Tag Archives: Tradition

White Reviews The Tragedy of Religious Freedom

very generous review of the book in Commentary Magazine by Adam White. With the exception of the kindly words about Justice Holmes, I don’t disagree with anything in it!

And for something rather different (and speaking of Holmes), here’s a column from Reason (whose tagline is “Free Minds and Free Markets”) about tradition whose conclusion is that “We treasure the customs and practices passed down from our ancestors. And we change them anytime we want.” Judge Posner is quoted as saying, “How can tradition be a reason for anything?”

Remedies and the Religion Clauses: Reflections on the Jurisprudence of Tradition

The past few days have seen many criticisms from academic quarters of the Supreme Court’s reliance on historical evidence and practice to reconstruct the tradition of legislative prayer in reaching the conclusion that it did in Town of Greece v. Galloway. I have argued at length elsewhere that recurrence to long-standing and unbroken traditions of practice as themselves constitutional justifications is a sensible way to give presumptive meaning to open-ended provisions in the Constitution like the religion clauses. This is particularly so in the face of the tragically clashing values of religious freedom, where the elevation of one value as paramount will result in the loss of others.

True, other considerations of sufficient weight can and should supervene on the presumptive deference accorded to traditional practices. True also, the nature of a tradition may itself be contested and subject to different interpretations. The past speaks with many voices, as Martin Krygier has put it. So that the reconstruction and reconstitution of a tradition by a court will often smooth away rough edges; it must do so, as this is what law invariably and necessarily does—skeletonize fact, in Clifford Geertz’s phrase. The court’s reconstruction will not be the historian’s reconstruction because it cannot be. It will be a legal reconstruction—a judicial historiography. In this, tradition is hardly to be distinguished from the sorts of abstractions that courts and others often prefer to debate in this area of the law—equality, neutrality, and human dignity, to name only a few. But the reality of contestation does not mean that the idea of tradition or the substance of specific traditions are empty or somehow a fraud—any more than contestation about the idea of equality or neutrality or their specific applications mean that equality and neutrality are empty or a fraud. Because, like Rick Garnett, I believe that the core function of constitutional interpretation is not to resolve political division and disagreement, but to ascertain the meaning of words in a text (if that is what is meant by textualism, then I subscribe to it), the facts of a practice’s historical roots and duration are evidence of its consistency with the words of a law. Moral or political argumentation can, in unusual circumstances, trump such evidence. But those situations are, for me, exceptional. As I say, these are not extremely popular views in the legal academy. But they were controlling in Town of Greece. While legislative prayer may often be unwise as a political matter (and I believe that it is), the case was, in my view, correctly decided as a constitutional matter.

Yet in the balance of this post, I want to consider another feature of the case. What Town of Greece also shows is that the academy and the courts view the import of traditional analysis in legal interpretation in wildly different ways, assigning very different value to it. And the divide between the legal academy and the Supreme Court when it comes to the issue of the weight of tradition is not confined to the law of the religion clauses, or even to constitutional law proper.

In a superb new paper, The Supreme Court and the New Equity, Samuel Bray (UCLA) explains that what is “new” about the Supreme Court’s approach to remedies is that its methodology appeals to history and tradition. In a series of about ten cases in which the Court has been confronted in statutes with the words “equitable relief” or “equitable remedies,” it has reconstructed and re-entrenched the division of law and equity by relying on history and traditional practice. These statutes are authorizing courts to give certain specific kinds of remedies, not recommending that they do whatever they believe is politically or morally best in the name of equity. Bray writes that the Court has rejected the conventional academic wisdom of the past four decades and beyond—that there is no longer any viable distinction between equitable and legal remedies (this is seen most clearly in the difference between academic and judicial views about the continuing vitality of the irreparable injury rule). Here is Sam from the introduction to the piece:

[S]omething remarkable has happened at the Supreme Court. Over the last decade and a half, the Court has been slowly, perhaps even accidentally, laying the foundation for a very different future for the law of remedies. In ten different cases in nearly as many substantive areas, the Court has deeply entrenched the “no adequate remedy at law” requirement for equitable relief, and it has repeatedly underscored the distinction between legal and equitable remedies. The Court has shown no appetite, however, for reviving old distinctions between legal and equitable courts, procedures, or substantive areas of the law. Only in remedies—but there, with vigor—has the Court insisted on the historic division between law and equity.

