Pagans and Christians in the City

by Steven D. Smith

  94. See Micah Schwartzman, “Religion as a Legal Proxy,” San Diego Law Review 51 (2014): 1085; Leiter, Why Tolerate Religion?, 64 (“If matters of religious conscience deserves [sic] toleration . . . then they do so because they involve matters of conscience, not matters of religion”). Although Leiter argues that accommodation of conscience can be justified and that accommodation of religion cannot be justified, however, he is ultimately skeptical about the accommodation of conscience as well. Leiter, 17, 63–67, 94–100. For a description and criticism of Leiter’s position, see Mark L. Rienzi, “The Case for Religious Exemptions—Whether Religion Is Special or Not,” Harvard Law Review 127 (2014): 1395.

  95. Marie A. Failinger, “Wondering after Babel: Power, Freedom, and Ideology in U.S. Supreme Court Interpretations of the Religion Clause,” in Law and Religion, ed. Rex J. Ahdar (Aldershot, UK: Ashgate, 2000), 94.

  96. See Nathan Chapman, “Disentangling Conscience and Religion,” University of Illinois Law Review 2013 (2013): 1457, 1464–71; Michael J. White, “The First Amendment’s Religion Clauses: ‘Freedom of Conscience’ versus Institutional Accommodation,” San Diego Law Review 47 (2010): 1075, 1075–76, 1081.

  97. McConnell, “Origins and Historical Understanding,” 1488–1500.

  98. See Chapman, “Disentangling Conscience and Religion.”

  99. United States v. Seeger, 380 U.S. 163 (1965).

  100. Arising from any human relation, but Welsh v. United States, 398 U.S. 333 (1970).

  101. In the first case, Seeger, the federal exemption applied to persons who were opposed to war on the basis of “religious training and belief,” and it defined such training and belief as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” Seeger, 380 U.S. at 165.

  102. Seeger, 380 U.S. at 166.

  103. See Eisgruber and Sager, Religious Freedom, 114.

  104. See above, 328.

  105. See above, 325n90.

  106. See, e.g., Douglas Laycock, Religious Liberty, vol. 1, Overviews and History (Grand Rapids: Eerdmans, 2010): 58–61; Kent Greenawalt, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton: Princeton University Press, 2006), 3–9.

  107. See Laycock, Religious Liberty, 69–80; see also Kent Greenawalt, “Religious Toleration and Claims of Conscience,” Journal of Contemporary Legal Issues 21 (2013): 449, 461 (concluding after careful discussion that “for individuals, but not organizations, . . . most exemptions granted for moral conscience should be extended to nonreligious claimants”).

  108. See, e.g., Laycock, Religious Liberty, 58; Kent Greenawalt, Religion and the Constitution, vol. 2, Establishment and Fairness (Princeton: Princeton University Press, 2008), 57, 195, 492–93, 523–24.

  109. See, e.g., Greenawalt, Religion and the Constitution, 1:3 (arguing that “people should be free to adopt religious beliefs and engage in religious practices because that is one vital aspect of personal autonomy”); Alan Brownstein, “Protecting the Religious Liberty of Religious Institutions,” Journal of Contemporary Legal Issues 21 (2013): 201, 206 (arguing that “the most persuasive justifications for protecting the religious liberty of individuals are grounded in a commitment to personal autonomy and human dignity”).

  110. See Andrew Koppelman, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013), 136–41 (distinguishing among four distinct conceptions of conscience).

  111. See, e.g., Greenawalt, “Religious Toleration,” 452–53 (observing that “in most contexts, asserting that something is a matter of ‘conscience’ implies a strong moral conviction”).

  112. With respect to greatly divergent conceptions of what “morality” even refers to, philosopher Michael Smith has observed that “if one thing becomes clear by reading what philosophers writing in meta-ethics today have to say, it is surely that enormous gulfs exist between them, gulfs so wide that we must wonder whether they are talking about a common subject matter.” Michael Smith, The Moral Problem (Malden, MA: Blackwell, 1994), 3.

