In God’s Long Summer, Charles Marsh’s splendid book on religion in the civil rights movement, the theologian recounts a fascinating anecdote about Fannie Lou Hamer, a founder and the guiding spirit of the Mississippi Freedom Democratic Party (MFDP). In the summer of 1964 the MFDP waged a challenge to the credentials of the lily–white Mississippi slate of delegates to the Democratic National Convention, a slate chosen by the lily–white Mississippi Democratic Party. The MFDP offered an integrated slate of delegates, many of whom, like Mrs. Hamer herself, had tried to register to vote and had been punished for it. The controversy terrified President Lyndon Johnson, who wanted no blot on the celebration of his nomination. So he sent his Vice President–in–waiting, Hubert Humphrey, to visit Mrs. Hamer, with orders to buy her off.
Humphrey, believing that he was undertaking a political negotiation, asked Fannie Lou Hamer what she wanted. Mrs. Hamer, a devout evangelical Christian, responded: “The beginning of a New Kingdom right here on earth.”
Humphrey, evidently stunned, explained that his political future was on the line if he could not close a deal with her to end the credentials challenge. He apparently wanted her to understand that his nomination would create a strong voice for racial equality at the highest levels of the White House, reason enough to compromise. Fannie Lou Hamer, who had survived beating and torture in a Mississippi jail for insisting on her constitutional rights, was unimpressed. This was her reply: “Senator Humphrey, I know lots of people in Mississippi who have lost their jobs for trying to register to vote. I had to leave the plantation where I worked in Sunflower County. Now if you lose this job of Vice President because you do what is right, because you help MFDP, everything will be all right. God will take care of you.” This alone must have been hard on Senator Humphrey, who had fought for civil rights long before it became fashionable in the Democratic Party, and whose speech on the subject at the 1948 convention is one of the most important moments of twentieth–century political history. Mrs. Hamer, however, was relentless: “But if you take [the vice presidential nomination] this way, why, you will never be able to do any good for civil rights, for poor people, for peace or any of those things you talk about. Senator Humphrey, I’m gonna pray to Jesus for you.” And that, according to Marsh, was the end of the Johnson Administration’s negotiation with Hamer.
I begin with the story of the attempt to make a deal with Mrs. Hamer because it has much to teach us about what can happen when strong religious commitment runs up against the world of secular politics—and secular politics is, of course, the world that produces law. I wish to address the relation of religion generally—and Christianity in particular—to the liberal theory of law. The rule of law is a fundamental principle of liberal democracy. The exercise of political and personal freedoms and the functioning of the market economy both rely on and are constrained by the necessity of obedience to law. Liberal theory in turn relies on rules of recognition to tell us what counts as a law—we develop ways to distinguish between a bill to raise taxes that is passed by the state legislature and signed by the governor on the one hand and, on the other, an order from Joe down at Joe’s Diner raising taxes because he thinks it is a good idea.
In liberal theory, however, legal legitimacy cannot rest simply on the process through which a law is enacted. Liberal democracy rests also on the idea that there are fundamental principles of justice to which laws should cohere. At minimum, these principles enable us to tell good laws from bad ones, so that we know which laws to favor and which to oppose. In addition, some theorists believe that the principles of justice enable us to impose a just order on the society, notwithstanding contrary acts that meet all the requirements to be recognized as laws. In other words, a law’s inconsistency with the principles of justice on which the society rests can be proof of its invalidity. This notion underlies, to take the most obvious example, the contemporary model of constitutional law. It is therefore unsurprising that in political philosophy identifying the principles of justice to which the apparatus of governance should (or must) conform has become nearly the entire game. Contending theorists have created an enormous literature, arguing for and against various ways of deriving the principles. The literature shares two admirable commitments: first, to liberal principles, and, second, to the rule of law.
