Wednesday, November 7, 2012

The Impossibility of Governmental Neutrality in Religious Matters

This is an adaptation of a paper I read at the Intermountain Philosophy Conference at Brigham Young University in the Fall of 2011.

The United States of America prides itself on its religious neutrality. We tend to think it one of our great distinctives that we have the ability to craft laws and policies on grounds that are religiously neutral. Our laws, we think, do not discriminate against any religion. They do not endorse or reject any particular religion or worldview. We contrast ourselves with nations like Iran, which embraces a certain form of Islam as the official religion of the state and enacts laws in accordance with this worldview. Our policy of neutrality goes all the way back to the era of the founding of the country and was expressed by many of our founding fathers, such as Thomas Jefferson and James Madison. We have embedded the ideal of neutrality in our Constitution. Article VI says that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”1 The First Amendment famously says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The current prevailing understanding of what this is saying includes the idea that the government is not to have an established religion or worldview. That is, the government is not to endorse one religious viewpoint over another or a religious viewpoint over a non-religious viewpoint or vice versa. The government is to remain neutral in matters of religion, not favoring or opposing anybody's worldview beliefs.

The Supreme Court has often reinforced this understanding, and a number of suggested tests for the constitutionality of various actions and policies are based on it, such as the Lemon Test (derived from the court case Lemon vs. Kurtzman), which says that any governmental action must have a secular purpose and a secular effect and cannot oppose or endorse religious views, and Sandra Day O'Connor's Endorsement Test, which says that a government action cannot “endorse” a particular religious or non-religious viewpoint. Justice O'Connor, describing how the government can violate the First Amendment by violating the Endorsement Test, put it this way in the 1984 court case Lynch vs. Donnelly: “The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.”2 Many American legal scholars and philosophers have expressed the same position. Martha Nussbaum, in her book Liberty of Conscience, says that an “‘establishment of religion’ means that government has put its stamp of approval on some particular religion or group of religions, creating an official orthodoxy.”3 She states,
This is also a country that has long understood that liberty of conscience is worth nothing if it is not equal liberty. Liberty of conscience is not equal, however, if government announces a religious orthodoxy, saying that this, and not that, is the religious view that defines us as a nation. Even if such an orthodoxy is not coercively imposed, it is a statement that creates an in-group and an out-group. It says that we do not all enter the public square on the same basis: one religion is the American religion and others are not. It means, in effect, that minorities have religious liberty at the sufferance of the majority and must acknowledge that their views are subordinate, in the public sphere, to majority views.4
In another place in the same book, she says, “Indeed, in order to avoid endorsing one religion over another, or religion over non-religion, the state will wisely seek to avoid making public statements of either agreement or disagreement. It won’t say that the Roman Catholics are right, and it also won’t say that they are wrong about ultimate reality and the Buddhists are right. To say such things is to establish a public orthodoxy. The hope is that public institutions can be founded on principles that all can share, no matter what their religion.”5 The basic idea is clear: The First Amendment forbids the establishment of any religious or non-religious viewpoint as the official orthodoxy of the nation, which means it cannot engage in any action that would send a message approving or opposing any viewpoint. The First Amendment Center website sums it up in this way: “Although the Court’s interpretation of the establishment clause is in flux, it is likely that for the foreseeable future a majority of the justices will continue to view government neutrality toward religion as the guiding principle. Neutrality means not favoring one religion over another, not favoring religion over non-religion and vice versa.”6

My purpose here is to point out that the claim that the United States does not have an official, established worldview and is neutral in religious matters is actually false. It is an illusion, created by rhetoric and question-begging. The United States, just like every human society, does indeed have an established religion or worldview. Indeed, it cannot do anything else, as religious neutrality is actually impossible. I am certainly not the first person to make this argument. Others have and are continuing to make it, such as University of San Diego Law Professor Steven D. Smith. But I have observed that it is very difficult to convince people to accept it. This is actually not very surprising, considering how committed Americans are to the ideal of neutrality as a core part of our identity. Any attempt to show that such an ideal is an illusion and an absurdity is bound to be, to quote a phrase, an “inconvenient truth.” Nevertheless, if we are honest, and if we want to have intelligent conversations that avoid simply throwing clichés back and forth, we need to acknowledge it and embrace its practical consequences.

