Pagans and Christians in the City
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128. Mount, Full Circle, 96.
129. See Kevin Cole, “Sex and the Single Malt Girl: How Voluntary Intoxication Affects Consent,” Montana Law Review 78, no. 1 (2017): 1–31.
130. For a lengthy and celebratory history of these developments, see Stone, Sex and the Constitution.
131. Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
132. Eisenstadt v. Baird, 405 U.S. 438 (1972).
133. Roe v. Wade, 410 U.S. 113 (1973).
134. See, e.g., John Hart Ely, “The Wages of Crying Wolf,” Yale Law Journal 82 (1973): 920. See also Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Lawrence: University Press of Kansas, 2015), 54 (“We might think of Justice Blackmun’s opinion in Roe as an innovation . . . —the totally unreasoned judicial opinion”).
135. Casey, 505 U.S. 833.
136. Bowers v. Hardwick, 478 U.S. 186 (1986).
137. Romer v. Evans, 517 U.S. 620 (1996).
138. Lawrence v. Texas, 539 U.S. 558 (2003).
139. Obergefell, 576 U.S. __. Obergefell was strongly foreshadowed in United States v. Windsor, 570 U.S. 744 (2013).
140. For a description of these developments and an insightful analysis of their cultural significance, see Paul Horwitz, “Comment: The Hobby Lobby Moment,” Harvard Law Review 128 (2014): 154.
141. See Horwitz, “The Hobby Lobby Moment,” 172 (asserting that “the acceptability [of contraceptives] is ‘as close to cultural consensus as we can get’ ”). Douglas Laycock observes that “it is unimaginable that any American state would now attempt to ban contraception” and that “the bishops gave up that battle long ago.” Douglas Laycock, “Religious Liberty and the Culture Wars,” University of Illinois Law Review 2014 (2014): 839, 867.
142. D’Emilio and Freedman, Intimate Matters, 242–55, 338.
143. D’Emilio and Freedman, Intimate Matters, 250–51.
144. Griswold, 381 U.S. 479.
145. Eisenstadt, 405 U.S. 438.
146. This position was embraced by the four dissenting justices in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ , 134 S. Ct. 2751 (2014), and also in Justice Anthony Kennedy’s concurring opinion.
147. See Helen Alvaré, “Meanwhile, Outside the Panic Room: Contraception, Hobby Lobby, and Women’s Rights,” Public Discourse, July 10, 2014, http://www.thepublicdiscourse.com/2014/07/13467.
148. Hobby Lobby, 134 S. Ct. at 2763.
149. See Alvaré, “Meanwhile, Outside the Panic Room.”
150. D’Emilio and Freedman, Intimate Matters, 344–61.
151. See, e.g., Sherif Girgis et al., What Is Marriage? A Man and a Woman; A Defense (New York: Encounter Books, 2012).
152. See, e.g., Ryan T. Anderson, Truth Overruled: The Future of Marriage and Religious Freedom (Washington, DC: Regnery, 2015).
153. D’Emilio and Freedman, Intimate Matters, 361.
154. D’Emilio and Freedman, Intimate Matters, 363. See also 387 (“The influence of sexuality on American life has continued to grow. Just as the erotic came to permeate commerce and media earlier in the century, it now has infiltrated national politics as well”).
155. D’Emilio and Freedman, Intimate Matters, 371. See also Erwin Chemerinsky, “Law Review Symposium Keynote Address,” U.C. Davis Law Review 48 (2014): 447–48 (explaining that legal recognition of same-sex marriage had come more quickly than he or others had expected).
156. Wheeler, How Sex Became a Civil Liberty, 3.
157. Stone, Sex and the Constitution, xxvii–xxviii.
158. See, e.g., Mark Tushnet, “Abandoning Defensive Crouch Liberal Constitutionalism,” Balkinization (blog), May 6, 2016, http://balkin.blogspot.com/2016/05/abandoning-defensive-crouch-liberal.html; Cathleen Kaveny, “Bookending a Culture War,” Commonweal, April 19, 2016, https://www.commonwealmagazine.org/bookending-culture-war.