From the Christian point of view, however, these commitments, while important, are insufficient. The first and highest duty of the individual Christian believer is to Christ. What this means for the community in which the believer lives has been a matter of sharp debate among theologians for centuries. Some have opted for a society run according to Christian mores—for example, the medieval Catholic Church, the early followers of the Reformed tradition, the preachers of the “Christian America” movement in the nineteenth century, some liberation theologians of the twentieth, and, of course, some of the conservative Christian political organizations that have, over the past two decades, so shaken the national political scene. Others have simply insisted that the society should be well ordered, should not require of the believer what Christ forbids, and should basically leave the believer alone to go his own way—for example, some of the very early Christians, the Anabaptists (and their American descendants, including the Mennonites and the Amish), the dissenting preachers of the First Great Awakening in the eighteenth century, and many evangelicals even in the twentieth. (Lately, a fair number of conservative Christian political activists in the United States have also gravitated from the first group to the second.)
Mrs. Hamer, like so many religious activists in the nation’s history, fell into the first group: she wanted to reorganize American society along the lines that she believed the Lord required. In this she stood in the shoes of the abolitionists and the prohibitionists alike, who also wanted to repair human damage to God’s creation. Johnson and Humphrey shared a more modest goal: they simply wanted to win the election. They wanted Mrs. Hamer on board, but only if they could first transform her activism into a more familiar category, so that her religious commitments might either be submerged or be turned to the political purposes of the Democratic Party.
More important to the present purpose, the story may also do service as a metaphor for a larger conversation. Mrs. Hamer may play the part of the unapologetically religious voice in our public councils; Johnson and Humphrey may stand in for liberal theory. In their roles, they could accept only part of what Mrs. Hamer desired—the part justifiable in liberal terms. Insofar as her argument was couched in illiberal terms, however, they could not accept it and, indeed, could not really acknowledge it. And according to contemporary liberal theory, what made Mrs. Hamer’s argument illiberal was not its goal but its nature: she insisted on pressing a religious case in the public square.
The liberal state is uncomfortable with deep religious devotion—and, for the most part, so is its product, liberal law. Religious belief is reduced to precise parity with all other forms of belief, an act of leveling that is already threatening to religion itself. In practice, liberalism often reduces religion to an even smaller role than other belief systems, seeking to limit or shut off its access to the public square and often deriding the efforts of the religious to live the lives they think the Lord requires when those efforts seem to conflict with other liberal goals.
The discomfort of contemporary liberal theory with strong religious commitment poses a particular challenge for me, as a committed Christian, teaching at a university that, despite its religious roots, is committed to a vigorously secular ethos. Unfortunately, like so many secular institutions, Yale now and then loses track of what makes distinctive religion valuable to nonreligionists, and thus falls into the common liberal trap of leveling, trying to force everyone into accepting a given set of meanings that the institution prefers. So in the late 1990s Yale rejected the petition of a group of Orthodox Jewish students who wanted to live off campus (because they believe that the atmosphere in the dormitories encourages premarital sex, which they believe God wants them to avoid) and the request by the Christian Legal Society for the freedom to recruit at the law school while hiring only . . . well, Christians.
It may be that the reader will disagree with my view that Yale was wrong in both cases. But I do not cite these examples to argue against what the university did. Rather, I suggest that Yale’s reactions in both these cases mirror the tragedy of liberal theory when it meets religious commitment. The basic response of liberal theory to serious religion is to try to speak words that seem to celebrate it (as a part of the freedom of belief, or conscience, or the entitlement to select one’s own version of the good) while in effect trying to domesticate it—or, if that fails, to try to destroy it.
This accusation might sound overstated, but it should be unsurprising. Liberalism is a theory of the state in its relationship with individuals, but not just a theory of the organization or output of the state; liberalism also seeks to explain how the state should both stimulate and regulate the search for meaning. Religions, too, seek to provide meanings to their adherents, meanings of a deep and transcendent sort. What is religion, after all, but a narrative a people tells itself about its relationship with God, usually over an extended period of time? And if the narrative is truly about the meaning God assigns to the world, as Christianity’s narrative is, the follower of the religion, if truly faithful, can hardly select a different meaning simply because the state says so. If a religionist believes that God’s love does not allow some human beings to enslave others, no amount of teaching by the merely mortal agency of the state should cause the religionist to change. Quite the contrary: the religionist, if he believes that the state is committing great evil, has little choice but to try to get the state to change.