In order to make my argument, I would like to enlist the help of the NRA. Not the National Rifle Association, but the National Reform Association. This is an organization of Evangelical Christians which, since the 1800’s, has been advocating that the United States become an officially Christian nation. They have repeatedly petitioned Congress to amend the Constitution to recognize Jesus Christ as King of the nation. Here is their statement of purpose:
The Mission of the National Reform Association is to maintain and promote in our national life the Christian principles of civil government, which include, but are not limited to, the following: 1. Jesus Christ is Lord in all aspects of life, including civil government. Jesus Christ is, therefore, the Ruler of Nations, and should be explicitly confessed as such in any constitutional documents. 2. The civil ruler is to be a servant of God, he derives his authority from God, and he is duty-bound to govern according to the expressed will of God. 3. The civil government of our nation, its laws, institutions, and practices must therefore be conformed to the principles of biblical law as revealed in the Old and New Testaments.7
Now, imagine that a representative of the NRA—we’ll call him Greg--sends a letter to the US government, and you are appointed the official representative of the government to respond to him. Here is a synopsis of his letter:
Dear Civil Government of the United States, 
I would like to state to you a few facts and then call on you to adopt the correct response to them: 1. God exists. 2. God is the ultimate moral authority in the universe. His will is the supreme, objective moral law, so that his will determines what is ethically good and bad. Also, he is the supreme judge, so that disobedience to him will, in the end, inevitably lead to woe, while obedience to him will, in the end, inevitably lead to happiness. 3. The Bible is the inerrant and infallible Word of God. 4. In God’s law as expressed in the Bible, God states that blasphemy is a sin, and it should not be tolerated by the civil government. This would include public advocacy of falsehoods such as atheism.
Greg then proceeds to provide some argumentation for all of these claims. He concludes,
Therefore, I call on you at once to put a stop to the public display of all those atheist signs that are going up all around the country, whether they be on billboards, on busses, or wherever. If you do not put a stop to this, you will be guilty of breaking God’s law, and thus you will be acting in a way that is morally wicked as well as bringing down damnation upon yourselves and doom to the entire nation (think Sodom and Gomorrah). 
Now, how are you going to respond to Greg? Of course, being a good modern American, you want to make sure that you will deal with this situation in a religiously neutral fashion and avoid creating an official national orthodoxy (even implicitly) that will say that anyone’s religious beliefs are wrong and thereby create an in-group and an out-group that fails to treat all people equally.

Perhaps you might say something like this:
Dear Greg, 
We can’t put a stop to the atheist billboards, because to do so would be to impose your religious beliefs on everyone else, and that wouldn’t be treating everyone’s beliefs equally. It wouldn’t be fair and neutral. After all, yours isn’t the only religion in the world. We should be fair and treat all religions equally. We don’t want to create a public orthodoxy where there are in-groups and out-groups. 
The United States Government
That sounds reasonable. But let’s see what Greg will say in response:
Dear United States, 
You are treating religions unequally right now by allowing the atheists to have their billboards. By allowing this practice to go on, you are expressing clearly the view that my religious beliefs on this subject are wrong. If you agreed with me that God himself, the ultimate moral authority in the universe, wants you to put a stop to the billboards, you would put a stop to them. So the fact that you are not putting an end to them sends a message that at least some of my religious beliefs in this area are wrong, which is setting up a public orthodoxy and putting me in an out-group. And besides, although you have failed to be neutral, even attempting to be neutral is not neutral, because God has declared that it is a sin to be neutral on these matters. So in trying to be neutral, you are really rejecting my viewpoint. 
Thanks again, 
Thinking about it, you see that Greg is right. By following a course of public policy that is at odds with what Greg thinks God wants, the United States is implicitly but clearly sending a message that Greg is wrong in some of his religious beliefs (perhaps that God exists, perhaps that the Bible is the Word of God, perhaps that God is the ultimate moral authority in the universe, perhaps that Greg’s biblical interpretation is correct) and that some other set of alternative beliefs (perhaps that God does not exist, that the Bible is not the Word of God, that some other interpretation of the Bible is correct, etc.) is right. Thus, in refusing to comply with Greg’s advice, the United States is not neutral; it is adopting an alternate set of beliefs as the official orthodoxy of the nation.

