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Court Religion

It was good to see Mark Movsesian (“Defining Religion in the Court,” June/July 2023) tackle the issue of judicial religious exemptions for the increasing numbers of religious Nones among us. But I don’t think his guideline for distinguishing “religious” claims from other, conscientious ones quite hit the mark. He thinks restricting claims to “organized” faith communities is “crucial,” though he lists some reasons to be “flexible” in this regard.

In Religion in the National Agenda: What We Mean by Religious, Spiritual, Secular, I argued at some length that the defining characteristic of the “religious” in Western languages is that its demands are externally compelling. This is not a choice or a social construction in the usual sense; it is what the word has meant and still means. A “secular” choice, by contrast, is defined as autonomous.

Religion describes that to which we owe our being, and which is therefore not in our power. “Spiritual,” by contrast with religious, is an aesthetic term. That is, while religious is our word for a certain kind of response to a certain kind of power, spiritual is our word for a certain awareness of such a power. As such, spiritual does not carry the same weight in litigation as religious.

The Constitution is made up of words, and courts must wrestle with those words in their nominal English sense. That they are doing so with such thoughtfulness is a tribute to the Founders, not least in their avoiding the term “conscience,” as I showed in the book.

C. John Sommerville
university of florida
gainesville, florida

My friend Mark Movsesian is surely among the most thoughtful of our writers who has sought persistently to think through the problem of our jurisprudence on the most central—and the most perplexing—question of all: What is it that counts as a “religion” in our law? That matter has become ever more elusive as the Supreme Court, over many years, virtually purged the term “religion” of any coherent meaning in cases dealing with “conscientious objection.” The turning point became clearest perhaps in Welsh v. United States in 1970 when an objector emphatically denied that his views had any foundation at all in religious faith. Justice Hugo Black held for the Court that the pronounced convictions of this young man on the taking of human life could not be regarded with less respect than convictions of a similar nature that were inspired by religious belief. Justice John Harlan said in response that this reading “performed a lobotomy” on the statute seeking to define the terms of conscientious objection. Still, Harlan concurred in the judgment because a different holding would have “discriminated” on this matter by giving favoritism to religion!

Mark Movsesian tries to offer some limiting focus for the problem by finding the surer test for religion in those religions that have built up over the years a serious “community” of adherents. I would simply post a caution here that this earnest construction runs into two serious concerns, which will take more work to overcome. The most critical was revealed when the Court, in the case of Town of Greece v. Galloway (2014), removed any constitutional bar to religious invocations offered before meetings of local legislative councils. That notable decision has created a growth industry now for satanists and even the so-called ministers of the Church of the Flying Spaghetti Monster. These inspired clerics have been willing to take up the invitation happily with colanders on their heads. But once there was no bar even to serious Christian invocations, the authorities thought themselves obliged to make the honor available to all religions. And then, in the reflex of our own time, they fell into the groove of seeing no serious moral or philosophic standard for judging between religions that were legitimate or illegitimate. The typical reflex was to fly to the insistence that the claim of religiosity must be “sincere” and not “pretextual.” And yet, the adepts at the Church of the Flying Spaghetti Monster seriously ask why any religion needs to be “sincere.” Why is it not tenable to have a fun-filled religion not burdened with “sincerity”? The test of “sincerity” has simply been a means of smuggling a moral test into the judging of religion.

The American regime and American laws began with the Declaration of Independence, with the Creator who vested rational creatures with a body of “unalienable” natural rights. That was the author of the laws of nature, including the moral laws. Whatever we can say about the understanding of religion in this country, it has been aptly argued that that understanding would be meaningless without theism or that “G-word.” And it has also been clear that this understanding of the author of the moral law could not possibly be compatible with satanism or the affirmation of radical evil. We face, of course, the need to consider Buddhism and religions that will not have at the center of their dedication the God of Israel. But one lingering test is that the deity be one who teaches, foremost and forever, a doctrine of moral uprightness or “moral realism.” That is a confidence in the existence of real moral truths.

Apart from that critical test on the substance of religious teaching, Mark Movsesian’s accent on religions taking hold in real communities slips into a merely empirical problem: When does any nascent religious movement begin to qualify as a “community”? John Paul II recalled that when St. Paul undertook his mission to Athens, he entered into discussions with “certain Epicurean and Stoic philosophers.” As he reached outside the circle of Jews, he could not appeal to Moses and the prophets. He had to appeal to an understanding more widely accessible; as John Paul II wrote, he had to appeal to “the natural knowledge of God and to the voice of conscience in every human being.” At that point, when the apostles were traveling out into the land, trying to draw into their ranks the people who seemed to offer the most natural and fitting constituency, would this Christian movement have qualified yet as a “community”? One that would constitute now, in our understanding, a vibrant, real “community” and therefore a real religion in the eyes of the law?

