But why were “religious” reasons inadmissible? The short and (for many) sufficient answer, so obvious that the judges did not bother even to articulate or defend it, was that the Constitution requires that government be “secular,” thereby forbidding reliance on “religious” reasons. And this answer is no doubt correct if it is taken as a shorthand abbreviation for the fact that powerful constituencies in our country, including legal elites, have come to conceive of the political community as “secular” (in a conveniently ambiguous and mostly unarticulated sense) and have projected that conception back onto the Constitution. That is the sort of “imagined community” in which these Americans want to live, and suppose that they do (or at least have a right to) live.
It is also true, however,68 that the First Amendment does not actually say (either explicitly or by persuasive implication) that government must be “secular,” and that the Americans who drafted and enacted that amendment almost certainly did not understand it to have any such implication. Moreover, the modern secularist conception of the community goes strongly against the grain of a great deal in our political tradition, including perhaps the two most eloquent and powerful statements of the central meaning of that tradition—namely, the Declaration of Independence69 and Lincoln’s Second Inaugural Address. (Or, if you prefer, his Gettysburg Address, which is the source of the phrase “one nation, under God.”) Efforts by modern luminaries like the vastly influential Harvard political philosopher John Rawls to square the contemporary secularist conception of American political community with Lincoln’s majestic declamation are almost comical in their implausibility;70 nothing but an adamantine determination to adhere to the secularist conception could render such arguments respectable. And even conceding that political decisions should be made on “secular” grounds, the concerns relevant to marriage that many churchgoing Americans found pertinent would likely have qualified as “secular” upon any sort of attentive analysis.71
The judges did not pause to notice any of these complications, of course. Rather, they dismissed “religious”-looking reasons peremptorily and automatically, evidently under a secularist conception of community that, without either specifying or defending it, they treated as axiomatic. That conception in turn was surely shaped and informed by, among other things, recent constitutional doctrine forbidding public religious symbols or messages.
The (Deceptive) Lines of Division. In sum, Americans on both sides of the cultural divide are not being merely petty or irrational when they care about, and fight over, public symbols. But how exactly are the battle lines in that fight drawn up?
On its face, the conflict has pitted supporters of “religious” symbols and expressions against proponents of a “secular” public square. So here, on first inspection anyway, a “religious versus secular” characterization of the culture wars may seem apt. And at least on a straightforward or conventional reading, the current constitutional doctrine prohibiting endorsements of “religion” may seem to support this description: public expressions that are “religious” are forbidden, it seems, while public expressions that are “secular” are permissible.72
But we need to recall, from the previous chapter, the ambiguous or equivocal character of the term “secular,” and also the distinction between the (familiar) transcendent conception and the (less familiar) immanent conception of “religion.” Viewed in light of these distinctions, the current struggle over public symbols turns out to be more complicated than it initially appears. In prohibiting endorsements of “religion,” the “no endorsement” doctrine might mean that government is forbidden to endorse traditional or transcendent religion. Conversely, “secular” expressions of more immanent religiosity might be permissible.
The Supreme Court has not explicitly articulated the doctrine in those terms, to be sure; but then, the modern Court has not offered any precise or even imprecise definitions of what either “secular” or “religion” means for constitutional purposes anyway. To many Westerners, “religion” connotes traditional, transcendent religion—the sort of thing conveyed in the Bible and the Qur’an and practiced by Christians, devout Jews, and Muslims.73 It may well be that this is what the justices have implicitly had in mind when they have declared endorsements of “religion” to be impermissible.74 Conversely, if religious expressions are at least susceptible of being interpreted in more immanent or this-worldly terms, perhaps the prohibition does not apply.
So, how would we go about determining whether the conventional “religion versus (undifferentiated) secular” interpretation of the Court’s doctrine is correct, or whether instead the revised interpretation is more apt—the interpretation in which transcendent messages are excluded but messages of immanent sanctity are permitted? Well, we might begin by imagining that, as some scholars and litigants have urged,75 all conventionally “religious” public symbols and expressions—the words “under God” in the Pledge of Allegiance, the words “In God We Trust” in the national motto (and also the national anthem), legislative prayer, and so forth—were systematically eliminated or relegated to the private domain. That, after all, is what a straightforward application of the conventional “religion versus secular” interpretation would seem to dictate, at least in principle. The result of this drastic purge would not be to remove all symbols and patriotic expressions from public life. After all, no one argues that the national community cannot express itself—and define itself, and celebrate itself—in words and symbols. The national motto would be gone, for sure. But there would surely still be the (expurgated) Pledge of Allegiance, for example. And the (expurgated) national anthem. And of course, the flag.
So, should these remaining symbols and expressions be described as merely “secular”? Perhaps. And yet they would still seek to elicit the citizens’ allegiance—to stir citizens’ feelings of reverence and devotion. They would still have an important function—a sacralizing or consecrating function, in a more than metaphorical sense. And the Court has never suggested that there is anything impermissible or even suspect about that kind of this-worldly sacralization.
