Jurisprudence
Hadley Arkes, echoing themes he has developed for many years in his work, offers a forceful argument (“Backing into Relativism,” June/July) that the Supreme Court’s aspiration to contentless neutrality in its Speech and Religion Clause doctrine is a jurisprudential dead end—a “descent into a relativism” doomed because it fails to ground these freedoms within a larger conception of the true and the good.
I have considerable sympathy for Arkes’s view. But it’s much worse than he thinks—in ways that make his recommendations doubtful. Arkes objects to a First Amendment relativist descent, but relativism is the metaethical and ethical claim that moral truth is not objective or uniform, and that we should therefore tolerate many different views. A truly relativist First Amendment jurisprudence—something we only really had to some extent in the early republic, when the Court did not get mixed up in church-state arrangements in the name of the Establishment Clause—would mean no intervention at all by the Court. True relativism might leave states and localities free to decide the scope of the First Amendment for themselves. Rather, the Court’s expansion of free speech and religious freedom rights was the mechanism through which one set of cultural and moral assumptions about the ends and limits of free speech and religious freedom could be replaced with another. The expansion of speech and religious freedom rights did not occur in a vacuum, but alongside the rapid growth of other constitutional vegetation stimulated by the hypertrophy of the First Amendment. There was nothing relativist about it.
It should not come as a surprise, then, that the loudest advocates of constricting speech and religious freedom today are those whose liberal-progressive moral and political commitments are now stymied by an expansive First Amendment regime they no longer need. Arkes and these new constrictors make strange bedfellows in many respects, but they are aligned in their exasperation that the First Amendment is getting in the way of their preferred moral and political commitments. They both yearn for a First Amendment molded by a thick politics of the good.
Americans today live with fundamentally incompatible baseline moral and political commitments; the “common-sense” distinctions praised by Arkes as at one time informing constitutional consensus unfortunately no longer have much purchase. To accept Arkes’s recommendations for First Amendment reform, therefore, is to wager that his moral and political position will prevail over his opponents’ views after jettisoning the First Amendment we have in exchange for the one he’d prefer. I understand Arkes’s frustrations. But at the moment, I’m not sure I’d take that bet.
Marc O. DeGirolami
st. john’s university
queens, new york
Hadley Arkes is correct when he observes that the Supreme Court’s religious liberty decisions and doctrines are—or at least purport to be—agnostic about the truth of religious beliefs and that courts are reluctant—or at least purport to be—to distinguish, when evaluating religious liberty claims, between “legitimate” and “illegitimate” religion. He is right to remind us that reducing “religion” simply to the sincerely held beliefs of individuals complicates the project of protecting religious freedom through law. This reduction requires an account of why such beliefs matter more than, say, loyalty to a sports team or a passion for stamp collecting.
However, it seems to me that it is not quite right to say that our current religious liberty regime—that is, the “balancing” test that is codified in the federal Religious Freedom Restoration Act (RFRA), its state-law analogues, and the local constitutional law of some states—precludes “moral judgment on the substance of what a religion teaches.”
To be sure, a claim for an exemption from a generally applicable law can and should trigger religious freedom protections regardless of whether the religious beliefs in question are true. This is as it should be. The fundamental human right to religious freedom is grounded in the truth about the human person; it is enjoyed and should be protected whether or not one’s religious beliefs are true.
However, like the Second Vatican Council’s Declaration on Religious Freedom, RFRA-type religious freedom regimes instruct courts to consider “the just demands of public order,” or what these laws generally call “compelling governmental interest.” It is enough to trigger judicial “balancing” that a religious belief is sincerely held, but sincerity alone does not justify or require an exemption or accommodation. If a religious belief requires or motivates a dangerous, harmful, or immoral action, current doctrines permit the regulation or prohibition of that action. There would not appear to be any need for—and, given judges’ training, we should not want—courts to label such a belief as not legitimately religious.
Richard W. Garnett
university of notre dame
south bend, indiana
Hadley Arkes is correct that the Supreme Court—including some of its conservative members—typically denies interest in, and avoids expressing judgment on, the moral content of claimants’ religious convictions. In fact, the situation is even starker than his very fine essay suggests. Not only is the Court expressly agnostic on the moral (and logical) character of religious convictions, it is agnostic on the definition of religion itself. The Court has not taken a consistent position on what constitutes a religion, and some of its cases endorse the radically subjective definition Arkes decries: Something is a religion as long as an individual claimant sincerely believes it to be one. The hypothetical Arkes poses as an absurdity—is Satanism a religion?—in fact mirrors real life. Earlier this year, the IRS granted the Satanic Temple, a rather obvious parody meant to exploit the Court’s jurisprudence, tax-exempt status as a church.
