Can We All Get Along? A Tribute and a Question

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Nomi Maya Stolzenberg 

On March 3, 1991, Rodney King, an African American man driving on a Los Angeles freeway, was chased and then savagely beaten by the police. A videotape of the beating ignited widespread criticism and charges were brought against the participating police officers for assault and excessive use of force. The trial, which took place one year later, culminated in acquittals of the four officers who were charged,^[1] in reaction to which thousands of people took part in five days of civil disturbances known variously as the LA Uprising or the LA riots of 1992. On the third day of the uprising, King gave an impromptu news conference, deploring the shooting of a security guard that had taken place and pleading for an end to the violence. The speech is famously remembered for one line, oft-misquoted as: “Can’t we all just get along?” In fact, the question that Rodney King posed was not “can’t we get along?,” but rather, “can we get along?” The latter conveys the same longing for peaceful coexistence that the mistaken paraphrase does, and indeed, King went on to say, wishfully, “we can get along. We all can get along. We just gotta. We gotta. I mean, we’re all stuck here for a while. Let’s, you know, let’s try to work it out.” But unlike the mistaken paraphrase, “can’t we get along?,” “can we get along?” is less a rhetorical question to which the answer must be yes than it is a genuine question, the answer to which remains very much in doubt. 

In roughly the same time period, Professor Sanford Levinson—Sandy, to his friends—published a set of essays posing essentially the same question, with one key difference. Whereas Rodney King expressed the desire to overcome the racial divisions that scar American society, these essays that Sandy wrote in the early 1990s were focused on the problem of religious division.^[2] More precisely, they examined the divide that exists between what Sandy described as “secularist, accommodationist liberals like myself”^[3] and “those who are religious.”^[4] They gave voice to his concern about whether these groups can get along, as opposed to splintering apart into mutually indifferent, or worse, warring camps. And they expressed the desire not just to confront the divide between secularism and religious belief but to explore the possibility of bridging it.

“Me” here clearly refers not just to Sandy but to all of us who reject the “possibility of ascertaining divine desire.” It is, you might say, not a royal, but rather, a liberal statist we—the we who identify with the secular state (even if we are critical of it)^[8] and rely on secular sources of knowledge. For to be secularist, Sandy explains, is precisely to reject the “possibility of ascertaining divine desire,”^[9] from which it follows that basing state policies on divine law is impossible. From that it follows that it is impermissible to base state policies on claims about the divine will. Once it is recognized either that the divine law’s content is unascertainable or that there is no divine law to ascertain, the law and the state have to be secular and have to maintain their separation from institutions and claims of religious authority. That being the case, the kind of acceptance of religious arguments for public policies that religious critics of the liberal state demand has to be denied. 

Yet, even as he acknowledged their incommensurability, Sandy strove to overcome the gap between secularist and anti-secularist frameworks of argument and to avoid the disparagement of religious people that the ascendance of secular culture and the secular state seemed to imply. He sought to find a way to unite secularists and people of faith in a shared practice of democratic discourse, a practice from which none are excluded, in which all participate on terms of mutual respect, and in which none are required to hide, suppress, or, “cover” their identity.^[10] 

While assessments vary^[11]—some would see condescension in a practice of inclusion and religious accommodation that has the explicit goal of making religious groups less insular and more open to secularist persuasion, even as it recognizes and welcomes the possibility of secularists being converted to a religious sensibility—Sandy undeniably succeeded in his own personal project of “getting along with” and opening his heart (if not, ultimately, his mind)^[12] to people of faith, at least to a degree. Just by crediting the religious critique of liberal secularism, he exhibited a sympathetic understanding, or effort at understanding, that went a fair distance towards honoring the people who formulated it and recognizing the validity of (some of) their claims. This, after all, was a time when mainstream liberalism was characterized by an astonishing level of blindness to the ongoing vitality of religious faith and to the illusory nature of its own claims to neutrality. It was a time when the most common response to claims of loss and injury on the part of religious communities, who saw their traditional structures of authority being eroded and their children becoming alienated from their families’ traditional values, was to deny that liberal educational and legal policies were responsible for these changes, and to double-down on the claim that the state could be, and was, value-neutral. Sandy would have none of that. He repudiated “the insensitivity of the standard-model secular liberal.”^[13] And it is in no small part thanks to this work of repudiation that more people on the left as well as on the right now recognize the hollowness of liberalism’s pretensions to neutrality. 