I should make clear that I do not believe, as some do, that conflict between liberalism and religious commitment is inevitable. The liberalism of the Enlightenment, for example, is generally compatible with a Christian view of the world. Christianity is not, in its essence, opposed to representative democracy, to a regime of individual rights, or to the principle that we should, for the most part, be left alone by the state so that we can pursue individual visions of the good. Quite the contrary: Christianity probably could not survive in the absence of these fundamental assumptions of liberal democracy. Democracy has been good for Christianity. (The distorted Christianity of the Middle Ages, when the Church tried to create, as the historian Paul Johnson says, a “total Christian society” in Europe, soon was barely recognizable as Christian.)
Similarly, the process–based liberalism that formed the heart of legal theory for a large chunk of the second half of the twentieth century is entirely consistent with a Christian view of the world. For the process theorist, law was recognized by its compliance with certain “rules of recognition.” Morality and law were not entirely separate, but their spheres were not thought to be identical. One could recognize a valid law even though it required or allowed something that was wrong; one could recognize a valid realm of private conduct even though my actions within it contradicted the moral judgment of others. Christianity, precisely because the first allegiance of every Christian is to God, must have a reliable basis for comprehending the state’s commands. It is God’s instruction that Christians obey the constituted authorities, the leaders of the state, who hold their offices from God in trust, except when the commands of the state are inconsistent with the demands of the Lord. But one can neither give allegiance to the constituted authorities on earth nor defy them for Christ’s sake until one knows just what the authorities have commanded.
Yet neither Enlightenment liberalism nor process–based liberalism represents the entire story of contemporary liberal philosophy. Liberalism as a theory cannot help but take on a triumphal character, for the ideals of liberalism have largely triumphed in the political world; the state is nowadays a liberal state. The trouble is that the state and the religions are in competition to explain the meaning of the world. When the meanings provided by the one differ from the meanings provided by the other, it is natural that the one on the losing end will do what it can to become a winner. Often, especially in today’s mass–produced world, characterized by the intrusion into every household of the materialist interpretation of reality, religions are just overwhelmed, which leads most of them to change and many of them to die. But more subtle tools are available in the assault on religious meaning. Indeed, all through history, the state has tried to domesticate religion, sometimes by force, simply eliminating dissenting faiths; sometimes through the device of creating an official, “established” church; sometimes—as in twentieth–century American experience—through reducing the power of religion by confining its freedom within a state–granted, state–defined, and state–controlled structure of constitutional rights.
Religion, however, is no idle bystander. If the state tries to domesticate religion, its most powerful competitor in the creation of meaning, then religion tries simultaneously to subvert the state. Liberalism sees this as one of religion’s dangers, which it is: history has demonstrated time and again the mischief the institutional church can cause (especially for its doctrinal purity) when it grabs for the reins of secular authority. But the tendency of religion, at its best, to subvert the state is also one of religion’s virtues. Every theory of the state—at least when put into practice—tends toward hegemony. When theory becomes law, it becomes power, and power works to sustain itself. Another lesson history teaches us is that every state seeks to restrict or eliminate competing centers of meaning. Thus every state, however noble the theory on which it is constructed, needs its subversives.
The liberal state is no exception to the general rule. Liberalism, too, tends toward hegemony. Not content to serve as a theory of organization of the state, it has grown into a theory of organization of private institutions in the state. If the state itself cannot discriminate among its citizens on the basis of race or sex or religion, then private institutions, it seems, should not do so either. One need not support any of these forms of discrimination to see the obvious conceptual difficulty: a theory that developed in order to explain the organization of the state (from which there is no simple exit for dissenters or subjects of discrimination) becomes a theory about the organization of everything. And that, I think, is the true source of the supposed conflict between liberal theory on one side and religion on the other.
