Wrestling with Diversity in the Contemporary World

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022.

I begin by expressing my deepest gratitude first to Richard Albert and Ashley Moran for organizing this event and to the irreplaceable Trish Do for actually making it happen, technologically. And, of course, I’m grateful to each and every one of you of the participants. I am delighted that their appearance on Balkinization will bring them to the attention of a wider community that will much benefit from reading and thinking about them.

I want to engage in a special recognition of Doug Laycock. It’s not only that we’ve been friends and colleagues now for forty years. It’s also true that there is probably no single individual in the academy who has so obviously affected the way I think about the general issues surrounding law and religion. That being said, I find myself even more perplexed and ambivalent than usual at the present moment about what the relationship between law and religion should be, not least because of a lot of developments over these forty years or even more recently. I published a group of essays, Wrestling with Diversity, in which I expressed a variety of quite “Laycockian” views about how best to treat that relationship. But it turns out that the wrestling match has not ended!

I am increasingly dissatisfied with the relevance of most standard-form legal doctrine, which seems to me to evade many central questions, beginning, for that matter, with the Supreme Court’s almost insouciant inability to offer a cogent definition of “religion.” I suspect that Carol Nackenoff is correct in some of her comments about the present (and future) Court, but, save for their obvious power in the American legal order, I’m increasingly uncertain why I should take any of their opinions truly seriously, even when I might agree with the particular outcome. It is worth noting that our gathering occurred before the late-June blockbuster of the Court and, particularly with regard to Carol’s paper, its opinion in the Kennedy “praying coach” case. Many of us were perplexed why the Court took the case at all, given that its facts were quite peculiar and there was nothing close to a “conflict in the circuits” that demanded judicial intervention. It appears quite clear, though, that the majority of the Court was quite determined to intervene in order to write a broad opinion that served to upend many basic understandings of religion and state built up over the past half century. In no sense does the present Court seem interested in displaying any “passive virtues.” It has power and it seemingly wishes to use it.

It is foolhardy to deny the continued relevance of W. E. B. DuBois’s emphasis on the importance of the “color line,” even in the 21st century. But Jaclyn Neo’s fascinating paper about religious diversification across the world demonstrates that, whatever may have been our expectations fifty years ago, “the religion line” will play an ever more important role. Perhaps academics are becoming ever more secular and “cosmopolitan,” but that definitely does not seem to be the case for the nation or world at large. And Nomi Stolzenberg’s remarkable survey of my work over many years asks a truly crucial question: Is it possible for intellectually committed “secularists” and what might be called the “seriously religious” to get along at the present time, which I must say is very different from, say, the world in which the central law-and-religion case was Yoder?

Even if one agrees with Mark Scarberry that religious dissidents played an important role in establishing fundamental predicates about how various groups in a pluralistic socio-religious country could in fact (relatively) unite and get along with one another, will that continue to be the case in the future? One might believe that the so-called “Overton window” has now been opened to allow the possibility of Catholic Integralism or Christian Dominionism as politically relevant aspirations for an increasing number of Americans, even if, at the same time, they truly frighten those, including many who would describe themselves as religious, who do not share such views. Mark also notes my continuing interest, perhaps obsession, with Federalist 2, where John Jay preposterously argues that Americans are alike in religious sensibilities. The reason for his claim, which he had to know was wrong the day he made it in 1787, is precisely that he feared that perhaps Montesquieu was right, that a “republican form of government” could be maintained only in a relatively homogeneous society, and the most perfunctory knowledge of European history in the 17th and 18th centuries might well lead one to the belief that religious diversity (or diversification) was a recipe for endless warfare. Can we necessarily dismiss that view in our fractious present?

There is one sentence in his interesting paper that deserves special scrutiny in this regard: He writes that I believe that “the immigration of large numbers of Haredim into Israel may not turn out to be an unmixed blessing.” It is indeed true that I am interested in (and worried about) the State of Israel and its own claim to be a “Jewish” state rather than a state of its citizens, whatever their religions. But there is no real “immigration of Haredim” into Israel. The problem is that they are already there and have the political power to press a certain notion of what being a “Jewish state” entails, which I often find abhorrent. Most of them, with some extremely interesting exceptions who refuse to recognize the basic legitimacy of Israel because of its non-messianic origins, want to control public policy in Israel, not merely to be left alone. But that is a relatively minor cavil, for the question of whether there are limits to diversity, especially when defined along deeply theological lines, is very real, and not only in Israel.  

A paradox in Israel is that many of the so-called “ultra-Orthodox” are anti-Zionist. A major theme of a quite extraordinarily book just written by Nomi Stolzenberg and her husband David Meyer on the Satmars in the United States is that they are militantly anti-Zionist, basically refusing to recognize the legitimacy of the State of Israel, founded in open defiance of the purported Biblical injunction that only the Messiah could re-found a Jewish state that was destroyed conclusively in 70 CE. But, whether in Israel or the United States, I am far more worried about religious Zionists, those who are indeed happy to sacralize the State of Israel and treat it as “the holy land,” whatever the different evocations that might suggest for Jews or Christians. I am inclined to regard as among the most dangerous people in the world such religious Zionists. And, given the sheer power of the United States, I probably give pride of place especially to Christian Zionists who have a certain eschatological vision of the “Holy Land” and the place of Jewish resettlement in triggering the return of Jesus. They are the ones who support candidates who will pledge their support to a continued policy of “putting no daylight” between the United States and the maximalist policies of the Israeli Jewish right and its resistance to any genuine meaningful compromise with the victims of an occupation that now goes back more than a full half-century. I do not in any sense view Israel as a “holy land,” nor, obviously, do I credit arguments that God “gave” the land to Jews. But how should we relate to people who do, especially when they want not to be left alone but to determine public policy? 