The Court’s reticence is understandable. State religious neutrality serves important functions in a pluralistic society like ours, including the preservation of social peace. But neutrality must have limits if the law is to make any sense. If neutrality is so broad that it forbids any moral judgments at all, the category of religion becomes unworkable for legal purposes. If we can’t define what religion is, then we can’t explain why the law should give it special protection. If we can’t explain why religion should receive special protection, our free exercise law becomes untenable—which is, of course, the goal of many secularist lawyers and law professors.
There is, however, a sense in which moral judgments inevitably make their way into our religion clause jurisprudence, whatever the justices say expressly. Under the compelling interest test, the state can impose a substantial burden on religious practice only if it has a compelling interest for doing so and has chosen the least restrictive means. What qualifies as “compelling” often turns on moral concerns—ending racial discrimination, for example. Our society has reached a consensus that ending racial discrimination is a compelling moral demand and that one cannot claim a legal exemption because one’s sincere religious convictions hold otherwise. Whether such a moral consensus will develop around same-sex marriage and issues of gender identity remains to be seen.
Mark L. Movsesian
st. john’s university
queens, new york
Hadley Arkes replies:
I find myself in the rare position of dealing with the letters of three thoughtful and accomplished friends. I hope that Marc DeGirolami will not be astonished if my reading of the historical record yields an account at odds with his own. He suggests that we have experienced an expansion of “religious freedom rights” since the First Amendment was incorporated against the states by the judges. Starting with the Everson case in 1947, we have seen an expansion in the notion of an “establishment” of religion and, with that, the relentless driving of religion from the public square.
DeGirolami suggests that a truly “relativist” view by the Court would have left religion in the hands of the states and local authorities. But as the Anti-Federalists saw long ago, the states would bring a more sharply honed moral understanding in the governance of marriage, sexual relations, public lewdness, and pornography. The progressive trend over the twentieth century was to bring these subjects into the federal courts—and a body of law far more libertarian. This libertarianism made its way to explicit relativism with Justice Harlan’s notable line in 1971 that “one man’s vulgarity is another’s lyric”—in other words, that all moral judgments were merely emotive, with no content that could be judged true or false.
The “First Amendment we have,” as DeGirolami says, was reshaped with the relativism of Justice Harlan in Cohen v. California. The First Amendment I am offering takes its bearings from a world that was habitable for us before 1971. It offered wide freedom in arguing over substantive issues while screening out expressions and gestures (the N-word, burning crosses) that destroy a climate of serious discussion. It was grounded in the principles of common sense in understanding “ordinary language” and the moral judgments that every functional person makes every day.
Mark Movsesian confirms the very points in my essay about the move to protect religious freedom by emptying “religion” of its content—including its moral content. He recognizes that we will be compelled to make moral judgments on the substance of what people claim to do and teach under the religion they profess. He offers the example of discrimination based on race—an understanding, he says, that has now reached the point of “consensus” in this country. This he takes to be the ground for overriding religious belief. But consensus alone cannot provide the truth that overrides religious conviction. As I’ve sought to show over the years, the wrongness of racial discrimination is rooted in a principle bound up with the very logic of law and moral judgment.
In contrast to such a real principle, the notion of a “compelling interest” may depend simply on interests that seize hold of people at different times. Clarence Thomas questioned why the people of Michigan have a “compelling interest” in supporting an elite public law school and using that interest as a justification for employing racial preferences. That reckoning depends on what seems more or less important to the taxpayers in the community weighing the things they value most. This kind of judgment does not spring from anything in the judicial tool kit.
If a “consensus” suddenly emerged in support of transgenderism, nothing in that consensus would alter or displace the objective truths that make the claims of transgenderism so deeply false. A new consensus, showing an acceptance of same-sex marriage, would hardly make it less tenable for people to continue to hold that the most defensible form of marriage is the legal union of one man and one woman.
Richard Garnett shares my concern about “reducing ‘religion’ simply to the sincerely held beliefs of individuals.” But he regards that state of affairs as something that merely “complicates” the problem, for at a critical moment, he may be willing to credit “sincerity” as a sufficient ground for honoring a religious exemption from the laws. Once he has removed the test of truth in judging the claims offered to us under the name of religion, “sincerity” may be the only point to fall back upon.
Garnett is right that we have not been bereft of moral judgments on religion even as the judges become louder in sounding the theme of relativism. We will not be upholding the practice of suttee, burning wives on funeral pyres, even if it is done under religious auspices. But he knows that the most vexing cases involve the serious moral disputes that have flared over religious institutions forced to support contraception and abortion in their medical plans and to give benefits to same-sex couples. The people who favor these policies regard their purposes as deeply rightful—and those who oppose them as truly wrongful. As we well know, they are no more disposed to offer an exemption for the baker refusing to celebrate a same-sex wedding than they are willing to countenance the baker who turns away from a customer on the basis of race. My hunch is that Garnett would think, as I do, that even the current Court will not protect the right of a baker of Bob Jones persuasion to refuse to bake a cake for an interracial couple. But what does that really mean except that the judges will address a religious view earnestly held and pronounce it as illegitimate and unjustifiable—a position that cannot be respected under the law even under the banner of “religious freedom”?
