Author Archives: rbonham1

Religious Freedom and the Church

We’ve been discussing on this blog the prospects for religious freedom, and factors that may affect those prospects.  Here’s one factor that we haven’t really mentioned, but that I think will be crucial: the church.  The fortunes of religious freedom, I would argue, have always been connected in close if complicated ways to the fortunes of the church.  And this connection is likely to continue.

So ultimately, if the church continues to be (or, some might say, if it becomes) a vibrant and vital institution in society, religious freedom will probably be okay.  Conversely, if the church declines, religious freedom (and, I fear, much else) is likely to go down with it.

Which may seem to be a gloomy observation, because the church may seem to be in poor shape these days.  For one thing, someone might say, “the church” (in the singular) doesn’t exist anymore; instead we have a proliferating multiplicity of independent and sometimes mutually antagonistic churches and faiths.  For another, some of the major churches have been conspicuously afflicted with scandal and internal dissension.  And then there’s the perennial streak of anticlericalism– or suspicion of “organized religion”– that even religious believers often display.  And the increase in the percentage of “nones.”  And . . . .

So then, is the situation hopeless?  I don’t think so, and I’ll offer just two quick observations in support of my customary (long-term) optimism.  First, history doesn’t unfold in linear ways.  So if you take current trends and project forward, you’ll nearly always be wrong.  This is true in particular of the church (and, more generally, of religion).  Who would have predicted in the year 100, or 200, or even 300, that Christianity would become the official religion of the Empire?  Who would have predicted the papal revolution from the midst of the scandalous “dark century” that preceded it?  In 1787, who could have foreseen the flourishing of faiths and churches in new American forms that would unfold in the nineteenth century?  Through the nineteenth century and as late as the 1960s, how many social scientists anticipated that not only Christianity but other faiths would be as vibrant as they are today, problems notwithstanding?

This first observation is in a sense defensive: it counsels believers not to get discouraged by present apparent trends and conditions.  My second observation is a bit more positive.  At least in the view of believers, the fortunes of the church will not be determined by merely human agency anyway.  “The wind (spirit) bloweth where it listeth . . . .”

Nonbelievers will find this to be a fool’s hope, or gamble.  They will think the believers are deluded.  But then again . . . if the believers are deluded, does all of this really matter much?

– Steve Smith

How Important is Public Support for Religious Freedom?

In a recent post, Mark observes that “the idea that religious freedom has special importance, and merits special protection, is deeply rooted in America’s self-image. (In recent surveys, large majorities even of secular Americans agree that religion has had a good influence on American life). . . . [T]he commitment to religious freedom is part of our social contract and I don’t think it’s going to fade away. If politicians try to make the ‘religious freedom is an anachronism’ argument, I suspect they will fail.”

I haven’t seen the surveys, but I trust that Mark is right about them, and I hope that his political instincts are right as well.  It may well be true that there is broad public support in this country for religious freedom.  This is a heartening observation, not just for its immediate political implications, but because I think this sort of tradition/ identity factor offers another potentially important rationale for religious freedom (and one not entirely unrelated to the badly named “social contract” rationale I suggested last week). The basic idea, I take it, goes something like this: Whether or not religious freedom reflects some sort of universal truth, it’s been central to our own political tradition, and it’s part of our national identity.  So we should respect religious freedom because that’s important to what makes us what we are.

Still, I would register a couple of related doubts, or qualifications.  First, even if support for religious freedom is widespread in this country, I wonder how deep it runs– in terms either of real commitment or of genuine understanding.  The reported frequent opposition to Muslim cultural centers or mosques (even in places other than “Ground Zero,” where maybe the issues are more complicated) gives some reason for doubt.  And although it’s not certain what the ultimate outcome of the controversy will be, it’s also discouraging that so many academics and Americans generally manage to convince themselves that there’s no serious religious freedom issue with the “contraception mandate” on the basis of what strike me as patently flimsy rationalizations.  (Religious institutions aren’t “burdened” (even though they say and think they are), or most Catholics use contraceptives anyway, or the governmental interest is “compelling.”)  It may be that lots of Americans are happy enough to support religious freedom in the abstract, but whenever a specific issue comes along that they care about, or when the burden falls on some person or institution they don’t sympathize with, this support somehow disappears.

The other, related qualification I would make is that I don’t believe we should think of public support as sufficient in lieu of persuasive justifications, as if it were some independent variable.  Public attitudes are based in part on reasons that have been advanced over the years or centuries, and those attitudes can change pretty quickly when plausible reasons can’t be given for them.