There are in the United States of America a number of private colleges that accept only women as students. As of this writing, there is but one that accepts only men. A few decades ago there were significant numbers of both. The change in numbers is an artifact of the liberal idea that private organizations should follow the lead of public ones. (The democracy that the theorists of pluralism celebrated in the fifties and sixties believed exactly the opposite, but that is a rather moot point.) If it is wrong for public organizations to discriminate on the basis of sex (specifically, against women), then it is wrong for private organizations to do so. This idea is often dressed up in plausible theoretical garb—private male–only organizations may be conceptualized, for example, as supporting bulwarks for women’s oppression—but no matter how it is dressed, it remains the same animal. That animal is hegemony. Its enemy is diversity.
I have no particular brief for male–only colleges. I would never have dreamed of attending one and would not wish it for my son. But I am not prepared to say that no rational, public–spirited parents could ever decide that such a school would be better for their son than a sexually integrated campus would be. Certainly enough parents think that way for the choice to be one that the market would support. But it is the tendency of liberalism, as for all successful theories of the state, to find danger in competing systems of meaning, and so to strive to eliminate them. Consequently, male–only colleges, male–only private clubs, and (on many campuses, including my own) male–only bathrooms have all died, or are on the way to dying, sacrificed to the public virtue of sexual equality. One may celebrate the public virtue and, at the same time, mourn the death of private diversity.
Democracy needs diversity because democracy advances through dissent, difference, and dialogue. The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic. Yet the idea is a popular one—and religions, precisely because the meanings they offer can be so radically different from those proposed by the state, often bear the brunt of hegemony. Thus, for example, America’s anti–Catholicism during the nineteenth and early twentieth century was not simply a matter of private discrimination; the state, especially through the curriculum of the public schools, was heavily involved in what might fairly be described as an effort to wean Catholic children away from the “un–American” religion of their parents. The reason? The meaning thought to be basic to the Catholic way of life was inconsistent with the meaning thought to be basic to the American (in this case, Protestant) way of life. (Some of the most prominent voices of the early Republic expressed doubts that Catholicism was even covered by religious freedom, for religious freedom was the freedom to practice a free religion, which Catholicism, according to its critics, was not.)
To take a more recent controversy, the Platform for Action and Beijing Declaration, adopted at the close of the Fourth World Conference on Women in September 1995, seems to commit the signatories to undoing centers of power, including private ones, in their own countries that are oppressive of women as the phrase is understood politically in the West—a proposition that traditional religionists, men and women, all over the world see as a threat to their freedom to build communities of meaning independent of the state. By liberal standards, Roman Catholicism, Orthodox Judaism, a variety of Bible–centered Protestant communities, and the Sunni and Shia branches of Islam are all oppressive of women. One reading of the Beijing Declaration is that the signing states must try to alter the substantive content of these religious traditions.
But why not set out to change the religion of the people? No state is truly interested in preserving independent communities of meaning. States, historically, have been interested in preserving themselves. The liberal state should be different, because of its supposed neutrality among competing conceptions of the good; but in practice, and more and more in theory, the liberal state is just as insistent as any other that everybody should believe the same basic things . . . as long as they are liberal things.
It is not surprising that the conference seemed to view religion as a special danger to its effort to impose a single set of meanings on the world, because religion has been one of the few institutions that have had modest success in resisting the hegemonic pull of liberalism. I do not mean to suggest, obviously, that no religion can have tenets that are politically “liberal,” or that an institutional religion always errs when it reinterprets traditional doctrine in light of the lived experience of God’s people. Quite the contrary. Religions always understand the will of God imperfectly; consequently, they may come to a richer understanding of that will with the passage of time; and thus does doctrine evolve. Moreover, for all that critics may deride traditional religion for purportedly antiquated understandings of sexuality and the role of women, the Western religious traditions have often been, and are today, well to the left of the American norm on such matters as sharing the wealth and caring for the oppressed.
