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.

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Egorova & Perwez, “The Jews of Andhra Pradesh: Contesting Caste and Religion in South India”

This summer, Oxford published The Jews of Andhra Pradesh: Contesting Caste and Religion in South India, by Yulia 9780199929214_140Egorova (Durham University) and Shahid Perwez (Durham University). The publisher’s description follows.

What does it mean to be Jewish in contemporary world? This book casts a new theoretical light on this question by exploring the Bene Ephraim community of Madiga Dalits from rural Andhra Pradesh, India, who at the end of the twentieth century declared their affiliation to the Lost Tribes of Israel. Yulia Egorova and Shahid Perwez present an engaging and sophisticated ethnographic account of this community and argue that by embracing the Jewish tradition the Bene Ephraim have both expanded conventional definitions of ‘Who is a Jew’ and found a new way to celebrate their Dalit heritage and to fight caste inequality.

The Jews of Andhra Pradesh focuses on the life of the community in the village, but also explores a wider range of ethnographic sites, including Israel and the USA, where it discusses how the time old Lost Tribes tradition is embraced today by groups and organization which support the Bene Ephraim and similar communities that declared Jewish descent in the twentieth century. Egorova and Perwez demonstrate how the example of the Bene Ephraim can throw light on a wide range of issues in national and international politics, such as the caste system and social mobility in India, the conflict in the Middle East, the rhetoric of the ‘war on terror’, and debates surrounding the Law of Return in Israel. The book will be of interest to scholars of Jewish and South Asian Studies as well as to general readers.

Posted on by Marc O. DeGirolami · 1 Comment

On the Insulting Claim that Religious Displays are Insulting

Hurt feelings are unreliable bases for constitutional law. People are insulted by all Charles_I_Insulted_by_Cromwell's_Soldierssorts of things, their feelings of insult can change at breathtaking speed, and it is difficult to explain what ought to count as a constitutionally cognizable insult, and what ought not to, and why. And there is no area of constitutional law that is more dependent on judicial investigation and perception of insult or hurt feelings than the Establishment Clause–particularly the standard used to evaluate the constitutionality of religious displays by the government. Readers of this blog are probably familiar with the endorsement test, which demands that judges inquire after the degree to which a display might make someone feel like an outsider, or not fully part of the political community. That is a standard that depends on both judicial perception of insult and comparative valuations of insult (not all insults count).

My aim in this post is not to talk about that category of hurt feeling or insult, but about a related but less prominent argument about insults that one sometimes hears in connection with state-sponsored religious displays. It is the argument that for a religious person, when the government displays a religious symbol, it thereby robs or despoils the symbol of its sacredness. And when government then describes the nature and value of the symbol in non-religious terms (in cultural terms, for example, or in historical terms, or in secular terms), that constitutes an insult to religious people. So, for example, the constitutional category of “ceremonial deism” that is used to describe the phrase “In God We Trust” on money, or the phrase “under God” in the Pledge of Allegiance, is said to be deeply offensive to religious believers. Similarly, the description of the crucifix by Italian judges in the Lautsi v. Italy litigation as a symbol of national historical importance is said to cause hurt feelings among Catholics. By describing (or perhaps defining) a symbol in cultural or historical terms, the government thereby appropriates and degrades the symbol in the eyes of religious believers–and it’s “their” symbol, after all–draining it of religious content. One can see strong traces of the claim and the sense of indignation and insult in Justice Thomas’s concurring opinion in Van Orden v. Perry: “Telling either nonbelievers or believers that the words ‘under God’ have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like ‘God’ are not vulgarities for which the shock value diminishes with each successive utterance.” This argument from insult certainly is understandable and it resonates with many people, including some of my friends.

But not with me, I’m afraid. If anything, I find the argument itself insulting. The argument assumes that religious people are so thick-headed, or so culturally illiterate, or so confused about the nature of their faith and its symbols’ meanings, or so hyper-attentive to the government’s activities, or so insular, parochial, and unsophisticated, that they cannot understand the difference among (a) a cross that is displayed in a church; (b) a cross that is displayed at a cemetery; and (c) a cross that is displayed as a Halloween joke. Who doesn’t understand those differences, and the differences in meaning that they convey? Who is confused? And is not the imputation of confusion, hurt feelings, and cultural simple-mindedness itself offensive? Those poor hayseed religious believers, bearing the psychological cross of their egg-shell sensitivities about their symbols! To argue that any act of the state–least of all its display of a cross at a war memorial or some statement about God on money or in a secular national pledge–could adulterate what a religious symbol like the cross means to Christians is to make a very unflattering claim about the strength with which those Christians believe, about the quality of their intellectual awareness and cultural acumen, and about just how little it takes to shake them up and distress them.