–Steve Smith

Laycock on the Vulnerability of Religious Liberty

Today I (re)read Doug Laycock’s recent essay called “Sex, Atheism, and the Free Exercise of Religion,” 88 Detroit-Mercy L. Rev. 407 (2011).  It’s an important essay, and everyone who reads a blog like this one ought to read it and think seriously about it.

The essay, written before the current controversy about the “contraception mandate,” begins with the sobering observation that  “[f]or the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle– suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.”  And he “worr[ies] that the success story [of American religious liberty] may now be at risk.”

Doug describes the challenge to free exercise as coming from two main sources.  First, the gay rights movement has come to perceive traditional religion as its principal enemy.   And “[i]f traditional religion is the enemy, then it might follow that religious liberty is a bad thing, because it empowers that enemy.  No one says this straight out, at least in public.  But it is a reasonable inference from things that are said, both in public and in private.”  Doug makes it clear, by the way, that he is strongly in favor of gay rights, and he lays approximately equal responsibility on gay rights activists and religious conservatives for their unwillingness to compromise.

Second, there has been an increase in the number and visibility within American society of non-believers– atheists, agnostics, and even people who may have a religious affiliation but little actual belief or religious commitment.  Doug explains how the more active presence of non-believers alters perceptions of religious freedom.  When everyone or nearly everyone was a religious believer of one type or another, religious freedom could be seen as “a sort of mutual non-aggression pact” that was beneficial to everyone.  Today, by contrast, “[m]uch of the nonbelieving minority sees religious liberty as a protection only for believers.  On that view, a universal natural right morphs into a special interest demand . . . .”1

The essay should serve as a warning to those who think expressions of concern about religious freedom are trumped up or “much ado about nothing.”  Doug’s expression of concern is especially credible for several reasons.  First, he is not only a leading scholar of religious liberty, but he has also been active in litigating and lobbying for religious liberty.  He knows what he’s talking about, first-hand.  Second, Doug’s support for gay rights and his publicly expressed religious agnosticism should make it more difficult to dismiss his expression of concern as just pretextual or paranoid, as critics may say when Catholic bishops or LDS authorities raise similar concerns.  In addition, I don’t think Doug is temperamentally pessimistic or apocalyptic (as his essay suggests that I may be– heaven forbid!).

One lesson I would draw (and that Doug in fact draws) is that the problem of articulating persuasive justifications for religious freedom is not just an academic exercise (as, for example, Marc’s comment on a post from last week might be taken as suggesting).

– Steve Smith

Religious Freedom and the Social Contract

This morning I listened to part of a debate from last November between Noah Feldman and Michael McConnell on the question of whether religious freedom should receive special constitutional protection.  Noah’s position, increasingly familiar these days, asserted that the First Amendment’s special commitment to religious freedom derived from theistic premises that are no longer admissible in a liberal political order.  So although religious belief and expression will be protected under freedom of speech etc., there is now no justification for any special commitment to religious freedom.

I’m persuaded by half of this argument– namely, that it is difficult to justify a special commitment to religious freedom on purely secular premises.  (In fact, I’ve been making that argument for years now.)  So if religious freedom is to be justified, it seems that something like the traditional religious arguments will need to do some work.  But how can religious rationales do any work when they have been banned from the political and jurisprudential workplace?  Contra Feldman et. al, I don’t agree that the logic of liberalism necessarily excludes reliance on religious beliefs.  (I also wonder whether this claim is consistent with what Noah has written about the possibilities of democracy in Islamic countries.)  Still, illogical or not, it seems to be a fact that judges and scholars today usually don’t treat religious arguments as admissible.  So, what to do?

Here’s one suggestion– one that could use a lot of elaboration and refinement, but that may be worth raising for consideration.  The proposal, basically, is that special protection for religious freedom is a central part of the social contract, and that it would be both unjust and imprudent for government to violate that contract.

A quick qualification:  “Social contract” may not be the best metaphor here.  In fact I usually don’t find “social contract” reasoning at all cogent.  Given greater space and ability (both already exceeded in this post), I’d prefer to elaborate the theme more in terms of “consent,” along the lines of Alexander Bickel’s “The Morality of Consent.”  But “social contract” may do for now.  Let me explain.