  113. Welsh, 398 U.S. at 343 (emphasis added).

  114. John Rawls, Political Liberalism (New York: Columbia University Press, 1996). For alternative elaborations, see, e.g., Kevin Vallier, Liberal Politics and Public Faith: Beyond Separation (New York: Routledge, 2014); Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (New York: Cambridge University Press, 2011); Stephen Macedo, “Liberalism and Public Justification,” in Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (New York: Clarendon, 1990), 39–75.

  115. See Rawls, Political Liberalism, 212–47. The point is further developed in the following chapter.

  116. Rawls, Political Liberalism, xxiv–xxviii.

  117. Dworkin’s invocation of the “sacred” was discussed in chapter 9.

  118. Reprinted as Ronald Dworkin et al., “Assisted Suicide: The Philosophers’ Brief,” New York Review of Books, March 27, 1997, http://www.nybooks.com/articles/1237.

  119. In what he called “the proviso,” Rawls eventually qualified his restriction to permit the expression of “comprehensive doctrines” so long as “in due course public reasons . . . are presented sufficient to support whatever the comprehensive doctrines are introduced to support.” Rawls, Political Liberalism, 152. That sort of religion could be invoked in debate on important public issues, in other words, so long as it did not ultimately make a difference to the outcomes.

  120. See, e.g., David Enoch, “The Disorder of Public Reason,” Ethics 124 (October 2013): 141; Christopher Eberle, Religious Conviction in Liberal Politics (Cambridge: Cambridge University Press, 2002).

  121. For an example of this sort of less examined reliance on a supposed secularism constraint by a respected legal scholar, see Edward Rubin, “Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause,” Vanderbilt Law Review 63 (2010): 763.

  122. See, e.g., Douglas Laycock, “Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers,” Northwestern University Law Review 81 (1986): 1, 7 (asserting that “the establishment clause absolutely disables the government from taking a position for or against religion. . . . The government must have no opinion because it is not the government’s role to have an opinion”). Michael Perry elaborates on the theme: “No matter how much some persons might prefer one or more religions, government may not take any action based on the view that the preferred religion or religions are, as religion, better along one or another dimension of value than one or more other religions or than no religion at all. So, for example, government may not take any action based on the view that Christianity, or Roman Catholicism, or the Fifth Street Baptist Church, is, as a religion or church, closer to the truth than one or more other religions or churches or than no religion at all—or, if not necessarily closer to the truth, at least a more authentic reflection of the religious history and culture of the American people. . . . Similarly, no matter how much some persons might prefer one or more religious practices, government may not take any action based on the view that the preferred practice or practices are, as religions practice . . . , better—truer, or more efficacious spiritually, for example, or more authentically American—than one or more other religious or nonreligious practices or than no religious practice at all.” Michael J. Perry, Religion in Politics: Constitutional and Moral Perspectives (New York: Oxford University Press, 1997), 15. For a critical examination of this widely held assumption, see Richard J. Garnett, “A Hands-Off Approach to Religious Doctrine: What Are We Talking About?” Notre Dame Law Review 84 (2009): 837.

  123. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 904 (Iowa 2009) (“The County’s silence reflects, we believe, its understanding [that religious sentiment] cannot, under our Iowa Constitution, be us
ed to justify a ban on same-sex marriage”); United States v. Windsor, 133 S. Ct. 2675, 2693–94 (2013) (describing DOMA as expressing a moral conviction that comports with “traditional [especially Judeo-Christian] morality”).

  124. See Lemon, 403 U.S. at 612–13.

  125. For an incisive discussion of the letter, see Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State (New York: New York University Press, 2002), 66.

  126. See, e.g., David Barton, Original Intent: The Courts, the Constitution, and Religion (Aledo, TX: WallBuilder Press, 1997); John Eidsmoe, Christianity and the Constitution: The Faith of Our Founding Fathers (Brentwood, TN: Wolgemuth and Hyatt, 1987), 242–45, 406–11. More stridently, then-representative Katherine Harris declared that church-state separation is a “lie we have been told” to exclude religious believers from public life. Jim Stratton, “Rep. Harris Condemns Separation of Church, State,” Orlando Sentinel, August 26, 2006, A9.