159. D’Emilio and Freedman, Intimate Matters, 388.
160. See, e.g., Kramnick and Moore, The Godless Constitution, 27–45. See also Fea, America Founded as a Christian Nation?, 150 (asserting that “the Constitution was never meant to be a religious document, nor did its framers set out to use the document to establish a Christian nation”).
161. See Kramnick and Moore, The Godless Constitution, 27–45. See also Susan Jacoby, Freethinkers: A History of American Secularism (New York: Metropolitan Books, 2004), 28 (observing that “without downgrading the importance of either the establishment clause or the constitutional ban on religious tests for officeholders, one can make a strong case that the omission of one word—God—played an even more important role in the construction of a secularist foundation for the new government”).
162. See Steven D. Smith, “Our Agnostic Constitution,” NYU Law Review 83 (2008): 120. See also Fea, America Founded as a Christian Nation?, 162 (arguing that “the Constitution does not mention God . . . not because the framers were trying to create a secular nation, but because, as a point of federalism, they believed that religious matters should be left up to the states”).
163. See Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002), 287–334.
164. For an explication of the original meaning and purpose of the First Amendment’s religion clauses, see Smith, The Rise and Decline of American Religious Freedom.
165. Herberg, Protestant-Catholic-Jew, 247.
166. The point is developed in Smith, “Our Agnostic Constitution.”
167. So called after the Supreme Court’s controversial decision in Lochner v. New York, 198 U.S. 45 (1905).
168. The story of the Lochner era is a familiar part of the constitutional narrative learned by all students of law and American history. See, e.g., Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1993), 190–202.
169. Cf. Stone, Sex and the Constitution, 383: “Faced with paralysis in the legislative arena, pro-choice advocates began to think seriously about challenging the constitutionality of anti-abortion statutes in the courts. Initially, this seemed a long shot because, in the words of the New York Times Supreme Court columnist Linda Greenhouse, the idea of a constitutional right of abortion seemed ‘illusory.’ But with legislative change effectively blocked, the courts increasingly seemed the best alternative.”
170. For development of the point, see Smith, Rise and Decline, 117–20.
171. For a succinct description of the relevant history before the recent same-sex marriage decisions, see Daniel O. Conkle, “Three Theories of Substantive Due Process,” North Carolina Law Review 85 (2006): 63, 69–76.
172. Justice Holmes famously described the equal protection clause as “the usual last resort of constitutional arguments.” Buck v. Bell, 274 U.S. 200, 208 (1927).
173. See, e.g., Lawrence, 539 U.S. 558 (O’Connor, J., concurring).
174. See, e.g., Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials, 4th ed. (New York: Aspen, 2000), 1131–1360.
175. See above, 294.
176. See, e.g., Ely, “The Wages of Crying Wolf”; Robert Bork, The Tempting of America: The Political Seduction of America (New York: Simon and Schuster, 1990).
177. This literature is vast. Among leading manifestations, however, are John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1981); Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press of Harvard University Press, 1986); Bruce Ackerman, We the People, vol. 1, Foundations (Cambridge, MA: Harvard University Press, 1991); Jack M. Balkin, Constitutional Redemption (Cambridge, MA: Harvard University Press, 2011).
178. Stone, Sex and the Constitution, 534, 535.
179. See, e.g., The End of Democracy? The Judicial Usurpation of Politics, ed. Mitchell S. Muncy and Richard John Neuhaus (Dallas: Spence, 1997).
180. See Smith, Rise and Decline, 117–20.
CHAPTER 11
Counterrevolution, Part II: Religious Freedom
Pages ago, in the first chapter, we confronted a question in
two versions. We first took note of Pliny’s question (and Tertullian’s), raised almost two millennia ago: Why did the Romans persecute and often execute people just for being Christian—even though (as Tertullian insisted) the Christians sustained and even prayed for the emperors, the legions, and other Roman authorities and institutions?
