Wednesday, May 30, 2007

Religion isn’t that good

Andrew Koppelman

I argued in a previous post that, in order to offer a coherent account of the religious clauses, it is necessary to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause.

Among the members of the Supreme Court, Justice Scalia has pursued this strategy most assiduously. The solution he and others have proposed is to read both clauses at a much lower level of abstraction than the Court has read them. Justice Scalia, Chief Justice Rehnquist, and Justice Clarence Thomas have all suggested that the Establishment Clause should be read only to prohibit favoritism among sects, while permitting states to favor religion over irreligion. Of this group, Justice Scalia has offered the clearest formulation of the alternative rule:

“[O]ur constitutional tradition . . . rule[s] out of order government-sponsored endorsement of religion . . . where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).”

Justice Scalia’s logic is powerful. He reasons as follows: The Free Exercise Clause singles out religion as such for special benefit. Therefore, it is not possible to coherently read the Establishment Clause as prohibiting the singling out of religion as such for special benefit. “What a strange notion, that a Constitution which itself gives ‘religion in general’ preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.” It must, then, be permissible for the government to favor religion as such. Accommodation, however, must not be sectarian; accommodations, if granted, must be extended evenhandedly to differing theisms. Thus Justice Scalia’s revision would free the Court’s reading of the religion clauses from self-contradiction.

More recently, in McCreary County v. ACLU, dissenting from a decision barring one ceremonial display of the Ten Commandments, he frankly acknowledged that ceremonial theism would entail “contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.” The Commandments “are assuredly a religious symbol, but they are not so closely associated with a single religious belief that their display can reasonably be understood as preferring one religious sect over another. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as divinely given.” Justice Stevens noted that “[t]here are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance. Scalia (here joined by Rehnquist, Thomas, and Kennedy) retorted that “The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not).” Justice Scalia thus envisions a role for the Court in which it decides which articles of faith are sufficiently widely shared to be eligible for state endorsement (and in which judicial ignorance is a source of law!). Evidently, the state may endorse any religious proposition so long as that proposition is (or is believed by a judge unacquainted with doctrinal niceties to be) a matter of agreement between Judaism, Christianity, and Islam. It would, for instance, be permissible for the state to declare that Gabriel is the most important of the archangels. The interpretation of the establishment clause would then depend on the further development of the Moslem idea of the People of the Book – those who have received a revelation that is deemed (formerly by the Koran, now by the Supreme Court) to be reliably from God.

Scalia’s solution will not work, because it discriminates among religions. Chief Justice Rehnquist thought that the establishment clause forbids “asserting a preference for one religious denomination or sect over others.” Justice Scalia agrees: “I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others.” Not all religions involve a belief in “a benevolent, omnipotent Creator and Ruler of the world.” Scalia’s formulation does discriminate among religions. Christians, Jews, and Moslems are in; Hindus, Buddhists, and atheists are out. And the outs are a lot of people. Justice Scalia defended his approach by noting that the monotheistic religions “combined account for 97.7% of all believers.” But it is difficult to see how statistics support endorsement at just the level of abstraction he proposes: official Christianity isn’t permissible, but official monotheism is. In a nation of 300 million, there are only 5,764,000 Jews, and 4,657,000 Moslems. There are 1,144,000 Hindus, 1,424,000 atheists, and 2,721,000 Buddhists. Will the Establishment Clause change when the number of Hindus and Buddhists approaches the number of Jews and Moslems?

Scalia’s logical point, however, remains a sound one. If religious accommodation is to be permissible, then it must be possible to favor religion at some level of abstraction. How, then, can we define the “religion” that the state is permitted to promote? I’ll try to answer that in my next post.


"Scalia's logical point, however, remains a sound one."

Given that there is no such thing as a "practicing Judeo-Christian" (and certainly no such thing as a "practicing Judeo-Christo-Islamist"), I find Scalia's reasoning facially absurd.

There are two different ways to favor religion, which this post fails to recognize. On the one hand, there are exemptions from laws that have a secular purpose, such as the military draft, compulsory schooling, and drug possession. On the other hand, there is disseminating pro-religion (albeit non-sectarian) propaganda. In Employment Division v. Smith, Scalia opposed the first type of favoritism, but, in his Ten Commandments dissent, he supported the second. Would he allow public schools to preach (not just teach in a comparative religion course) the Ten Commandments (including the purely religious ones)? Scalia seems unable to recognize that all religion is sectarian.