The Court has not given a defense of perpetuating the division between legal and equitable remedies. Instead, at every point, the Court has supported its new equity jurisprudence by appealing to history and tradition. For example, in one of the new equity cases—a mere eight pages in the U.S. Reports—the word tradition or a cognate appears fourteen times.

The Court’s reconstructed tradition of equity is not fixed at any given moment. But neither does it recognize evolution or development. Rather, it looks, as Justice Kagan put it in U.S. Airways, Inc. v. McCutcheon, to “the kinds of relief ‘typically available in equity’ in the days of ‘the divided bench’ before law and equity merged.”

In relying on the history of equity to reconstruct a tradition of the division between equitable and legal remedies, sometimes the Court has gotten it quite wrong. It has made errors, and these have been rightly pointed out by legal historians. Sometimes these errors have been corrected by the Court; sometimes they still await correction. And yet, Sam writes that while the legal academic critique of the jurisprudence of tradition has been “stinging,” it has also been “incomplete.” As the jurisprudence of tradition was employed in an increasing number of cases, the historical errors decreased, the Court developed consensus about the boundaries of equitable remedies and about its own methodology, and the appeal to tradition sometimes restricted but also sometimes expanded the reach of equitable remedies. The jurisprudence of tradition matured.

Some legal academics have gone further in their criticisms. They have claimed that the “tradition” of equity is a fabrication—a fraud constructed by the Court—and that no such sharp-edged historical referent is even conceivable just exactly because the tradition is so ancient and so varied. But Sam resists this criticism, and quite rightly in my own view. The judge’s imperative is to interpret language and to decide cases, and it is in the shadow of this imperative that he looks to history. Here is Sam again, in a telling passage:

Judges are looking to history, but not for historical purposes. They must force unruly historical events through a decisionmaking process that will have binary results, such as liability or no liability, damages or no damages, guilt or acquittal, a jury trial or no jury trial, the availability of laches or no availability of laches, contempt or no contempt. Judges have no leisure for prolonged investigation, a series of monographs, a revise-and-resubmit. They do have some grounds for abstaining from making a decision, but there is no such thing as Incomplete Historical Record Abstention. Pressed to use history and pressed to decide, judges tend to emphasize the continuity of past and present. In this way, too, their use of history differs sharply from historical scholarship, in which the characteristic theme is discontinuity.

And yet this does not mean that the idealized tradition that judges reconstruct is empty or a phantom or a fraud. The tradition of remedies typically available in equity is not meaningless. Naturally there will be disputed questions at the borders, as there always are. But there are many questions that will be clearly settled by such an approach—indeed, this is what will make it possible for legal historians to criticize courts for clear mistakes (as when the Supreme Court misdescribed the writ of mandamus as an equitable remedy). As time goes on, the jurisprudence of the tradition of remedies typically available in equity will settle. It will mature.

The jurisprudence of tradition’s project to reconstruct an idealized history of equity is, in fact, a plausible middle course between the options of freezing equity at a distant historical moment, on the one hand, and imbuing it with amorphous exhortations to courts to be “flexible” or “adaptable” or to do “what is right,” on the other. These are the options available to a court confronted with the necessity to interpret and decide. Even more than that, however, the methodology of the jurisprudence of tradition highlights—helpfully—the perennial separation between academic and judicial functions, purposes, and roles. Perhaps there are lessons here for the religion clauses as well.

The Traditional Frame: Justice Kagan’s Dissent and Justice Alito’s Concurrence in Town of Greece

In this post, I’ll offer a few comments on Justice Kagan’s principal dissent in Town of Greece v. Galloway, which was joined by Justices Breyer, Sotomayor, and Ginsburg (Justice Breyer also dissented separately). I’ll also briefly consider Justice Alito’s concurrence, which takes on some of the points in the main dissent. I should add that in these posts I am only describing what I take to be notable features of these decisions. I am not intending to evaluate them on the merits, with one small exception at the end of this post.

The most unexpected feature of the dissent is that it accepts the traditional frame propounded by the majority. The dissent explicitly repudiates strict separationism: “I do not contend that principle [of religious equality] translates here to a bright separationist line. To the contrary, I agree with the Court’s decision in Marsh v. Chambers upholding the Nebraska legislature’s tradition of beginning each session with a chaplain’s prayer.” Justice Kagan makes a point later of saying that she thinks Marsh was correctly decided. Indeed, not a single justice of this Court accepted the Brennan/Marshall position in Marsh.