Key to Sandy’s personal practice of bridging the divide between his own outlook and that of people who insist that theological propositions and religious practices have a rightful place in public policy and discourse, is friendship. The importance of friendship, and the obligations engendered by friendship, are prominent themes in the subset of Sandy’s work devoted to religious devotion. And it is as an act of devotion, personal devotion, no less, that Sandy performs the work of bridging the differences between his sensibility and that of his religious professional colleagues and friends. Asking himself why he “cannot find it within me to condemn as ‘irrational’ those who are religious,” and how he is able to respect the people whose arguments, logic tells him, “can have no real meaning for me,” he says (in a candid footnote): 

“Perhaps the answer boils down to the fact that some of my best friends, whom I respect both as decent human beings and, more relevantly to the instant discussion, as serious intellectuals, are deeply religious, and I am unwilling to dismiss them as being necessarily deluded.”^[14] 

Sandy did not merely extend an olive branch to his religiously-minded colleagues. He credits them (specifically, Michael McConnell) with having changed his mind about a number of important legal issues, in particular, the constitutionality of vouchers (used for religious school tuition), which he came to regard as not unconstitutional or as nonjusticiable—that is, an issue for the legislatures, not the courts, to decide. Beyond that, he expressed his growing sense that vouchers are an advisable policy from the standpoint of egalitarian and diversity concerns. Adopting this “friendly” (albeit somewhat ambivalent) position about state funding for private religious schools entailed rejecting his erstwhile strict separationist views. 

He likewise modified his views about the place of religion in the public schools. Here again, his position was ambivalent, or, we might say, nuanced. It issued less from a view that religious practices have a proper place in public education than from his belief that religious people should not be “driven away” from public schools, which he conjectured would be the result if public school authorities failed (or were not allowed) to make religious accommodations. He first put forth this view in a commentary (or, more precisely, a commentary on a commentary) on the case of Mozert v. Hawkins, which rejected the claim of evangelical Christian parents that they had a right under the Free Exercise Clause to opt out of classes that exposed their children to objectionable “secular humanist” ideas and values.^[15] He further developed this position in a 2003 essay co-written with his daughter, the political philosopher Meira Levinson, which espoused the importance of integrated schools, where children (and older students) are educated alongside people of different races, genders, sexual orientations, abilities, cultures, and religions, and the concomitant imperative not to adopt school policies that drive religious parents away.^[16] Here, as with his professional interactions with religious colleagues, the importance of face-to-face personal relationships and getting individuals of different backgrounds to “get along,” rather than separating from or renouncing each other, was paramount. 

Looking back at this body of work from the distance of twenty to thirty years, it is hard not to see how much the ground, and the balance of power, have shifted. What once were hypothetical possibilities that Sandy merely entertained, such as the possibility that the Supreme Court would decree that state subsidization of religious school tuition is not merely constitutionally permitted but is (in certain circumstances) constitutionally required now appear to be on the brink of realization.^[17] The exodus of religious families from the public schools that Sandy feared and lamented has steadily increased, with rising enrollments (and rising resistance to state regulation) in private religious schools (for which Sandy expressed sympathy) and an explosion of homeschooling (for which Sandy had no use.)^[18] All of this is taking place at the same time that the religious right’s campaign against abortion rights is, finally, triumphing.^[19] Notwithstanding the thin veneer of neutrality that religious conservatives now use to disguise their argument against Roe v. Wade (just as secularists cover up their value-judgments with a veneer of value-neutrality when they have the upper hand), its religious character is plain to see. And their rise to power is equally plain to see, notwithstanding continued protestations that religious conservatives are the victims of secularist oppression. Which of the two warring forces is currently the more powerful and which is ultimately destined to prevail are matters open to debate. But the one thing that does not appear to be debatable is that secularists and religious conservatives are not, to put it mildly, getting along. To the contrary, they are at war, and have been at war since at least the 1960s, when the Supreme Court handed down its school prayer decisions^[20] and Sandy was just starting his illustrious scholarly career. 