The argument also assumes that a government’s decisions about a symbol really command, and ought to command, the attention of the religious. But what difference should it make that government “degrades” a symbol like the cross? Does the government have the power to degrade the Christian meaning of the cross? Do we look to the government to define the Christian meaning of the cross? That meaning is not the government’s to define! To fret about state-sponsored religious degradation is implicitly to acknowledge the state’s authority in an area where it has none. That the government (or anyone else, for that matter) may use a symbol for secular purposes of its own should do nothing to trivialize the Christian meaning, or to destabilize religious commitment or religious understanding, unless the suggestion is that the religious commitment runs no deeper than attachment to the symbol’s secular meanings. Brand dilution may work for trademark law, where all symbols operate and compete at the level of the profane market, but it has little place here.

But as I say, it is difficult to tell someone not to feel hurt or insulted. I can certainly understand the sense of insult at a perceived usurpation of a religious symbol, but it is not a feeling I share at all when the Supreme Court trots out such  coarse euphemisms as “ceremonial deism” to justify and explain the sorts of secular uses of religious symbols and religious language that date back at least to the late Roman empire. For myself, I am more offended by what the arguments from insult imply about religious believers’ savvy and understanding of the world, as well as of their own beliefs.

All of that, I suppose, is to return to the beginning, and to repeat my view that feelings of insult and offense are unsound grounds for constitutional law.

[Image: Delaroche’s “Charles I Insulted by Cromwell’s Soldiers”]

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Djupe & Calfano, “God Talk: Experimenting With the Religious Causes of Public Opinion”

Next month, Temple University Press will publish God Talk: Experimenting With the Religious Causes of Public Opinion by Paul Djupe (Denison University) and Brian Calfano (Missouri State University). The publisher’s description follows.

Religion’s influence on public opinion, politics, and candidates has been widely discussed in political science for a generation. God Talk is the first volume that uses experimental methodology to establish whether and how that influence works. Paul Djupe and Brian Calfano provide an unprecedented look at how religious cues, values, and identity-driven appeals impact candidate selection, trust, interest group support, and U.S. public opinion about tolerance, the environment, foreign policy, and related issues. By situating their disparate, randomly assigned interventions within the broader framework of elite-based influence, the authors apply their new methodology to three questions: How do clergy affect congregation members? How are religious elites and groups and their public arguments evaluated? With what effect do political elites use religion? The results of their research provide a compelling framework for understanding the links between religion and politics.

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Vaughn, “Bishops, Bourbons, and Big Mules: A History of the Episcopal Church in Alabama”

Next month, the University of Alabama Press will publish Bishops, Bourbons, and Big Mules: A History of the Episcopal Church in Alabama by J. Barry Vaughn (St. Alban’s Episcopal Church). The publisher’s description follows.

Bishops, Bourbons, and Big Mules tells the story of how the Episcopal Church gained influence over Alabama’s cultural, political, and economic arenas despite being a denominational minority in the state.

The consensus of southern historians is that, since the Second Great Awakening, evangelicalism has dominated the South. This is certainly true when one considers the extent to which southern culture is dominated by evangelical rhetoric and ideas. However, in Alabama one
non-evangelical group has played a significant role in shaping the state’s history. J. Barry Vaughn explains that, although the Episcopal Church has always been a small fraction (around 1 percent) of Alabama’s population, an inordinately high proportion, close to 10 percent, of Alabama’s significant leaders have belonged to this denomination. Many of these leaders came to the Episcopal Church from other denominations because they were attracted to the church’s wide degree of doctrinal latitude and laissez-faire attitude toward human frailty.

Vaughn argues that the church was able to attract many of the state’s governors, congressmen, and legislators by positioning itself as the church of conservative political elites in the state–the planters before the Civil War, the “Bourbons” after the Civil War, and the “Big Mules” during industrialization. He begins this narrative by explaining how Anglicanism came to Alabama and then highlights how Episcopal bishops and congregation members alike took active roles in key historic movements including the Civil War, Reconstruction, and the Civil Rights Movement.Bishops, Bourbons, and Big Mules closes with Vaughn’s own predictions about the fate of the Episcopal Church in twenty-first-century Alabama.

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Noake & Buxton, “Religion, Society and God: Faith in Contemporary Britain”

Next month, SCM Press will publish Religion, Society and God: Faith in Contemporary Britain by Richard Noake (York St. John University) and Nicholas Buxton (St. John the Baptist Church). The publisher’s description follows.