That’s remarkable, inasmuch as Marsh is frequently described in rather unflattering terms by many of my esteemed colleagues: outlier, carve-out, aberration, inconsistent with the doctrine, unprincipled, a vestige of a bygone age–these are generally representative of the legal academy’s dim view of Marsh. And, indeed, it is true that Marsh seems to stand alone against the coursing flow of modern establishment doctrine. Here was a chance for those members of the Court that felt something like this way about Marsh, or worse, to say so–to take a stand in favor of lopping off this traditionary annoyance without very much hurt at all to the primary stream of contemporary establishment doctrine. Yet nobody did.

Instead, the methodological path of the dissent is to accept the traditional frame and then to argue that the facts in this case do not fit within a correct interpretation or reading of that tradition: “And so I agree with the majority that the issue here is “whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures.” Where I depart from the majority is in my reply to that question….[T]he prayer in Greece departs from the legislative tradition that the majority takes as its benchmark.”

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The Return of the Jurisprudence of Tradition: 10 Points on the Kennedy Opinion in Town of Greece

Having read the decision, I thought I’d write up three separate posts on Town of Greece v. Galloway. This first post discusses Justice Kennedy’s opinion for the Court. The next one will talk about Justice Kagan’s dissent and Justice Alito’s concurrence. The final post will discuss Justice Thomas’s concurrence (joined in part by Justice Scalia).

Here are 10 points on Justice Kennedy’s opinion. The opinion was joined in full by Chief Justice Roberts and Justice Alito. It was joined by Justices Scalia and Thomas except as to Part II(B).

1. By far the most prominent theme in Justice Kennedy’s opinion is the role of tradition and historical practice in validating the practice of legislative prayer. That point is repeated no less than six or seven times in all kinds of contexts. The practice is “part of our expressive idiom” and our “heritage.” Justice Kennedy writes that “Marsh is sometimes described as “carving out an exception” to the Court’s Establishment Clause’s jurisprudence,” inasmuch as no “tests” were applied in Marsh, but in reality, “[t]he Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause” That’s important. It indicates that the mode of analysis in Marsh was not a carve-out, so much as the place where all Establishment Clause analysis begins, and, under certain circumstances, where it ends.

2. Note the emphasis on both history and particularism in the following: “Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted….A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.” Very interesting. The claim seems to be that it is the rigidity of the tests themselves in this area, and their failure to grant a kind of presumptive validity to entrenched social practices and traditions, which itself generates religious division.

3. In keeping with points #1 and #2, neither the Lemon test nor the endorsement test figure in Kennedy’s analysis at all. There is only a whisper of endorsement in Kennedy’s claim in Part II(B) (which JJ. Scalia and Thomas did not join) where he writes that “[i]t is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews.” That certainly doesn’t mean that these tests are dead. They just are largely MIA.

4. Framing: Everybody–Justice Kennedy, Justice Kagan in dissent (of which more soon), and the parties–seems to have accepted the following framing by the Court: “The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” No member of the Court resisted this framing or opined that this was an inappropriate or wrong-headed sort of inquiry.

5. “Sectarian” prayers: “An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.” The Court here disavows the claim that only nonsectarian prayers are within Marsh’s compass. Again the basis for the claim is in part historical: “The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today.” The growing diversity of the country embraces a kind of deep substantive pluralism as well. The County of Allegheny dictum characterizing Marsh as it did–relying, that is, on the fact that the chaplain in Marsh “removed all references to Christ”–is also repudiated by the Court. Kennedy writes: “Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content.”

6. Entanglement and majoritarianism in supervision: Kennedy further remarks that requiring the Court to supervise the content of prayers would demand government over-involvement in religious matters. The cite here is to Hosanna-Tabor, not to Lemon. It would also inevitably result in majoritarian favoritism, as courts would demand words acceptable only to a majority, the effect of which would be to exclude a minority.

7. Limits: the limits on the acceptability of legislative prayer seemed to be those which “over time…denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.” Also, where “many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.”

8. Note the words “over time” in the previous statement. Although plaintiffs presented some evidence that two of the prayer practice occasions did not serve the traditional functions of legislative prayer as formulated by the Court, these two occasions “do not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation.” That is quite a different test than any that existed before. Moreover, the fact that nearly all of the congregations in town are Christian and therefore are substantially represented–or over-represented–in the legislative prayer practice does not itself render the practice unconstitutional: “So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.”

