On Twitter this morning, the Huff Post seeks your Ash Wednesday Selfies:
On Twitter this morning, the Huff Post seeks your Ash Wednesday Selfies:
The most important recent development in American religion is the rise of the “Nones,” the increasing number of Americans–it may now be 20% of all adults and 30% of young people–who tell pollsters that they have no religious affiliation. Perhaps surprisingly, most Nones are believers. They reject organized religion, not faith. In fact, the Nones overlap greatly with another much-discussed category of Americans, the “Spiritual But Not Religious,” or SBNRs.
Even the SBNR label doesn’t completely capture things. It’s necessary to dig a little deeper. At the Oxford University Press blog, theologian Linda Mercadante, author of the recently released Belief Without Borders, has a helpful guide to the various kinds of SBNRs in America today. Mercadante has interviewed hundreds of SBNRs over a five-year period, she reports, and a very large number are best described as “casual” SBNRs. For them,
religious and spiritual practices are generally approached on an “as-needed” basis and discarded or changed when no longer necessary. Spirituality is not felt to be the organizing center of their lives. Many of the “casuals”—especially younger ones—had little or no religious exposure either as children or adults.
In other words, it would be wrong to understand SBNRs or Nones principally as “seekers.” Nor are they hostile to religion. They just don’t care much about it. Better, perhaps, to call these people something else–something more descriptive. “Religious Indifferents” is a phrase that comes to mind.
If we really are looking at a significant and growing percentage of Religious Indifferents in America, the implications for religious liberty could be profound. Consider the politics of religious accommodations. A minority religion that seeks an accommodation in the legislative process needs allies, people who understand why it is important to honor the minority’s religious convictions. Sometimes, the best friends a minority can have are adherents of other religions, who see it in their interest to lobby on behalf of the minority. By banding together, religions can achieve results they might not be able to achieve on their own. This dynamic, as well as the traditional American commitment to religious liberty as a fundamental right, explains how the Religious Freedom Restoration Act passed in 1993.
Large numbers of Religious Indifferents would change this dynamic. First, Indifferents are unlikely to seek accommodations for themselves. If you don’t care very much about religion, you’re not likely to oppose state action for religious reasons. Second, and more important, Indifferents will not likely feel much affinity for believers who do have religious objections to government policy. If you don’t take religion seriously, yourself, you’re not likely to understand why others do. What’s the big deal, anyway?
Some observers, like Rodney Stark at Baylor, think the numbers of Nones/SBNRs are exaggerated. And many younger Americans who are Indifferents now will no doubt join religions as they get older. If Mercadante is correct, though, the politics of religion in America could be in for a significant change.
Professor Chris Green points me toward a fascinating case decided by Justice Stephen Field in 1879 when he rode circuit in the District of California–Ho Ah Kow v. Nunan–also involving hair and prison. The case concerns a Chinese man who was imprisoned after he failed to pay a fine for violating a law limiting the number of people who could sleep in spaces of certain designated dimensions. While in prison, the man’s queue (a long braid worn on the back of the head) was cut off by the sheriff of the prison. The plaintiff claimed that the cutting off of his queue was a disgrace, a violation of his religious rights, and “is attended…with misfortune and suffering after death.” The sheriff defended on the ground that a San Francisco city ordinance required that every male prisoner’s hair must be “cut or clipped to an uniform length of one inch from the scalp thereof.” The plaintiff argued that the City lacked the authority to enact the ordinance and that the ordinance imposed “a degrading and cruel punishment upon a class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the equal protection of the laws.”
The court agreed with the plaintiff. This particular so-called “queue ordinance” was specifically targeted against Chinese people (the opinion comments on the hostility of Californians toward the Chinese at the time) and enforced exclusively against them, notwithstanding the ordinance’s neutral and generally applicable language. The court also noted the importance of the burdensome effects of an ostensibly neutral and generally applicable law: “Many illustrations might be given where ordinances, general in their terms, would operate only upon a special class, or upon a class, with exceptional severity, and thus incur the odium and be subject to the legal objection of intended hostile legislation against them.” The ordinance was struck down on this ground alone.
But the court’s remarks about the relationship between hair-length regulations and various types of interests that the prison might advance are also worth thinking about:
The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be maintained as a measure of discipline or as a sanitary regulation. The act by itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases. Had the ordinance contemplated a mere sanitary regulation it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the hair which is practiced upon inmates of the state penitentiary, like dressing them in striped clothing, is partly to distinguish them from others, and thus prevent their escape and facilitate their recapture. They are measures of precaution, as well as parts of a general system of treatment prescribed by the directors of the penitentiary under the authority of the state, for parties convicted of and imprisoned for felonies. Nothing of the kind is prescribed or would be tolerated with respect to persons confined in a county jail for simple misdemeanors, most of which are not of a very grave character. For the discipline or detention of the plaintiff in this case, who had the option of paying a fine of ten dollars, or of being imprisoned for five days, no such clipping of the hair was required. It was done to add to the severity of his punishment….