We all participate (or decline to participate) in our political and social order based on some understanding of what its terms are– what government can expect of us, what we can expect of government, what we can expect government not to do.  These terms form a sort of “social contract,” but they are not derived from any thought experiment based on a fictional “state of nature” or “pre-political condition” or “original position.”  Rather, they are real terms, partly written but largely unwritten, that we perceive in our law, traditions, and practices.  The terms are subject to interpretation, of course, and no doubt they may change over time– occasionally through deliberately enacted law, more often through gradual and almost imperceptible cultural evolution.  Nonetheless, at any given time we have some sense of the terms of this implicit but quite real “social contract.”

So long as government honors the terms, we may feel some obligation to render our support and allegiance.  Conversely, if government disregards or violates the terms of the “contract,” our loyalty is betrayed and our commitment compromised.  We may come to perceive government no longer as representing us, but as an occupying power, and we may thus qualify or withhold our allegiance.

I would suggest (and I’m not sure that scholars like Feldman would disagree) that a special commitment to religious freedom has been a central part of this nation’s social contract.  Nor has that situation changed, I suspect.  For many religious people, this term is still an essential one; but even nonreligious people might acknowledge that religious freedom has been and continues to be an understood term of the contract.  (So this is not, or not merely, an “originalist” argument.) People like Feldman may think that on modern secular premises, this particular contractual term probably wouldn’t or shouldn’t be adopted today.  Even if they are right, though, that observation does not alter the terms of the contract as it stands and is understood.  And violations of a central term– by the courts, say, . . . or the Administration– will be perceived by those who care about it as a betrayal and a fundamental injustice.

It’s true that people who remain committed to this particular term of the contract– to constitutional respect for religious freedom– may be acting on the basis of traditional theological rationales that many other citizens no longer accept.  In this way, the traditional rationales continue to influence our constitutional order.  But that influence works via citizens’ commitments and the terms of the social contract.  And secular liberals would be ill-advised to insist that every term of the contract must be supported by reasons that all citizens accept, since their own position and premises could be promptly disqualified by such a restriction.  (I know, I know . . . it’s what “reasonable” citizens would accept.  But if blatant question-begging is permitted, what’s the point of these exercises anyway?)

This rationale strikes me as promising in part because it is realistic.  It points to what is actually at stake, today, and it does not rely either on decades-old political decisions or on airy assumptions about what “reasonable” citizens could “in principle” agree to or about imaginary “overlapping consensuses.”  Still, it is a rough, unrefined suggestion.  I wish Bickel were around to improve it.

– Steve Smith

The Dis-integration of Neutrality

Neutrality has been the central theme in the modern jurisprudence and literature of religious freedom.  Government is supposed to be religiously neutral, neither favoring nor opposing (coercively, materially, or expressively) any particular religion or religion in general.

The ideal has also been subjected to severe criticism.  One criticism asserts that neutrality is impossible: governments will inevitably adopt some religious (or anti-religious) positions and reject others.  Indeed, since religious views differ as to the acceptability of governmental neutrality, the very endorsement of neutrality is already a departure from neutrality.

One response to this sort of criticism is to “spread out”– or to multiply versions of neutrality.  Like the sorcerer’s hapless apprentice, the critic applies the hatchet to what he takes to be the mischievous broom of neutrality only to find that, far from having dispatched the mischief, he is now faced with two– or several, or many– more vigorous instantiations.

Thus, in a recent illuminating article called “Crosses and Culture” (I would provide a link if I knew how), Mark Movsesian discerns in American jurisprudence three versions of neutrality, which he calls “neutrality as non-proselytism,” “neutrality as non-sectarianism,” and “absolutist” neutrality.  These are not just different dimensions or complementary implications of a unitary constraint, it seems: what is impermissible under one version may be authorized by another.  And all of these versions are sometimes used by the courts.  In European jurisprudence, Mark perceives still a different version– he calls it “neutrality as non-indoctrination”– which permits things that the American versions would not.

In a similar vein, Andy Koppelman has written about “the fluidity of neutrality”– the ideal can mean lots of different things, he thinks, depending on context– and Andy develops this theme in an important book, forthcoming from Harvard University Press.  Still other theorists distinguish between “neutrality of effect,” “neutrality of aim,” and “neutrality of justification.”

In one sense there is nothing surprising about this proliferation of neutralities.  We all understand the difference between “concepts” and “conceptions,” don’t we?  (Actually, I don’t, but let that pass: everyone else seems to.)  Why would anyone expect an ideal as important and pervasive as neutrality to come in only one shape and size, or only one “conception”?