Consider two major cases decided by the Supreme Court just two weeks apart in 1989. In Allegheny County v. American Civil Liberties Union,76 a majority of justices interpreted the First Amendment to prohibit a local government from sponsoring symbols that send a message endorsing religion. On that premise, the Court invalidated a county’s sponsorship of a traditional Christmas crèche in a Pittsburgh courthouse.77 By contrast, in Texas v. Johnson,78 a decision invalidating a state prohibition on flag desecration, both the majority opinion by Justice William Brennan and a dissenting opinion by Chief Justice William Rehnquist acknowledged the sacralizing function performed by the American flag. Thus, Brennan acknowledged for the Court that the flag was “virtually sacred to our nation as a whole,”79 but he contended that the way to “consecrate” the flag is not to prohibit its “desecration.”80 To “consecrate,” of course, means to associate with the sacred: “desecration,” conversely, is synonymous with “desacralization.” And yet, neither the justices nor the commentators perceived any constitutional problem with the nation’s sponsorship and promotion of what one scholar described as the “sacred flag.”81
So then, why was the flag itself not subject to the ostensible constitutional prohibition on official public religiosity, insisted on contemporaneously in the Allegheny County case? Why did the issue not even occur to any of the justices in the case? The answer, it seems, is that that sort of sacralizing or religious message—a message, arguably, of immanent, not transcendent, sacralization—is not what the prohibition on endorsement contemplates.
So it seems that when the Court declares that public symbols must be “secular,” it does not mean “secular” in the positivistic sense. Under the cover of the amorphous and ambiguous term “secular,” the justices have implicitly embraced, wittingly or unwittingly, a conception of the political community formed in immanently religious terms.
In reality, of course, the
Court has not eliminated even all conventionally religiously public symbols and messages. Thus, the Supreme Court and lower federal courts have invalidated a number of public religious expressions—including the Pittsburgh nativity scene, a cross, and some Ten Commandments monuments.82 But judges have also approved a number of other apparently religious expressions, including the national motto (In God We Trust),83 a Ten Commandments monument on the Texas state capitol grounds,84 and the commencement of legislative or city council sessions with prayer.85 The jurisprudence in this respect is notoriously confused; everyone admits this. Nonetheless, the revised interpretation may help make some sense—though probably not complete sense, alas—of that jurisprudence.
Thus, the closest thing to an official explanation for why some conventionally religious expressions remain permissible despite the ostensible constitutional prohibition on endorsements of religion asserts that the acceptable expressions have lost their religious significance (at least in the eyes of a “reasonable observer”) and instead serve now to “solemniz[e] public occasions, [express] confidence in the future, and encourag[e] the appreciation of what is worthy in our society.”86 Justice O’Connor elaborated on this justification at some length in explaining why the words “under God” in the Pledge of Allegiance are not an impermissible endorsement of religion.87 For their part, critics find this kind of explanation doubly infirm. In the first place, words like “under God” in the Pledge of Allegiance have not lost their religious meaning, even (or especially) to reasonable observers.88 And even if we accept that such expressions serve mostly to “solemnize public occasions,” for example, how is it that these particular words and expressions serve this solemnizing function? It is only because of their religious content, critics argue, that such expressions perform the laudable functions that the Court ascribes to them.89
These are powerful objections—at least under the conventional interpretation that understands the doctrine to prohibit all religious expressions and to permit only expressions that are secular in the positivistic sense. But on the alternative interpretation, the criticisms may be less cogent. If the doctrine prohibits transcendent public religiosity, in other words, but allows for immanent religiosity, then religious expressions that are at least susceptible of being interpreted in more immanent or this-worldly terms may not fall under the prohibition. Consistent with this understanding, the courts have seemed most opposed to more obviously sectarian religious expressions—expressions clearly distinctive to Christianity, for example.90 Conversely, more generic expressions that might be amenable to incorporation into an immanent religiosity seem to fare better in the courts.91
The term “God” presents a delicate case. Conventionally, the term “God” is associated with Christianity, Judaism, and biblical religion generally; the term would thus seem to have a transcendent referent. As we saw in the preceding chapter, therefore, Ronald Dworkin took care to insist that his own more immanent religiosity was a “religion without God.” And yet Dworkin also claimed for his fold of atheistic religiosity luminaries including Spinoza, Einstein, and the Protestant theologian Paul Tillich, even though all these figures talked approvingly of “God.” They used the word, but in Dworkin’s interpretation they did not mean the transcendent God, and instead were using the term in a more immanent sense.92 And of course, the pagan deities of antiquity were immanent to this world and yet are routinely referred to as “gods.” It seems, therefore, that the term “God” is capable of being taken in either a transcendent or an immanent sense. And, as in the Pledge of Allegiance case, the justices seem most comfortable with the expression when it is at least susceptible—to the hypothetical “reasonable observer”—of an immanent interpretation.93
This understanding of the prohibition might also help to make sense of scholarly pronouncements that otherwise seem quite baffling. At the time of the Pledge of Allegiance controversy, for example, distinguished commentators, including Columbia professor Kent Greenawalt and University of Chicago professor Martha Nussbaum, argued that the words “under God” in the Pledge of Allegiance clearly sent an unconstitutional message of endorsement; at the same time, these same scholars contended that the national motto, In God We Trust, should not be construed as sending any such forbidden message.94 This juxtaposition of judgments seems curious: Why is “under God” more religious, especially when it appears as one short blip in a larger patriotic statement, than the blunt, unqualified declaration, staring at us from every dollar bill we handle, that “In God We Trust”? Such perceptions are difficult to explain, no doubt, but perhaps the answer lies in the word “under.” Maybe it is a matter of vertical versus horizontal. A God whom we are “under” is necessarily above us, and hence by metaphorical implication transcendent, in other words, while a God we “trust” in might be either transcendent or immanent (like a trustworthy brother or sister or friend). Might that be the explanation for Greenawalt’s and Nussbaum’s puzzling judgments?