There is a definite and growing interest and awareness amongst the general public of the competing arguments around faith, God and society. The book is divided into two sections. Section One tackles issues of ultimate concern and the place of God in the modern world, whilst Section Two considers the role of faith in public life. The contributors bring a range of different voices – both religious and secular – to the conversation. Section One: Examining God – Richard Harries discusses the challenge to faith from atheism, whilst Dan Cohn-Sherbok thinks about God from a post-holocaust point of view, Daphne Hampson wonders how God might be reconceived in a post-patriarchal context. David Jasper reflects on the role of the arts in leading us to spiritual reflection, and Mona Siddiqui offers a comparison between Muslim and Christian notions of divine love. Section Two: The role of faith in contemporary society – James Jones argues for ‘kingdom values’ in public life, Catherine Pepinster advocates an incarnational engagement with social concerns, Roger Trigg asserts that the Christian values that have shaped our political assumptions cannot be ignored. Estelle Morris defends the place of faith schools in a secular society, and finally Tony Bayfield highlights the need for a truly ‘public square’ where both religious and secular voices can be heard.

Posted on by Perry Dane · 1 Comment

Prophets in the Public Square – Part III

Final thoughts from an unpublished talk I presented at the 19th Annual Journal of Law and Religion Symposium at Hamline Law School in 2009.

* * *

As I emphasized in Part I and Part II, religious voices in the public square need to speak authentically.  They also need to find a way to speak universally without losing sight of their own necessary particularity.  These are important religious challenges.

But how should political theory look at all this? Many political and legal philosophers, following John Rawls, have argued that religious voices in the public square need to frame their arguments in terms that are intelligible to the larger overlapping consensus of diverse communities and radically different religious convictions that participate in that conversation. Critics have suggested that this requirement of self-censorship is unnecessary, and unfair and untrue to religious faith. I want to go a step further, and argue that it can also be affirmatively bad for public discourse, and in some ways more dangerous to the secular polity.

To make my point, I want to look briefly, not at the classic works in this ongoing debate, but at a more obscure source, Rawls’s own rediscovered religious writings. Read more

Posted on by Marc O. DeGirolami · 1 Comment

Devil’s Cross

I was rereading the Supreme Court’s opinion in Salazar v. Buono, the case concerning a cross erected in the Mojave Desert in 1934 by a group of veterans in order to commemorate American soldiers who died in World War I. In his dissenting opinion, Justice Stevens took his usual rigid view in any case dealing with display of symbols: the cross “necessarily” conveys an “inescapably sectarian message….Making a plain, unadorned cross a war memorial does not make the cross secular. It makes the war memorial sectarian.” Justice Stevens also cited approvingly the district court judge’s view that the cross is “exclusively a Christian symbol.”

The more I read these lines, the more implausible I find them and the view of symbols that they represent. Perhaps another way to put my skepticism is that any observer who believed this about a symbol like the cross would be unreasonable–the sort of person who could not effectively administer a “reasonable observer” standard in Establishment Clause cases of this kind. The implausibility of the view is conceptual but it also is empirical. Though I recognize that anecdotes are not data, still, personal experience is worth something. The “holiday” of Halloween was for children when I was a child, but it seems to have become a kind of modern-day equivalent of Venetian Carnevale circa 1760. No matter; this year, I am grateful to Halloween for offering a useful challenge to claims about what the symbol of the cross must mean, in all times and places, for all people.

My neighborhood is child-saturated, and as a result Halloween is widely and noisily celebrated. Part of the celebration involves the display of putatively spooky lawn decorations of motley sorts, among the most popular of which is the “creepy gravesite” ensemble. It used to be that round headstones were the convention. But now one increasingly sees in such arrangements the presence of a cross. Here’s a fairly typical setup:

Devil's CrossProbably my surreptitiously taken picture does not do justice to the mise en scène. But what it displays is a simple black Latin cross with the words RIP at the base. You can see that the cross is surrounded by other Halloween acoutrements–a skeleton in the ground, gravestones, spiderwebs. All around these sit related objects–werewolves and other hairy and unsavory creatures, a plastic witch, ghosts dangling from trees with flashing red eyes, and so on. This sort of decorative landscape is extremely common. The presence of a cross in it is less so, but just in my own neighborhood, I counted 4 displays that contained a cross of some sort.

