Thursday, July 10, 2014

"I'm not sure what it means...."

Because sometimes you need a buddy....

This is fascinating.  It may even make me change my attitude toward Burwell.  Then again, it ends here:

What remains, as Clifford Geertz reminds us, is for us to work on creating new fictions together, political, legal and religious:

The primary question . . . now that nobody is leaving anybody else alone and isn’t ever going to, is not whether everything is going to come seamlessly together or whether, contrariwise, we are all going to persist sequestered in our separate prejudices. It is whether human beings are going to be able . . . to imagine principled lives they can practicably lead.
Judges cannot do this work.

Which kind of undermines Burwell, and certainly undermines any possible legislative or even legal solution to the conundrum of what is called in the article "Big 'R' religion."

I cannot summarize the argument; it's too subtle for that, I'd do it damage.  I can focus on a few key points, by drawing out quotes:

You cannot both celebrate religious freedom and deny it to those whose religion you don’t like. Human history supports the idea that religion, small “r” religion, is a nearly ubiquitous and perhaps necessary part of human culture. Big “R” Religion, on the other hand, the Religion that is protected in constitutions and human rights law under liberal political theory, is not. Big “R” Religion is a modern invention, an invention designed to separate good religion from bad religion, orthodoxy from heresy — an invention whose legal and political use has arguably reached the end of its useful life.

That lays the groundwork, though I must say not as clearly as I would like.  The distinction between "Big 'R' Religion" and "small 'r' religion" is never as clear as it could be, but the distinction lies here:

That American religion is involved in business and obsessed with sex is not news. What is surprising is that those who object to this kind of religion continue to hold on to a faith in the idea that religious freedom means protection only for the kind of religion they like, the private, individualized, progressive kind.

There:  religion that is "private, individualized, and progressive" is acceptable; religion that is not, needs to go back to church and remain private and individualized, even if it can't (or won't) be progressive.  In the extreme formulations usually encountered in comments, all religion must be private and individualized, and no religion can claim to be progressive, because it is an offense against reason.

But this is the heart of the matter; and here, I think, the argument becomes almost unassailable:

The notion that religion exists and can be regulated without being defined is a fiction at the heart of religious freedom protection. Legal fictions — such as the idea that corporations are persons — are, of course, necessary to law. For legal scholars as diverse as Henry Maine and Lon Fuller, the capacity of legal language to finesse the facts could be understood as making legal flexibility and progress possible. The startling unbelievability of legal fictions can also focus our attention on the limits of legal language in a salutary way. Yet legal fictions can be stretched too far. They can become nothing more than lies.
Fictions, despite the more literal minded atheists and logical positivists one encounters on-line, are necessary to human existence.  But we don't need to go far afield to establish this:

Religion also specializes in fiction. It is not just the corporation that has fictional legal personality. So does the church. Justice Ginsburg objects to free exercise protection being extended to “artificial entities,” referring to corporations, but religious freedom is all about protecting artificial identities. The church is an imagined artificial entity; so are gods and demons. The church is the body of Christ in orthodox Christian theology; like the sovereign, it is the quintessential legal fiction, as we learn from Ernst H. Kantorowicz in “The King’s Two Bodies

We need fictions to live. But when the church and the state went their separate ways — when the church was disestablished — the intimate articulation of political, legal and religious fictions lost their logic on a national scale. They no longer recognize one another. The legal and religious fictions of religious freedom have become lies designed to extend the life of the impossible idea that church and state can still work together after disestablishment. There is no neutral place from which to distinguish the religious from the non-religious. There is no shared understanding of what religion, big “R” Religion, is. Let’s stop talking about big “R” Religion.

I've left out most of the discussion of Burwell and the dissent in the Wheaton College temporary injunction order.  The critiques of Ginsberg and Sotomayor are insightful, and perhaps decisive.  I haven't decided yet.

But this is definitely food for thought.....


  1. This is indeed an interesting and thoughtful article, followed by the usual depressingly furious comments.

    I can't agree, however, with one of his key assertions: "There is no neutral place from which to distinguish the religious from the non-religious." It is difficult, truly, to distinguish the religious from the non-religious, but if it can't be done, then the constitutional provision becomes meaningless.

    We do, however, distinguish, in everyday discussion, between the reliigous and the spiritual, that which is communal and traditional as against what is individual and idiosyncratic. It has never been sufficient, if one complained of a religious burden, to simply say, "That's what I believe."

    In my own distant and small experience, in the old peyote case, we had a formidable factual burden to show a genuine religious belief. We were able to meet it by showing an institutional continuity with another establishment which enjoyed the exemption (the Native American Church) and the controls kept in place over the availability of the banned substance.

    In reading the commentary on these mandate cases there is some considerable body of opinion that a concern about contraception is some new right-wing misogynistic crackpot idea. In fact it can be shown to be a continuous component of Christian sexual ethics from the earliest centuries through the twentieth. Eliot has an interesting discussion of the relaxation of the norm for Anglicans in his "Thoughts after Lambeth." And of course those objections become considerably stronger and longer-lived when then issue is the extinguishing of fetal life.

    The "free exercise" clause and the "no establishment" clause tend to work against each other, and call for a pragmatice balance, rather than unlimited, absolute privileges. But they have worked in the past, and promoted social harmony and toleration of minority religion, and I don't see why they still aren't an important part of the American formula of ordered freedom. But that balance will be undermined if we start to really think that we can't say what religion is.

  2. Yes, I have to read it more carefully, because there are two issues here: one, how do we as a society understand the concept, the idea, of religion, and so the concept of "religious freedom"?

    And then, how do we express that understanding through our laws? And can our laws adequately do that, or is this something we shouldn't ask our laws to do (as we don't ask our laws to address fashion, at least within the limits of covering certain body parts, or allowing private interests to insist on covering more body parts in certain locations).

    I don't think we can't say what religion is (that's a bit too apophatic), but certainly we can do a better job than "it's what I agree with" or "It's believin' what you know ain't so!"

    Which is pretty much the two poles between which the discussion, such as it is, is carried out right now. I think we do have to address that first, in order to address the pertinent legal issues.

  3. "Religion also specializes in fiction."

    I think one of our fundamental differences is a radical divergence in what some consider "real" and what others think "fictional." I thought back to this when my old copy of "Civilisation," which I was just transferring from one shelf to another this morning, fell open to the following:

    "After all the great unifying convictions of the twelfth century, High Gothic art can look fantastic and luxurious - what Veblen called conspicuous waste. And yet these centuries produced some of the greatest spirits in the history of man, amongst them St Francis of Assisi and Dante. Behind all the fantasy of the Gothic imagination there remained, on two different planes, a sharp sense of reality. Medieval man could see things very clearly, but he believed that these appearances should be considered as nothing more than symbols or tokens of an ideal order, which was the only true reality."

    This is not, of course, simply a Gothic idea. We find it in Plato. We find it in Heisenberg. We find it, in fact, in any culture which is reflective enough to distrust appearances.