In any case, through the haze of arguably incoherent decisions and judgments, two propositions seem tolerably secure. First, not all religious expressions by government are forbidden. Second, explicitly Christian expressions are disfavored (unless mixed in with an eclectic congregation of more generic religious language).95 So it is all right to begin Supreme Court sessions with the invocation “God save the United States and this honorable Court”96—the phrase in that context is apparently solemnizing the Court and its proceedings—but it would be unthinkable for the modern Supreme Court to assert that “this is a Christian nation” in the way the nineteenth-century Court did.97 More generally, legislatures are evidently not permitted to pursue goals or advance values distinctively associated with the biblical tradition—traditional marriage, for example98—but government is free to pursue and advance values perceived by their supporters as having a more immanently “sacred” quality, such as the protection of human life, or human rights, or endangered species.
The effect of these decisions and tacit assumptions, one might argue, is to remove the transcendent or Christian stratum of American civil religion, thereby leaving the immanent or pagan substratum. As we saw in chapter 8, despite its official but arguably superficial triumph over paganism in late antiquity, Christianity did not so much eliminate or replace pagan religiosity as contain and to some degree reorient it by enveloping it within a sort of overarching transcendent canopy. Once the canopy was removed, pagan religiosity was alive and well, ready and waiting to reassert itself. In their campaign to eliminate the transcendent dimension of American public religiosity, consequently, the courts have in effect pushed our official conceptions of our political community in an immanent or pagan direction.
And yet the decisions have been erratic and controversial, often sharply dividing the justices themselves. Indeed, the “no endorsement” doctrine itself seems unstable, especially since its leading proponent, Justice O’Connor, retired from the Court. More generally, the public debate itself continues as fiercely as ever, as annual battles over “Merry Christmas” and public school holiday programs reflect. Hence the ongoing and intense public struggle over “mere symbols,” which seems unlikely to be resolved either by agreement or outright victory by one or the other party anytime soon.
The Struggle over Sexuality
Although conflicts over religious symbols have been frequent and sometimes intense, they pale in their ferocity in comparison to the struggle over a variety of issues connected in various ways with sexuality: contraception, pornography, abortion, homosexuality, same-sex marriage. In these diverse but related conflicts, similar lines of division are discernible. In ancient Rome, Kyle Harper argues, sexuality “came to mark the great divide between Christians and the world.”99 A similar divide seems to have opened up today. Geoffrey Stone observes that “we are in the midst of a constitutional revolution. . . . It has bitterly divided citizens, politicians, and judges. It is a battle that has dominated politics, inflamed religious passions, and challenged Americans to rethink and reexami
ne their positions on issues they once thought settled. . . . And, best of all, it is about sex.”100
On one side of the divide, proponents favor a conception of sexual morality that is discernibly aligned with Christian or, more generally, biblical understandings. On the other side, proponents embrace views of sexual morality that in important respects parallel those of pagan Rome; and like the Romans, proponents of this position find the traditional or biblical conception not only unnaturally and intolerably restrictive, but indeed almost unfathomable. Both sides seek to enshrine their conceptions of sexuality in law; often the legal provisions seem important more for what they symbolize than for their practical or concrete effects.
The Ancient Divide. As we saw in chapter 3, the term “sexual morality” seems almost a misnomer for pagan attitudes toward sexuality: that is because, in the views of pagan Rome, sexuality was not intrinsically a matter generating or requiring moral restrictions.101 It was assumed, rather, that an active sexual agenda was, for men, a necessity; abstinence, or even the confinement of sexual relations to marriage, was unnatural and unhealthy. And pagan religion blessed this permissive understanding. Sexual passion was a manifestation of “the mysterious indwelling presence of the gods”102—of Venus, her son Eros (or Cupid), Priapus of the prodigious phallus, Bacchus, and a variety of more peripheral deities. The pagan gods not only inspired sexual drives; they set a divine example through their own frequent carnal consorting, with each other and with the occasional winsome mortal.
In sum, sexual gratification was something to be celebrated and assiduously pursued—by men, that is—in either its heterosexual or homosexual variety. Stimulation to sexual intercourse (in the form of ubiquitous erotic depictions on household walls and lamps, and in public spaces) and opportunities for intercourse (in the form of multitudinous brothels and slaves, in addition, of course, to wives) were pervasive.
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