The claim, however, put forth that the measure was prescribed as one of health is notoriously a mere pretense. A treatment to which disgrace is attached, and which is not adopted as a means of security against the escape of the prisoner, but merely to aggravate the severity of his confinement, can only be regarded as a punishment additional to that fixed by the sentence. If adopted in consequence of the sentence it is punishment in addition to that imposed by the court; if adopted without regard to the sentence it is wanton cruelty.
The United States Supreme Court has agreed to hear Holt v. Hobbs, the case of a Muslim prisoner in Arkansas who claims that prison officials violated his religious freedom under the Religious Land Use and Institutionalized Persons Act when they enforced their grooming policy against him. The policy forbids the growing of a beard. Here’s the opinion of the 8th Circuit.
The case is important because it zeroes in on the government’s burden under RLUIPA, and whether it needs to consider alternatives to its policy as well as policies that other prison systems have tried in order to satisfy the least restrictive means leg of RLUIPA. In 2005, the Supreme Court held unanimously in Cutter v. Wilkinson that RLUIPA does not violate the Establishment Clause.
The media coverage of the now-vetoed Arizona bill amending the existing Arizona RFRA has been abominable. The claim that the bill would have permitted private businesses to refuse to serve gay people is simply untrue; the bill did not say that. The bill was short–just two pages long. Anybody could have read it quickly to see what it provided: expansion of state RFRA coverage for businesses and an amendment that private actions are now covered (as in, what the government cannot do directly, it cannot do indirectly by giving private parties a cause of action). The bill would have done nothing to change the basic burden-shifting framework of the Arizona RFRA–the same framework used by the federal RFRA–in which a judge is charged to determine whether there is a substantial burden counterbalanced by a compelling government interest achieved by the least restrictive means.
Perhaps that is the point, though. Anger against this bill is entirely misdirected. If one truly believes that laws which provide for the possibility of religious exemptions against generally applicable laws are anathema, the obvious course is to repeal the state and federal RFRAs themselves. Several prominent law and religion scholars have been advocating vigorously for just that result for some time. It appears that public sentiment is turning in their direction.
Earlier this month, Penguin Books India agreed to recall and destroy copies of a book by American scholar Wendy Doniger, The Hindus: An Alternative History. Penguin did so in order to settle a four-year old lawsuit by a Hindu activist group, Shiksha Bashao Andolan, alleging that publication violated Indian law, which forbids insulting the religious beliefs of a class of citizens. In a statement, Penguin maintained that it had an obligation “to respect the laws of the land in which it operates, however intolerant and restrictive those laws may be.” Doniger concurred, stating that Indian law is “the true villain of this piece.”
The main complaint seems to be that Doniger’s book presents a hypersexualized, distorted version of Hinduism. Here’s Shiksha Bashao Andolan’s president, Dinanath Batra, in a Time magazine interview, describing what his group finds objectionable:
Doniger says [in the book] that when Sanskrit scriptures were written, Indian society favored open sexuality. The jacket of her book shows Lord Krishna sitting on the buttocks of nude women. She equates the shivlingam, worshipped all over India by millions, with sex and calls it an erect penis. She calls Gandhiji strange and says he used to sleep with young girls.
What I find most interesting in this controversy is the incomprehension each side has for the other. The activists, with Indian law on their side, think they are striking a blow for cultural and religious freedom. They are standing up to tactless outsiders who mock sacred things. Most Western observers, by contrast, are simultaneously repulsed and amused at the notion that people would find Doniger’s book off-putting and actually try to stop its publication. The activists must be rubes and obscurantists. The condescension comes through very clearly in the questions Time put to Batra, including the last one: “Don’t you worry that your objections might seem outdated in today’s modern world?” Batra’s answer is revealing, too: “We are not against modernity, but we are against westernization.”
Once again, we see the conflict between the values of WEIRD cultures–Western, Educated, Industrialized, Rich, and Democratic–and those of more traditional societies. WEIRD cultures stress individual expression and fulfillment; traditional cultures value authority, community, and sacredness. To someone from a WEIRD perspective, it’s impossible to believe that serious people could be morally outraged by Doniger’s book, or think destroying the book a proper response. By contrast, people embedded in a traditional Hindu culture find Doniger’s interpretation disgraceful and foreign–an insult that should not be borne.
Of course, cultures aren’t uniform. Some Indians have WEIRD values; some Westerners are traditionalists. Some well-known Indian writers objected to Batra’s lawsuit; here in the US, the Hindu American Foundation issued a statement basically endorsing Penguin’s decision. But, on the whole, the WEIRD/Traditionalist divide is a useful way to understand our world. It explains many current controversies, like blasphemy prosecutions in Pakistan, proposals to ban circumcision in Scandinavia, anti-homosexuality laws in Africa, and the dispute over Doniger’s book.