In other ways, though, the disintegration of neutrality is unfortunate, and frustrating.  The conceptual sprawl can make things difficult for litigants, or potential litigants, or litigant don’t-wannabes– actors who would like to avoid trouble by knowing what the law is and conforming to it.  Public entities are supposed to be religiously neutral.  But who can tell what sort of neutrality a court may choose to apply?  The multiplication of neutralities also conduces to confusion, and equivocation.  People may think they are talking about a common subject and in fact be talking past each other.

Which prompts a pretty obvious question: why do judges and theorists insist on dragging a host of different notions or principles into the contorted tent of “neutrality”?  The confusion generated by neutrality-talk begins to seem gratuitous, because the “neutrality” term seems superfluous.  If we think the real constitutional principle is one forbidding indoctrination, for example, or sectarian expression, or whatever, why not just say that?  Why not talk about “non-sectarianism,” if that’s what we want, rather than “neutrality” (leaving scholars like Mark to figure out that in this context what we actually mean is “neutrality as non-sectarianism”)?

But I suspect I know at least part of the answer to these questions.  What I’ve been treating as a shortcoming– namely, a tendency to promote confusion– is in fact an attraction.  If we were forced to be more precise, the verdict would probably go like this: Most of so-called neutralities (non-sectarianism, for example) are upon examination not really versions of neutrality: at least they do not fit the official specifications or deliver what “neutrality” was supposed to deliver.  And, alas, the only version of neutrality that seems on its face truly neutral– what Mark calls “absolutist” neutrality– is impossible and self-negating, as critics argue.  It is only through obfuscation and equivocation that we manage to avoid this distressing verdict, and to persist in professing an ideal that we are not prepared to relinquish.  So if multiplying versions of neutrality conduces to obfuscation, so much the better.

But why does “neutrality” have such a powerful spell over us?  A principal reason, I suspect, is because to admit that neutrality is impossible and that governments are not, never have been, and never could be religiously neutral might imply that we ought candidly to explain why our governments in fact favor some religious (or anti-religious) positions and reject others.  And as things stand, “we” as a society are constitutionally unprepared to do that.  So although we cannot have the reality of neutrality, we also cannot do without the rhetoric.  The upshot is that neutrality will likely continue to dis-integrate: for every version that is cogently criticized, another one (or more) will spring up to take its place.

– Steve Smith

Can Religious Freedom be Justified?

Boiled down, the basic argument goes something like this: A special commitment to religious freedom arose in a religious context and is most defensible on religious premises. Today, though, it is widely assumed that political and legal decisions must not be made on religious premises. Consequently, it is difficult today to give a persuasive (admissible) justification for a special commitment to religious freedom.

In one version or another, the argument has become familiar, and it also seems to be becoming increasingly persuasive. More and more scholars gravitate to the basic conclusion: there is no justification for religious freedom as a special right or constitutional commitment. And the Obama Administration’s recent positions on the “ministerial exception” and the “contraception mandate” suggest that the Administration has embraced this conclusion as well.

This last observation is for me reenforced by the strained hypotheses and rationalizations I have heard from intelligent thinkers who were trying hard to be friends both of the Administration and of religious freedom. For ordinary political purposes, I expect that it would be imprudent for a politician to come right out and declare, “First Amendment be damned; I’m opposed to special legal protection for religious freedom.” But viewed from a vantage point within the academy, this position seems utterly unsurprising. Obama was once an academic of sorts, and he reportedly has a few academicians working in his Administration. Why should anyone be surprised if he evolves toward a position– a position that might fairly be labeled “progressive”– that seems increasingly ascendant within the academy?

One question that emerges from these developments, though, is this one: How should people (such as myself) who do still favor a special constitutional commitment to religious freedom go about justifying that commitment? Or should we just concede that no solid justification is available? I expect and hope that these questions will receive increasing attention.

For myself, I’m not confident about the answers to the questions, if there are good answers. To be honest, I never really conceived it as my task to devise justifications for a commitment that, until fairly recently, seemed to enjoy the support of an overwhelming consensus both of scholars and citizens generally. Over the next few days, I may (or may not) try out a few very tentative ideas. Mostly, I hope to hear (in this or other contexts) what other people think.

– Steve Smith

The Inclusive Cross?

