The suggestion has been made on occasion in these pages that Americans are engaged in a Kulturkampf, a contest over the role of common American moral intuitions in contributing to fundamental understandings of what kind of society we wish to be. There are few signs of any such struggle, however, in the nation’s leading law schools, whose faculty and graduates have historically played key roles in shaping these understandings. The reigning assumption that religious and moral values (except personal liberty and equality) are mere arbitrary private preferences is seldom challenged. Indeed, Columbia Law Professor Kent Greenawalt, in a recent Michigan Law Review article on the role of religious convictions in law-making, found it necessary to begin by asking his legal readers’ forbearance for broaching such a topic. He captured the prevailing ethos well:
Many of you will hold no religious beliefs or will think that your beliefs are irrelevant to what the law should be . . . . Many law professors, like other intellectuals, display a hostility or skeptical indifference to religion that amounts to a thinly disguised contempt for belief in any reality beyond that discoverable by scientific inquiry and ordinary human experience. Those who regard religious convictions as foolish superstitions, whose impact on our social life should be minimized, may find discussions about the place of religious convictions a most unappetizing theme.
According to Michigan law professor Carl Schneider, there is a connection between prevailing attitudes among members of the legal academy and a certain disdain for democracy.
A startling number . . . believe that their education (especially their legal education), their intellectual ability, and their freedom from prejudice and from the superstition of religion give them a superior moral claim to political power. Such beliefs contribute to and are reinforced by their passionate commitment to a conception of judicial review which emphasizes the failings of democratic processes and majorities and the superior enlightenment of judges.
The most commonly stated reasons for drawing a cordon sanitaire around legal political discourse, however, are not that moral and religious beliefs are essentially arbitrary or foolish, or that ordinary men and women are unfit to rule. They are, rather, that religion has often been a source of civil strife, and that particularistic groups are often intolerant and “illiberal.” All too frequently, what is implied is that religion and particular communities are presumptively intolerant and socially divisive.
These standard positions emerged with rare purity in a recent Harvard Law School Legal History Workshop when Professor Anthony Cook of the University of Florida Law School presented a paper titled, “Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King.” The speaker, a Baptist minister as well as a legal scholar, took leftist critical theorists to task for attacking liberal democracy without proposing a way to reconstruct it. He chided them, too, for largely ignoring the history and perspectives of women, blacks. Native Americans, and others who have been the principal victims of the social injustices that critical theorists condemn. As examples of a kind of engagement with liberalism that is not only more attentive to concrete human experience but also more effective. Professor Cook pointed to the religiously grounded political theory of Dr. King, and to the role of African-American religion in the civil rights movement.
As soon as his presentation ended, Professor Cook was bombarded with questions; Wasn’t there a deep suspicion of religion at the heart of the Founding, for the very good reason that religion was known to promote faction and discord? What place is there in a “reconstructive theology” for women? For non-Christians? For non-believers? After several minutes of challenge to the Cook thesis along these lines, a young black man raised his hand and identified himself as a first-year law student. Addressing Professor Cook, the young man said that he did not know quite what to make of the remarks and questions he had been hearing. He would like to know, he said, where the speakers got their ideas about religion, since their assumptions didn’t correspond to anything he had encountered in his church. In fact, he went on, he was quite bewildered by the allegations that churches were citadels of hierarchy, oppression, and intolerance of dissent from prevailing orthodoxy, since he rather associated those qualities with the Harvard Law School. Another participant then allowed, in a conciliatory fashion, that not all religions displayed those characteristics”just “rigid homogeneous [!] ones like the Roman Catholic Church.”
Professor Cook’s workshop presentation at Harvard was something of a novelty: he attacked a leftist movement from the left, and he defended the legitimacy of religiously grounded viewpoints inside a citadel of secular thought. His thesis was radically at odds with the more conventional (in academic circles) position on Martin Luther King and the civil rights movement that had been set forth a few months earlier in another Michigan Law Review article. There, a Maryland law professor, David Luban, confessing that he is “deeply dismayed and fearful of the incursions by organized religion into our national politics,” undertook to review and analyze the political thought of Martin Luther King. In the famous Letter from Birmingham Jail, Luban found two “strands.” The “religious strands of King’s narrative,” Luban wrote, “make historical sense of only a fragment of the actual black movement, and to that extent they fail as a political narrative.” The professor had good news for admirers of Dr. King, though. He concluded that once King’s thought is cleansed of its “Christian particularism,” its “non-biblical strand . . . promotes a remarkably attractive”let me go so far as to say ‘true’”political and legal theory.”
Academics and others who express dismay at the prospect of a greater role for religious voices in political life seem to believe that because some religious adherents have committed atrocities in the name of their beliefs, there must be something wrong with religion itself. The dismal record suggests, however (to paraphrase Chesterton), not that religion has been tried and found wanting, but that it has been tried and found hard. If the fears of proponents of strict “neutrality” are terror, intolerance, and oppression, the historical evidence reveals that the excesses of the Crusades, the Inquisition, or the Iranian revolution pale before those of the thoroughly secular regimes of Hitler, Stalin, and Pol Pot. On the whole, the world’s religions and their followers (however fallen, misguided, or inept) have probably done more to moderate the worst human impulses than to call them forth. Professor Luban’s striking naiveté in this respect is evidenced by his personal profession of faith that politics itself is best understood as theological, and that political action, rather than religion, is “essentially redemptive.” This kind of sentiment, of course, has been fully exploited by secular cults of the state from the French Terror to National Socialism.
Unfortunately, the principal alternatives in the legal academy to the dangerous idea of political action as “redemptive” seem to be either the contempt for politics associated with a court-centered view of democracy, or the reductionist view that politics is a mere struggle for power. The idea that politics also could be a process of public deliberation about the right ordering of our lives together in society remains, for most legal academicians, at best a vague memory from college days. Except for rare occasions, like Dr. Cook’s surprising visitation, the culture struggle over national moral self-understanding is for them a mere rumble in the distance.
Mary Ann Glendon is a professor in the School of Law at Harvard University.