Posted on by Marc O. DeGirolami · 3 Comments

Justice Scalia Praises the Separation of Church and State

Justice Scalia recently gave some remarks at the Lanier Theological Library in Houston, Texas, remarks that have been reported and commented on in several places. Ostensibly the speech was about whether capitalism or socialism is more consistent with Christian virtue.

But I was there and heard the lecture in its entirety; and it sounded to me like Justice Scalia lavished praise on the separation of church and state. One consistent theme repeated several times by the Justice–at both the beginning and the end of the talk–was the patent unimportance of the titular subject. For the Christian, Justice Scalia said, the choice of one’s political ideology (the choice between capitalism and socialism, for example) is about as consequential as the choice of one’s toothpaste. One does not choose a political ideology either to become a better Christian or to inspire greater Christian virtue in others, and certainly not to inspire Christian virtue in government. Christ was not interested in government or its machinations. These are all issues that ought to be small beer for the Christian.

The lecture was cleverly keyed to sound pleasingly evangelical notes. When you’re in Texas, after all, you’d better swear you hate the Redskins, and Justice Scalia knew well enough to say so. The Justice emphasized a familiar and important set of ideas that has long supported one hoary strain of the American separation of church and state with deep Christian roots: that the cities of God and man are and forever will remain apart.

After which, in response to an audience question about the area of law done greatest disservice by the Supreme Court, he thought for a moment, and replied, “The Establishment Clause.” Christian law and politics watchers, take note.

Posted on by Marc O. DeGirolami

Event on The Tragedy of Religious Freedom in NYC

For those of our readers in striking range of Manhattan, I hope you might consider joining me on the evening of September 25 at the Harvard Club of New York City (27 W. 44th Street) for a discussion of The Tragedy of Religious Freedom. The event begins at 8:00 pm. My friend and colleague, Mark Movsesian, will be the master of ceremonies.

Please stop by and say hello.

Posted on by Robert J. Delahunty

Tocqueville and Habermas

After their decisive victory over a larger Austrian force in the Battle of Leuthen (1757), the soldiers of the Prussian Army broke out spontaneously in the great Lutheran hymn, Nun danket alle Gott – “Now thank we all our God.” The Prussian King, Frederick the Great, listened in astonishment. A free thinker, friend of Voltaire, and a “benevolent” Enlightenment despot, the Great King exclaimed: Mein Gott! Welche Kraft hat die Religion – “My God! How much power religion has!”

Jűrgen Habermas

Another German free thinker and heir to the Enlightenment seems recentlyHabermas to have made a similarly startling discovery. I refer to the widely renowned German philosopher and public intellectual Jűrgen Habermas. For much of his career, Habermas identified himself as a staunch defender of Enlightenment rationality, the anointed successor of Immanuel Kant. His account of liberal, democratic constitutionalism assumed only secular foundations, and deliberately excluded any reference to the authority of religion. But in recent years, Habermas has veered away from that course; his stance toward religion has changed. First, he has come to accept that religion, even in the West, is not going away – at least not soon. Second, he is prepared, albeit tentatively, to recognize a role for religion to play in public, political discourse. Indeed, he even entertains the thought that “philosophy,” or secular reason, will engage in a colloquy with “theology” and revealed religion.

Reflecting this change of heart, Habermas, as guest of the Catholic Academy of Bavaria, engaged then-Cardinal Josef Ratzinger in debate in Munich in 2004. Habermas’ address has been published as “Prepolitical Foundations of the Constitutional State?” in Jűrgen Habermas, Between Naturalism and Religion: Philosophical Essays (Ciaran Cronin trans. 2012). Subsequently, in 2007, Habermas debated four Jesuit theologians, again in Munich, in 2007. His remarks on this occasion have been published as Jűrgen Habermas, An Awareness of What is Missing: Faith and Reason in a Post-Secular Age (Ciaran Cronin trans. 2010). In a short, penetrating essay entitled “Does Reason Know What It Is Missing” (New York Times, April 12, 2010), the distinguished literary theorist, public intellectual and deconstructionist Stanley Fish reviewed and criticized Habermas’ position in these debates.

Habermas’ later thoughts on religion and politics are relevant to this series for several reasons. First, it is interesting and instructive to compare the ideas of this early twenty-first century thinker with those of de Tocqueville. Tendencies in modern, democratic society whose first stirrings Tocqueville discerned have had almost two intervening centuries in which to work themselves out. In particular, secularization has become far more pervasive. But second and no less important, Habermas’ thinking sheds light on the question raised in my last posting: whether democracy can survive and flourish, despite the perceptible deepening and entrenchment of social and economic inequalities, if Western society is radically de-christianized? The bare fact that a thinker of Habermas’ repute considered it timely and important to raise the question of “prepolitical,” religious foundations for the liberal-democratic, “constitutional” State suggests that there may, indeed, be a possible need here that only religion can serve. Moreover, Tocqueville himself gave attention to the question that Habermas poses, albeit in a less systematic and focused way.

