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Wednesday, January 09, 2013

Continuing the discussion: Koppelman's "Defending American Religious Neutrality"

A few weeks ago, Paul kicked off a discussion about Andy Koppelman's new book, Defending American Religious Neutrality, and posted Andy's introduction.  (Readers might also be interested in this short essay, The Many Paths to Neutrality, which Andy and I wrote, and which serves as the Introduction to our First Amendment Stories.)

I had a chance to "workshop" Andy's book when it was in draft, and have re-read it after its publication.  I admire it, and Andy, a lot.   

For starters, I appreciate his reminder that, maybe, things are not so bad.  Yes, it is true that the Court often makes a mess of things, certain Justices are prone to cringe-inducing displays of unwarranted self-confidence, and the threats to religious freedom, at home and abroad, are real.  Still, we have, as Koppelman notes, “been unusually successful in dealing with religious diversity” and, despite the fair and ample criticism directed at our First Amendment caselaw, it strikes me that our courts are “muddling through” reasonably well.

In addition, there are many points, claims, and observations in Andy’s book that strike me as sound and welcome.  He correctly criticizes and refutes those “radical secularists” who regard religion as “toxic and valueless” and who seem bent on its “eradication . . . from public life.”  He is right that the Constitution does permit – indeed, it invites – the accommodation of religion.  He helpfully amends John Rawls’s call for “civic friendship” with the reminder that the “path to actual civic friendship”
is not, in the real world, aided by rules-of-engagement that require the bracketing or translating of “comprehensive views”; the better way, instead, is to “tell each other what we [really] think and talk about it.”  He is wise to urge readers not to overstate
or obsess the difficulties involved in “defining” religion, because there is no single definition.  And, I think he is right that First Amendment doctrine, to the extent it contains a judicially enforceable “secular purpose” requirement, should focus on legislative outputs – that is, on what officials actually do and say – rather than on inputs, or on the supposed motives of legislators or religious commitments of voters.

Koppelman’s primary thesis is that “American religious neutrality is coherent and attractive.”  One question we might ask is whether the regime he describes is actually “neutral,” or is actually either the American regime or the “American ideal.”  My own impression is that the coherence and attractiveness of the regime Koppelman proposes and defends depends substantially on its not being – at least, not entirely – “neutral.”  This regime is one of neutrality “properly understood” or, it turns out, of non-neutrality.  The government is not required, by Koppelman’s “proper[]” understanding of neutrality to be religion-blind or indifferent to religion, and it is certainly not required to be leery of or hostile to it.  Instead, “American religious neutrality” permits governments and officials to regard religion – at a high level of generality – as a good thing, and to act accordingly.  The state is to be “silent about religious truth” but this silence may be accompanied or complemented by policies – like religion-based accommodations from generally applicable laws – that both reflect and communicate the view that “religion as such . . . [is] valuable”.

Maybe one way to put the matter is to say that the American religious-liberty regime aims to be “neutral” with respect to the truth of (most) religious claims precisely because it is not “neutral” – it does not aim to be neutral, it should not be neutral – regarding the good of religious freedom.  Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion.  It is not (only) what results from a program of conflict-avoidance or division-dampening.  It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution.  It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. 

So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.

Posted by Rick Garnett on January 9, 2013 at 09:59 AM in Books, Rick Garnett | Permalink


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A moment of silence can be for any number of reasons and it provides the chance for the individual to choose. This honors the free exercise of religion. As a general matter, putting aside certain cases like Wallace v. Jaffree, it does not "establish" a religion.

"Humanists, Agnostics and Atheists" covers a lot of ground and as noted groups like the Unitarian-Universalists have many under their ambit. I did not say it was fair if such people are not treated equally in respect to the chaplain program.

In the past, e.g., NY chose a specific prayer for public school students to say. Abortion was broadly illegal in the 1950s etc. In the 1920s, we had Prohibition. If one wants to be serious here, yes, in the past, religious freedom was not as protected. But, perhaps we are not being quite that serious.

Posted by: Joe | Jan 12, 2013 4:44:52 PM

Moments of silence are held in public places are an attempt by gummint to establish religion, just as prayer would be. Funny, but our Bill of Rights leads off with censuring that. Why?---because religion is a major historical cause of oppression. The moment of silence cannot be used for "whatever" without incurring the risk of a charge of disturbing the peace. It is a form of compulsion by the religious, using the power of the state, nothing less.

No, we don't have a chaplain for every sect now, but most any non-represented sect can sponsor a military, hospital or prison chaplain. Three is no provision for Humanists, Agnostics and Atheists to do so. So how is it you can justify discriminating against a Humanist chaplain seeking employment? Would you countenance not allowing a Japanese chaplain on the grounds that every other race is accepted?

Furthermore, religious affronts to liberty were NOT worse in the past. In the past, booze and cocaine were not controlled, and in the 50s a person could send a kid to buy a six-pack for him. In the 20s you could get all the booze, girls and jazz you wanted. Abortion was legal. Contraception was legal.