On the other hand, some Western religions have caved in to the pressure to organize according to the meanings propounded by the state, more or less agreeing with the proposition that the same rules that guide the state should also guide private institutions within the state, and so they have decided to change their teachings to fit the changing beliefs of the people—they have tried to be, in a word, popular. As a Christian, I find mysterious the notion that God’s will can be decided by majority vote, because it seems to confirm the ancient critique of religion, that man has created God in his own image. When religion surrenders to the political or cultural passion of the moment, whether a passion of the left or a passion of the right, it yields the transcendent character that marks the religious sense as potentially distinctive among ways of understanding the world. One sees this process at work, for example, among those politically active conservative evangelicals who seem confident that there is a correct biblical position on everything from building a strategic missile defense system to cutting the capital gains tax; and also among those progressive Protestants who seem to believe that only a shameless homophobe, rather than a careful student of God’s word, could possibly oppose the blessing of same–sex unions.
The conflict with liberal theory, however, is posed not by those faith traditions that surrender to the pull of the world but by those that struggle against it, exercising their power of resistance. These resisting faiths, as we might call them, are those that insist on teaching different meanings from those imposed by the state, even in the face of public disapproval or, in many cases, actual state pressure. The resisting faiths have insisted on their right (and perhaps their responsibility) to be different, to teach different meanings, and, in some cases, they have amassed sufficient political clout to remain so.
In America, Christianity has sometimes been a resisting faith, and has sometimes surrendered to the culture instead. Yet Christians are, without question, called to resist: “Do not conform any longer to the pattern of the world, but be transformed by the renewing of your mind” (Romans 12:2). The resistance to which Christians are called is not necessarily active dissent, though it sometimes may be. The more important form of resistance is active difference, living life in a way that sets the Christian apart from the culture. Active difference is necessarily resistance in an era when cultural, political, and legal pressures combine in an effort to influence fundamental values.
For a resisting faith to survive and thrive, political clout is often crucial. The courts are not usually helpful; as Frederick Mark Gedicks has pointed out, no adherent of a non–Christian, nonmainstream faith has ever won a First Amendment religious freedom case in the Supreme Court. Dissenting Christians have not fared well either, notably in recent years, as the courts have more or less abandoned any serious protection of religious liberty as a distinct constitutional right. In particular, the federal judiciary has all but abandoned the once–lively theory of accommodation, under which, in certain circumstances, the dissenting religionist is excused from compliance with a law that applies to others. This theory was used in the nineteenth century, for example, to allow churches to hire pastors from abroad in defiance of restrictions on immigration; and it was used in the twentieth to permit Amish parents to keep their children home from school after the eighth grade. But from the mid–1980s onward, the theory has largely disappeared, so the Supreme Court had no trouble, in 1986, allowing the Air Force to punish a Jewish officer for refusing to remove his yarmulke indoors. Today’s judges have forgotten what yesterday’s recalled: that religious freedom is nothing if it is not the freedom to be different. The different meanings of life that religions at their best supply translate into different ways of living—in short, into diversity—if the state allows believers sufficient space.
With the courts largely out of the picture, the legislature has become the principal battleground of religious freedom, as different traditions jockey for advantage, or at least survival, resulting in all the favoritism and all the discrimination that one would expect. The devolution upon the legislature of the duty to carve out exceptions from general laws for the benefit of religious liberty helps explain why, for example, the Roman Catholic Church maintains its freedom to ordain only men as priests, notwithstanding the nation’s antidiscrimination laws, but adherents of Santería are often prosecuted when they sacrifice animals (as their faith requires) in violation of animal rights ordinances. It is not that we value animals more than women, but that we value Catholics more than Santeros.
Resisting faiths have been an important source of dissent in our democratic polity, and sometimes the dissenters have prevailed. The abolitionist and civil rights movements are the most prominent examples, but they are far from the only ones. Liberal theory tends to celebrate the results achieved by those movements—an end to slavery, the development of formal legal protection against racial discrimination—without ever having very much to say about the actual source of the power of resistance. But the source matters. Not only do religions often teach different meanings than the state does, but religion, because it is at its heart a communal rather than an individual exercise, provides moral and spiritual support to the dissenters, strengthening them to stand against a tide of public disapproval. Sometimes, as with Fannie Lou Hamer, the lonely religious dissenter helps spark a movement that changes America. At other times, the lonely dissenter, along with the resisting faith, drowns in the sea of hegemonic meaning, as many Native American and African religious traditions did in the nineteenth century, and as the Mormons nearly did at the same time.
