(This grew, or more accurately, accreted over time. I was going to try to shape it into something sensible, but then I gave up. Consider it another entry on the theme of "wisdom" v. "religion," and how we should restore the former to, and so elevate and improve, the latter. Then again, consider this entire blog a commonplace book; or a notebook of my scribblings. Whichever helps it make more sense.) I get the legal argument here, and find it sound and well-reasoned. But I’m also interested in the doctrinal/theological argument (made by Blackman) that only “traditional” religious believers are “real” believers. Which, as Schwartzman points out, is not a legal tenet or element of analysis at all. But it's very disturbing in its own right.
So this is not the core of Schwartzman's argument: But it is the part that's most interesting to me.
It's actually a commonplace in the public narrative about religion in America. "Real" believers align with the Southern Baptist Convention or Jerry Falwell or Billy (if not Franklin) Graham. Christians in particular (the argument in the tweets is about Jews and Judaism; I'm not slighting that, just speaking from my knowledge/experience) are treated as "legitimate" so long as they are "traditional." So the US Conference of Bishops gets more credibility than, say, Sr. Helen Prejean, who is both more "liberal" and, to boot, a woman.
"Liberal" denominations like the United Church of Christ aren't even on the radar. Fights over recognizing gays get attention (it has flared up again among the Methodists, I heard recently. A news story, not some insight from a friend in that church). Acknowledgement of the legitimacy of gays as people, as in the UCC, gets no attention at all (no dog bites man story to report, eh?). But denominations like the UCC also aren't quite "legitimate," because they don't practice some form of discrimination against others or just "the world." As an example of the latter:
You can find the background for that story
here. I just picked it up because of the language of "secular combat rhetoric." There is a place for the language of the church in such discussions; especially in reminding everyone involved they are sisters and brothers in Christ. But drawing a sharp line between "church" and "world" and wielding that distinction like a club is very characteristic of "traditional" religious practice, even when its not traditional Christianity.
"Traditional," in other words, actually means "aligned with the world." The pastor who sparked that controversy in the SBC was speaking against some SBC pastors and churches which lined up behind Trump, and put fealty to Trump above, in his perception, fealty to the Gospel of Jesus Christ.
However, in the world "traditional" means "aligned with Christianity." But only certain kinds of Christianity:
I especially like the idea that the legal concept of "substantial burden" was created in the context of Christian faith, and Jewish faith is different because it "does not actually impose any requirements on congregants, but instead only offers aspirational principles." I don't even know where to start with that.
And, of course, "free exercise of religion" only means the religion of the "observant and orthodox." What they observe, or are "orthodox" about, is assumed to be only "conservative" Christianity, with an emphasis on hell, damnation, and salvation, after which your primary task is to "save souls." Oh, and live a "Godly life" according to Victorian or even racist principles. Jerry Falwell was very concerned about preserving the "Moral Majority." He was also very concerned about maintaining white supremacy. So go ahead, tell me I'm wrong. Being anti-abortion is presumed to be the "orthodox" Christian position. But orthodox according to whom? Few of the mainline Protestant denominations are as anti-abortion as either the Catholic church or most fundamentalist denominations. Which group is "orthodox," and which is "heterodox"? It's kind of like Annie Dillard's observation that "far away" and "off the beaten track" are entirely a matter of perspective. What you consider "off the map" is what someone else considers "home."
And again, the question of orthodoxy:
And when you pray, don't act like phonies. They love to stand up and pray in houses of worship and on street corners, so they can be seen in public. I swear to you, their prayers have been answered! When you pray, go into a room by yourself and shut the door behind you. Then pray to your Father, the hidden one. And your Father with his eye for the hidden will applaud you.
Matthew 6:5-6, SV*
This question of orthodoxy is a vexing one.
And the primary question is: who is the Supreme Court to decide it? Granted, the distinction there is a theological one, but that’s the point. What’s considered “orthodox” is often defined by the world’s understanding, and that’s the wrong yardstick. In this case, it’s not just that Gorsuch’s opinion denies the facts of the case, it’s that the coach was being orthodox in the eyes of the world, but wholly unorthodox, even contrary, to the Gospel. But which is approved by the court as a religious practice? And why is the court approving at all?
Professor Vladeck asks as an observant Jew. I ask as an observant Christian. We are asking the same question, because it't not really an issue of which religion (Judaism, Islam, Christianity, etc.). It's a question of which orthodoxy? Who decides that?
*There is a great deal of wisom there; but not much support for "religion."
