Pagans and Christians in the City

by Steven D. Smith

  Sex as the Point of Cultural Separation. Neither the morality of the sexual revolution nor the laws and constitutional doctrines that reflect and ratify that morality are embraced by all Americans. D’Emilio and Freedman describe how the new sexual agenda has frequently provoked resistance, as with the so-called Moral Majority and the New Right.150 Christian scholars and activists among others continue to advocate the position that holds that sex is intrinsically connected to marriage and procreation.151 Both the “contraception mandate” and the judicial decisions imposing same-sex marriage on all states continue to provoke active opposition.152

  Sex and the issues associated with it—abortion, contraception, same-sex marriage—thus mark the visible boundary separating warring factions in the current culture wars. D’Emilio and Freedman remark on how as the sexual revolution unfolded under the influence of a variety of forces—cultural, political, religious, and economic—differences over sexual morality became the focal point for a whole array of disagreements. “A broad range of social, cultural, and economic concerns all could be channeled into campaigns against sexual expression or for sexual liberation.”153 As a result, as the twentieth century merged into the twenty-first, “Americans witnessed a politics of sexuality more contentious than ever before.”154

  The contentiousness has likely been enhanced by the fact that the changes, both cultural and legal, have occurred with stunning suddenness. D’Emilio and Freedman explain that “the two decades that followed [the ‘don’t ask, don’t tell’ policy of the mid-1990s] saw a degree of change unimaginable a mere generation earlier.”155 In a book chronicling the role of the American Civil Liberties Union in securing the constitutionalization of sexual expression and liberty, Leigh Ann Wheeler observes that “as late as 1973, few Americans could conceive of the possibility that the U.S. Constitution might protect sexual rights and provide for sexual citizenship.”156 Geoffrey Stone, former dean of the University of Chicago Law School, agrees; though an enthusiastic proponent of the new jurisprudence of sexuality (and a strident critic of the older, Christian viewpoint), Stone acknowledges that “Supreme Court justices from almost any prior era in American history would be stunned to learn of the role the Supreme Court and our Constitution have come to play in our contemporary disputes . . . over such issues as obscenity, contraception, abortion, sodomy, and same-sex marriage.”157

  Despite occasional wishful proclamations that “the culture wars are over,”158 there can be no realistic expectation that these fundamental conflicts will disappear anytime soon. D’Emilio and Freedman thus conclude their history of sexuality in America with the confident prediction that “sex will remain a source of both deep personal meaning and heated political controversy.”159

  Capturing the Constitution

  With respect to public religious symbols and sexuality, we have observed a shift in American law from a legal regime consonant with the long-standing civil religion described by Bellah—a civil religion that was Christian or at least biblical in character—toward a regime more resonant with an immanent religiosity or, as Eliot put it, “modern paganism.” A primary instrument in effecting that shift, as we have seen, was the American Constitution, as interpreted and used by the modern Supreme Court. But, naturally enough, causal influences in this transformation have run both ways. If the Constitution has been employed to make public symbols and sexual norms less Christian and more pagan, the deployment of the Constitution for those ends has had the effect of making the Constitution itself a more pagan instrument.

  In this instance, however, the change has not been from Christian to pagan, but rather from neutrally agnostic to pagan. That is because, from the outset, the Constitution was not an overtly Christian document. When the instrument was initially being drafted and ratified, there was a faction that wanted to acknowledge Christianity in the nation’s fundamental law. But the framers consciously resisted this demand. Thus, unlike its predecessor, the Articles of Confederation, and unlike state constitutions of the time (and since), the Constitution deliberately avoided any meaningful acknowledgment of “Providence,” or “the Almighty,” or “the Supreme Governor of the Universe.”160

  Some modern scholars infer from the omission of religious or Christian language in the Constitution that the framers intended a constitutional requirement that governments in America be “secular.”161 The inference is a stark non sequitur.162 The Constitution could have declared that government must be secular, as some other nations’ constitutions do; it did no such thing. Later, after the Civil War, a movement developed to insert such a “secular government” requirement into the Constitution; the proposal went nowhere. At about the same time, a “Christian nation” amendment was likewise proposed—and rejected. Both at the founding and a century later, Americans opted for a Constitution that took no position on the matter of a Christian or secular government.163

  Instead, the Constitution provided a legal framework for governance. To be sure, broad constraints on what government could do in matters of religion were imposed.164 The original Constitution contained a provision forbidding religious tests for federal office. Shortly thereafter, with the adoption of the First Amendment, the national government and later by extension the state governments were forbidden to establish any church or to interfere with the free exercise of religion. The first two of these provisions precluded a return to official Christendom; I will argue in the next chapter that the last of the provisions had a derivatively Christian character. Within those broad parameters, city or state governments or the federal government might develop measures that were consonant with Christianity, with paganism, or with a more positivistic secularism. The Constitution permitted any of these alternatives; it commanded none of them.

