Karl Rahner’s proclamation of the anonymous Christian. Secularists, in turn, should be celebrating the rational and beneficent elements of Christianity—that its God is not an arbitrary tyrant—and reminding itself how Christian rationality gave birth to the scientific tradition that could study nature’s regular patterns in the confidence that God may be subtle, but is not malicious, as Einstein once put it.

The failure to see and appreciate this common ground expresses itself divisively in America today in a number of ways, including the struggle over religious exemptions from law, on the one hand, and the challenge by Brian Leiter, and now many others, denominated “why tolerate religion?” on the other. Religious believers claim that their commitments are altogether different from those of the world and therefore demand unique rights and privileges, and then seem surprised when the world agrees with them that these commitments are different from anything the world believes but grants to these religious commitments little value. It would be a more appropriate response to our common nihilism to proclaim that religious commitments are of the same depth as are the commitments of the secular world and therefore deserve the same level of legal protection.

Other Christians have done this. Other Christians have been more open to the truths of the world than is the draft. When Pope Benedict, writing as Joseph Ratzinger, looked at the world’s religions, for example, he warned Christians against looking at them purely from the Christian perspective of their “value for salvation,” calling that perspective “the burden of a question that can in fact be decided only by him who shall judge the world.”

Karl Barth approached Marxists in a spirit very different from that of the draft. In “Jesus Christ and the Movement for Social Justice,” an essay Barth published in 1911, he explained to workers the relationship between Jesus and socialism:
If you understand the connection between the person of Jesus and your socialist convictions, and if you now want to arrange your life so that it corresponds to this connection, then that does not at all mean you have to “believe” or accept this, that, or the other thing. What Jesus has to bring us are not ideas, but a way of life. One can have Christian ideas about God and the world and about human redemption, and still with all that be a complete heathen. And as an atheist, a materialist, and a Darwinist, one can be a genuine follower and disciple of Jesus. Jesus is not the Christian world view and the Christian world view is not Jesus.
I believe the Pope and Barth understand that divisions between believers and nonbelievers do not arise out of differing conceptions of truth. If they did, we would engage and debate as the champions of Islam, Judaism and Christianity once did and we would learn from each other as in the golden age of Spain. No. Our divisions arise out of the looming darkness of nihilism itself. It is nihilism that turns our commitments into incommensurate posits that have nothing to say to each other.

So, common humanity is one response to nihilism.

A second response to the nihilism in which we are all caught offers for Heidegger “a faint light.” At the end of his essay, Heidegger returns the reader to Nietzshe’s scene of the madman. The madman enters exclaiming that he seeks God. Those in the square, who do not believe in God, are amused and make fun. Heidegger points to this difference between the madman and the comfortable ones. The madman experiences our inauthenticity and he is driven to seek the real, which he does not possess. The onlookers, says Heidegger, do not seek because they no longer think. They no longer seek the real, but accept the unreality of the ideal realm while continuing to pass these ideals off as real. Heidegger invites us to see this difference—not between believers and atheists but between the seekers and the satisfied. So, we might all join in seeking the real out of an admission that we do not know the real. We are all perplexed human beings who see through a glass darkly.

--Finally, there is one other kind of response to nihilism, one which has always been the great strength of all the religious traditions: the religious life itself, the example of the saint. The world is always thrilled by a Gandhi, a Bonhoeffer, a Martin Luther King, Jr,. a Dorothy Day, a Mother Teresa. Even here, of course, some in the world scoff, but the admiration for these figures predominates. Religion produces lives, not dogmas. And it does so much, much more profoundly than any secular tradition, at least until now.

Nor are these menschen limited to great figures. Every inner-city minister and priest wrestling with young people against the sway of gang life replicates the way of thoughtful sacrifice. There are thousands, more, of such persons laboring faithfully every day, everywhere in the world.

I don’t have to remind a room full of Christians of this reality—a religion that is a response to a call embedded in a human life. A religion that is not a dogma but a person. A religion that is not built on theories of law or anything else.

What is needed is an antidote for nihilism and there is not one. I don’t know of any antidote more promising, however, than simply living life as a Christian. And unfortunately I don’t know of any way that this possibility might translate into lives unconnected to institutional religion. In other words, what about those of us who cannot live a Christian life? Do we live a life as close to that as we can? Thus, if I were speaking to a room full of my fellow secularists, as I often do, I am not sure how I would end this talk. But that is our problem rather than yours. The challenge to Christians, as the draft unfortunately shows, is to recognize just how deep our plight goes today, and not to assume that old answers are adequate to that plight.

More On Taking Nihilism Seriously, Part 3

1/8/2013--3. Nihilism is just as much a crisis for the world as for the Church. What does it mean to say, as Nietzsche announced in 1882, through the madman in The Gay Science, that God is dead? Martin Heidegger tells us in an essay about Nietzsche , that for Nietzsche, the word God is used to designate the suprasensory world in general—the metaphysical world of ideals. The pronouncement God is dead means that this “suprasensory world is without effective power. It bestows no life. Metaphysics… is at an end. …[It] has suffered the loss of its obligatory and above all its vitalizing and upbuilding power. … [So there is nothing –the nihil—] “to which man can cling and by which he can orient himself.” And this is just as true of Reason as of God.

--That is why nihilism is not a crisis just for Christians but for nonbelievers too. Nonbelievers insist that human beings rely on Reason instead of relying on revelation. But their comportment toward Reason is just as unreal today as is the invocation of the God of the Bible. Neither invocation can arrest the darkening of the world. Neither can arrest the human movement toward ever greater inauthenticity. Both claims, God and Reason, stand unmasked as a means to power.