But you are not ready to give up yet. You decide to send Greg another reply and try again to be religiously neutral.
Dear Greg, 
I’m sure you wouldn’t want to be taking away anyone’s rights. But what you are suggesting would take away the rights of atheists to freedom of religion and freedom of speech. We are very much concerned to respect your rights, and the rights of atheists, and everyone else’s rights as well. If we have respect for equal rights, we won’t want to take away anyone’s freedoms, no matter what their race, gender, religion, or anything else, so long as they are respecting the rights of others and not causing any harm. 
Best wishes, 
The United States Government
That sounds like an effective response, doesn’t it? But then you get another reply from Greg:
Dear United States,
You are quite right; I do not want to take away anyone’s rights. But no one’s legitimate rights would be taken away if public expression of atheism were outlawed. You see, God’s law, as I have indicated previously, is the ultimate moral authority, and so it is the foundation, the true standard, for determining human rights. According to God’s law, atheists don’t have a right to express their views publicly. On the contrary, doing so is a crime to be punished. If you wish to preserve human rights and justice to the fullest degree, you need to follow God’s law, for it is the true standard of rights and justice. And as for causing harm—of course the public expression of atheism and the toleration of it will cause harm. For one thing, it is a violation of the honor of God, which God calls all civil governments to protect. The preservation of the honor of God is far more important than anything else. Also, the toleration of public atheism will lead to harm to the society and its citizens. For one thing, atheism sends people to hell; so if there are laws against indoor smoking to keep people safe from second-hand smoke, shouldn’t there be laws against advocating and spreading soul-destroying false doctrine? And if the government refuses to follow God’s law and instead tolerates this evil, God promises to avenge his wrath on the society itself, which will bring harm to all the citizens. 
Once again, you realize with great frustration, Greg has a point. If his beliefs about God and his law are correct, then surely his conclusions are sound. To fail to follow Greg’s advice would be, from Greg’s point of view, to violate the true standard of social justice, to dishonor God, and to bring great harm to the society as a whole. If the country does not follow Greg’s exhortations, it is clearly communicating that it holds, not to neutrality, but to an alternate set of beliefs from Greg’s—for example, that God’s law as understood by Greg is not the real standard of ethics and social justice and therefore something else (but what?) is; that, contrary to Greg’s view of God’s law, atheists do have a right to express and promote atheism publicly; that the promotion of atheism is not ethically wrong; that it will not send people to hell; that it will not bring down disaster and wrath on the nation. It turns out that, just like Greg’s, the position of the United States is not neutral but rather is based on all kinds of underlying controversial theological and philosophical beliefs.