Henry: Scalia seems unable to recognize that all religion is sectarian.

You are too kind. It's less that the Honorable Justice is unable than that he is doggedly unwilling to so recognize all positions on religion, be those positions believer, atheist, or agnostic.

Here's an excerpt from a rant I wrote in July of aught-five, shortly after the McCreary ruling, in response to Scalia's dissent (source here)(and please bear in mind that the majorities of the Congress and the Bench have each shifted since the original was written)(one wonders if perhaps Scalia might recently have been cured of his obsession with majoritarianism)


Justice Scalia seems to be afraid that enforcement of religious neutrality will be an end to the Court's power. Perhaps some kind of refresher course is in order, for the purpose of the Court is precisely to "check and balance" the power of "the sword" and "the purse" independent from "contrary interpretation of the democratically elected branches." It seems Justice Scalia, pehaps in the rush of belonging to so powerful a majority as the current one, has forgotten that his position, station and very life are arguably owed to persons who preserved the Court's independence during times when the views of an Antonin Scalia were decidedly counter-majoritarian. In support of the notion that some remedial history is in order, Scalia says:

...the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.

Presumably Justice Scalia was once aware, even if he has since forgotten, that his middle category includes notable figures such as Washington, Jefferson, Franklin and Madison. Despite the lack of intellectual honesty or rigor found in his dissent, one simply cannot take at face value a claim that Scalia would argue to interpret the Establishment Clause as permitting disregard of the beliefs of such an assemblage.

Sadly, the options Justice Scalia leaves readers are the black-or-white world of his own making, in which Scalia either means to exclude Deists among the founding fathers or means to commit intellectual dishonesty that should be beneath the dignity of a high-school debate team.

So Scalia is an uneducated buffoon? He wants to rule on religious cases without even a decent education in even the most mainstream of religious traditions? Every observant Jew I know is quite aware of the difference between their decalogue and the readings of most of their Christian neighbors.

It's simply amazing the lack of education among the highly educated. It's particularly a problem among the elite in any field, who in order to reach that level of respect must, to some extent, abandon any attempt to become sufficiently "well-rounded" to actually be able to make the judgments demanded of them. This is as true in the sciences as in such fields as law. The very people who are least qualified to understand the substance of their field in context are the leaders - c'est la vie!

To be more than a little contrarian, the First Amendment, taken in a very narrow sense, restricts Congress, and Congress only. Now, the Fourteenth Amendment bars states from abridging the privileges and immunities of the citizens of the United States, but it is not at all obvious that the establishment clause (unlike the free exercise clause and the remainder of the First Amendment) establishes a right of the citizens.

Hmm. Looks like us Robert's are gonna need to distinguish ourselves from each other to avoid confusion. I'll adopt a signature line of sorts for posts from now on so as to not be mistaken for the gent who shares the name and posted at 5:02. Fwiw, the point about the 14th amendment is perhaps apt, but a) the narrow reading isn't conclusively accepted, b) it's usually taken as read that when one says, for instance, "4th Amendment" one often as not means "14th Amendment, application of which may arguably be held to include or not to include the others." The Honorable Antonin Scalia is still on record perpetrating sophistries which he really should be far, far above.

Robert Link
beau ( a t ) oblios-cap ( d o t ) com


Please recall that studies have shown that executives make correct decisions less than 50% of the time. If the Justices have made enough correct decisions that have gotten them the attention of those that put them on the bench, what percentage of their decision making process does that leave for them to execute informed decisions about the rest of their lives?


Unfortunatedly, SCOTUS is making decisions that demand a decent education in the substance of the matters at hand - they can't act as a purely procedural body. How do you make decisions on the role of religion in American society without a fair education in religion? How do you make decisions on patent law without some knowledge of engineering?

But it goes further. Scalia isn't just showing his ignorance of something one would learn in ME Religions 101 down at the community college, but is actually prideful of his ignorance: Scalia (here joined by Rehnquist, Thomas, and Kennedy) retorted that “The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not).”

