Posted on by Mark Movsesian · 3 Comments

Religion without God

Religion without God is the late Ronald Dworkin’s last work, published posthumously in September. It’s a short book; a publisher’s note explains that Dworkin planned to expand the work greatly before he fell ill. Still, the book is important. Not that it says anything especially new. As far as I can tell, in fact, the book repeats familiar, even ancient, objections to the idea of a personal God and proposes a legal definition of religion that is decades old. Religion without God is important, rather, because it reflects the worldview of  a celebrated liberal philosopher sympathetic to religion but unable to believe in God, and because it reflects an increasingly important strategy in the Left’s battle to minimize protection for traditional religion.

Religion without God has two main points, one about the nature of religion and the other about religious freedom. In the first part of the book, Dworkin argues that religion, properly understood, does not require a belief in God. Religion requires only a belief in objective meaning and a sense of wonder at the sublime quality of the universe. Many atheists believe in objective meaning and view the universe with a sense of wonder, Dworkin writes, and are thus, in their way, “religious.” Dworkin hopes this insight will dampen the conflict between atheists and believers in contemporary Western culture. Both sides agree on the essential things, he argues; disagreement on the existence of God is only a minor detail.

Take objective moral values, for instance. Many theists believe moral values depend on the existence of a personal God. If God had not told us, or implanted the knowledge in us, we would not know what is right and what is wrong. This is logically incorrect, Dworkin says. Objective values must exist independently of God’s will. Otherwise, God could make conduct ethical simply by commanding it, and that would be entirely arbitrary. What if God ordered you to murder your family members? Would that make the murders right? No, the murders would be wrong, whatever God told you. So God is superfluous to moral reasoning–no more than a possibly helpful guide. Once they recognize this, Dworkin argues, believers will see that their differences with atheists–at least with “religious atheists”–are insignificant.   

This argument tracks the famous Euthyphro dilemma, to which Dworkin alludes at the very end of his book. Christianity–I don’t know about other traditions–has an answer to this dilemma, though Dworkin dismisses it rather summarily. The Christian answer is this: the Euthyphro dilemma assumes that God is a being like any other in the universe, subject to the same logical disconnect between fact and value. But God, in Christian understanding, is not like that. Unlike human beings, God is not born into a preexisting universe. He is eternal. As Peter Leithart writes, no gap exists between God and objective reality, including objective moral reality. In the Christian conception, God is objective moral reality.

This is all pretty complicated. But one doesn’t have to follow the entire argument to recognize that theists are unlikely to be persuaded that a belief in God is optional–and that atheists are unlikely to be persuaded that their disagreement with theists is only minor. Dworkin himself recognizes that his irenic project is likely to fail, which gives Religion without God a melancholy tone. He apparently believed it important to try to narrow the conceptual gap between theism and atheism, however, in order to advance a legal project: expanding the legal definition of religion to include non-theistic, ethical convictions.

Here’s the argument. If religion is “deeper” than conventional theism, as Dworkin insists, protection for religious exercise must, in fairness, extend to non-theistic belief systems as well. In fact, protection should extend to any passionately held ethical conviction. This observation isn’t new. In the Draft Act cases decades ago, the Supreme Court indicated that religion could include deeply-held, non-theistic beliefs. But extending “religion” in this way creates a serious practical problem. In our legal system, religion enjoys a specially-protected status. In many instances, government accommodates citizens’ religious beliefs by granting exemptions from otherwise applicable legal requirements. If religion means all deeply-held ethical convictions, how can the state possibly accommodate it? Chaos would result.

Here Dworkin makes his final move. Because of the practical impossibility of accommodating religion, the state should not bother to try. We should abandon “the idea of a special right to religious freedom with its high hurdle of protection,” he writes, in favor of a more general right to “ethical independence.” The payoff? “If we deny a special right to free exercise of religious practice, and rely only on the general right to ethical independence, then religions may be forced to restrict their practices so as to obey rational, nondiscriminatory laws that do not display less than equal concern for them.” Religion, in other words, will take a back seat to progressive politics. A general right of ethical independence, he writes, would restrict public religious displays, unless the displays were genuinely drained of all religious meaning, and would mandate “the liberal position” on same-sex marriage, abortion, and gender equality in marriage.

Dworkin’s definition of religion thus seems tendentious, a way to dilute religion so as to minimize the potential for conflict with the progressive state. This is not surprising. Traditional religion opposes many of the Left’s priorities; for the Left to succeed, it must continue to marginalize traditional religion. And Dworkin’s argument that religion as such does not merit special protection is very much in the air today. Prominent law professors like Brian Leiter and Micah Schwartzman make versions of this argument, for example. In the Hosanna-Tabor case, the Obama Administration maintained that religious freedom, as such, had nothing to do with a church’s decision to fire its minister.