There is, I believe, a particular point of contact between Habermas and Tocqueville in the latter’s correspondence with his friend and assistant Arthur de Gobineau (whom we have briefly encountered earlier in this series). In that correspondence, Tocqueville comes closest to giving us his answer to the question whether modern Western democracy presupposes Christianity. That correspondence will be the centerpiece of my next and final posting.

Habermas on the prepolitical foundations of the constitutional State

A longstanding project of Habermas has been to provide a nonreligious, “post-metaphysical” justification of the normative foundations of constitutional democracy. He finds this type of justification in “political liberalism,” more especially in the form of “Kantian republicanism.” Prepolitical Foundations at 102. While acknowledging antecedents in Christian theology, Habermas insists that “the form of state power that remains neutral toward different worldviews ultimately derives from the profane sources of seventeenth- and eighteenth-century philosophy.” Id. Unlike Tocqueville, then, who sees the normative foundations of political liberalism as rooted in both Christian and Enlightenment thought, Habermas locates those foundations solely, or at least primarily, in the Enlightenment. (Habermas’ resistance to giving full recognition to Christianity’s historic role in shaping the modern liberal-democratic State recalls the long debate over whether the Preamble of the Draft Treaty establishing a Constitution for Europe should include a reference to God or Christianity. In the end, it did not. See Srdjan Cvijic and Lorenzo Zucca, Does the European Constitution need Christian Values?, 24 Oxford Journal of Legal Studies 739 (2004) (discussing J.H.H. Weiler, Un’ Europa Cristiana: un saggio explorativo (2002))).

The core of Habermas’ justificatory strategy is to base the legitimacy of the decision-making of the liberal, democratic state on an open, inclusive process of public communication, argument and reflection in which citizens engage on equal terms.

Read more

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Spellberg, “Thomas Jefferson’s Qur’an: Islam and the Founders”

This October, Random House will publish Thomas Jefferson’s Qur’an: Islam and the Founders by Denise A. Spellberg (University of Texas at Austin).  The Thomas Jeffersons Quranpublisher’s description follows.

In this original and illuminating book, Denise A. Spellberg reveals a little-known but crucial dimension of the story of American religious freedom—a drama in which Islam played a surprising role. In 1765, eleven years before composing the Declaration of Independence, Thomas Jefferson bought a Qur’an. This marked only the beginning of his lifelong interest in Islam, and he would go on to acquire numerous books on Middle Eastern languages, history, and travel, taking extensive notes on Islam as it relates to English common law. Jefferson sought to understand Islam notwithstanding his personal disdain for the faith, a sentiment prevalent among his Protestant contemporaries in England and America. But unlike most of them, by 1776 Jefferson could imagine Muslims as future citizens of his new country.

Based on groundbreaking research, Spellberg compellingly recounts how a handful of the Founders, Jefferson foremost among them, drew upon Enlightenment ideas about the toleration of Muslims (then deemed the ultimate outsiders in Western society) to fashion out of what had been a purely speculative debate a practical foundation for governance in America. In this way, Muslims, who were not even known to exist in the colonies, became the imaginary outer limit for an unprecedented, uniquely American religious pluralism that would also encompass the actual despised minorities of Jews and Catholics. The rancorous public dispute concerning the inclusion of Muslims, for which principle Jefferson’s political foes would vilify him to the end of his life, thus became decisive in the Founders’ ultimate judgment not to establish a Protestant nation, as they might well have done.

As popular suspicions about Islam persist and the numbers of American Muslim citizenry grow into the millions, Spellberg’s revelatory understanding of this radical notion of the Founders is more urgent than ever. Thomas Jefferson’s Qur’an is a timely look at the ideals that existed at our country’s creation, and their fundamental implications for our present and future.

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Sharma, “A Restatement of Religion: Swami Vivekananda and the Making of Hindu Nationalism”

This August, Yale University Press published A Restatement of Religion: Swami Vivekananda and the Making of Hindu Nationalism by Jyotirmaya Sharma A Restatement of Religion(University of Hyderabad).  The publisher’s description follows.

In this third installment of his comprehensive history of “India’s religion” and reappraisal of Hindu identity, Professor Jyotirmaya Sharma offers an engaging portrait of Swami Vivekananda and his relationship with his guru, the legendary Ramakrishna. Sharma’s work focuses on Vivekananda’s reinterpretation and formulation of diverse Indian spiritual and mystical traditions and practices as “Hinduism” and how it served to create, distort, and justify a national self-image. The author examines questions of caste and the primacy of the West in Vivekananda’s vision, as well as the systematic marginalization of alternate religions and heterodox beliefs. In doing so, Professor Sharma provides readers with an incisive entryway into nineteenth- and twentieth-century Indian history and the rise of Hindutva, the Hindu nationalist movement. Sharma’s illuminating narrative is an excellent reexamination of one of India’s most controversial religious figures and a fascinating study of the symbiosis of Indian history, religion, politics, and national identity. It is an essential story for anyone interested in the evolution of one of the world’s great religions and its role in shaping contemporary India.