  This agnosticism served a valuable function. As constituents of what Will Herberg aptly described as “pre-eminently a land of minorities,”165 almost all Americans would in different times and circumstances likely find themselves out of harmony with positions taken by national, state, or local governments (just as they would find their political party on the losing side of some national or local elections). That condition of alienation could be distressing, even painful. And yet Americans could remind themselves that the positions and political parties that might currently prevail were not ultimately constitutive of the political community. Above them in the hierarchy of legal and political authority stood the Constitution—the agnostic Constitution that declined to put its imprimatur on either Christian or secular (or pagan) conceptions of the community.166

  The value of this more neutral Constitution came to be appreciated in the mid-twentieth century—during what lawyers often call the “Lochner era”167—as the courts deviated from constitutional neutrality and turned the Constitution into an instrument for supporting laissez-faire public policies against the emerging regulatory state. A principal tool of this commandeering of the Constitution was the idea of “substantive due process”—the idea of importing substantive principles or values into a constitutional provision that on its face appeared to be merely a guarantee that government would follow proper legal procedures—to employ the Constitution in favor of economic laissez-faire and against the emerging regulatory state. Through this and other interpretive devices (such as construing Article I’s commerce power narrowly), the Constitution was sporadically invoked by the Supreme Court to strike down a number of state laws and also of New Deal responses to the Great Depression. As the depression persisted, however, and as Franklin Roosevelt was repeatedly reelected, this resistance effort—and the idea of “substantive due process”—came to be generally discredited.168

  For a few decades, anyway. But then the campaign against lingering Christian elements in American law—in the public religious symbols and in the laws of sexuality we have been discussing—ran into an obstacle: continuing popular support or at least inertia made it difficult or impossible to eliminate these features merely by using the democratic process. And so proponents of the transformation turned
to the Constitution to override the obstinacy or complacency of the electorate.169

  In the area of religious symbolism, the main device for undoing the older civil religion has been the First Amendment’s establishment clause, interpreted in a way that would have surprised earlier generations (and in a way, ironically, that would actually render earlier landmark religious freedom laws, such as Jefferson’s famous Virginia Statute for Religious Liberty, unconstitutional—as violations of religious freedom).170 But often, in the absence of any substantive provision or language suited to the task, the due process clause once again seemed the most eligible tool. In the area of sexual morality, therefore, the previously discredited idea of “substantive due process” has been rehabilitated and used to invalidate regulations reflecting traditional or Christian sexual norms. Thus, most of the major decisions concerning sexuality described above—the decisions striking down abortion laws, sodomy laws, and traditional marriage laws—have been justified by reading substantive content into the Constitution’s seemingly procedural prohibition on depriving people of life, liberty, or property “without due process of law.”171 The due process clause has been supplemented in some instances by a previously almost moribund172 but newly and aggressively interpreted equal protection clause.173

  The story of the revival of “substantive due process” and the infusion of new content into other constitutional provisions is perfectly familiar to lawyers; it is a standard part of most first-year constitutional law courses,174 and is taken for granted by most lawyers and judges. Given that most of this newly imported content was surely not contemplated by previous generations,175 however, including by the generations that originally drafted and ratified the provisions now being invoked to overthrow traditional and Christian norms, the decisions have been also fiercely criticized, occasionally by critics and scholars who strongly approve the substance of the results reached by the Courts.176 But the decisions, and the use of the Constitution to undo entrenched traditional measures and norms, have also been energetically defended: indeed, over the past half-century or so, a major enterprise of constitutional theorizing has developed with a central purpose of justifying interpretations of the due process clause and the Constitution generally to support results that admittedly were not intended or contemplated by the Americans who drafted and supported the various provisions.177

  Whether one finds the theorizing persuasive or merely sophistical, a consequence of this effort is that whatever confidence citizens might once have had that they could govern themselves by deliberating and then carefully formulating and entrenching specific provisions or rights in the Constitution is now largely lost. Enactment of a constitutional provision amounts to approving a text that may be used in the future to accomplish all manner of results, salutary or mischievous, that those who adopted the provision never imagined.

  This is a development, obviously, that some celebrate and some deplore. In the celebratory vein, Geoffrey Stone exults that “from 1957 to the present we have seen a profound transformation in American constitutional law,” and he enthuses over the “stunning and, indeed, historic shift in our culture and in our law.”178 Conversely, others worry that the courts’ commandeering of the Constitution to advance a progressive agenda amounts to the effective demise of democratic government.179

  What seems clear, though, is that over the past half-century, the Court’s establishment clause jurisprudence has had the effect of invalidating public messages and symbols that earlier generations regarded—and that many in the current generation still regard—as entirely acceptable and indeed admirable.180 And the Court’s substantive due process jurisprudence has systematically dismantled the Christian norms of sexual morality and marriage that previously were officially recognized in law, and has moved the law decisively in the direction of a view of sexuality that resonates with the immanent religiosity of both ancient and modern paganism.

