Why American Rationalism Failed

At First Things today, I review The Church of Saint Thomas Paine, a new history of 19th-century American rationalists. The book offers interesting and sometimes amusing portraits of these men and women, one of whom turns out to be my great-granduncle, M.M. Mangasarian (left), who founded his own rationalist congregation in Chicago in 1900. Mangasarian had initial (and unusual) success, but his “Independent Religious Society” ultimately failed, for the same reason all the rationalist societies failed: an inability to resolve basic incoherencies in the movement. Plus, the religion of science is a hard sell for Americans, who tend to believe in transcendent reality, even if they are skeptical of organized religion.

Here’s an excerpt:

Inspired by the French positivist Auguste Comte and the American transcendentalist Ralph Waldo Emerson, and taking the eighteenth-century freethinker Thomas Paine as a kind of patron saint, a small group of Americans attempted to found a rationalist “religion” with science as its highest authority. They started congregations in cities like New York, Chicago, and Portland; they held meetings on Sunday mornings to compete with Christian rivals; they even wrote catechisms and ran Sunday Schools to indoctrinate new members. All confidently believed they were the vanguard of a new, secular religion that would displace Christianity and promote human progress.

But the new religion failed. The congregations attracted few followers; typically, as one British humorist wrote, these were churches “of three persons, but no God.” Most fizzled out or merged with larger groups like the Unitarians. Other than cranks who seemed as credulous as the believers they mocked, Americans had little interest in Comte’s wedding and funeral ceremonies or the relics of secular saints. (In 1905, after a long quest, a small group of freethinkers placed something they claimed to be a piece of Thomas Paine’s brain, sold to them for five pounds by an obscure London bookseller, in a monument in New Rochelle.)

Schmidt shows that rationalist congregations failed because organizers never resolved basic inconsistencies. Rationalism valued science and rejected metaphysics. Why, then, collect relics and meet weekly for thinly disguised worship services? Moreover, rationalism “made intellectual independence and the displacement of all religious authorities foundational to its platform.” Paine himself had railed against organized religion, famously declaring, “my own mind is my own church.” Similarly, although Emerson had prophesied a new religion with “science” for its “symbol,” he insisted on individual spiritual autonomy: “I go for Churches of one.” What, then, was the point of joining a new religion, even a rationalist one? People who share only a commitment to radical individualism and an opposition to religious orthodoxy are unlikely to form an enduring community.

You can read the whole review here.

“Mysterizing Religion”

A draft of a short paper for a recent symposium I participated in at Notre Dame Law School. Here’s the abstract:

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.

In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.

The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.

I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Clark v. Governor of the State of New Jersey, the Third Circuit held that a challenge by two Christian congregations and their pastors to former Covid limits on in-person worship services is moot. The court affirmed the trial court’s dismissal of the suit. 
  • In Doster v. Kendall, the Sixth Circuit affirmed a district court’s grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who have sought religious exemptions from the military’s Covid vaccine mandate.
  • In Doe v. Rokita, the Seventh Circuit rejected First Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or cremation. The suit was brought by two women who raise free exercise claims and by two physicians who oppose the requirement that they inform patients of the law’s provisions. 
  • In Pickup v. Biden, Plaintiffs petitioned the D.C. federal district court to declare two bills pending in Congress unconstitutional and enjoin their passage. Plaintiffs focused primarily on an Establishment Clause challenge; however, the court held that the Constitution’s Speech or Debate Clause bars Plaintiffs’ claims against the congressional Defendants, that the court lacks jurisdiction to enjoin a President from performing his official duties, and that Plaintiffs lack standing.
  • A former Boston police officer who is a Jehovah’s Witness filed suit in a Massachusetts state trial court after the Boston Police Department denied his request for a religious exemption from the Department’s Covid vaccine mandate. He was placed on administrative leave and subsequently terminated. The complaint in Colon v. City of Boston also alleges that he was ridiculed because of his religious beliefs. 
  • President Volodymyr Zelensky of Ukraine has called for lawmakers to prevent the branch of the Orthodox Church loyal to Moscow Patriarchate from operating in Ukraine on the ground that Russia is using the church to provide cover for Russian secret agents. Over the past month, Ukrainian security agencies have engaged in raids of monasteries – resulting in the arrest of at least thirty-three priests. 