9. On the claim that this case could be distinguished from Marsh on the ground that civilians are coerced to participate, the plurality says that the principal purpose of legislative prayer “is largely to accommodate the spiritual needs of lawmakers and to connect them to a tradition dating to the time of the Framers….The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”

10. Finally, Lee v. Weisman, which Justice Kennedy authored, is distinguished on the ground that nobody is dissuaded from leaving the meeting room during a prayer, arriving late, or making a later protest. Such activities occur regularly and pass without notice. Quiet acquiescence, in this context as compared with the school context, “does not suggest agreement with the ideas and words expressed.”

Supreme Court Reaffirms the Constitutionality of Legislative Prayer

The Supreme Court has ruled in favor of the Town of Greece in Town of Greece v. Galloway, a case involving the constitutionality of the practice of legislative prayer. The decision is here.

I will have more comments on this important decision after having read it through. Suffice it to say for now that the language and jurisprudence of tradition figures extremely prominently in both Justice Kennedy’s plurality opinion and in Justice Kagan’s main dissent.

Vidas, “Tradition and the Formation of the Talmud”

Here’s a new one from Princeton University Press, Tradition and the Formation Tradition and the Formation of the Talmudof the Talmud by Moulie Vidas (Princeton University). Interesting thesis with respect to the nature and history of tradition and tradition-mindedness in Judaism. The abstract follows.

Tradition and the Formation of the Talmud offers a new perspective on perhaps the most important religious text of the Jewish tradition. It is widely recognized that the creators of the Talmud innovatively interpreted and changed the older traditions on which they drew. Nevertheless, it has been assumed that the ancient rabbis were committed to maintaining continuity with the past. Moulie Vidas argues on the contrary that structural features of the Talmud were designed to produce a discontinuity with tradition, and that this discontinuity was part and parcel of the rabbis’ self-conception. Both this self-conception and these structural features were part of a debate within and beyond the Jewish community about the transmission of tradition.

Focusing on the Babylonian Talmud, produced in the rabbinic academies of late ancient Mesopotamia, Vidas analyzes key passages to show how the Talmud’s creators contrasted their own voice with that of their predecessors. He also examines Zoroastrian, Christian, and mystical Jewish sources to reconstruct the debates and wide-ranging conversations that shaped the Talmud’s literary and intellectual character.

Garnett on the Legislative Prayer Case

My friend Rick Garnett has an extremely sensible post about the legislative prayer case, Town of Greece v. Galloway, which will be heard this term by the Supreme Court. A bit from Rick’s analysis:

[J]udges evaluate, and sometimes disallow, policies that majorities considered, argued about, and embraced.  Because, again, majority rule is the usual way we go about political decisionmaking, this evaluation and – especially! – disallowing is a big deal, and it’s important that the work of judicial review be done right.  Whether or not it is depends, I suggest, on (at least) three related variables:  First, identifying, as correctly as possible, the judicially enforceable meaning of the constitutional text in question; secondthe prudent design and development of workable doctrines that courts can use to decide real-world cases; and third, affording the appropriate deference, if any, to those actors whose decisions are being reviewed and who, presumably, decided that those decisions were constitutionally sound . . . .

[T]he Court can aspire to do well with respect to…doctrine and deference.  The court of appeals, its opinion states, saw “no test-related substitute for the exercise of legal judgment” and it characterized the case as a “fact-intensive” one “which def[ies] exact legal formulas[.]”  In the end, though, it couched its decision in “endorsement test” terms, and reported that “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” supported the conclusion that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.”  But neither throwing aside doctrines and tests in favor of “legal judgment” nor engaging in unstructured speculation, however “contextual,” regarding imagined reactions, impressions, and beliefs that “can give only limited guidance to municipalities that wish to maintain a legislative prayer practice” is a sensible or appropriately deferential way for a reviewing court to play its role.  A relatively clear, historically rooted standard, the tool employed in the Marsh case, works better, and is the more consistent justification for judicial review.

Of course, not all permissible practices are best practices or even good ideas.  Even if the court of appeals reached the wrong conclusion, in an unsatisfying way, about what the Constitution allows, its suggestion to towns that they “pause and think carefully before adopting legislative prayer” is sound advice.  Although it is true that many of us – and, in many places, most of us – believe that it is both appropriate and right to seek God’s help with the important business of living together and well in political communities, it is also true that ours is a religiously pluralist society that is becoming more so.  In such a society, as the American Jesuit scholar, John Courtney Murray, wrote, “[men and women] of all religions and of no religions must live together in conditions of justice, peace, and civic friendship.”  The line that separates policies that build up this friendship from those that tear it down is important, even if judicial review is not always the best way to find it.