So far, courts appear to be rejecting the religion-isn’t-special argument (though, it must be said, the Court’s 1990 decision in Employment Division v. Smith, the peyote case, gives the argument rather more traction than it should possess). In Hosanna-Tabor, for example, the Supreme Court rejected the Obama Administration’s argument by a vote of 9-0. You never know how future courts will see things, though. Dworkin’s last book suggests that the fight over the special status of religion in American law is only beginning.

Posted on by Marc O. DeGirolami · 1 Comment

Realism and Idealism: On Law’s Limits

Last week, I attended a very interesting conference about which I’ve written here before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not  law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.

The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.

  1. First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
  2. I was also struck by how prevalent critical methodology seemed to be.  Read more
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“Prohibition, Religious Freedom, and Human Rights” (Labate & Cavnar, eds.)

bookNext month, Springer will publish Prohibition, Religious Freedom, and Human Rights: Regulating Traditional Drug Use edited by Beatriz Caluby Labate (Center for Economic Research and Education, Mexico) and Clancy Cavnar (John F. Kennedy University). The publisher’s description follows.

This book addresses the use and regulation of traditional drugs such as peyote, ayahuasca, coca leaf, cannabis, khat and Salvia divinorum. The uses of these substances can often be found at the intersection of diverse areas of life, including politics, medicine, shamanism, religion, aesthetics, knowledge transmission, socialization, and celebration. The collection analyzes how some of these psychoactive plants have been progressively incorporated and regulated in developed Western societies by both national legislation and by the United Nations Drug Conventions. It focuses mainly, but not only, on the debates in court cases around the world involving the claim of religious use and the legal definitions of “religion.” It further touches upon issues of human rights and cognitive liberty as they relate to the consumption of drugs. While this collection emphasizes certain uses of psychoactive substances in different cultures and historical periods, it is also useful for thinking about the consumption of drugs in general in contemporary societies. The cultural and informal controls discussed here represent alternatives to the current merely prohibitionist policies, which are linked to the spread of illicit and violent markets. By addressing the disputes involved in the regulation of traditional drug use, this volume reflects on notions such as origin, place, authenticity, and tradition, thereby relating drug policy to broader social science debates.

Posted on by Mark Movsesian

Movsesian at the European University Institute (June 3)

For CLR Forum readers in the area, I’ll be giving a talk, “Psychic Sophie and the Rise of the Nones,” next week at the European University Institute in Florence. My talk will be sponsored by the Institute’s ReligioWest project. Here’s the abstract:

The most important story in American religion today is the rise of the “Nones,” the category of people who declare no religious affiliation. Approximately one-fifth of American adults are in this category, and their numbers have exploded in the past two decades. Surprisingly, perhaps, the Nones tend to be believers; very few of them say they are atheists or agnostics. They reject not belief but organized religion, and draw on a variety of traditions to create their own, a la carte, spiritualities. In this paper, I explore the rise of the Nones and the tensions it exposes in American law, particularly with regard to the definition of religion. To illustrate, I rely on a recent US appeals court case in which the plaintiff, “Psychic Sophie,” argued that the state had interfered with the exercise of her religion — which she defined, in typical None fashion, as “following her inner flow.”

Details are here. Stop by and say hello!

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie: Denouement

Back in December, I wrote a couple of posts about “Psychic Sophie,” —  Part I and Part II — the “spiritual counselor” who was classified as a “fortune-teller” by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement.  Psychic Sophie’s free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.

Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today.  From Kevin’s post about the opinion:

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer “guidance,” as the court says, but its guidance is not definitive — and I don’t mean that in the least as a criticism ofYoder).  Judge Arlin Adams’s Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit’s approach is quite different (different times).

One final note.  Writing for the panel here, Judge Duncan said this: “Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten ‘the very concept of ordered liberty.’  Yet [she] forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she ‘pretty much goes with [her] inner flow, and that seems to work best.'”  But, taking care not to “belittle” Psychic Sophie’s beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.

Perhaps the “Eisenhower principle” has its limits.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie, Part II

Psychic Sophie, as I mentioned in Part I, appealed the district court’s unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday.  Chief Judge Traxler, Judge Wilkinson, and Judge Duncan made up the panel.  Here’s a news report on the argument.  A couple of highlights.

First, in response to an inquiry about whether predicting the future is “inherently deceptive” (and therefore should not receive constitutional protection), counsel for the defendant County said, “Yes, sir, it is.”  To which CJ Traxler responded, “How would you characterize the Book of Revelation?”  Counsel for the plaintiff seems to have argued that predicting the future is not “inherently” deceptive provided that the prognosticator “sincerely believes” the prediction or does not believe that he is being deceptive.  Does the deceptiveness of a prediction of the future depend on the speaker’s subjective belief as to its truthfulness and/or his intent to deceive?  I wouldn’t think so, but I’m not a free speech maven.  But I suppose one might have replied that predictions of the future are not “inherently” deceptive; they are only contingently true (or false) — the contingency being their (dis-)confirmation on the appointed day.  We’re still waiting on Revelation.  On the other hand, Montaigne, in his essay, “On Prognostication,” doesn’t see what all the fuss is about: “[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise — a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand –…. It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]”

Second, Judge Duncan was interested in the question of whether Psychic Sophie’s business and belief system were “religious” or instead a “way of life.”  But Judge Wilkinson seemed dubious: “If what she’s expressed is a religion, then anything and everything is a religion.”  Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine.  From Book IV, Chapter 3 of the Confessions:

There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.