You decide to make another attempt:
Dear Greg, 
Look, there are lots of different religions in the world—Christians, Jews, Muslims, Buddhists, atheists, etc. If we are going to establish a religion, why should it be yours? Why not Buddhism, or Judaism, or Islam? And why your particular brand of Christianity? There are many different interpretations of the Bible. Many Christians think that it is just fine for atheists to publicly speak about and promote their viewpoint. And many of them don’t think that God will send such people to hell or punish the nation for such things. If we try to establish an official religion, it might turn out not to be yours, and you might bring persecution upon yourself! Wouldn’t it be better to establish a set of laws that is religiously neutral and doesn’t try to establish any religion or outlaw any religion, so that you and everyone else can freely practice your religion? 
With anticipation, 
Now you’ve got him, you think. Once again, Greg replies:
Dear USA, 
Sure, there are many religions and interpretations of the Bible out there. So what? I am not advocating that we establish all religions, but only the true one. And we should not try to follow every interpretation of God’s law, but only the correct ones. You will say, “But it is impossible to know which religion and biblical interpretation is true! There is no way to objectively adjudicate these kinds of questions. I mean, we can know what is objectively true in empirical and scientific matters, but not in religious and deep philosophical matters!” In saying this, you reveal your own religion—it is the religion of Agnosticism. It is your theological and philosophical opinion that objective truth cannot be had in religious matters. But that is not my belief. I believe we can know what is objectively true in religious matters, which is why I gave you arguments for my views in my first letter to you. You think you are opting for an established neutrality, but you’re not. Instead, you are advocating that the civil government of the United States reject my religious views and the religious views of others in favor of establishing Agnosticism as the official religion of the nation, and that it make laws not on the basis of God’s law but on the basis of some standard that you’ve come up with that seems to you to make sense from your Agnostic point of view, but which from my point of view is completely wrongheaded and unethical. As for your concern for my safety should the wrong religion be established, I am not sure I am permanently safe in a country that has adopted Agnosticism as its official religion, for this seems to me a weak foundation for civil rights of any kind. But we’ll save that discussion for another day. For now, I’ll say that even if you are right that I am personally safer in the short run and temporally if I rest quietly in this Agnostic society instead of advocating for what I believe to be true, yet there are things more important than safety—things like doing what is right and advocating social justice based on God’s law. And, in the end, I am much safer siding with God than going against him. 
Warm regards, 
Once again frustrated, you sit back and reflect on the conversation. However odd and irritating it might be, Greg is actually right, you realize. Your approach and your response to his claims are not neutral; they are based on contested theological and philosophical claims. You realize that Greg is right that your positions are indeed based on some form of agnosticism—you have assumed that there is no way that Greg can back up his claims objectively any more than any other religion. You are unsure if Greg’s biblical interpretations are correct, but you realize that even if he could convince you that they are, it would not affect what you think US policy should be—and this fact reveals clearly that your views are based on the assumption that there is no objective reason to take the Bible seriously as the Word of God, contrary to Greg’s belief; for if you did take it seriously as such, you would want the USA to follow whatever it says. Greg, rightly, would label this a form of agnosticism. You try to come up with some other reasons you might be able to present to Greg—if atheists are denied the freedom to advocate atheism, it would make them unhappy; liberty of conscience should be granted; atheists might use violence to defend their desired freedoms—but you realize they all beg the question just as your previous arguments did. If Greg’s beliefs are right, then it is irrelevant whether atheists are unhappy (just as it is irrelevant to our laws against theft that they might make thieves unhappy). Liberty of conscience sounds good, but already consciences are limited. We would not, for example, allow murderers and thieves to roam free on the grounds that we don’t want to suppress their “liberty of conscience.” If public atheism is bad and harmful as well, it should not be tolerated on this ground either. If atheists revolt, whose fault is it? At first, you think that of course it would be the fault of an oppressive government. But then you realize that if Greg’s beliefs are right, it the atheists’ fault. Just as if there were a revolt of thieves, we would not think it the fault of laws against theft, but the fault of unjustly discontented criminals. You think also of the recent uprisings in the Arab Spring. How much blame we assign for violence, and to whom we assign the blame, depends a great deal on which causes we think are just and which unjust, and people’s views on these things are different. There is no neutral way to respond to Greg. To establish Greg’s beliefs as the basis of law would be to violate the principle of religious neutrality; but so would it be to reject Greg’s beliefs and have some other basis of law instead.

Of course, this fact—the impossibility of neutrality—does not just apply to the issue of the public expression of atheism, but to all other issues as well. Take same-sex marriage, for example. Some people think, on religious grounds, that homosexuality is a perversion of true sexuality and is wrong. Others think that it is perfectly acceptable. The former often hold the position that the government should not recognize same-sex marriages, while the latter often hold that it should. If the government were to oppose same-sex marriage on the grounds that it is opposed to God's will and will bring God's judgment down on the society, this would clearly be a violation of the ideal of neutrality. It would send a message of endorsement of the beliefs of some people, such as evangelical Christians, over other beliefs, because it would be basing law and policy on these beliefs and not others. However, if the government accepts or endorses same-sex marriage, it is clearly doing so on the assumption that allowing same-sex marriage is not evil or harmful to the society, which is to endorse other people's beliefs over against the beliefs of the Christian evangelicals and others who think differently. It would send a message that some of the beliefs of some evangelical Christians and others are wrong and are to be officially rejected by the government. Neither policy—allowing same-sex marriage nor opposing it—is neutral, for both amount to an endorsement of a particular set of beliefs over against some other set of beliefs.

And although I’ve focused on examples of the civil government disagreeing with certain forms of Christian beliefs, these Christians certainly do not have a monopoly on being disagreed with in the name of neutrality. Our government disagrees with lots of other people’s beliefs as well. We also fail to be neutral towards certain forms of Anabaptist Christianity, such as those which hold that the Bible commands pacifism. We are not neutral towards those who think that the Qur’an is God’s Word and that nations have a duty to endorse Islamic Law. We are not neutral towards those atheists who think that it is quite clear that God does not exist and that religion is a great harm that the government ought to discourage by teaching atheism explicitly to its citizens. We disagree, in various ways, with the majority of people on earth. I would argue that our hypothetical character Greg is right—what many of us mean by slogans like “religious neutrality” and “separation of church and state” is really the endorsement of agnosticism as the official worldview of the nation. And yet the conservative, historic forms of just about all the major religions affirm a non-agnostic view, as they claim to know something about matters beyond the natural world. So how pretentious for us to think and to claim that we are neutral in acting on an agnostic view!