Rick’s post is part of an on-line symposium at SCOTUSblog discussing various features of the case; the other posts may be found here.

For what it’s worth, I think the most interesting thing about the case does not concern legislative prayer itself, but the fate of the endorsement test, though this is not an issue that the Court would need to reach if it finds itself in a minimalist mood.

Josef Pieper’s Allegory of the Black Bread

Josef Pieper was a German philosopher of the post-war period who worked inPieper the Thomistic philosophical tradition. Perhaps his best known and most widely read essay (Pieper often wrote relatively short and accessible essays rather than longer-form books) is Leisure, The Basis of Culture (1948), in which Pieper argued that the disposition toward leisure allows us more fully to take part in and enjoy the world. Leisure in Pieper’s account did not mean any cessation of work or “down-time” in which one could be idle for the instrumental purpose of doing more effective work later. Instead, leisure was a condition of the mind that allowed a person a certain silence in which he could perceive and then celebrate the splendors of creation.

I am now reading Pieper’s essay, Tradition: Concept and Claim (originally Tradition Concept and Claimpublished in 1970, but developed from a lecture given in 1957). In it, Pieper discusses the idea of tradition in a distinctively sacred key. For Pieper, by far the most important variety of tradition is “sacred” tradition, because the reasons to value tradition have not so much to do with a tradition’s being handed down as with the source of the tradition. Those that handed down the tradition as an initial matter were closest to the divine source of the tradition, and it is for that reason that the tradition has value.

Pieper’s is a bracing account of tradition because it differs so completely from the ways in which tradition generally is conceived and discussed today, in law and elsewhere, including by supporters of the influence and importance of tradition in these spheres. He allows that there are “secular” traditions but these are not really at all the traditions in which he is interested; secular traditions are instrumentally valuable (they enable life to “run along with less friction”) but not intrinsically valuable.

An interesting problem arises for Pieper when there is an admixture of sacredBlack Bread and secular traditions–or, more precisely, when people employ a variety of secular traditions in order better to preserve, uphold, and transmit the sacred tradition. In responding to the problem, Pieper offers an allegory–the allegory of the black bread:

In my grandparents’ day, it was a settled custom in peasant households that the father had to slice the bread for suppertime. If he was beginning to cut a new loaf, he made the sign of the cross over it with the knife. It was done, as I saw many times as a child, almost casually, even furtively, but it was never omitted. Things have changed since then. We no longer bake those enormous loaves of black bread, which really needed a grown man to master them. Now we have machines to slice the bread, and most of the time the bread comes from the store or factory already sliced. In a word, this beautiful tradition too has passed away. It does not take much imagination to see how many themes are present here for a truly pessimistic cultural critique (“machines replacing humans,” “urbanization,” “the collapse of the family,” and so forth).

Nevertheless, we can ask whether this kind of change is simply deplorable. Is it legitimate to speak in a more or less precise sense of a “loss of tradition” here? The answer to this question is made more complicated by the fact that here the purely technical process was clearly linked with elements of the sacred tradition. It seems to me that we could really talk about a “loss of tradition” and a “break with tradition” if the change affected the family’s order, and most of all what was meant by the holy sign of the cross; that is, such language is appropriate when that which is lost stands in more or less direct connection with the traditum, which alone must be unconditionally preserved. It is common for the essence of what must be preserved to become overgrown by and entangled with the concrete forms of historical life, and a change in the outer may very well threaten the pure preservation of the essence, so that anyone who carelessly discards or makes light of the “outer” traditions commits a dangerous act. A student of ethnology once told me that in a group that was driven out of its homeland, religious commitment might possibly grow looser to the same degree that the group moves away from baking its rolls in a certain way. Of course, the question remains open what is the cause here and what the effect, and whether we are not dealing with an extremely complex total process.

Tradition: Concept and Claim, 40.