That “culture war” was intensifying in the early 1990s, when Sandy first began to appeal to his fellow liberals to be less dismissive and more respectful of—otherwise put, to be more friendly and welcoming to—religious conservatives in the hopes that the culture of the institutions that liberals appeared to dominate wouldn’t drive them away. Looking at this body of work with hindsight raises a number of questions. First, is it true that it was the “unfriendliness” of secular institutions, like public schools, that led increasing numbers of religious conservatives to opt out of the public school system and turn to parochial schools, homeschooling, and the charter school movement—while simultaneously seeking public support for private education? The “drive away” hypothesis/lamentation is an essentially empirical, causal claim, the implication being that if public schools—or, more precisely, the liberals who supposedly run the public schools—had just been more accommodating of religious parents, and more receptive to expressions of religious identity, then fewer people of faith would have defected from them. Is this true? As with all counterfactuals, this causal proposition is difficult, if not impossible, to prove or disprove. But there are serious reasons to doubt that more robust forms of religious accommodation, such as selective opt-outs from public school classes deemed to be religiously offensive, would have resulted in less attrition.^[21] 

But even if they had, there are other reasons to question the recommendations for more religious accommodation in public schools and more state aid for private ones. Both of these sets of policy recommendations, which Sandy endorsed in the past (albeit with ample qualifications), rest not just on the value of cultural pluralism (which, for him, includes but is not limited to religious pluralism), but, more specifically, on a theory of strong parental rights. After all, it is not children upon whom the sought-after right to opt out from offending public school classes would be conferred, but rather, their parents. Whether parental rights are exercised in the public school domain, where they take the form of selective rejection of elements of the curriculum, or in the private domain, where they take the form of exiting the public system of education altogether, parental rights entail authority over children, authority that parents can exercise to prevent their children from being exposed to secular ideas or receiving a secular education that conflicts with their religious values. 

Whether there are any limits to such parental rights is a proposition that is now being tested, most notably by a New York-based organization representing former yeshiva students called YAFFED, which has been lobbying the legislature and suing the State and its Department of Education for failing to enforce statutes imposing minimum (secular) educational standards on private schools.^[22] As Anne Dailey argues with respect to the current bans on the teaching of “critical race theory” and LGBTQ awareness, this kind of invocation of children’s rights constitutes a serious challenge to the proposition that pluralism and liberalism require upholding parental rights.^[23] Now that advocacy groups like YAFFED are bringing the conflict between parents’ rights (to deny their children a secular education) and children’s rights (to receive a secular education) to a head, one wonders what Sandy’s position is on this issue. So, too, one wonders where he stands on state aid for religious education now that the Supreme Court had deemed it to be constitutionally required, at least when the state provides aid for tuition at “nonsectarian” private schools.[24] Does he still hold the view that vouchers are likely to promote diversity and equality? Is he still of the view that parents should be able to prevent public schools from exposing their children to ideas that violate their beliefs? If so, is that a policy of accommodation that evinces respect for people of faith? Or is it more accurately characterized as a form of liberal condescension, motivated by the desire to minimize the degree of self-segregation engaged in by religious parents and to maximize their children’s exposure to other ways of life, with the ultimate aim of weaning them from their families’ conservative values? Or is it better characterized, as Micah Shwartzman and Nelson Tebbe have characterized other policies of liberal accommodation, as a form of appeasement, which is destined to have the effect of strengthening conservative beliefs and resistance to liberal and progressive values rather than weakening them?^[25] 