What does one say to such a clearly idiotic and unempirical statement? Did he ask for the sociology of the question? Did he survey Jews and Jehovah's Witnesses? Did he call on some imams, or did he pull it out of his ass and then say in effect "Well, if I've never heard of it, it must be unimportant."

Scalia is a cretinous fool, by his own words. A statement like that would get flamed on a blog-comment; to have it being presented by SCOTUS is humiliating to the signers and to a country that selects such narrowly over-educated and pompous morons to sit in judgment of our laws.

I agree.

When I have to make a decision on a compliance or fraud issue, I have to (with time and detail dependant upon the amount of risk involved) review and research the facts, review relevant statutes, examine history and trends, and then make a decision. If my decisionmaking is faulty at any point, and costs my company money, my job may be in jeapordy. For one failure, when I generally score in the high 90s percentile for accuracy. Someone in a call center must maintain some high-90% accuracy, timeliness, and customer satisfaction rating in order to retain their job.

My point was that the higher up the ladder you go, not only is there a higher likelihood of error, but in many cases a lower penalty for such errors. If managers and executives can be shown to be demonstrably in error over half the time, but you still have CEOs who drive their companies into the ground paid multi-millions in salary (along with that contractural golden parachute), where is the concern at that level for failure?

Tie into this the research that SCOTUS Justices often make their decision prior to research, and then find the opinions that support their decision....

Ignorance is not just bliss, it's almost a required feature, not a bug.


Yup, that's why hierarchical systems are inherently error prone, whether private or public sector. And it's why certain kinds of authoritarians are attracted to libertarianism as a cover for building hierarchical systems that they then incorrectly claim are free from these defects.

It's also why one has to be particularly suspicious of those with authoritarian ideological preferences (even if cloaked in some kind of "libertarianism"): they are particularly prone to not doing self-checks, since by personality they believe that if they have authority, they must be right.

Scalia, Roberts and Thomas are idiots. Not recognizing one's own tendency toward error and the needs of empirical evidence as a reality check are signs of an inexcusable foolishness, regardless of fancy degrees. The fact that they aren't called on it publicly and generally shows how hierarchical our system is.

“What a strange notion, that a Constitution which itself gives ‘religion in general’ preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.”

I disagree that the Constitution gives 'religion in general' preferential treatment, it gives the exercise of religion preferential treatment. The founders saw religion as a matter of personal conscience and also as an institution. It was the right of personal conscience that the FEC is protecting. It is the institution of religion that the EC is prohibiting.

The EC speaks of "religion" not "churches." And, to the degree it is in place to PROTECT organized churches from the corruption of the state, it secures institutions as well.

Religion is dealt with, both negatively and positively, in a preferential way. Since often, even then, a "freedom of conscience" was also recognized, it is a broad preference, one Charles Fried speaks of as a "freedom of the mind."

But, it is one we really cannot ignore.

While I agree with the post in the most important aspects, I must object to its understating, by an order of magnitude, the number of atheists in the US. Also, the post implies that atheism is a religion; the vast majority of atheists would disagree, as I suspect would the majority of theists would.

I think that atheism per se isn't really a religion, since the lack of belief in something (let's say unicorns) isn't really a religion.

And, it is wrong to generalize ... it's like generalizing that "one religion" is present among theists. There are too many differences to so generalize.

But, I would argue that 'God' and 'Religion' is simply not the same thing and a broad reading of U.S. v. Seeger (which admittedly assumes the defendants believe in some form of 'supreme being') would so hold. There is clearly a broader right of conscience anyway, but any full definition of 'religion' seems to me to not presuppose a 'God' and it is arbitrary -- though many atheists would do so -- to so hold.

and, anyway, if you don't like 'religion' overall don't call yourselves 'atheists' as if the two are the same thing.

The word literally means no God or such and again the word 'God' generally means something and that something is simply not compelled to have a religion.

People like Sam Harris at times sorta agree and even if 'most atheists' (as if we should have a poll) don't, which is unclear, this doesn't change the fact.

Be careful about reading health books. Some fine day you'll die of a misprint.
Agen Judi Online Terpercaya

Post a Comment

Older Posts
Newer Posts