After surveying the nature of Roman religion and its differences from Christianity, we considered answers to late antiquity’s version of the question in chapter 6. The Romans could have, and sometimes did, tolerate Christianity. And yet Roman persecution of Christians, it turned out, was not merely gratuitous or malicious. That is because, despite the Christians’ sincere protestations of loyalty, in a variety of ways Christianity was subversive of the Roman city, or of the kind of political community that the Romans were striving to maintain. Persecution, if not exactly necessary or commendable, was at least an instrumentally and symbolically rational response to that subversive force.
The second, less violent version of the question arises in America today, posed by people like lawyer and scholar Douglas Laycock. Why do proponents of an antidiscrimination agenda bring lawsuits against marriage counselors, wedding photographers, florists, and others who are religiously opposed to same-sex unions, even when the services offered by these professionals are readily available from other providers, and even though no sensible same-sex couple would actually want the services of a provider who is religiously opposed to their union? Generally libertarian in his commitments, Laycock criticizes this litigating zeal as a manifestation of intolerance—an accusation he extends to Christians who support laws regulating sexual conduct they regard as immoral. We considered the issues of sexuality and law in the previous chapter and observed how, by embodying Christian or conversely pagan norms of sexuality, laws are important constitutive symbols expressing and constructing the community along Christian or pagan lines. It is now time to take up the question we started with.
So, why do LGBT advocates seek to impose sanctions on religious traditionalists even when these traditionalists’ services are neither needed nor desired? Is such litigation a manifestation of intolerance, as Laycock suggests? And even if we stipulate that it is, does this label actually illuminate anything? What is the explanation for this “intolerance,” if that is what it is? Why would people take the time and trouble to be affirmatively intolerant in this way?
These questions place us squarely in the middle of one of the major controversies of our time—the controversy over religious freedom. For most of American history, at least since the adoption of the Constitution, religious freedom was a commitment piously embraced (if imperfectly honored) by nearly all citizens, even though the meaning and implications of that commitment were often energetically contested.1 Today things may appear to be different. Many citizens, activists, and politicians on one side of the cultural and political divide (as well as some critics, like Laycock, who are not generally on that side of the divide) perceive activists, politicians, and scholars on the other side of the divide as being indifferent or even hostile to religious freedom. “For the first time in nearly 300 years,” Laycock argues, “important forces in American society are questioning the free exercise of religion in principle—suggesting that free exercise of religion may be a bad idea, or at least a right to be minimized.”2
Typically, though, such characterizations are rejected, indignantly.3 Virtually everyone at least purports to be in favor of religious freedom; few admit to being opposed to it. So, who is right? What exactly is going on in these cultural, legal, and political battles over religious freedom?
The preceding discussions will already have suggested the overall response to be offered in this chapter. The contemporary fight over religious freedom is one battleground—a central one, as it happens—in the larger and essentially religious struggle to define and constitute America. The practical reality, of course, as with most such struggles, is that the conflict is confusing and pervasively confused: it is one in which, to enlist again Matthew Arnold’s metaphor, “ignorant armies clash by night.”4 So any assessment of the issue will necessarily seek to discern and impose a clarity that is to some extent artificial, as theorizing characteristically does. With that caveat, here is a succinct description.
One side in the struggle favors a conception of religious freedom that is consistent with—and thus symbolically expressive of, and thus to an extent constitutive of—a city or a political community that respects and is open to transcendence. The other side, guided by a different civic vision, seeks to close that opening. In sealing off the city against transcendence, though, this side is not opposed to religion, or even to transcendent religion. Not necessarily, anyway, and not for now. Nor are actors on that side of the divide necessarily opposed to religious freedom. But they work to keep the troublesome, transcendent sort of religion out of the public square5—outside the inner city walls, so to speak—and thus to maintain a public square whose commitments are confined to the satisfaction of “interests” and to immanently sacred values.