  127. Charles Taylor, “Modes of Secularism,” in Secularism and Its Critics, ed. Rajeev Bhargava (New York: Oxford University Press, 1998), 31. See also Bernard Lewis, What Went Wrong? Western Impact and Middle Eastern Response (New York: Oxford University Press, 2002), 96 (“Secularism in the modern political meaning . . . is, in a profound sense, Christian. Its origins may be traced in the teachings of Christ, confirmed by the experience of the first Christians; its later development was shaped and, in a sense, imposed by the subsequent history of Christendom”). For further discussion, see Steven D. Smith, The Disenchantment of Secular Discourse (Cambridge, MA: Harvard University Press, 2010), 112–15.

  128. “Separationist” commentators or scholars manage to slip from “church” to “religion” almost effortlessly without even noticing the crucial substantive change. See, e.g., T. Jeremy Gunn, “The Separation of Church and State versus Religion in the Public Square: The Contested History of the Establishment Clause,” in No Establishment of Religion, ed. T. Jeremy Gunn and John Witte Jr. (New York: Oxford University Press, 2012), 15, 18 (advocating an interpretation that “favors the ‘separation of church and state’ (or more properly religion and the state)”) (emphasis in original).

  129. See John Witte Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002), 87–117.

  130. See, e.g., McConnell, “Accommodation of Religion,” 15–24.

  131. See above, 320n75.

  132. See Benjamin J. Kaplan, Divided by Faith: Religious Conflict and the Practice of Toleration in Early Modern Europe (Cambridge, MA: Belknap Press of Harvard University Press, 2007), 144–56.

  133. See, e.g., Rod Dreher, The Benedict Option: A Strategy for Christians in a Post-Christian Nation (New York: Penguin, 2017).

  134. See Richard A. Epstein, “Public Accommodations under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right,” Stanford Law Review 66 (2014): 1241, 1261–77. For a contrary interpretation, see Andrew Koppelman, with Tobias Barrington Wolff, A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (New Haven: Yale University Press, 2009), 5–17.

  135. See Warren Richey, “How the Push for Gay Rights Is Reshaping Religious Liberty in America,” Christian Science Monitor, July 11, 2016, http://www.csmonitor.com/USA/Justice/2016/0711/How-the-push-for-gay-rights-is-reshaping-religious-liberty-in-America.

  136. See, e.g., Warren Richey, “A Push to Help Gay Couples Find Wedding Joy—without Rejection,” Christian Science Monitor, July 17, 2016, http://www.csmonitor.com/USA/Justice/2016/0717/A-push-to-help-gay-couples-find-wedding-joy-without-rejection (“But many advocates for the lesbian, gay, bisexual, and transgender [LGBT] community take a firmer line. They insist that if conservative religious business owners can’t serve every customer equally they should find new work”).

  137. See, e.g., Ward v. Polite, 667 F.3d 727 (6th Cir. 2012).

  138. North Coast Women’s Care Medical Group, Inc. v. San Diego City Superior Court, 44 Cal. 4th 1145, 1156, 189 P.3d 959, 967 (2008) (“The First Amendment’s right to the free exercise of religion does not exempt defendant physicians here from conforming their conduct to the Act’s antidiscrimination requirements even if compliance poses an incidental conflict with defendants’ religious beliefs”).

  139. Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015) cert. denied, 136 S. Ct. 2433 (2016) (state regulations requiring pharmacies to dispense lawfully prescribed drugs, including emergency contraceptives, did not violate the free exercise clause of substantive due process).

  140. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 137 S. Ct. 2290 (pending before the Supreme Court to be heard in its 2017 term) (“Masterpiece violated Colorado’s public accommodations law by refusing to create a wedding cake for Craig’s and Mullins’ same-sex wedding celebration”).