  In doing so, for better or worse, the Court has transformed the nation’s most fundamental law—one that once stood majestically above the fray of contesting religious and secular conceptions of the community, and hence could serve as an anchor for the allegiance even of citizens who found themselves in the situation of being a political or cultural or religious minority—into a partisan instrument in the struggle between transcendent and immanent conceptions of the city.

  1. See Anthony T. Kronman, Confessions of a Born-Again Pagan (New Haven: Yale University Press, 2016).

  2. Matthew Arnold, “Dover Beach,” Poetry Foundation, accessed July 13, 2017, https://www.poetryfoundation.org/poems/43588/dover-beach.

  3. Holy Trinity Church v. United States, 143 U.S. 457, 470 (1892).

  4. See, e.g., Adrian Vermuele, “Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church,” Stanford Law Review 50 (1998): 1844 (describing the case as “notorious in the distinct context of debates about religious liberty”).

  5. Plessy v. Ferguson, 163 U.S. 537 (1896).

  6. See John Fea, Was America Founded as a Christian Nation? A Historical Introduction (Louisville: Westminster John Knox, 2011), 21 (“Between 1789 and 1865 Americans—North and South, Union and Confederate—understood themselves to be citizens of a Christian nation. . . . Despite the religious skepticism of many of the founders, evangelical Protestantism . . . defined the culture”).

  7. Holy Trinity Church, 143 U.S. at 471.

  8. The sources and studies are so numerous that citation of any particular study is largely arbitrary. For examples, see Mark A. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln (New York: Oxford University Press, 2002); Michael Novak, On Two Wings: Humble Faith and Common Sense at the American Founding (San Francisco: Encounter Books, 2003). Frank Lambert explains that “despite sectarian differences, the thirteen states were overwhelmingly Protestant, and Protestantism provided the moral foundation for society. In their ardent belief that they were God’s chosen people, Americans interpreted history through a moral lens: good times pointed to divine blessing; bad times indicated divine disapproval” (Frank Lambert, Religion in American Politics [Princeton: Princeton University Press, 2008], 19–20).

  9. See, e.g., David Sehat, The Myth of American Religious Freedom (New York: Oxford University Press, 2011).

  10. Robert N. Bellah, The Broken Covenant: American Civil Religion in Time of Trial (Chicago: University of Chicago Press, 1975), 3 (emphasis added).

  11. Bellah, The Broken Covenant, 174.

  12. Bellah, The Broken Covenant, 168 (suggesting that “the American republic, which has neither an established church nor a classic civil religion, is, after all, a Christian republic, or I should say a biblical republic, in which biblical religion is indeed the civil religion”).

  13. Bellah, The Broken Covenant, 2.

  14. See Bellah, The Broken Covenant, 179 (describing Lincoln as “our greatest, perhaps our only, civil theologian”).

  15. Bellah, The Broken Covenant, 12.

  16. For discussions of this change, see, e.g., Andrew Koppelman, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013), 28–42; Kevin M. Schultz, Tri-Faith America: How Catholics and Jews Held Postwar America to Its Protestant Promise (New York: Oxford University Press, 2011). On nineteenth-century “nonsectarianism,” see Noah Feldman, Divided by God: America’s Church-State Problem—and What We Should Do about It (New York: Farrar, Straus and Giroux, 2005), 61–62, 109.

  17. For a somewhat disdainful contemporary account, see William Lee Miller, Piety along the Potomac: Notes on Politics and Morals in the ’50s (New York: Houghton Mifflin, 1964). See p. 41 (report dated August 17, 1954): “The manifestations of religion in Washington have become pretty thick. We have had opening prayers, Bible breakfasts, special church services, prayer groups, a ‘Back to God’ crusade, and campaign speeches on ‘spiritual values’; now we have added a postage stamp, a proposed Constitutional amendment, and a change in the Pledge of Allegiance. The Pledge, which has se
rved well enough in times more pious than ours, has now had its rhythm upset but its anti-Communist spirituality improved by the insertion of the phrase ‘under God.’ The Postmaster General has held a dedications ceremony, at which the President and the Secretary of State explained about spiritual values and such, to launch a new red, white, and blue eight-cent stamp bearing the motto ‘In God We Trust.’ A bill has been introduced directing the post office to cancel mail with the slogan ‘Pray for Peace.’ ”

  18. “History of ‘In God We Trust,’ ” U.S. Department of the Treasury, last updated March 8, 2011, https://www.treasury.gov/about/education/Pages/in-god-we-trust.aspx.

  19. Zorach v. Clauson, 343 U.S. 306, 312 (1952).