Hadley Arkes
washington, d.c.

Professor Movsesian has summed up nicely the muddle (his description) Supreme Court justices have made in trying to define religion. He argues persuasively that they should favor communal beliefs and practices over unique or idiosyncratic concerns. He also admits, however, that clear and invariable rules are out of reach here—that verbal formulas cannot eliminate the need for good sense and sound judgment. Nonetheless, he urges the justices to persevere.

It has become customary to lament that the Framers of our Constitution left us so little guidance as to their intentions regarding the First Amendment. Since the 1940s, it has also become customary to forget or ignore the one unambiguous intention in the amendment that they did express: “Congress shall make no law respecting an establishment of religion.” They did not say, “Neither Congress nor any state legislature shall make any law.” The Framers expected the local governments, as governments of general jurisdiction, to continue addressing religious concerns. That is why they could ignore questions of church and state in Article I, Section 8. Neither the religious nor the political circumstances of the early United States encouraged its citizens to hope for, or to speculate about, a national code or common law of religion.

Yet today the Supreme Court, in effect, promulgates and administers a national common law of religion. The justification proffered is that the Fourteenth Amendment to the Constitution unsettled the Framers’ religious settlement. But this will not do. The words of the Fourteenth Amendment do not suggest, let alone require, any such fundamental change. Not long after the Civil War, proponents of a centralized administration of church and state drafted and promoted a constitutional amendment for that very purpose. It went nowhere. And the idea of a broadened judicial interpretation of the historical First Amendment gained little traction for nearly six decades.

Is this history now just so much water under the bridge? I think not. The fact is that many Americans, often including Supreme Court justices, cannot reliably recognize religious controversies when they encounter them. In the Court’s most famous religious aggression, Roe v. Wade, the justices could not see the religious presuppositions implicit in their ruling, nor foresee the religious passions they were unleashing. More recently, in Obergefell v. Hodges, they forgot that sexuality and marriage are core concerns of any religion, new and old. And in Bostock v. Clayton County, the justices failed to discern, behind the facade of a civil rights claim, a radical new thesis about human nature.

The Framers did not commission congressmen or Supreme Court justices to summon novel, ambiguous, multifaceted, and evolving religious controversies to Washington for decision. A general authority to issue religious legislation was left with the state legislatures and state electorates, and ultimately with the American people. In a republic worthy of the name, what else should be expected?

For these reasons, I cannot agree that the Supreme Court should attempt a formal and general definition of religion. Even in reviewing congressional enactments, where the Court may legitimately enforce the prohibitions of the First Amendment, a case-by-case approach is practical and preferable. Very seldom does anything in the Constitution authorize the justices to preempt a local adjustment of church–state tensions. Up until the mid-twentieth century, the Court generally refrained from doing so. And surely the half-century of rancor over Roe v. Wade and similar judicial initiatives suggests that differing religious ideas and policies, in different states, are less likely than national edicts to destabilize our civic order.

I quote Professor Movsesian: “The proper constitutional definition of religion would be a flexible one with community at its core.” In these sixteen words, he aptly described the Framers’ concept of religious liberty, but he did not seem to appreciate how fully the Framers had already made the spirit of his idea a reality in 1791. Many would vigorously contest a particular definition of religion created by the Court today. Such a definition would also be a legislative act, in violation of Article I and Article III. And it would, in itself, look suspiciously like a violation of the First Amendment.

Scott Rutledge
richardson, texas

Mark Movsesian replies:

I thank the readers for their thoughtful comments. To C. John Sommerville and my friend Hadley Arkes, I would respond that I see community as a crucial factor in defining religion for free exercise and other legal purposes, but not the only one. Other factors are relevant, too, including belief in an external, supernatural reality that makes moral demands on human beings and practices, such as prayer and fasting, that respond to that reality. I focus on the existence of a community rather than the others because I think the rise of the Nones puts pressure on that factor. I concede to Arkes that in some cases my test will involve difficult line-drawing, including with respect to new religious movements, but that’s the nature of many legal tests. I think the need for flexibility justifies the difficulty in this context.