But the resisting faiths, at their best, are able to survive, and sometimes even to thrive, in the face of state pressure. As the legal scholar Robert Cover once pointed out, it is at the moments when official disapproval is greatest that the resisting faith learns most firmly what constitutes its core. The subversive power of religion is tested precisely at the moment when the meaning it teaches and the meaning the state teaches are most sharply opposed. If the state teaches the virtues of enslaving human beings and the resisting faith preaches the opposite, those who hear the Word will be forced to choose. Sometimes the nation will choose to continue to do whatever the religion, through its witness, seeks to end. But more often than many observers realize, the resisting faith will persuade citizens outside the faith that its set of meanings is (on one issue, at least) the correct one; and if the resisting faith persuades enough citizens, the state is forced to change.
This last point matters. Although some liberal philosophers have argued that religious language in public debate will lead only to cacophony, history suggests otherwise: at times, the religiously defended proposition prevails. The philosopher Charles Taylor argues that liberal uneasiness with strong religious commitment rests in large measure upon this historical truth, or its contemporary resonance. According to Taylor, an important reason that so many theorists of the present age seek to design rules for public argument from which religious language is absent is that religious language often wins. Unfortunately, it does not always win on behalf of good (that is, liberal) causes. The obvious solution is to inhibit the ability of religious commitment to alter the nature of the state.
Yet is such a goal attainable—let alone desirable? Let us ponder for a moment what has become a commonplace of liberal theory: that actions must be justified according to principles that are accessible, through dialogue, to all citizens. Different writers have different visions of what this means, but all of them seem to agree on the need, whether as a thought experiment or an actual model of dialogue, for the development of a mediating language in order to facilitate a conversation open on the same terms to all citizens. To such theorists, religious arguments on behalf of P or Not P make dialogue more difficult. And when the institutions of the state (and sometimes citizens themselves) actually act publicly out of religious commitment, a deeply illiberal moment has arrived. In liberal theory, the argument that the society should do P because God wills it is not merely wrong in the sense that it is insufficiently justified—it is, literally, incomprehensible.
Why incomprehensible? Consider the approach of Bruce Ackerman, who offers the following hypothetical. Suppose that two citizens are having a conversation. The first of them, Diviner, has before him a black box. He says that the black box has authoritatively determined which policy the state should pursue—let us continue to call it P. The black box, he adds, is in direct communication with God, so, really, it is God who has determined that we should do P. How is his fellow citizen to respond? According to Ackerman, it is sufficient for his skeptical fellow citizen (Ackerman calls him Democrat) to point out that he himself is unpersuaded that the black box is in communication with God. Therefore even if it happens that Diviner is right about the content of God’s will, he must find a way to justify P that will persuade the skeptical Democrat. And so, in the end, the supporters of P must repair to the tools of secular political argument.
As an observation about practical politics, Ackerman’s account is entirely persuasive; that is, members of a given resisting faith are unlikely to persuade skeptics of other faiths, or of no faith, simply by consulting their sacred black box and then repeating, “God commands it!” Perhaps that is why relatively few groups that have any actual access to the levers of decisionmaking power behave this way. Even the Christian Coalition, that great bogeyman of contemporary liberalism, no longer couches many of its public appeals in biblical terms. The Contract with the American Family, the public platform of the Christian Coalition in the mid–1990s, reads, almost in its entirely, as a secular political document that any conservative organization might have produced. Both the goals the Contract with the American Family proposes and the arguments offered to promote them read like secular policy analysis. This result should scarcely be surprising: if one wants to prevail in politics, one must do what politics requires.
Some liberal critics of the Christian Coalition have argued that, by creating public documents that do