Is it permissible, in a religiously pluralistic society, to use a cross as a symbol to honor veterans and remember war dead?  The question is a recurring one.  Many people (and some judges) say “no”: it is not permissible to use a “sectarian” Christian symbol for this purpose.  Others say “yes,” and they will often argue that the cross need not be viewed as a sectarian or exclusively Christian symbol; it can convey other meanings as well.

Here is a different rationale, which I quote from one of the exam answers in a course I taught recently in Lisbon: “[T]he cross can’t exclude anyone without denying itself, for Christianity . . . views non-believers as their brothers and sisters, putting love and understanding towards them on a first place.  It is a core of Christianity to be for all, not excluding anybody, but of course, only on their voluntary acceptance.”  (Please excuse the sketchy syntax, etc., which are no worse than what I often see on timed exams– or even first drafts– from native English-speakers.)  The student goes on to conclude that the cross is an ideal symbol for a war memorial.

I haven’t heard this sort of rationale offered in this country.  Someone making this contention for this purpose could expect to be criticized for a kind of religious bigotry.  Still, I found the answer intriguing.  Might it be defended?

The intention, it seems, is good: the idea is to include others– to include everyone, in fact, not just Christians, not just “reasonable” people.  Doesn’t that intention deserve some commendation?

Still, good intentions only take one so far.  The most obvious objection, I imagine, is that even if Christians view their faith as in some sense universally inclusive, and even if the cross symbolizes this aspiration, this is still a specifically Christian expression of a specifically Christian inclusiveness.  Everyone is being “included” by being viewed as a brother or sister in Christ.  And if the government is associated with that kind of specifically Christian inclusiveness, then it is understandable that non-Christians would object.  They presumably don’t want to be “included” in that Christian way.

Thus, even in its professed (and presumably sincere) inclusiveness, the cross– and the rationale supporting it– are sectarian.  The point seems cogent enough.  So I don’t expect to be making this student’s argument anytime soon.

Still, I wonder.  Won’t every offer of inclusiveness be grounded in some underlying position that not everyone accepts?  Will all forms of inclusion thus be partisan, or if you like sectarian, in the way this student’s rationale is?  We can say why the rationale is problematic in a pluralistic society.  But is there any other position that escapes the problem?  True, the rationale is inclusive on its own terms.  Can any position do better than that?

(Enter at this point Rawls et al.  Repeat questions.)

 

– Steve Smith

Unmoored Americans?

In May I taught a short course at the University of Lisbon – five consecutive days, two hours per day– on “Government-Sponsored Religious Symbols and Expressions.” After the usual adding and dropping, there were twenty students in the class, about half from Portugal and the other half from countries throughout Europe, including France, Belgium, Germany, and Poland. I don’t know whether the students were anything like a representative cross-section, but in any case it was interesting to see how their perspectives differed from those I encounter in classes here.

I had written up a hypothetical case based on the Mt. Soledad cross case that the Supreme Court declined to review (for now anyway) last week. On the first day, one of the students “stated the case”– quite capably– and ended with “So the challengers are suing to have the cross removed . . . . I’m really not sure why.”

At one point in the discussion, I took a “straw poll,” as I sometimes do. The vote was 18-2 for letting the cross stay. I rephrased the question: How many think the court should order the cross removed. Now the vote was 19-1 against judicially-ordered removal. And the lone dissenter changed his vote when reminded that the cross had ostensibly been erected as a war memorial.

This consensus surprised me, considering Europe’s legendary secularity; and it also worried me, not because I disapproved, exactly– given my views, this was an unusually sensible bunch– but because it looked to make for a boring (and maybe very short) class. So of course I started to argue the other way. I told them about my lunch with Mike Newdow, an intelligent and sincere and generally reasonable fellow. I asked how they’d feel if they were atheists (which some of them were, not surprisingly, and said so). No one budged.

When we discussed the Lautsi v. Italy case a couple of days later, opinion was much more mixed. Some students felt strongly that a cross on the wall of a classroom was inappropriate. But on public property on a high hill overlooking the city? Just not a problem.

I told them that my students in the US would be much more divided in their views; many would find the cross quite offensive– and unconstitutional. I wondered out loud why attitudes would be so different. Someone blurted out, half-seriously, “That’s because Americans are paranoid.” I think that was the word, anyway; it was something to that effect.

So I wonder. Was he right? Is there something excessive, maybe a little unmoored, about American attitudes in these matters?

– Steve Smith