Recognizing the possibility of these complex dynamics puts the practice of friendship that Sandy has modeled for us in a different, more dubious, light. Two things I find to be missing from Sandy’s analyses of the religious-secularist divide are 1) a recognition of the existence of a political movement dedicated to overthrowing the liberal secularist outlook, which has been gathering strength since the late 1970s; and 2) a recognition that many (in the United States, quite possibly most) of the people who subscribe to the liberal secularist or “secularist humanist” outlook that this movement is trying to overthrow are people of faith. The proposition that secularists are people of faith might sound paradoxical, but it is only a paradox if to be a secularist is to reject not only the knowability, but also the existence, of a divine being and divinely ordained moral laws. Like Sandy himself, many people who recognize the unavailability of knowledge of divine law (and the consequent necessity of secular law) are agnostic, rather than atheistic.^[26] They are not so much unbelievers as they are not believers or not sure what they believe. Still others are believers, or occasional believers. Or they are affiliated with religious communities and/or adhere to religious traditions, whether they believe in the metaphysical propositions those traditions are based on or not. Such variable attitudes are neither inconsistent with secularism, nor preclusive of being able to “get” religiously-based arguments. 

In point of fact, the antagonists of secularism with whom Sandy has sought to “get along” are not “those who are religious,” as he broadly characterizes them, but rather, those who subscribe to conservative religious beliefs and have a conservative political theology. That is to say, it is those who subscribe to the specifically anti-secularist belief that the content of divine law is ascertainable and who further subscribe to anti-liberal beliefs about what the content of divine law is. 

Which brings me to my final question, which is how to reckon with the existence of the conservative religious movement and how to reconcile the practice of friendship that Sandy espouses and models so beautifully for us with its growing power. As Sandy recognized, treating people as ideologues is not how we treat friends. Sandy insisted on treating colleagues as friends. And he further insisted on the importance of the distinction between the individual and the political movements in his accounts of participants in litigation with whom he had no personal relationship, as in his analysis of Vicki Frost, the lead plaintiff in the Mozert case who, he points out, became overshadowed by the national organization, Concerned Women for America, an advocacy group which used her case to advance its own conservative ideological agenda. 

To be sure, we need to meet our friends as individuals and not as proponents or pawns, of an ideological movement. Regardless of whether they are our friends or strangers whose behavior we are observing and seeking to evaluate and understand, treating people as mere agents of the political movements in which they are caught up is disrespectful of their individuality, and fails to recognize the possibility that they well might not agree with, or even be aware of or fully understand, all of the goals of the movements their actions are advancing. But it is equally important to recognize when people are participating in the promotion of a movement. Vicki Frost’s outlook had been molded by a conservative ideological movement well before the advocacy groups got involved in the litigation. She came to her view that the public school was indoctrinating children after reading tracts against so-called secular humanism that were published by Christian publication companies, widely circulated in the evangelical community.[27] The theological battle against “secular humanism” promoted by those tracts has been being waged for centuries. Vicki Frost may not have fully understood the cause in which she was participating, but she was advancing it, and it was shaping her, nonetheless. 

Even the leaders of the religious conservative movement against secularism may not fully understand their cause or completely identify with it. They may have only a partial understanding or be committed to only some of the mission. They may have ulterior motives. They may think they are in control of the movement they are helming, when actually there are forces beyond their control, which are at least partly in control of them. The same is true of our colleagues who advance the anti-secularist cause. And the same is true of those of us who are products of, and participants in, the secularist movement, whether we are aware of its existence and its effect on us, or, more likely, not. But what do we do when our colleagues and friends advance a cause which is anathema to our own values? Is it an act of friendship to try to change their minds or is that an act of condescension or, alternatively, appeasement? Or is it an act of complicity in the anti-secularist cause? Asking, not for a friend, but for myself. 

Nomi Maya Stolzenberg is the Nathan and Lilly Shapell Chair in Law at the University of Southern California School of Law. You can contact her at nstolzenberg@law.usc.edu.