They seek, in other words, to repudiate the generically, implicitly Christian city that Americans have inherited—the one the Supreme Court recognized when in 1892 it declared that “we are a Christian nation”6—and to reestablish a city with virtues, sensibilities, and a civic character (including an understanding of religious freedom) that could more aptly be described as . . . pagan. And they perceive that transcendent religion within the public square is subversive of such a city in ways analogous to those in which the Romans perceived, correctly, that Christianity was subversive in classical times.
In sum, the contemporary battle over religious freedom is a sort of microcosm of the current and perennial struggle between transcendent and immanent religiosities, and an attempt to roll back the Christian revolution of the fourth century.
Religious Freedom, American Style
Political polemics and even academic discussions sometimes address “religious freedom” as if it were some sort of Platonic form with an identifiable and monolithic essence that a person could either approve or oppose. This essentialist, for-it-or-against-it way of thinking may simplify (and polarize, and thereby energize) discussions. But it fails to acknowledge the diverse ways in which governments have tolerated, respected, and sometimes promoted or, conversely, have discouraged, restricted, and even prohibited different forms of “religion.”7
Although it is artificial to think of religious freedom as a unitary commitment that we either support or oppose, we can talk about political arrangements that are more or less conducive to a range of ways of living in accordance with people’s diverse understandings of the sacred. And we can discern different general approaches or strategies calculated to enhance or constrict this sort of freedom. In America, as it happens, the dominant overall approach to diversity in religion has traditionally emphasized two central themes or strategies, which we can describe as “nonestablishment” and “accommodation.”
The first of these themes is usually associated with the First Amendment’s establishment clause (“Congress shall make no law respecting an establishment of religion . . .”); the second is often tied to that same amendment’s free exercise clause (“. . . or prohibiting the free exercise thereof”). The preceding chapter touched on one aspect of the nonestablishment theme—the constitutional doctrine developed by the Supreme Court that in recent decades has forbidden government to “endorse” religion.8 By contrast, our primary focus through much of this chapter will be on the second of these themes—the accommodation theme. But we will need to take occasional notice of the first theme as well. In doing so, we will see how a version of nonestablishment may be working together with rising opposition to religious accommodation to bring about a revival or reconstruction of a civic community aptly describable as “pagan.”
The Accommodation Strategy. The central idea animating the accommodation strategy is basically this: government should respect people’s religious commitments, and should make an affirmati
ve effort to avoid burdening or interfering with those commitments. Put differently: government should affirmatively try to leave space for people to live in accordance with their diverse understandings of the sacred. So if a particular law would require a person or group to violate a sincerely held religious commitment, then a just and humane government will, if reasonably possible (because sometimes it will not be reasonably possible),9 find ways to excuse compliance by those people whose religion would be burdened.
Probably the best-known example involves religious pacifism and military service. Quakers have been a discernible presence in American life since colonial days. And Quakers are known to have a sincere religious objection to participating in war. So if there is a practically feasible way to excuse Quakers (and other sincere religious pacifists) from serving in the military, then that is what the government should do. Or at least so an accommodationist understanding of religious freedom would admonish.
Once again, this is not the only stance a government might take toward religion, nor is it even the only approach that might be described as respecting religious freedom.10 For example, a government might aspire to be simply agnostic or neutral toward religion—neither pro nor con. So the government would leave people free to live in accordance with their various faiths so long as no positive secular public policy is implicated, but it would disclaim any obligation to accommodate religious practices that happen to bump up against some public interest or policy. This sort of agnostic or neutral stance might be described as respecting religious freedom, at least in an attenuated sense, insofar as diverse religious faiths and practices are at least presumptively permitted, not targeted for disfavor or persecution. This was, arguably, the sort of approach favored by John Locke and by Roger Williams—usually counted as friendly figures in the development of religious freedom.11 The accommodationist position goes further, however, treating religion as something valuable that government should affirmatively respect and, if reasonably possible, look for ways to avoid interfering with.12