Protestant Traditionalism?

It is a kind of commonplace that Protestantism is anti-traditionalist in orientation, preferring a view in which unmediated, personal relationships with God and scripture are what matter, while Catholicism is traditionalist, emphasizing the accretion of authorities that mediate the connection between religious source and the believer. This is a story often told in relation to America’s own famed Protestant founding to suggest something about the distinctiveness of American religiosity.

But not so fast, says a new book that questions key features of the usual story, The Old Faith in a New Nation: American Protestants and the Christian Past (Oxford), by Paul J. Gutacker.

Conventional wisdom holds that tradition and history meant little to nineteenth-century American Protestants, who relied on common sense and “the Bible alone.” The Old Faith in a New Nation challenges this portrayal by recovering evangelical engagement with the Christian past. Even when they appeared to be most scornful toward tradition, most optimistic and forward-looking, and most confident in their grasp of the Bible, evangelicals found themselves returning, time and again, to Christian history. They studied religious historiography, reinterpreted the history of the church, and argued over its implications for the present. Between the Revolution and the Civil War, American Protestants were deeply interested in the meaning of the Christian past.

Paul J. Gutacker draws from hundreds of print sources-sermons, books, speeches, legal arguments, political petitions, and more-to show how ordinary educated Americans remembered and used Christian history. While claiming to rely on the Bible alone, antebellum Protestants frequently turned to the Christian past on questions of import: how should the government relate to religion? Could Catholic immigrants become true Americans? What opportunities and rights should be available to women? To African Americans? Protestants across denominations answered these questions not only with the Bible but also with history. By recovering the ways in which American evangelicals remembered and used Christian history, The Old Faith in a New Nation shows how religious memory shaped the nation and interrogates the meaning of “biblicism.”

Legal Spirits Episode 045: 303 Creative at SCOTUS Next Week

Next week, the Supreme Court will hear argument in 303 Creative LLC v. Elenis, an important case that pits free speech rights against anti-discrimination laws. A Christian web designer has challenged Colorado’s public accommodations law, arguing that the law will require her to design sites for same-sex weddings and convey messages with which she disagrees. In this episode, Marc and Mark explore several of the issues in the case, from concerns about ripeness and standing to matters of substance: free speech and compelled speech, same-sex marriage, antidiscrimination law, what distinguishes “messages” from “messengers,” and others. Listen in!

A New Book on Catholicism and Human Rights

From Cambridge University Press, here is a new book on the often forgotten contribution of Catholic thought to human rights law: Catholic Cosmopolitanism and Human Rights, by scholar Leonard Francis Taylor (National University of Ireland–Galway). The publisher’s description follows:

It is because Catholicism played such a formative role in the construction of Western legal culture that it is the focal point of this enquiry. The account of international law from its origin in the treaties of Westphalia, and located in the writing of the Grotian tradition, had lost contact with another cosmopolitan history of international law that reappeared with the growth of the early twentieth century human rights movement. The beginnings of the human rights movement, grounded in democratic sovereign power, returned to that moral vocabulary to promote the further growth of international order in the twentieth century. In recognising this technique of periodically returning to Western cosmopolitan legal culture, this book endeavours to provide a more complete account of the human rights project that factors in the contribution that cosmopolitan Catholicism made to a general theory of sovereignty, international law and human rights.

  • Provides an engaging narrative on the integration of democratic and human rights norms into Catholicism, which in turn promoted those values through Christianity’s global reach
  • A valuable historical survey of Catholicism as a cosmopolitan project from the medieval to the modern era
  • Undertakes to provide a critical narrative of the development and direction of international law as it was characterised by Catholic preoccupations from the medieval and early modern era