Posted on by Mark Movsesian

Religion in Russia

My friend and St. John’s colleague, Peggy McGuinness, alerts me to a worthwhile review essay by the Berkley Center’s Irina Papkova, “Believing in Russia,” on a religion and media blog called The Revealer. Papkova reviews Geraldine Fagan’s Believing in Russia–Religious Policy After Communism (2013). Here’s an excerpt:

Without being iconoclastic, “Believing in Russia” is based on impeccable research, and brings a useful corrective to many widely held assumptions about religion in Russian society.  Journalists writing about Russian politics for major news outlets like the New York Times and the Washington Post usually present a cozy relationship between the ROC and the Putin regime, suggesting that this relationship is detrimental to religious minorities and non-religious Russians. There is some truth to this view but, as Fagan’s work demonstrates, the marginalization of minority faiths has as much to do with bureaucratic incompetence and the weakness of the rule of law in Russia as with the ROC’s plan to obliterate competition from other religions. Fagan tells the story of how religious policy is created and applied across the Russian Federation.  In doing so, she brings to light the role of personalities and personal convictions of bureaucrats in creating guidelines for how the state should deal with religion, and the efficiency with which they are applied.

You can read the whole review here.

Posted on by Marc O. DeGirolami

Bartrum Reviews “The Tragedy of Religious Freedom”

Ian Bartrum (UNLV Law) has posted a very generous review (forthcoming in the Journal of Church and State) of The Tragedy of Religious Freedom. I wish I could say that I disagreed with the sharp and smart criticisms of the book in Ian’s review; but actually, I found myself quite in agreement with them. Still, I hope you will forgive me for quoting from a not-so-critical section:

DeGirolami’s is a thoughtful and sophisticated meditation on the protean relationship between law and faith in a society committed to religious freedom. His intellectual and cultural influences are broad and rewarding; his style is rich and accessible; and his critique of both theoretical foundationalism and skepticism is profound and compelling. The Tragedy of Religious Freedom is an important book that will undoubtedly influence and enrich this discussion for years to come.

Posted on by Marc O. DeGirolami · 1 Comment

Reflections from the City of God: On the Miseries of Just War

I am blessed to be on sabbatical this semester. In addition to beginning several City of Mennew writing projects, I thought it might be good to take on some meaty reading projects. One of these projects will be to read through St. Augustine’s City of God and to become familiar with some of the secondary literature related specifically to his political thought (the project is not purely a private one–future students in my spring Professional Responsibility course, take note!). In connection with that project, I hope to post a weekly reflection from the City of God that is relevant to some law and religion issue of current moment.

I’m confident that I will say nothing original about Augustine’s political thought. Indeed, I am sure that many readers of this blog will know much more about Augustine than I will learn in these few months and well beyond that. But because I have been enjoying greatly what I have read so far, and because what I have read relates in various ways to many of the questions we consider at the Center for Law and Religion, and because it may be a pleasure for readers to see some of Augustine’s words again before their eyes (and a pleasure for me to re-write them), and simply for the joy that comes in replowing well-tilled fields, I thought to give it a try. Those of our readers who are Augustine scholars or otherwise knowledgeable: please let me know in the comments what secondary literature I ought to be reading. I am reading the Marcus Dods translation (would that I could read it in Latin, but as Dods–writing in 1871–said, “[T]here are not a great many men nowadays  who will read a work in Latin of twenty-two books”).

Here is a passage from of the famous Book XIX on the miseries of war, including of just war:

But the imperial city has endeavored to impose on subject nations not only her yoke, but her language, as a bond of peace, so that interpreters, far from being scarce, are numberless. This is true; but how many great wars, how much slaughter and bloodshed, have provided this unity! And though these are past, the end of these miseries has not yet come. For though there have never been wanting, nor are yet wanting, hostile nations beyond the empire, against whom wars have been and are waged, yet, supposing there were no such nations, the very extent of the empire itself has produced wars of a more obnoxious description–social and civil wars–and with these the whole race has been agitated, either by the actual conflict or the fear of a renewed outbreak. If I attempted to give an adequate description of these manifold disasters, these stern and lasting necessities, though I am quite unequal to the task, what limit could I set? But, say they, the wise man will wage just wars. As if he would not rather lament the necessity of just wars, if he remembers that he is a man; for if they were not just he would not wage them, and would therefore be delivered from all wars. For it is the wrongdoing of the opposing party which compels the wise man to wage just wars; and this wrongdoing, even though it gave rise to no war, would still be matter of grief to man because it is man’s wrongdoing. Let everyone, then, who thinks with pain on all these great evils, so horrible, so ruthless, acknowledge that this is misery. And if anyone either endures or thinks of them without mental pain, this is a more miserable plight still, for he thinks himself happy because he has lost human feeling.

One striking feature of this paragraph is the ubiquity of misery in all matters related to war. The misery not only of the initial wrongdoing that leads to war, and not only of war itself, but also of the waging of just war in response to (in fact, ‘compelled’ by) the existence of miserably wrongful conduct.

Posted on by Mark Movsesian

Conference: “Religious Freedom and Equal Treatment: An International Look” (Oct. 11-12)

Brooklyn Law School will host a symposium, “Religious Freedom and Equal Treatment: An International Look,” on Oct. 11-12. Details are here.

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Around the Web This Week

Some interesting law & religion stories from around the web this week: