Church-State Talk to Pittsburgh ACLU

5/8/2008--After my talk last night to the Pittsburgh chapter of the ACLU in the North Hills, I was asked to post my notes on this blog. I will do so here, but you must understand that these are just notes.

ACLU Presentation
May 7, 2008

1. What does the Declaration of Independence mean when it says:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…?

2. According to the Declaration, it is a self-evident truth that our rights are not gifts from men, but are woven into the structure of the universe. That is what “endowed by their Creator” means. If we are to survive as the kind of people that we are, it cannot be unconstitutional to read that statement to a high school class. It cannot be unconstitutional to read it and mean it. The use of the word “Creator” cannot alter that conclusion.

3. I am engaged in a multi-year, 3 book, 2 article, one blog project, with the support of the law school and Duquesne University—on the subject of church and state. Rather, the subject is religion and public life in our democracy. The project includes politics, theology and law. The purpose of the project is to change the relationship in America between secularism and religion.

4. This is my prediction and hope: that political life in America will allow full expression of religious faith, along with its opposite; that secular life, especially among the young, will become more open to transcendence—to depth—in both social and personal matters, and thus less hostile to religion and believers; and that law, in particular constitutional law, will aid rather than impede these changes.

5. The origin of my project was both personal and partisan. The partisan part is that I am a Democrat. The result of the 2004 election struck me very hard. And that was followed by the Terri Schiavo struggle after the 2004 election in March 2005. The Democratic Party was on the wrong side of a historic change—religion in politics could no longer be resisted.

6. The personal part was my journey to secularism, away from organized religion—Judaism in my case and my realization that this change in my life reflected a change in general in American life, especially among young people, such as my own children.

7. The first part of my project came to fruition in the book, American Religious Democracy: Coming to Terms with the End of Secular Politics. The book argues that American political life is religiously infused and that there is nothing wrong with this. It is in fact, at least for America, and maybe for everybody, a better form of politics than the kind of politics suggested by Mark Lilla—The Stillborn God--and other voices for a secular politics. That secular vision, I argue, is stilted, individualistic, materialist, naïve and unsustainable.

8. The goal of a secular politics must be regarded as ended with the 2004 Presidential election. There are other signs of this ending. Romney Faith in America Address. The 2d Faith and Morality “debate”—this time between Senators Obama and Clinton. plus the whole 2008 Democratic Party Presidential nomination campaign.

9. This change makes me happy. There is a partisan advantage to the Democrats. It also signifies real free speech and a more open political life. There is no cost in constitutional values because it is not theocracy—contra Kevin Phillips.

10. So, all the predictions in my book came true.

11. But as the book was coming into print, in fall 2006-spring 2007, something else was happening. There was enormous growth in secularism, especially among the young, seemingly overnight—though it had actually been growing.

12. This campaign has involved a number of best-selling books, including, The End of Faith and Letter to a Christian Nation by Sam Harris,[1] Breaking the Spell by Daniel Dennett,[2] The God Delusion by Richard Dawkins,[3] God, the Failed Hypothesis by Victor Stenger,[4] and the hugely successful God Is Not Great by Christopher Hitchens.[5] WIRED magazine called this movement “The New Atheism” in its November 2006 cover story and it is a fair description of newly energized atheism.

13. Statistics—The PEW Forum Report in late February: “the Report did include General Social Survey data from 1972-2006 that asked “What is your religious preference? Is it Protestant, Catholic, Jewish, some other religion, or no religion?” That answer showed the “no religion” group growing from around 5% of the population in 1972 to around 16% in 2006. In the PEW Report itself, the current unaffiliated number is 16% but among persons 18-29, the number is 25%.”

14. None of this really was new. Secularism had been growing. My experience is representative. I became a secularist. This comes as something of a surprise to people given that I argue in favor of religion. And I argued in American Religious Democracy that my fellow secularists should be open to the depth of religious language and values in public life.

15. But there was now a new urgency for me in addressing secularism. I didn’t and don’t like what the New Secularists are preaching: an anti-religious atheism. This is not healthy and sustainable human life. Nor is it what young secularists are actually looking for. In that same PEW study, “The second important finding concerns the relationship of this unaffiliated group to religion. The percentage of atheists is small and not growing very much. Atheists are 2% of Americans and even among younger people, only 3%. Some of the unaffiliateds describe themselves as agnostic. But by far the most—3/4's-- of the unaffiliated call themselves “secular” or “religious” unaffiliated. As the New York Times story put it, “The rise of the unaffiliated…does not mean that Americans are becoming less religious.” In fact, given the unwillingness of the vast majority of unaffiliated people to call themselves atheists or agnostics, it would seem that these are people looking for religion—just not looking in the usual places.”

16. In the last year, I wrote a new book in response to all this: Hallowed Secularism: A Guide for the Non-Believer though I don’t have a publisher yet. The thesis of the book is that by the year 2100, or a little later, the world will be primarily secular. The question book raises is, what kind of secularism is this going to be? The proposal the book makes is that secularism is not an opponent but should open to the wisdom of Our Religions in order to create a healthy and sustainable world-wide civilization.

17. And what is this wisdom that secularism should be open to? Secularism is simply the insistence that this world is all there is to reality. No heaven, no afterlife, no Messiah. No traditional God—that is, no being outside time and space who can affect the natural world.

18. But, while this understanding of secularism rules out a lot of the Judeo-Christian tradition, it does rule out everything. I am not referring here to ethics, but rather to transcendent reality—to the sense that there is more to life than what we can touch. And that transcendent reality is real, in the sense that history may be its unfolding. As I put it in the Introduction to Hallowed Secularism—“ Even without Our Religions, human beings can encounter a mysterious otherness, both personally and historically. An otherness upon which we can build our lives and a civilization.” Religion, you might say, without the doctrines and dogmas of Our Religions.