It seems to me that Scott Rutledge’s concerns are basically about federalism. Those are important concerns and maybe it would be better, in our fractured political culture, for these matters to be decided locally. But federalism concerns are beyond the scope of my essay, which takes it as a given that the Fourteenth Amendment incorporates the Free Exercise Clause. Most debates about incorporation concern the Establishment Clause, which I don’t discuss at all.

Discipline and Punish

I write to endorse Daniel Buck’s “Don’t Spare the Rod” (June/July 2023). Punishment, especially corporal punishment, has long been condemned by psychologists. Yet it was commonplace in boys’ schools in the UK seventy or more years ago. Its “victims” have grown up without notable damage.

Punishment was rejected as a means of behavior change by supposedly hardheaded behaviorist B. F. Skinner because “science shows” it doesn’t work. Positive reinforcement works better, he claimed. Skinner’s only concession was the time-out, a weak technique he invented that is now widely used.

Skinner misread both historical experience and then-existing research. Punishment cannot be dismissed by science. Carrots and sticks have their advantages and disadvantages, but both are effective in appropriate contexts. The real objection to corporal punishment is moral and emotional: It is cruel, and it is morally wrong.

Yet the costs of other forms of remediation must be weighed against these objections. They are demonstrably less effective and more costly. Something like isolating the child (detention) or even expulsion are costly for the child and, as history shows, relatively ineffective in changing serious bad behavior. They deprive the kid of education, send the wrong message to his classmates, and, as Buck shows, don’t work very well.

Occasional corporal punishment for young males is cheap, damaging them less than exclusion from school, and it strengthens the role of teachers as legitimate authority figures. It needs to be reconsidered.

J. E. R. Staddon
duke university
durham, north carolina

Holden Caulfield

I’ll grant that I can’t see the point as it is on top of my head. When I saw Siegel’s article on The Catcher in the Rye (“Christ-like Holden Caulfield,” June/July 2023), I had my own PTSD. In 1961 a college professor assigned us the book. I haven’t reread it nor do I intend to. I found Holden unbearably self-absorbed and tiresome. Today he would be a card-carrying whiner looking for a safe place. Holden Christ-like? I’ll stick with Huck. I submit he was more Christ-like than Holden ever was. Love the magazine and have subscribed since its earliest days, yet just thinking about Holden gets my Irish up.

Mary Emily Smiley
lawndale, california

An unlikely acquaintance once said to me, “Salinger? He only has one color on his palette.”

Only after reliving the details of The Catcher in the Rye in Lee Siegel’s excellent explication did I finally get the connection between the novel and the subsequent short stories, each a major literary event for readers of the New Yorker.

Yet even as I guarded my first edition of Zooey well into adulthood as something precious and rare, I was in no way fascinated by the apparent emptiness of life with which the characters had to contend. Indeed, I was too young to catch many of the allusions.

What came through even then—which makes Salinger’s work in my estimation high art—were the gentle and sophisticated realizations that we are “not alone”(Walter Kerr), and that we are embraced by an ever-so-kindly and considerate deity.

Kenneth M. Batinovich
rancho palos verdes, california

Desert Cities

Ephraim Radner’s article (“Stay Outside,” June/July 2023) generates resonances with deep undertones. The desert is a vast space without God in the world. It exists in any large city in North America. The desert is a place of testing: The Israelites entered there, and so did Jesus, to be tempted. In a place where God is not seen, “our private seeking is transfigured into a public witness in the person of Jesus himself.” To be like him is to forsake our life in a freely chosen death, a self-emptying, an immolation.

Charles de Foucauld’s search for God morphed from an imitation of Christ’s lifestyle to self-sacrifice for the sake of the Tuaregs he did not convert, which brought him intimately close to the suffering and death of his beloved Christ. In his diary, found by French soldiers after his death, he wrote: “Think that you will die a martyr, despoiled of everything, lying on the ground, covered with blood. Desire that it should be this very day. Consider that it is toward this death that your life must lead.”

To pierce the darkness of the opposition in our cities—our vast deserts—we have to discover what it means for us to obey God. We must be drawn into the law of the Incarnation to the degree our feeble strength enables us. God wants to become human in us and so transform our deserts, given that we accept the suffering and the cross he sends us. Hans Urs von Balthasar wrote, “The Incarnation is thus the final form of the world. Everything finds its decisive meaning and its ultimate justification in that final form.” The deserts in our cities invite us to discover and live out that final form of the world.