Movsesian restates my point: “If we can’t define what religion is, then we can’t explain why the law should give it special protection.” That is, on the very premises of moral relativism, we cannot explain why we should regard religion as a “good” to be encouraged and promoted—and more than that, a good that should be honored even when it means granting exemptions from laws that seem rightly to govern everyone else. As Garnett wrote, religious freedom should be protected “regardless of whether the religious beliefs in question are true. This is as it should be. The fundamental human right to religious freedom is grounded in the truth about the human person; it is enjoyed and should be protected whether or not one’s religious beliefs are true.”
What is that “truth about the human person” that we are asked to respect? Humans alone can reason about the origins and ends of things and about a nonmaterial cause of a material universe. But humans are also the only beings able to reason over matters of right and wrong. Respect for the human person would treat a person as one whose dignity could not be demeaned by recognizing that he has, as Lincoln and Aquinas said, no right to do a wrong. I find it hard to believe that Garnett would offer us a view of the “human person” as one fired with intense convictions but utterly detached from any inclination to reflect on the morality of the acts he performs in accord with his religious ethic.
The courts have already told us that a “religion” does not have to be theistic. If we add Garnett to the mix, we end up with this sense of things:
•that we be prepared to honor, as “religion,” bodies of belief detached from any serious thought of God, or indeed from any substantive content;
•that we forgo any claim to sources of moral judgment in judging the rightness or wrongness of what any religion professes to teach;
•that we accept an understanding of the “human person” that claims our respect, even as it is shorn of any serious need to reflect on whether his life is directed to ends decent or indecent, plausible or implausible.
If this is a fair construction of current thought in the field, I would urge my friends to stand back and take a sober, second look. I fear that we are indeed backing into a jurisprudence that cannot give an account of itself.
Architecture
When writing about moral depravity, as he often does, Theodore Dalrymple (“Crimes in Concrete,” June/July) displays a peculiar blend of outrage and glee that we know from the engravings of Hogarth. Each, it seems, is gratified to find yet another rare and appalling specimen in the great catalogue of human wickedness. It is therefore fitting that Dalrymple should draw on his long experience as a prison psychiatrist in thinking about architecture, where he turns out to be an unlikely but unusually penetrating critic. Who else would spot in Le Corbusier’s physical revulsion at spontaneity and disorder a “highly limited and autistic” rationalism?
Dalrymple writes with justified scorn for “the architectural Leninists” and takes their furious indignation at any outside criticism as the sign of a troubled conscience. He is also perceptive about the “pseudo-mystical” and “cultish” currents that run through modernist ideology. But how could this ideology spread so swiftly and with so little opposition? After all, other visionaries had imagined a totalitarian architecture of absolute order well before the 1920s. One thinks of French Revolutionary architects Boullée and Ledoux, with their terrifying reductive geometry, or Robert Owen and Charles Fourier, whose socialist utopias anticipated Soviet urbanism by almost a century. Yet they were tolerated as harmless thought experiments while their successors were given the keys to the city—almost literally.
It is satisfying to blame the architectural establishment for having despoiled the city, but we should remember that it is the client who decides when and what to build. Without a willing clientele there would be no triumphant modernist establishment. Something happened in the years after World War I to weaken the confidence of architectural patrons, making it difficult for them to challenge the diktats of modernism. Collective resistance was impossible after the Great Depression. If Dalrymple writes further on this subject, and I fervently hope he does, he might look at the psychology of modernism’s abettors and enablers. We need to know, for example, when looking at contemporary Paris (“Novosibirsk-sur-Seine,” in Dalrymple’s felicitous phrase), if we are seeing an avoidable architectural travesty or something more ruinous: the inescapable physical manifestation of a demoralized and tragically centerless society.
Michael J. Lewis
williams college
williamstown, massachusetts
Theodore Dalrymple replies:
I am grateful to Michael J. Lewis for his kind letter. He is quite right: There is a mystery attached to the ready acceptance in the Western world of the gimcrack notions of Le Corbusier and others. As the late Marshal Mobutu is reputed to have said, it takes two to be corrupt. Anyone who reads Le Corbusier will immediately think, “How could anyone ever have taken this drivel seriously?” My answer, insofar as I have one, is the cataclysm of World War I and the loss of cultural confidence it occasioned. Without it, Le Corbusier et al. might have remained what they were: egocentric cranks. But I shall try to think about it more deeply. My thanks to Dr. Lewis.
