The Problem of Nonpreferentialism

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

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

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

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

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

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

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

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

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

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

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

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