Friday, November 06, 2009

The Religious Left, Part 2: The Master's Tools

By Mike Dorf

In my post on Monday, I promised to come back to a practical question raised by Steve Shiffrin's book, The Religious Left and Church/State Relations.  Shiffrin argues that the religious left is better positioned than the secular left to contend with the religious right over church-state separation issues.  Although Shiffrin does not make the argument, one might extend the logic to other issues as well.  If the problem with public reason is that it fails to capture all of the sources of value that inform most Americans' judgments about basic issues of political justice, then we might expect public reason to fail not only with respect to church-state issues but also with respect to other issues.  Thus, one might think that the best way to meet the arguments of the religious right on abortion and gay rights (to name the two social issues of greatest concern to the religious right) would be to send the religious left, rather than the secular left, into the arena to battle it out on theological grounds.

But whatever the appropriate domain of Shiffrin's argument, I want to question its likely efficacy by drawing an analogy to arguments about original understanding in constitutional law.  Various conservative Supreme Court Justices often say that their views on constitutional issues are a product of the original understanding.  There are two sorts of responses to these claims.  One, which I'll call the "secular left" approach, would be to give reasons why the original understanding should not be determinative of contemporary meaning.  A second, which I'll call the "religious left" approach, would be to meet the originalist arguments on their own terms.

Nice examples of the religious left approach to original understanding can be found in Justice O'Connor's dissent in City of Boerne v. Flores, Justice Souter's dissent in Alden v. Maine, and Justice Stevens' dissent in DC v. Heller.  Rather than simply decrying the majority's reliance on original understanding in each of these cases, the dissenting Justices attempt to do the majority one better by showing how the majority's originalism is bad originalism.  The parallel to Shiffrin's argument that the religious left should engage the religious right by showing how its theology is bad theology is striking. 

How effective has the religious left strategy been in constitutional interpretation?  I think it has been a complete failure--if the goal was to persuade the conservative originalists that their arguments based in original understanding do not support their politically conservative conclusions.  On nearly all the important questions that make it to the Supreme Court's docket, the original understanding is sufficiently unclear or manipulable that it is very hard to say that a decision one way or the other is "correct" as a matter of original understanding.  And when the liberals do have a nearly slam-dunk argument--as they do with respect to the constitutionality of race-based affirmative action--the conservatives simply stop talking about original understanding.  (The conservatives also say very little about original understanding with respect to most free speech questions, but there is a fairly broad liberal/conservative consensus on the value of free speech, so no one on the Court has an incentive to note this.)

Now, moving back to the domain of public argument, is there any reason to think that the sorts of sources that figure in theological debates are less manipulable than the sources that figure in debates over the original understanding of the Constitution?  The religious left can invoke "Thou Shalt Not Kill" to oppose the death penalty, but the religious right can support it with "A Life for a Life."  On matters of church-state separation, the religious left can invoke "render unto Caesar that which is Caesars's and unto God that which is God's."  The religious right can counter that ancient Israel as portrayed in the Bible was a theocracy, that prior to the Protestant Reformation (and really for quite a long time thereafter), church leaders exercised political power and vice-versa.  My point is not that there aren't better and worse arguments based on religious sources but that people in all walks of life suffer from confirmation bias: Believing in the morality or immorality of the death penalty, or the necessity or folly of church-state separation, people will find in their holy books and traditions confirmation for their pre-existing views.

Thus, it seems highly unlikely that the religious left's arguments rooted in theology or Biblical exegesis will actually persuade people on the religious right.  But that may not be their point.  Perhaps their point is to persuade the religious middle?  I want to acknowledge that possibility but also to suggest that there is another possible effect: By crowding out secular arguments for progressive results, the public debate will shift to terms more favorable to the religious right.  Yes, one can cite chapter and verse for progressive policies, but the relevant holy texts were written a very long time ago in societies that do not share our values.  More often than not, the religious conservatives, like the originalists in constitutional interpretation, will win if the battle is fought on their terms.