Bruno Jambor
littleton, colorado

Ephraim Radner replies:

I am grateful that Bruno Jambor was able to find, in my small piece, “resonances” that could indeed go into the deep places of our lives with Christ. That, after all, is where we are all called to venture into, and where we are in fact being drawn by the pull of God’s grace, should we abandon our resistances. Christianity’s rich desert tradition is more than a pointer to our personal and interior purgation; within it are etched the contours of every person’s destiny, willing and unwilling. Jambor, as I know from his own writings, is intimately acquainted with the desert. I appreciate, therefore, his confirmation of this great figure of our discipleship and its very practical burdens and gifts.

What Benedict Meant

Sam Zeno Conedera and Vincent L. Strand’s well-wrought essay, “Benedict’s Dilemma” (June/July 2023), speaks of an “unresolved tension” in Benedict XVI’s thought. The authors are right that as a proponent of ressourcement theology, Ratzinger was an early adversary of a bifurcated duplex ordo, nature–grace approach to being and knowing. This approach allowed, seemingly, for a self-sufficient “natural” order existing beside the realm of grace. I wonder, however, if Ratzinger did not ultimately resolve the tension between his ressourcement instincts and insights from scholastic theology.

The authors justly cite Balthasar as a significant influence on Benedict’s thought. But in his groundbreaking 1951 volume on Karl Barth, Balthasar made crystal-clear that while there exists only one supernatural order—the unicus ordo supernaturalis—within that graced estate there is the province of created nature.

Barth rightly opposed the idea of an abstract order of being apart from the irradiation of God’s grace. But Balthasar challenged Barth by defending the “relative autonomy” of the natural sphere. While there exists only one order of grace, God has established creation with a certain freedom, a certain “nature,” distinct from himself. Because of this, Christian theology can legitimately invoke the Aristotelian concept of nature—even while employing this idea analogically, as oriented toward the beatific vision.

Did Balthasar’s notion of the relative autonomy of the natural estate relieve any tension in Benedict’s thought?

Perhaps something of this resolution is evident in Benedict’s strong endorsement of the laïcité positive invoked in 2008 by French president Nicolas Sarkozy. That same year, Ratzinger spoke positively of the “healthy secularism” found in the United States. On numerous occasions, Benedict argued for the legitimate secularity of the modern state, but a secularity that always promotes human transcendence. As he insisted, “Of course, what is essential is a correct understanding of the just autonomy of the secular order, an autonomy which cannot be divorced from God the Creator and his saving plan.”

The authors also refer briefly to Benedict’s speeches at Westminster Hall and the Bundestag, recognizing that in these addresses he vigorously defends the idea that truth is discoverable within nature and society; there exists an intelligibility, a disclosure, embedded in the very form of the world. The authors rightly point out that Benedict spoke more frequently of the natural estate in his political speeches. But I wonder if this did not also seep into his theological work—or at least into discourse he theologically scrutinized.

For example, on this twenty-fifth anniversary of the encyclical Fides et Ratio, we recall the robust emphasis on the “legitimate autonomy” of the philosophical order taught by John Paul II—a teaching so spirited that he expresses reservations about the traditional term for philosophy, ancilla theologiae, lest it compromise reason’s independence. This is a document certainly examined by Ratzinger, who would have likely endorsed its claim that while natural reason must enjoy complete freedom (non ancilla nisi libera), it possesses no self-sufficiency. It can never be “absolutely independent of the contents of faith.” Surely, this is relative autonomy by another name.

Similarly, in his 1995 encyclical, Evangelium Vitae, when discussing abortion and euthanasia, John Paul II states, “despite the negative consequences of sin, it [the moral law] can also be known in its essential traits by human reason.” Again, in a document carefully probed by Ratzinger, one sees a strong defense of the stability and knowability of the natural estate. One need not be a Christian, indeed, a religious person of any kind, to maintain the principal truths concerning the defense of human life. Because nature has a certain autonomy, arguments may be made regarding the moral order which have a rational validity even apart from full-blooded, intrasystemic religious beliefs.

In 2010, in his general audiences on Albert the Great and Thomas Aquinas, Benedict again speaks of the autonomy of reason, praising Albert for “contribut[ing] to the formation of an autonomous philosophy, distinct from theology and united with it only by the unity of truth.” And when noting Aquinas’s accent on reason’s ability to know the moral law, Benedict unhesitatingly cites the Angelic Doctor’s bold statement: “Although grace is more efficacious than nature, yet nature is more essential to man, and therefore more enduring.”

Finally, Benedict was known as an early critic of Vatican II’s Pastoral Constitution Gaudium et Spes. However, two weeks before his retirement from the Chair of Peter, he twice called it a “great” document. And the constitution, while having a strong Christological center, also states, “by the very fact of their creation, all things are endowed with their own stability, truth, goodness, their own laws and their proper order.” In other words, the integrity and excellence of the created order is completed, but not shattered, by the novum of revelation and grace.