  141. State v. Arlene’s Flowers, Inc., 187 Wash. 2d 804, 389 P.3d 543 (2017) (finding that refusal to provide wedding floral services to a same-sex couple constitutes sexual orientation discrimination and thus violates Washington State’s bar on discrimination in public accommodations). See also Warren Richey, “A Florist Caught between Faith and Financial Ruin,” Christian Science Monitor, July 12, 2016, http://www.csmonitor.com/USA/Justice/2016/0712/A-florist-caught-between-faith-and-financial-ruin.

  142. Roberts v. Madigan, 921 F.2d 1047, 1050 (10th Cir. 1990) (upholding the authority of a public school principal to order a teacher to remove the Bible from his desk and other religious posters hanging in the classroom). See also Freshwater v. Mt. Vernon City School District Board of Education, 2013-Ohio-5000, ¶ 97, 137 Ohio St. 3d 469, 1 N.E.3d 335 (finding that an eighth-grade science teacher “is fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith,” but he cannot inject his religious beliefs into the classroom and “ignore direct, lawful edicts of his superiors while in the workplace”).

  143. In re Neely, 2017 WY 25, 390 P.3d 728, 753 (Wyo. 2017) (the Wyoming Supreme Court censured a judge for refusing to preside over same-sex marriages, holding “Judge Neely shall either perform no marriage ceremonies or she shall perform marriage ceremonies regardless of the couple’s sexual orientation”). See also Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003) (placement of a Ten Commandments monument in the Alabama State Judicial Building violated the establishment clause, resulting in Chief Justice Roy S. Moore’s removal from office for judicial misconduct).

  144. Bruce W. Winter, Divine Honours for the Caesars: The First Christians’ Responses (Grand Rapids: Eerdmans, 2015), 286.

  145. Winter, Divine Honours, 286.

  CHAPTER 12

  Coming Home? The Imminent Immanent City

  In the previous two chapters, we have observed how the so-called culture wars—specifically the conflicts over public symbols, over the legally recognized norms of sexuality, over the Constitution, and over religious freedom—can be understood as a sustained effort to reengage the fourth-century struggle and to reverse the religious revolution by which Christianity supplied the dominant regulative ideal in the Western world. The culture wars amount to a counterrevolution, or a campaign to retake the city, so to speak, for immanent religiosity—for “modern paganism,” as T. S. Eliot put it.

  Whether and in what form that campaign will succeed remain uncertain. Occasionally a critic or combatant will pronounce the conflict over, with the immanent or “progressive” side triumphant. In this spirit, Harvard law professor Mark Tushnet recently declared victory for the progressive party. “The culture wars are over; they lost, we won.”1

  Tushnet’s declaration of victory seemed ungracious but not implausible; at the time, the momentum seemed all on the side of immanent progressivism. Probably it still does. The reelection of Barack Obama (and perhaps even more so his “evolution” on issues like marriage), the judicial crushing of op
position to same-sex marriage, the filling of the judiciary with Democratic appointees—all portended further victories for the devotees of immanence, further defeats for the party of tradition and transcendence. Still, it is worth remembering that just over a decade ago, after the reelection of George W. Bush, observers were sometimes rendering the opposite verdict (usually in despairing tones).2 And just what the unexpected electoral victory of the mercurial Donald Trump may presage in these matters is at this point anyone’s guess. Lacking a Tiresias or an Isaiah to call upon, we would be wise to forgo confident predictions.

  Still, let us suppose that Tushnet is right, that the recent trajectory holds, and that modern paganism manages to grow in strength and to consolidate its hold on the city. Would this development be one to celebrate or to lament?

  In chapter 8 we surveyed two closely related themes that have characterized the Western historical and political imagination—first, a persistent, gnawing regret for the loss of (and a yearning to recover) the freedom and the “shining beauty and grace”3 of the classical pagan city, and, second, a smoldering resentment of the Christianity that subjugated that city. Restoration of the pagan city might seem to achieve the fulfillment of that entrenched yearning, the assuagement of that long-standing resentment. Like long-tried royal Odysseus, enlightened governance would after many hardships and ordeals have at long last returned home and triumphed over its foes.