On Posner's Wards

Richard Posner, a judge of the U.S. Seventh Circuit Court of Appeals, in a New York Times op-ed co-authored December 2 with Law Professor Eric Segall, takes Supreme Court Justice Antonin Scalia to task for threatening America with a “majoritarian theocracy” because of his repeated dissents, since Lawrence v. Texas, against the expansion of homosexual “rights” as a matter of Constitutional solicitude. Posner’s adherence to the opposite position in these cases, with the zeal of an “evolved” convert, has been prominently on display. The pair attack Scalia for supposedly suggesting that “the Constitution cannot override the religious beliefs of many American citizens.” Scalia’s concern for religious liberty, Posner and Segall opine, would “imply . . . that religious majorities are special wards of the Constitution.”

I must admit I am baffled by what Posner and Segall mean by “ward.” Although I can imagine three possible readings, I find none of them appealing, all of them dangerous, and very little in them having a Constitutional foundation.

By “ward,” do Posner and Segall mean a dependent of the Constitution? If so, on what does the believer depend? If he depends on the Constitution to protect him against the demands of a Caesar inclined to engage in self-apotheosis, then I agree: as Richard John Neuhaus regularly pointed out, the First Amendment does not contain two religion clauses, but one. Congress is barred for establishing a religion in order to ensure the free exercise of all religion. Non-establishment is a means to the end of free exercise.

Posner and Segall, however, don’t seem to see religion in that robust and vigorous way. Fundamentally confusing religious freedom with freedom from religion, their dependent “ward” would rely on the Constitution to give (and thus define in scope) the rights of religious majorities.

Apart from the general illogic of the notion that rights are given (by kings or constitutions), such a notion collides with the American experience in at least two ways. First, the Declaration of Independence generally offers a vision of rights (at least fundamental ones) in which rights precede government, measure government, and in fact provide a justification for rebellion when violated by government. (Indeed, for the Declaration of Independence, religion is not so much one right among many as the basis of all fundamental rights: “endowed by [man’s] Creator,” all fundamental rights derive their power to measure government itself by their divinely-endowed inalienability). Second, America’s founding is replete with examples of people absenting themselves from the regnant civil order precisely on religious grounds (think Massachusetts Bay vis-à-vis Great Britain or Connecticut vis-à-vis Massachusetts Bay). To suggest, then, that religious believers (much less majorities who, qua majorities, also have a second claim on shaping public policy) are “wards” depending on the Constitution for their religious freedom and its scope is, to use Posner and Segall’s words against them, “to turn the Constitution upside down when it comes to government and religion.”

Wards” are also minors or others who, by reason of incompetence or immaturity, require the protective intervention of the State. Is that Posner and Segall’s meaning? If it is, it is condescending, although not necessarily foreign to the mindset of a certain segment of society that imagines believers as Redneck holy rollers, “clinging to guns and religion,” drinking poison and treading on rattlesnakes to prove both Mk 16:18 and their Tea Party bona fides. Such a picture is, however, just a more pejorative caricature of the Durkheim and Marxist theses that the vitality of religion stands in inverse ratio to society’s progressive “development.” Both images, however, see the Constitution and society exercising “wardship” by protecting believers from at least the more egregious damage these feeble-minded might do to themselves (perhaps further justification for Obamacare’s sterile sex coverage—three centuries of religious imbeciles is enough!). That “wardship” also protects the public square from tainting by the contagion of religion, to the “exclusion” or at least discomfort of the professional agnostic.

Finally, could Posner and Segall’s notion of religion as the Constitution’s “ward” mean tending after those who are still so underdeveloped in their fidelity to the Constitution as not to understand that the current dispensation of U.S. Church-State relations requires syncretism? For, if Polish philosopher Witold Stawrowski is correct, the “religion” versus “non-religion” paradigm Posner and Segall rely on is false: Everyman has some Absolute, to which all else is subordinate (even, famously, relativism). Everyman is religious, whether he admits that label or not. “Non-religion” is, then, just religion in another form. But, then, the dirty little secret is exposed: non-religion (or secular humanism, as Torcaso v. Watkins admitted) is just as much a religion as any other, except that by pretending to not be a religion, it becomes the Constitutionally established faith and religious test, not just for public office but anything public (public policy, the public square), whose content is defined by the clerisy of a five justice “theocratic majoritarianism.” In this vision, believers are “wards” who need to be converted to syncretism: whatever faith they hold privately on the weekend in church or temple is permitted as long as it yields to “Constitutional faith” when they go public on Monday, in the personnel office, the health insurance company, the bakery, the photography studio, or even the courthouse. The deities of “Constitutional faith” are jealous gods.

Of course, those religious “wards” are probably going to insist on being faithful to Yahweh alone. One suspects, however, that what really stings Posner and Segall is Scalia (along with Roberts, Thomas, and Alito) sneering at the priests of Baal in the theocratic majority of Obergefell.

John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views expressed herein are exclusively his own.