As I’ve written before, it seems to me that three possibilities exist. First, WEIRD values will come to dominate worldwide. WEIRD culture has many benefits, and America projects it around the world relentlessly, through movies, advertising, the Internet, and so on. Second, Western culture will become less WEIRD. This could happen, too, especially if large numbers of people from traditional societies immigrate to the West. Third, and most likely, WEIRD and non-WEIRD cultures will continue to face off against one another for the foreseeable future, with inevitable clashes and occasional compromises. Buckle your seat belts.
Corporate law is not my area and so I have not especially focused on this amicus brief in the Hobby Lobby litigation, filed by 44 corporate law scholars arguing that a corporation cannot (ever?) take on the religious beliefs of its shareholders. It seems to me that whether a corporation does or should take on such beliefs might depend on a number of factors (Michael Helfand, for example, has identified one such possible factor in this paper). But the notion that a corporation should never take on the religious beliefs of its shareholders seems both counterintuitive and belied by the fact that we often encourage corporations and businesses generally to take on idealistic aims and aspire to socially beneficent ends.
The point is put well in this post by Keith Paul Bishop, a corporate attorney in California:
[T]he law professors make the following apocalyptic claim:
If this Court were to agree that, as a matter of federal law, shareholders holding a control bloc of shares in a corporation may essentially transfer their [social responsibility] beliefs to the corporation, the results could be overwhelming.
Ok, I substituted “social responsibility” for “religious”. However, if the transfer of stockholder religious beliefs to the corporation would be “overwhelming”, why wouldn’t the same be true of beliefs regarding climate change, the environment, or other beliefs animating the corporate social responsibility movement?
As a young woman in 1968, American Wallis Wilde-Menozzi moved to Rome, leaving behind a troubled first marriage and a tenured faculty position in the UK. In The Other Side of the Tiber, she reflects upon that experience and the decades that followed, in which she developed as a writer, married again and raised a family, and became acculturated to her new home. Her metaphor for remembering is the Tiber, the river that runs through Rome, carrying with it the residue of earlier times and civilizations. Like the river, she writes, one’s memories are always a fluid part of one’s present.
The book is not only a personal memoir, though. A major theme is the contrast between the American and Italian ways of doing things–between a Protestant, progressive, rule-of-law society that exalts individualism and looks relentlessly to the future, and a Catholic, traditional one that rejects the idea that people can disregard the past and create their own identities. (“There is no such thing. We are always accompanied by ancestors.”) Each way has advantages and disadvantages. Americans are often shocked by what they see as the casual lawlessness of Italian life–”there is a breathtaking gap,” she writes–”a metaphysical canyon, between what is considered moral and what is considered legal in Italy”–which, no doubt, contributes to economic and political stagnation. On the other hand, there are qualities of community and public forgiveness to compensate. Italians are dismayed by American free-market economics, which often seem heartless and uncivilized, and by Americans’ lack of real appreciation for history. One of the most interesting episodes in the book is Wilde-Menozzi’s account of teaching American students in Siena. The students seem unaware of even the recent history of their own country, to say nothing of the ancients. She attributes their ignorance to the cost, and emptiness, of higher education in the US.
Wilde-Menozzi often gets nostalgic for the leftism of her youth, when she read Gramsci and Pasolini, and she tends to find feminist implications in everything, from Etruscan statuary to the annual August holiday, the Ferragosto. But, ideology aside, her writing is often lovely, and her images remain with you. (She is admirably spare in conveying, without detail, the pain of the sexual abuse in her childhood and her tense relationship with her mother; the theme of mothers is a recurring one in the book). On sfogliatelle, the Neapolitan pastries that must be done in a certain way: they are “a conscious effort to deny time its novelty.” On the the mosaics at the fourth-century church of Santa Costanza: their creators “imagined permanence, and yet, how could they have imagined us, so far away in time, still delighted by them?” And on the infinite regress of memory: “Italy is a story that always starts with ‘In the beginning there was already something before what you think is the beginning.’”
Napoleon Walter de la Mare (1873-1956)
‘What is the world, O soldiers?
It is I:
I, this incessant snow,
This northern sky;
Soldiers, this solitude
Through which we go
Enough with the snow, already.
Richard Reinsch has a post at the Liberty Fund’s Liberty Law blog discussing the claim (made here by a number of church-state scholars) that RFRA exemptions that impose significant burdens on an identifiable class of third parties violate the Establishment Clause. Richard agrees with me that the argument is not persuasive. A bit from his post involving the baseline from which one argues about what constitutes an entitlement, and therefore an establishment:
So if a religious liberty exemption requires cost-shifting in the manner of employees having to purchase—let’s be clear for Hobby Lobby and Conestoga Wood, the objection is to emergency contraceptives like Plan B, Ella, and also IUDs, and not the pill—their own emergency contraceptives, then we have an impermissible establishment of religion. As Eugene Volokh has argued, were the exemption to be granted the employees of Hobby Lobby or Conestoga Wood would return to the status quo before the mandate came down and one that many employees of companies exempt from Obamacare for various reasons will stay in. That is, if they want emergency contraceptives, well, then, they’ll pay for them with their salaries.