Looking forward to the panel’s decision.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie, Part I

Apropos of Trollope and Ike, here’s a neat case — courtesy of CLR Forum friend and former guest Kevin Walsh — that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit.  It concerns one Psychic Sophie, a self-described “spiritual counselor” operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers’ personal questions in person, over the phone, and via email.  She offered these services from a small office within a larger office complex which included licensed mental health professionals.

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Beaman on Is Religious Freedom Impossible in Canada?

Lori G. Beaman (U. of Ottawa) has posted Is Religious Freedom Impossible in Canada? The abstract follows.

The idea of religious freedom is not new in Canadian law or wider public discourse, although it has taken on a life of its own in the post-Charter era (1982 onward) and certainly in the last several years. As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is “religion” and how can it be defined in a manner that is inclusive and meaningful? This article takes as its point of departure the provocative and compelling argument made by Winnifred Sullivan in her book, The Impossibility of Religious Freedom (2005), that religious freedom as a legal promise is untenable. In this article I argue that while plausible and convincing in the context of the United States, Sullivan’s thesis may be less applicable in Canada for three key reasons. First, the embeddedness of Roman Catholicism in Canadian social structure has resulted in a textured and nuanced understanding of religion, or, at the very least, a recognition that religion is in some measure a multifaceted notion. Secondly, the recognition of group rights, however defined, means that there is a space created for alternative religious discourses, in part because of the constitutional recognition of multiculturalism. Thirdly, the recent turn by the Supreme Court of Canada to an understanding of the subjectivity of religious freedom strengthens the idea that religion must be conceptualized in relation to the ways in which individuals understand and practice it in their day to day lives.

Posted on by Marc O. DeGirolami

Liveblogging the Religious Theory Conference — Panel: “Is Religion Special?”

The first speaker is Nathan Chapman (Stanford Constitutional Law Center), who is presenting a talk about the possibility of finding a religion-specific ground of protecting religious liberty, as opposed to a ground which applies to religious reasons and non-religious reasons alike.  That is, Chapman is trying to discern a ground to protect religious conscience which would not apply to non-religious conscience.  Setting aside the scope of the Religion Clauses of the American Constitution, the duty of those who believe in a “Higher Kingdom” — and around beliefs and practices ordered around a “Kingdom of God” — accounts historically at least for the idea of religious liberty, says Chapman.  This has historically been the justification for the protection of religious liberty — for promoting the “Kingdom of God.”  Chapman offers various explanations for the particular qualities of this justification, but makes clear that he is not advocating importing this justification directly into American law.

The second speaker is Bruce Ledewitz (Duquesne).  Ledewitz proposes that religious legal theory ought to influence law and society.  He approaches the issue from the perspective of a secularist himself.  He argues that a humanistic but also religious sensibility, but one which is not necessarily theistic, offers a fruitful way forward.  The thinness of secular discourse is incapable of dealing with the problems of concrete social practices.  If religion is unique, if ought to offer unique insights to secular society.  Religious traditions are “resources for society” and this might be what makes them special.

The third speaker is Micah Schwartzman.  Schwartzman’s asks, “What if religion isn’t special?”  One sub-question is whether religion ought to be excluded for purposes of legal decision-making.  A second sub-question deals with religious accommodation.  The aim of the paper is to show that along a number of lines, religion is actually not special, at least as a moral matter.  He attacks the views of several prominent scholars who support the view that religion is special.

The fourth speaker is Nelson Tebbe.  Tebbe’s argument deals with government endorsement of ideas.  The claim is that there are certain secular positions that the government cannot endorse.  An example is racialized speech.  Suppose a government were to say that America is a white nation.  That, says Tebbe, would be unconstitutional under the Equal Protection Clause.  He also says it would be unconstitutional based on the Free Speech Clause, at least on a certain reading which is “democratic” in nature (see Owen Fiss).  Another example he offers deals with government electioneering — suppose the government said, “Vote Democratic.”  This, too, would be unconstitutional, even if government is able to advocate for particular policy views.  The intuition is that the government cannot directly interfere in these ways with democratic processes.  The textual hook is the Free Speech Clause, again read in a certain democracy-enhancing way.  These are examples of “secular non-endorsement,” and Tebbe argues that they suggest that religion is not special per se insofar as it relates to disabilities on what the government can say.  But even under Tebbe’s approach, the rule against religious endorsement is more powerful than non-religious endorsement.

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Beschile on Defining Religion

Donald L. Beschile (The John Marshall Law School) has posted Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”?. The introduction follows.

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions.  The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

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