Shiffrin, who is not an originalist with respect to constitutional interpretation, quotes Gordon Wood to undermine the constitutional authority of the Founders: "Seeing Washington and Jefferson as slaveholders, men who bought, sold, and flogged slaves, has to change our conception of them.  They don't belong to us today; they belong to the 18th century, to that coarse and brutal world that is so remote from our own."  What's true of the 18th century is all the more true of the ancient world: The Bible condones slavery (and nothing in the New Testament questions it); it prescribes payment to the father and marriage to the victim as the "penalty" for rape; it commands the death penalty for gay sex; it condones wars of conquest; etc.  It is possible to construe one's way around such provisions or to take an evolutionary approach to morality, but the basic texts are considerably more amenable to conservative or reactionary views, which is hardly surprising: they come from a much more coarse and brutal world than our own (one hopes).

The master's tools will never dismantle the master's house.


Tam Ho said...

Great post, Mike. I agree. We cannot hoist the religious right with its own petar.

egarber said...

>>Perhaps their point is to persuade the religious middle?

Or maybe more directly, to neutralize the argument, so rational people can at least see that it's possible to wash out the other side -- vs. allowing the Right to monopolize the debate.

Unfortunately, a lot of folks don't apply mental energy to vetting what they hear, so over time, uncontested declarations sort of take hold as a conventional truth (I think this explains the effect of talk radio). That's why I think it's very important for the religious left to mix it up with those on the Right: if typical citizens see that there really is no slam dunk either way, they'll more likely conclude that there are good arguments on both sides, so it's ok to simply agree to disagree.

Right now, I worry that average folks think the Religious Right might be largely correct. So they mentally conclude, "ok, well, despite the biblical truth, I still think.... ". If the Left confronts that, the calculus isn't so upstream.

Steve S said...

I admire the creativity off the response and, as always, your argumentative skill, but, as you might have guessed, I am not persuaded. I must say that it never occurred to me that the argument of my book would persuade stubborn, well-educated ideologues like Thomas and Scalia. If they were representative of the American public, neither the religious or secular left would have a chance. My main contention is that the religious left has a more attractive political case to make than the secular left in combating the arguments that are made by the religious right. The main audience for these arguments is the religious middle of the country which is larger than the religious left and the religious right (and, of course, larger than the secular left). As I argue in the book, this group is unlikely to be persuaded by the secular left on issues of church-state relations, but the arguments of the religious left I suggest can be significantly more effective.
I do not write off the religious right. That group is by no means homogenous . (Thomas and Scalia are far from being representative of them). I argue that most members of the religious public are not well educated theologically and that quite dramatic changes in attitude have occurred in the religious public. In other words, persuasion is possible. It has occurred before; and it can again.
I do not believe most Americans have thought seriously whether tight connections between church and state are actually good for religion, and that the arguments that such tight connections are bad for religion are quite compelling (recognizing that the degree of harm to religion depends upon one’s conception of religion). In addition, I do not think most Christian Americans have not focused on the fact that Christ was a victim of the Roman Empire (and that the Roman Empire was entirely right to regard him as an enemy – you have to ignore a lot to miss the anti-imperial thrust of the gospels). The idea that Christ would want government to help advance his message is difficult to draw from the gospels.
As I understand it, Mike concedes the possibility that the religious left has a more politically attractive argument than the secular left to the religious middle. He suggests that people believe what they want to believe as if religion plays no role. I think this is true for many millions, but false for millions of others (though it depends on the issue). Putting that aside, however, I think that the question whether tight connections between church-and state are good or bad is a mixed political/religious question upon which millions of people are open to persuasion.
Mike worries that bringing theology to the religious middle will privilege an old text and that this will have conservative implications. First, for many Americans (e.g., Catholics and Episcopalians), the Bible is only part of the story; the rest is tradition and reason. Second, for theologians in those traditions and most mainline Protestants and many evangelicals, a major part of the interpretative task is to determine what part of the Bible is culture bound and what part contains a more general universal message and to determine what is parable and what is history. Although my book is confined to church-state relations, I think the Bible generally contains an anti-imperial message that speaks loudly on behalf of the poor and marginalized. Proof texting is the tactic of the fundamentalists. The notion that the Bible was written as if God dictated or carefully guarded every word is very difficult to defend.
I do not believe that the religious left has value added for political debates on many issues; but if it did, I do not see how secular arguments would get crowded out. Religious arguments have been made about politics since the beginning of the republic. John Rawls did not stop them; nothing will. There is plenty of space for secular arguments.