Shils on Text as Tradition

In preparation (maybe pre-preparation is more accurate) for a new large project, I am re-reading and enjoying the sociologist Edward Shils’s short masterpiece, Tradition. In an early part of the book, he says the following about “texts” which I thought relevant to several issues in law (particularly, but not only, constitutional law):

From the standpoint which I take here both declaration and interpretation are traditions. The physical artifacts–manuscripts–are traditions. The sacred text itself is a tradition. The “tradition” is accumulated understanding of the text; the text would be only a physical object without interpretation. The sacredness of the text sets it apart, but it would make no sense without an interpretation; yet the interpretation which makes it what it is, is regarded as different from the text. The works of literary figures like Homer, Virgil, Shakespeare, and Dante are placed in a somewhat similar situation; large bodies of interpretation form around them. The manuscripts and printed books in which the text is recorded, the text and the interpretations of it are all tradita.

Varieties of Progressive Civil Religion

Here’s a very interesting short piece by Professor David Fontana (GW), which responds to Professor Fred Gedicks’s (BYU) longer article, American Civil Religion: An Idea Whose Time is Past.  Both papers are worth your attention.  What interests me is the taxonomy of progressive American civil religion that these papers go some distance to fleshing out (Steve Shiffrin’s book about the religious left is also useful).  It is sometimes assumed that all progressives are opposed to civil religion, while all conservatives support it; progressives are supposed to be for the naked public square, while conservatives prefer greater public modesty.  There is a little truth in this caricature, but the picture is more complicated.  Civil religion is neither the possession of the left nor the right.  Instead, the fight seems to be about the variety of civil religion that the country ought to embrace.  And as to that question, it seems that not only do conservatives disagree with progressives but progressives differ among themselves.  Fred’s piece, for example, is largely skeptical about civil religion but in the end calls for a “thinner,” “Rawlsian,” “procedural” version that, he claims, “can function to bind us together as a people and a nation.”  And though he does not believe “religion” can perform this function, the election of Obama made him “proud to be an American” and provided something like this “thinner” variety of civil religion (or civil civilianism).  By contrast, Fontana writes:

The issue with the American civil religion, though, is that it had come to be seen as so ideological and exclusionary that it alienated many mainstream and liberal voters. While advocacy of an American civil religion could have motivated those true believers, typically those on the political right that Gedicks discusses, a politically conservative civil religion that had “appropriated the symbols and practices of American civil religion and infused them with sectarian meaning” turned off many voters. An American liberal civil religion held out more promise as an inspiring American nationalism, but with a tolerant edge. Enter Obama onto the national political stage, perhaps “the most theologically serious politician in modern American political history,” whose speeches have been just as full with religious imagery and rhetoric as they have been with civil imagery and rhetoric. Obama’s speeches were full of references to civil ideas, or as Gedicks defines them, Rawlsian ideas, as well as to religious ideas . . . .

In other words, then, perhaps the American civil religion is not dead, but has been brought to life by our new President. Since Bellah’s concept of the civil religion was about the idea as a political tool as much as about a sociological concept, it has come to life again because it has been used by a group—and a political phenom—better able to use it in the political sphere. Indeed, just as maybe only Nixon could go to China, maybe only Obama can reinvigorate civil religion.

The claim that Obama is “the most theologically serious politician in modern American political history” is supported by a citation to Professor Charlton Copeland’s piece, “God-Talk in the Age of Obama: Theology and Religious Political Engagement.”  I’m not sure how one would measure such things; read Copeland’s paper to find out how he claims to do it.

But the interesting thing about both pieces is the durability of civil religion, the hardiness of this plant and its capacity to take root in what one might think would be the inhospitable, stony soil of the progressive heart.  For Fred, the terrain is truly rough and desiccated.  For Fontana, it’s a little richer, but only a little.

And that points toward another interesting feature of progressive civil religion.  What binds Fred’s and Fontana’s accounts is that for both writers, civil religion is feeble.  It lacks deep roots.  For Fred, civil religion is “thin” while for Fontana it has a shelf-life of roughly two and a half more years.  I am reminded of the following passage concerning the modern orientation toward tradition in the sociologist Edward Shils’s excellent book of the same name:

Tradition is like a plant which repeatedly puts down roots whenever it is left in one place for a short time, yet is frequently torn up and flung from one place to another, so that the nutriment of its branches and leaves is cut off and the plant becomes pale and enfeebled.  Traditions may be unavoidable but they are not always very strong.  Tendencies to seek and find traditions may be ubiquitous in human society and the tendencies to seek and find might always find a tradition to attach themselves to.  The tendency to seek a religious tradition may be present in all societies but if they are unaided by the availability of traditions and proponents of tradition, substantive traditions may become etiolated and very weak.  (315)

For progressive civil religion, that may be the point.