In order for a civil government to be able to have a coherent set of laws and policies, it must embrace a particular view of the world and reject competing views. It must make certain things legal and other things illegal based on ideas of what is truly valuable, what is truly harmful, what goals human societies ought to have, etc. A civil government can extend tolerance to some degree to those who disagree with its prevailing philosophy, but it will decide how much tolerance to extend based on its own prevailing philosophy, and thus we must always have the kind of situation which Martha Nussbaum deplores, a situation in which “minorities have religious liberty at the sufferance of the majority and must acknowledge that their views are subordinate, in the public sphere, to majority views.” And if those minorities' views lead people to cross the boundaries of tolerance as determined by the majority view, the government will express intolerance towards such actions and such views, even if the minorities express that according to their worldview, what they are doing is completely acceptable and even virtuous. One example of this situation is the recent controversy over whether the religious practice of male circumcision should be tolerated. According to orthodox Jews and Muslims, circumcision of male newborns is the right thing to do, as God has commanded it. But many people are coming to other conclusions about the morality of this practice based on atheist and agnostic views. Which worldview will determine law and policy in this area?

So now that we can see the problem—we have an impossible illusion at the core of our self-identity as Americans—we need to ask the question: What are we going to do about it? There is no way we can avoid it. Neutrality is impossible. Whether we like it or not, our laws and policies will be based on certain controversial beliefs over against others. So I would suggest that we give up on the ideal of neutrality. But what is the alternative? Since we must base laws and policies on certain beliefs, I would propose we base them on true beliefs rather than false ones. That seems obvious. But it probably also seems terribly naïve. We are a pluralistic country full of people with diverse worldviews. We don’t agree on which beliefs are true and which are false. So what I suggest for now is that we open up public dialogue about which worldview beliefs are really true. We should all attempt to present and argue for our perspectives, bringing to the surface the underlying worldview assumptions that are the ground of them. We should listen to the arguments of others, and try to persuade others that we are correct and that they should join us in trying to base laws and policies on our beliefs rather than alternative ones. In our hypothetical dialogue, Greg did this. He presented his opinion and showed and argued for the assumptions on which it was based. But you (as our hypothetical government respondent) did not. You begged the question by assuming an agnostic worldview while claiming neutrality. What you should have done is say something like this:
Dear Greg, 
I understand your reasons for wanting to outlaw the public advocacy of atheism, as you hold that God is opposed to it and threatens judgment if we tolerate it, etc. But where you go wrong is in thinking that we have any objective reason to think that the Bible is really the Word of God and that therefore we should obey it. Actually, there are no good, objective reasons to believe this. Here is my response to your arguments, showing that agnosticism is really the correct way of looking at things. [At this point, you present some evidence for your agnostic point of view.] Therefore, on this agnostic basis, I see no good reason to outlaw the public advocacy of atheism. And that is the official position of the United States. 
Best of luck, 
Will this kind of response lead to difficulties? Well, it will certainly make it harder for us to argue for our political viewpoints! But that is a good thing, for what we have been doing is trying to win by using question-begging rhetoric and sweeping the real, deeper issues under the rug. We will have to stop doing that and embrace a more honest approach. Will this approach lead to conflict? Perhaps. But I think it is the right thing to do even if it does, as it is the only way to show true respect to others rather than trying to manipulate public life through dishonest rhetoric. And I think that our current approach—pretending our view is neutral and trying to silence opposition by using rhetorical labels, etc.—is not that great at avoiding conflict. I suspect that people like Greg just might feel a bit more respected if they were given an honest argument for the rejection of their religious beliefs and allowed to make an argument in response rather than having their beliefs rejected patronizingly in the name of “neutrality” while being given no argument but only rhetorical pejorative labels. Right now, there are culture wars in this country. They aren’t going to go away by pretending that we can all agree without having to deal with any of the deepest religious and philosophical issues from which they spring. We could, instead, deal with them head on by allowing and encouraging the truly important dialogues to occur. If we wish to be honest, I think we have no other choice.

1 Found at at 2:09 PM on 8/23/12.
2 Found at at 2:13 PM on 8/23/12.
3 Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), 20.
4 Ibid., 2.
5 Ibid., 23.
6 Found at at 2:35 on 8/23/12.
7 Found at at 3:03 on 8/23/12.

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