Nowadays, you can't buy a beer after midnight and before the Baptists get out of church on Sunday. In Texas, you can't buy a bottle of hard liquor on Sunday. Georgia just abolished its Sunday ban on beer sales at Helen's Oktoberfest, for chrissake!

Posted by: Jimbino | Jan 11, 2013 1:53:34 PM

1. Moments of Silence are abolished in public places.

This is a compelling problem or even one to lead with? There need not be anything religious involved here. The silence can be used for whatever. We have the right to exercise religion in this country and the moment of silence provides the person to choose how to do that. The term "public places" also is overboard, so it isn't just a Wallace v. Jeffries school matter (with the specific problems with that law).

2. Paid Atheist Chaplain Officers are provided in our military [in hospitals and prisons too] for the 20% who vote "none of the above" when questioned about religious affiliation.

The 20% do not all find the chaplains provided unsuitable and we don't have a chaplain for every single sect now. For instance, many atheists and agnostics are members of the U-U Church. It is perfectly fine to involve humanist chaplains or whatnot in the mix.

3. "Religious truth" is recognized as the oxymoron that it is.

The word "religious" is very opaque. The term "religious" is defined so broadly that it's hard for me to think the argument is met. "Religious" doesn't require a "God" or any number sociological, dictionary, legal etc. definitions would not fit into it. When ethical culture societies (e.g., the Ethical Society of NY) label themselves "religious" and Michael Newdow notes he has a "religion," this is made clear.

Religion is to me not a matter of "truth" like science anyhow but a special means to address certain human needs. We form "religion" for this purpose, including ideas of the sacred, ceremonial acts and so forth. The word "religious" might have arose from the word to "bind" or suggested following certain rituals.

But, I see Jimbino himself recognizes some value but notes "today" he is faced with affronts to liberty though if anything it was much worse in the past. Having exposure to religious or other beliefs we don't like is not an affront to protected liberty, however annoying it might be.

Posted by: Joe | Jan 11, 2013 12:04:55 PM

It would be helpful if those responsible for such things can at least explain why my post does not appear when I get a message reading that the material has in fact been posted!

Posted by: Patrick S. O'Donnell | Jan 10, 2013 5:58:39 PM

OK, so I'll reply.

It is an error to mention atheism and agnosticism in the same breath. Agnosticism is the posture of all scientists and merely means doubting all hypotheses until the evidence is in. Until last week, you could have been agnostic about the existence of deep-sea giant squid. Even now you can be agnostic about the existence of god or the efficacy of prayer, since not a scintilla of evidence has been forthcoming over generations of superstitious humans.

Atheism, on the other hand, is the refusal to accept the god bullshit---quite specific, as you should be able to gather from the Greek 'a' that means 'without' and the 'theism' that refers to the god hypothesis. Furthermore, atheism is not anti-theism any more than amoral is anti-moral or aseptic is antiseptic.

On the issue of chaplaincy, the argument is clear: if counseling has no value, why are we taxpayers paying for it and why are we inflicting it on our soldiers, patients and prisoners? --- on the other hand, if such counseling is of value, why are we denying it to the 20% of Amerikans who are non-believers?

Now you say that, OK, non-believers have access to a priest or to a baptist chaplain, or to a rabbi or imam, or even to a Unitarian or Quaker chaplain, the closest you can come to religious non-belief. There are a couple of problems with this: first, many of us militant atheists will piss on a crucifix before tolerating one hanging over our hospital-room door; second, as I pointed out earlier, not even Jews will tolerate female rabbis, let alone an imam, for chrissake!

I myself have served as a chaplain intern in a 1000-bed hospital. It was a positive experience for many reasons. But nowadays I see all priests, pastors, rabbis and imams as an affront to our liberty: every day, all year, I am forced to put up with moments of silence, lousy Christmas music, anthems, pledges, oaths, kreches, 10-suggestions monuments and attacks on my important interests of sex, drugs and R&R. There are places in Texas where you can die of thirst for want of a bar. TV, radio and the internet are being made "safe for children. I say "pox on religion" and call for WAR against those who war on pornography and contraception.

Of course, I realize, there are the religious oppressors who wonder what all the fuss is about. Why can't we all just live happily under Sharia Law? And why is the USSA gummint so involved in promoting all this religious persecution? Are we simply a nation, like Egypt, that recognizes only 3 or 4 "Abrahamic" religions?

Posted by: Jimbino | Jan 10, 2013 3:26:17 PM

I attempted to reply in part to the above, but it won't post.

Posted by: Patrick S. O'Donnell | Jan 10, 2013 12:45:58 PM

Do you, or do you not, consider current rules prohibiting atheist, agnostic and humanist chaplains in the military, hospitals and prisons:

1. an abuse of the taxpayer's funds in supporting religion?
2. an abuse of the rights of those 20% of servicepersons, patients and prisoners who are not religious?
3. an abuse of the rights of non-religious psychologists and other counselors who wish to serve?

Of course, "atheist chaplain" is an oxymoron, necessary because the gummint has forced chaplains upon us and not provided an alternative. The Jewish chaplain at our local hospital is a woman. You can be sure there are lots of Jewish patients who'd have a stroke if she came to counsel them.