--Now here I think those in this room may want to demur. You may say, We are Christians, not nihilists. Of course you are not nihilists. Nietzsche did not deny that there were men and women who still called on God in trust. He was announcing the destiny of the West. He was seeing that Christian proclamation now lacks authenticity. Let me show you that Nietzsche is right. Let me point out what happens to Christian proclamation in the world of nihilism.

Nihilism and its devaluation of Christian proclamation were on display in the response to the shootings of school children and others last month at Newtown Connecticut. I read President Obama’s moving address at the Prayer vigil. He said at the end of his talk that “God ha[d] called these children home.”

Well that must be true. God is the Lord of history is he not? But you know this is not true. God did not call these children home. These children were senselessly murdered. If God had called them home then God would have willed their deaths. No one dares to assert that God willed the deaths of these children.

Now let’s contrast our nihilism with President Lincoln’s theism. Lincoln lived at a time in which God still seemed to be alive. Lincoln ended his Second Inaugural Address by naming God’s will as the driving force behind the Civil War—you know the words:

Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue,…until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether."

Lincoln did not shrink from the implications of his naming God and he did not do it lightly, but in all seriousness. Slavery was a national sin directly related to the war it brought about. Pointing to God’s will for Lincoln was akin to karma. It was a narrative that made sense in his culture.

In contrast, President Obama could not possibly say that the deaths of these children were God’s judgment for our national sin of gun madness, or our love of violence, or our failure to care for our children. Everyone would have seen a claim of that type as monstrous. We could not take any such claim seriously. But why? Because of our nihilism.

In Newtown, we see something very different from Lincoln’s narrative about the will of God: we see the random violence of modern life. It is not God’s will. It is a world without God. Meaningless violence is what happens to man without God. But if God is no longer believable, then what?

On Taking Nihilism Seriously

1/6/2013—I apologize to my readers for not blogging the past week, but I have been hard at work on the talk I delivered yesterday to a program sponsored by Lumen Christi and the Law Professor Christian Fellowship. I very much appreciate the warm reception I received, although the impression was that my talk was bleak. I’m publishing the entire talk in the next few days here on the blog.

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I am here representing, in Zachary Calo’s phrase, the world as such in its response to the draft statement on law, politics and government authored by Evangelical and Catholic lawyers and legal academics.

I am not really a representative of the world as such if that world is supposed to be entirely separate from religion. Judaism and Christianity are my traditions too, but I no longer belong to them.

I’m going to make five points. 1. The situation of all of us today is much worse than the draft describes. 2. The nature of our plight today is not as the draft says, relativism, which would merely be a clash of truths, but nihilism, which is far more fundamental. 3. Nihilism is just as much a crisis for the world as for the Church. Nihilism is common to us, whether we think of ourselves as religious believers or as dedicated to Reason. 4. nihilism cannot be defeated, for it is the destiny of the West. 5 But nihilism can be responded to, though not by invoking long-dead Christendom, as the draft does.

I have to begin with what the draft asserts and suggests about law. Humans in the world are dependent on another realm, which might be termed the realm of the spirit. That ideal realm, denominated variously in the draft as reason, the common good, the divinely given moral order, justice, higher law and natural law, is what is “enduring truth.” To be authentic, law must be in accord with this higher realm. There is a name for this outlook. That name is metaphysics, in this case Christian metaphysics.

The implication of the draft is that the human world today is in danger of forgetting its true situation of dependence on this ideal realm, and indeed has already begun to forget it, with serious consequences involving spiritual malaise, material conflict and political tyranny. In other words, the world is a mess because it doesn’t know what you in this room know.

The draft contrasts Aquinas’ understanding of law as an ordinance of reason for the common good with “modern positivist theories of law.” (page 15). Indeed, the document sets forth this contrast in “defiance” of the modern view. Thus, the draft is an attempt at faithful Christian witness against the modern rejection of metaphysics, which the draft criticizes as “the ‘tyranny of relativism’ that attempts to elevate human autonomy at the expense of truth.” (page 3).

--1. Our situation is much worse than the draft supposes. The draft is satisfied. The Church thinks it is ok, but the world is bad. At least the Church is better off than the world. At the same time, the world is satisfied. The world thinks it is ok, but the world thinks the Church is bad. The world is at least superior to the Church.

-- The truth is, in Martin Heidegger’s phrase, the darkening of world and Church. The truth is human inauthenticity everywhere. Where is human flourishing today? In ever renewing churches? They are emptying out. In motivated and energetic students. They just want a job. I have the sense that we are stuck and at the end of possibility? That humanity has been reduced to material resource. That man struggles for unlimited exploitation of the Earth. That our political system is broken. If you attended the socio-economic program at AALA yesterday, you heard that the financial crisis was caused by evil men stealing. Nor is this just the elites. Divorce has steadied only because so few bother to marry. And in my lifetime, gambling has gone from vice to a necessity of public finance.

2. That darkening of the world is not relativism, but nihilism—a world in which there is no inherent meaning except that which is asserted as an act of will. An ideology. That is why as the draft implies (p3) that law today is reduced to a “means of social control”—there is no greater truth for law to serve.

--falsely labeling the darkening of the world as relativism sets up a competition between the truth of Christianity and the truth of the world—is that a Christian stance? Not when there is a center for astronomy at the Vatican. Not when the Sh’ma and the Incarnation teach us that God is one with the world.

--nor did the legal positivists like HLA Hart deny that truth and goodness are binding on all human beings. They did not. The draft is mistaken.

--Today, as Art Leff wrote in a famous poem back in 1979 everything is up for grabs —nothing is binding. That is nihilism, not relativism.