Suppose that a municipality chose to display something like this on town hall grounds at Halloween. What would it be communicating? What does a cross mean in a display like this? Its meaning is complicated because it is situated in several contexts. It sits first within a mock cemetery but the point of the display is not remotely either commemorative (as in a memorial for the dead) or Christian. The point of the display is to celebrate, in a lighthearted, cute, and possibly mischievous way, all that Halloween has come to represent as an occasion for kids: the occult, mild wickedness, spookiness, and so on. It would make a dour schoolmarm of Christianity to say that displays like this are anti-Christian. Of course they are not. But it would verge on sheer absurdity to claim that a cross in this sort of context conveyed “an inescapably sectarian message,” or that what would otherwise be a tribute to spooky kid fun just must be transformed into a celebration of Christ by the inclusion of a cross.

It is true that even in this context, the meaning of the cross is to some extent connected to the original Christian meaning. It is so connected in this weak way: had there been no prior Christian meaning, there could have been no subsequent tradition in which crosses have come to convey a commemorative message, and therefore no cultural context within which a cross could come to find its way into a Halloween cemetery display. But noting that atavic genealogical connection is very different than assigning this particular cross–or others like it–an indelibly Christian meaning today.

It might be argued that the meaning associated with the Halloween cross only arose because people are ignorant of the Christian, soteriological meaning. That seems uncharitable to me, but also mistaken. What is more probable is that meanings intertwine, and that it becomes difficult over time to disaggregate the religious meaning from other fair, culturally specific interpretations. As I write in The Tragedy of Religious Freedom about the Mojave Desert Cross:

Just as it is impossible to distinguish precisely where the religious ends and the artistic begins in a Bach oratorio, a Giotto fresco, or a Dantean canto, so, too, is it fruitless to attempt to tweeze away the Buono cross’s civic submeanings from an antecedent religious meaning. But the fact that it is unprofitable to perform this exercise in segregation, and in quantifying the importance of this or that meaning, does not mean that permitting these various submeanings to exist is equivalent to condoning state sponsorship of religious belief. Religious and cultural meanings may and do interpenetrate across time. And meanings that emerge from that interpenetration are not ipso facto constitutionally impermissible, but invitations to historically and contextually graduated judgment.

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, Zoe Robinson remains at #1; Andrew Koppelman joins the list at #2, Ian C. Bartrum moves to #3; Caroline Mala Corbin moves to #4; and Jeremy M. Christiansen moves to #5.

1.What is a ‘Religious Institution’? by Zoe Robinson (Depaul University College of Law) [280 downloads]

2. ‘Freedom of the Church’ and the Authority of the State by Andrew Koppelman (Northwestern University School of Law) [162 downloads]

3.Book Review: ‘The Tragedy of Religious Freedom’  by Ian C. Bartrum (University of Nevada, Las Vegas) [116 downloads]

4.Corporate Religious Liberty by Caroline Mala Corbin (University of Miami School of Law) [105 downloads]

5.‘The Word[ ] ‘Person’…Includes Corporations’: Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations by Jeremy M. Christiansen  (University of Utah- S.J. Quinney College of Law) [93 downloads]

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Hamoudi, “Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq”

Next month, University of Chicago Press will publish Negotiating in Civil  Negotiating in Civil ConflictConflict: Constitutional Construction and Imperfect Bargaining in Iraq by Haider Ala Hamoudi (University of Pittsburgh School of Law). The publisher’s description follows:

In 2005, Iraq drafted its first constitution and held the country’s first democratic election in more than fifty years. Even under ideal conditions, drafting a constitution can be a prolonged process marked by contentious debate, and conditions in Iraq are far from ideal: Iraq has long been racked by ethnic and sectarian conflict, which intensified following the American invasion and continues today. This severe division, which often erupted into violence, would not seem to bode well for the fate of democracy. So how is it that Iraq was able to surmount its sectarianism to draft a constitution that speaks to the conflicting and largely incompatible ideological view of the Sunnis, Shi’ah, and Kurds?

Haider Ala Hamoudi served in 2009 as an adviser to Iraq’s Constitutional Review Committee, and he argues here that the terms of the Iraqi Constitution are sufficiently capacious to be interpreted in a variety of ways, allowing it to appeal to the country’s three main sects despite their deep disagreements. While some say that this ambiguity avoids the challenging compromises that ultimately must be made if the state is to survive, Hamoudi maintains that to force these compromises on issues of central importance to ethnic and sectarian identity would almost certainly result in the imposition of one group’s views on the others. Drawing on the original negotiating documents, he shows that this feature of the Constitution was not an act of evasion, as is sometimes thought, but a mark of its drafters’ awareness in recognizing the need to permit the groups the time necessary to develop their own methods of working with one another over time.