19. So the claim of Hallowed Secularism is that some things in what Our Religions teach are actually true. Rather than opposing religion, secularism needs to discover that something or secular civilization will be a source of despair for humanity.

20. The book attempts to flesh out what all this means and a way of life that might be open to a Hallowed Secularism in the future.

21. In addition to the manuscript, I began a blog—Hallowedsecularism.org—on the theory that eventually a community of secular people must come together for serious consideration of the future of secularism when it defines itself beyond simple opposition to religion. Blocks of the book are on the blog and I hope you will look at it.

22. But there is a current impediment to the establishment of a civilization of Hallowed Secularism. American constitutional law still is in the throes of the establishment of a secular public life. The legal regime of Government neutrality toward religion, announced in Everson v. Board of Education in 1947, is still alive although it is on life support. This is the Lemon test (Lemon v. Kurtzman (1971)—invalidating state supplements for teachers of secular subjects in private schools): government action touching on religion must have a secular purpose, a primarily secular effect and must not excessively entangle itself with religion.

23. This legal secularism, as Noah Feldman calls it, is on its way out, which of course I think is good. I don’t agree, however, with what Justice Antonin Scalia and others may be envisioning for its replacement. They want to replace a secular regime with the worship of a monotheistic God. In McCreary County v ACLU (2005), one of the two Ten Commandments Cases, (the one striking down the Ten Commandments in a courthouse, while Van Orden v Perry allowed them on the Texas capital grounds) Justice Scalia pointed to history in acknowledging a creator God—monotheism.

He then acknowledged the other side of that: "Finally, I must respond to Justice STEVENS' assertion that I would “marginaliz [e] the belief systems of more than 7 million Americans” who adhere to religions that are not monotheistic. Van Orden, 545 U.S., at ---- - ----, 125 S.Ct., at 2881, n. 18, 2005 WL 1500276, at *20 (dissenting opinion). Surely that is a gross exaggeration. The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator. Invocation of God despite their beliefs is permitted not because nonmonotheistic religions cease to be religions recognized by the Religion Clauses of the First *900 Amendment, but because governmental invocation of God is not an establishment. Justice STEVENS fails to recognize that in the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling “ excluded”; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority."

24. I don’t want to see this kind of exclusion and us-them thinking replace the current secular regime. This creator God is not as representative of the American people as Justice Scalia thinks. It is reflective of Justice Scalia and his generation. And of course his history is bunk, since it endorses not a general monotheism, but a particular Protestantism, which Justice Scalia would never admit.

So I am now writing a correction to Justice Scalia that still invites public engagement with religion, but does so on a basis much more inclusive than his narrow reading of history. My book is to be called “For the Establishment of Religion” and it will argue for the principle that government may, indeed cannot help, but take a position on the question of religion and irreligion. There are three basic competing philosophies of reality in the West—religious orientation, humanism and materialism. Government is no more required to be neutral about that array than it is to be neutral about representative government and fundamental rights, which are a part of competing worldviews across the globe. Nor must parents of public school students and school boards be neutral about whether public school students become religious, humanist or materialist. I am not speaking here about censorship of other views, but about endorsement of religion in the schools.

25. What is this “religion” that is reflected in no particular religion but all of them. I am working on that. But let me start with the following: human rights are not created by men and woman, nor is their recognition to be decided by recourse to natural forces. They are endowed, although there is no Creator God to endow them.

Here is another example of recourse to relgion. In her book, Liberty of Conscience, in which Martha Nussbaum defends more or less, religious neutrality, she writes of human conscience that conscience “is the faculty in human beings with which they search for life’s ultimate meaning.” Who is to say that life has an ultimate meaning—religious worldview.

Conversely who is to say that if there is such, we “search” for it? Humanism.

Why isn’t conscience the simple result of evolutionary pressure, of no lasting ethical value? That would be materialism.

You see, you cannot be neutral about these differing understandings of reality.

I would say that conscience is the faculty by which reality’s ultimate purpose imposes itself on us—a genuinely religious view [which I think is closer to the truth of things].

Here is an example of a religiously oriented openness to religion. Let’s say the people in a secular country want to affirm that reality has meaning and history has a pattern, and that these are in some sense binding on us, they might say that their country is “under God” even though they don’t believe in a traditional God. But, on the other hand, if the same secular people wrote a Pledge of Allegiance that simply stated that reality has meaning and that history has a shape and that we are judged by how closely we follow that meaning and shape, that text would probably not even raise an issue of church and state, even though God and this formulation could be thought of as the same thing.

The term under God is constitutional because it is an affirmation about the nature of the universe. And that affirmation, although not uncontroversial is not religious in a narrow sense. It is something that any culture open to the holy must affirm.

26. I would like to see women and men resistant to the pressures of consumption and militarism, the two dominant powers of the modern world, join in a culture that is open to the power of justice and gentleness in human affairs. Religion understood very broadly will have to play a role in such a culture even among secularists like myself.

[1] The End of Faith: Religion, Terror and the Future of Reason (W.W. Norton and Co. 2005); Letter to a Christian Nation (Knopf 2006).
[2] Breaking the Spell: Religion as a Natural Phenomenon (Allen Lane 2006).
[3] The God Delusion (Houghton Mifflin Co., 2006)
[4] God, the Failed Hypothesis: How Science Shows that God Does Not Exist (Prometheus Books 2007)
[5] God is not Great: How Religion Poisons Everything (Hachette Book Group 2007)