Did Benedict, while always opposing a self-sufficient natural order, come to recognize that a relatively autonomous ordo naturalis was essential to both theological and political thinking?

Thomas G. Guarino
seton hall university
south orange, new jersey

I appreciate the questions raised by Frs. Conedera and Strand about the relationship between Benedict XVI’s political thought and his ecclesiology. But some of their formulations of his political thought are quite misleading. Ratzinger never demands “religious neutrality” for the state; he demands what he calls “healthy secularity,” which is compatible with and may even presuppose a moderate confessional state. Nor does Ratzinger ever stipulate that the views of Christian citizens and statesmen must “be trimmed of their specifically Christian elements and justified in non-religious terms” in the public square. Rather, he spent decades arguing against such a Rawlsian pseudo-tolerance, whose requirements he believed were as intolerant of genuine (that is, public) Christianity as the pagan Roman Empire had been. As the authors know, their interpretation of Ratzinger on these points is hard to reconcile with his lifelong support for Sunday closing laws, restrictions on public blasphemy, crucifixes in public school classrooms, and public reverence for Europe’s Christian heritage, inter alia.

The human need for reason to be purified by religious faith—preferably, although not exclusively, Christian faith—is a consistent theme of Ratzinger’s and does not “strangely disappear in his key political writings.” In fact, it appears more often in his political writings than in any other part of his oeuvre. Nor are Ratzinger’s “preferred historical examples of [the Church’s] public witness . . . individuals acting in the face of powerful hostile forces” who fail to leave any properly political impact. His preferred historical examples are Tocqueville’s America and the Christian democratic movement of postwar Europe (he was a lifelong Adenauerian). And it is a bit silly to claim to “detect” the “influence” of Lockean ecclesiology on Joseph Ratzinger, who at age twenty-four knew Augustine’s ecclesiology better than John Locke ever did or than any of us does.

The authors’ dichotomy between “Whig Thomists” and “integralists and postliberals” may offer a warning against trying to fit a thinker of Ratzinger’s stature into recent online intellectual categories.

Daniel E. Burns
university of dallas
irving, texas

Sam Zeno Conedera and Vincent L. Strand reply:

Msgr. Guarino helpfully brings forth a litany of texts demonstrating Benedict’s appreciation for a relatively autonomous ordo naturalis. Texts of this kind may also be found earlier in his career. We are not convinced that Benedict entirely worked out the nature–grace issues at stake, and a great deal, both in his metaphysics and in his political thought, hinges on just how far that relative autonomy goes.

We do not think our presentation of Benedict is misleading, but rather that there is a deep ambiguity in his political thought. Burns makes the legitimate point that Benedict seldom uses the term “religious neutrality,” but conceptually Benedict comes quite close to this, such as when he praises the modern secular state that “would make room impartially for citizens of various religions and ideologies.” As we show in our article “Ratzinger’s Republic” (Nova et Vetera, Spring 2020), he is sharply critical of confessional states, insisting that the Church has no civil authority, direct or indirect. In a debate with Paolo Flores d’Arcais in 2000, Ratzinger said he did not wish the law to promote specifically Christian values, but only natural human values known by natural law. Naturally, all this is hard to reconcile with his support of Sunday closing laws, crucifixes in public buildings, and the like. Benedict never really made up his mind about what constituted a “healthy secularity,” which explains the divergent interpretations of his thought.

Though the Lockean influence on Benedict requires more research, we are struck by how his ecclesiological writings emphasize the Augustinian corporate dimension of the Church and the fact that she is divinely given (and therefore not something men create), whereas, in his political writings, he usually speaks of the Church as a voluntary association of individuals who freely enter it through a conviction of conscience. If Burns thinks that “Tocqueville’s America,” or the contribution of nineteenth-century Protestant free churches to the country’s moral order, is a candidate for the Church’s public witness, then perhaps the Lockean connection has already been made. Benedict was indeed a lifelong Adenauerian, long after the political arrangements of the mid-twentieth century had ceased to be an aspiration (much less a reality) in Western Europe. The rapid dechristianization of the last two decades has led Catholic intellectuals to discuss and debate alternative proposals, as we explain at greater length in “Beyond Ratzinger’s Republic” (Nova et Vetera, Summer 2023).

Image by Amir Siddiqui licensed via Creative Commons. Image cropped.