Michael C. Dorf said...

A few reactions to Steve's thoughtful rejoinder:

1) As Steve notes, and as I acknowledged in my post, his is a contingent argument about the prospects of intervention by the religious left on debates over church-state separation, rather than on all issues. I was interested in extending the logic of the argument but it could well be the case that I'm right in other contexts--e.g., abortion, death penalty, gay rights--but that Steve is right about church-state separation.

2) I have long thought that the sort of arguments marshaled by Roger Williams for church-state separation are good ones: At bottom, state support of religion bends religion to the state's ends. Interestingly, in a lecture a couple of weeks ago on the death penalty in Asia, our colleague John Blume mentioned in response to a question that Buddhist opposition to the death penalty is only a significant force in countries in which Buddhism does not receive official state support. That tends to bolster the argument that church-state separation is important for religions to maintain their independent vitality.

3) However, the Roger Williams point--that separation of church and state is good for religion--is, in my view, a secular argument. One need not take any particular theological view to conclude that it is, on average, empirically true that official state religions become servile. So the secular left is well positioned to make the Roger Williams point, or rather, the secular and religious left can make the point together.

4) Whether Steve's reading of (Christian) holy texts, history and tradition will appeal to the (Christian) religious middle on matters of church-state separation is an empirical question which I don't pretend to be able to answer. I hope he's right.

5) Finally, with respect to crowding out, of course it's possible to add voices without subtracting others, but the public attention span is finite, and so every second of that attention span listening to arguments based on the anti-imperial nature of the teachings of Jesus is a second not spent listening to arguments based on the veil of ignorance.

Steve S said...

Finally Mike
What were you doing up at 3:00 in the morning? And has anyone noticed the times at which the other main posters post? Do any of you sleep?

egarber said...

>>Finally Mike
What were you doing up at 3:00 in the morning?

He's in the middle of his marathon Yankees celebration. :)

Michael C. Dorf said...

Sadly, I do need sleep. The automatic email program that sends the blog entries to subscribers sweeps through some time before 9 am, but it's not entirely predictable when. Thus, I use the "schedule" feature of blogger to make sure that I have a new post up in time to go out early in the morning, even if I've written it the night before. I wrote this one yesterday during daylight.

Steve S said...

Mike, thanks for the generous response.

I think the Roger Williams argument can be made by the secular left at a secular level, but there are theological foundations as well. Moreover, suppose the church gains membership but turns servile in the process. The church has to choose between its evangelical functions and its social justice responsibilities and the question of whether this can be done appropriately is a theological question.
I think the religious left and much of the secular left disagree about public reason, but arrive at results that are at least as egalitarian as those that would follow from the veil of ignorance (in fact I think more egalitarian).

I think it is fair for me to focus on Christian tradition because Jews, Muslims, and other member minority religions in the U.S. typically do not favor tight connections between church and state.

egarber said...

Another interesting thing I saw in Barry Lynn's book:

In Europe, where the state is still entangled with religious institutions, membership is *down*, arguably because the purity of worship has been tainted.

So there's another irony, in that a lot of folks talk about avoiding the "europeanization" of America -- but they're really advocating it in church / state relations.

Chris said...

"[N]othing in the New Testament questions [slavery]."

1 Timothy 1:10 condemns what are variously translated "enslavers" (ESV), "kidnappers" (NASB, Amplified, NKJV), "slave traders" (NIV), or "menstealers" (KJV).

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