You wonder how moments of silence are religious. There are two answers: first, because they are used as a subterfuge by the religious nazis to grant time for "grace" and other offensive prayers; second, they are religious in the sense that any group ritual, including pledges of allegiance and anthems are religious. If you can't figure that out, you have no understanding of either the root of the word "religion" or the world history of religion. There are many religious that are all ritual and no belief, like Shintoism and cultural Judaism.

The scientist operates on the principles that there is no value in "belief" and that there is one truth that we are seeking to discover, regardless of the appeals of the religious to the Uncertainty Principle or Gödel's Theorem.

Posted by: Jimbino | Jan 10, 2013 10:42:06 AM

I’m puzzled as to how “moments of silence” are necessarily religious in nature.

“Atheist chaplaincy” would have been considered an oxymoron until the development of “humanist chaplains serving with military forces in the Netherlands and Belgium.” I see no reason why the U.S. armed forces could not have “non-religious”or “humanist” chaplains as well (these need not be atheist, certainly not in the manner of the so-called “New Atheists,’ but might also be agnostic). Intriguingly, I think, the rise of the “multi-faith” or “generic” chaplaincy, as occurs at our local hospital, would appear to have implications, however indirect, for questions of “religious truth.”

As for “religious truth(s),” it is only an oxymoron for those subscribing to worldviews grounded in a naturalist (or physicalist or materialist) metaphysics. Given the virtues of a fallibilist or even relativist epistemology and our inability to logically rule out the possibility that religious truths may indeed be true (insofar as we subscribe to the notion, after Gödel, that truth cannot be reduced to provability in a formal system or appreciate, relatedly, that science is incapable of providing us with a ‘theory of everything,’ i.e., scientists cannot be privileged, so to speak, with the collective possession of ‘God’s-eye view;’ moreover, it helps to keep in mind the high probability that knowledge of the depth and extent of our ignorance is itself perhaps quite limited, if only owing to such ubiquitous psychological phenomena as—be they conscious or considerably less than that—self-deception, states of denial, wishful thinking, repression, and the like), it seems prudent, for epistemic reasons and at least in the space of public reason(ing)s, to be open to something like metaphysical pluralism,* lest we believe we ourselves somehow privileged so as to be in the possession of absolute (a predicate that stands for a non-natural property?) truth.

Another way to think about this is first, to consider the likelihood that “facts and propositions are relative to conceptual schemes and that truth is the correspondence of (relative) propositions with (relative) facts” (Michael Lynch) (which enables us to see how ‘truth in physics may be realized differently in ethics’), as well as the very real possibility that truth itself may be (after Hilary Putnam) radically non-epistemic insofar as “whether a proposition is true (in most cases) does not depend on what I or anyone else believes or know (Lynch).”**

* As my former teacher and dear friend Nandini Iyer notes,

“To affirm that there can be several different systems all giving us, at the same time, varying and yet legitimate ‘true’ metaphysical descriptions of the world does not…necessarily entail that there are many realities, that nothing is absolutely real, or, put less dramatically, that there is no such thing as a single, context neutral description or account of the world, that is, as the world really is. It only means that no metaphysical description of it can be outside every possible conceptual framework, but Reality itself is. Nor does it follow that any assertions about this ‘real’ or ‘true’ world beyond all conceptual frameworks, are nonsense. [....] The conceptual frameworks we build in the realm of rational thought are not useless just because they cannot describe Ultimate Reality. Serious examination of, reflection on, these explanatory and interpretive schemes, their differences and overlaps, are crucial to expanding and deepening our understanding of reality, even if these conceptual frameworks (any or all possible combinations and collections of them) cannot bring us the Absolute Truth. If nothing else, they enable us to understand the relativity of conceptual truths and structures, and make us see what Pascal meant when he said that the highest function of reason is to show us the limitations of reason.”

** “A theory of truth should make sense of the following metaphysical principle: Truth is One: There is a single property named by ‘truth’ that all and only true propositions share.” The theory should also be “able to make sense of the intuition that drives pluralism about truth, namely, Truth is Many: there is more than one way to be true.”—Michael Lynch

Posted by: Patrick S. O'Donnell | Jan 9, 2013 6:27:37 PM

You just responded by saying nothing. Same as before.

Saying nothing with fancy words is what your Ivory Tower is all about.

Posted by: Jimbino | Jan 9, 2013 4:48:46 PM

Jimbino, I'm not at war with you, but it sounds like, given your three conditions, I'll continue to disappoint you, here in my ivory tower (or golden dome, or whatever).

Posted by: Rick Garnett | Jan 9, 2013 4:43:44 PM

Lots of fine words there, but you and I will continue to be at war until:

1. Moments of Silence are abolished in public places.
2. Paid Atheist Chaplain Officers are provided in our military [in hospitals and prisons too] for the 20% who vote "none of the above" when questioned about religious affiliation.
3. "Religious truth" is recognized as the oxymoron that it is.

Why don't you come down from your ivory tower and tell me whether or not you support paid atheist chaplains in the military?

Posted by: Jimbino | Jan 9, 2013 4:36:53 PM

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