The Amish are a paradigm example of a group that desires basically to be “let alone”; they do not wish to control the making of policy for the polity as a whole. To be sure, there are extraordinarily important questions raised as to the allocation of authority over children’s education, an issue much under-played at the time, save in Justice Douglas’s opinion, but presented front and center, say, by lawsuits challenging the ability of Chasidic parents to deprive their children basically of any non-religious education, including assuring facility in use of the English language. But it is also important to realize that, say, the Satmar community, described in the title of Nomi’s and David’s book as an American Shtetl and their desire to lead a communal life almost entirely separated from the rest of the United States does not suggest any easy analogy to the Amish. The Satmars are extraordinarily sophisticated in the use of the levers of political power to attain their goals. They constitute an important voting bloc in New York State, not least because of the almost totalitarian control exercised by their rabbis.

Moreover, across the country, one cannot understand the role of many school board elections without recognizing the desire of religious groups to place their members on the boards, sometimes to control curricula (if their children in fact attend public schools), other times to cut the public school budgets and otherwise to direct funds to the religious schools that their children in fact attend. This might be viewed as just another turn of the wheel of traditional American interest-group politics and the rough-and-tumble of electoral contest where, as Barack Obama reminded us, “elections matter.” Or not! 

Another Supreme Court case at the end of the term, dealing with what is now the apparent duty of the state of Maine to fund sectarian schools should it direct any funds at all to private schools, promises a spate of litigation testing the limits of new notions of “equal protection” of sectarian groups. What I think is most important is that the idea of what used to be called “common schools” seems to be increasingly disdained because of what might indeed be the mutual disrespect of many secularists and sectarians for one another. So, again, I am less optimistic than Mark about the ability of religious and secular alike, in Rodney King’s famous words, to “get along” inasmuch as their claims often are perceived as taking a zero-sum form rooted in joint antagonism rather than mutual respect. 

Still, the most important example at present of a religiously-inflected culture war is obviously abortion, perhaps the most noteworthy topic of the Court’s end-of-term eruption. Even if it is correct that there are some secular opponents of abortion, it seems clear beyond reasonable doubt that the present “culture war” over abortion is being generated largely by Roman Catholics and Evangelical Protestants. This is no longer about the ability of Catholic doctors or nurses to be allowed not to participate in abortions or even to deny their employees access to contraceptives. Rather, it is about the ability of Catholics and Evangelicals to deprive everyone of any access to abortion in the name of their own quite literally uncompromising religious views. Consider, for example, the following quotation from a Missouri legislator explaining his vote to bar Medicaid funding for I.U.D.’s and so-called “morning after pills”:

“I’m a devout Catholic and believe that life is sacred from the moment of conception until actual death,” said State Senator Paul Wieland, a Republican who led the effort, adding that he did not “want any of my dollars going to pay for things that kill human life.”

Being “left alone” has been replaced with imposing what is basically a theocracy. Theocracies are not notable for their acknowledgement of religious pluralism and the legitimacy of alternative views, including, of course, the increasing importance of “none” as the identification of one’s own religious commitments. As Mark notes, an increasing number of Americans are willing to describe themselves as irreligious, even if it is still almost unthinkable that a candidate for high office would unabashedly proclaim her identity as “atheist.”

One might wonder, therefore, about how typical is a recent speech delivered at the Southern Baptist Convention recently concluded in California:

“You don’t advance the kingdom of God by lining up with the kingdom of Satan,” John MacArthur, a dean of conservative evangelical preaching, told the audience, referring to issues including the role of women and addressing racism. “You will never advance the kingdom of God by being popular with the world. If you think you will, you’re doing the Devil’s work. How can you negotiate with people who hate Christ, hate God, hate the Bible and hate the Gospel?”[1]

To put it mildly, this does not appear to be an invitation to “come let us reason together,” to use Lyndon Johnson’s phrase from long ago. One might hope that Mark is correct in suggesting, during the gathering, that MacArthur is atypical even of Southern Baptists. We shall see.

I also want to note the extraordinary contribution to our conversation of Intisar Rabb. Her description of pluralism within the Islamic tradition is both extraordinarily illuminating (especially to someone like myself who is basically ignorant of that tradition) and hopeful for those who are tempted to find a “religious sensibility” to be the equivalent of anti-pluralist dogmatism. She describes a tradition of Islamic interpretive pluralism that, in saying that “one interpretation cannot be overturned by another interpretation: al-ijtihadla yunqa? bi?l-ijtihad,” should be understood against the background of a “corollary principle, that “every interpreter is correct: kull mujtahid mu?ib.”” Thus she “suggests that there is no right answer, or if there is, that knowledge of it lies only with the divine. Muslim jurists asserted that interpreters receive a reward for the interpretive exercise itself (and doubly so if they get it right—but only in the afterlife, as the morally correct answer is known only to God and must therefore be subject to constant deliberation and negotiation by interpreters of law with differing approaches).” Morality precepts might exist in some ontological universe, but, epistemologically, “Muslim jurists took morality to be an unknown ideal that must be pursued anew with every new interpretation and every new understanding; that fact required them to recognize all interpretations that faithfully undergo a sound interpretive process. These precepts work together to create what has been called Islam’s radical legal pluralism: “the ability to countenance multiple interpretations as equally authoritative.”” I have quoted her more copiously than anyone else because, quite frankly, these ideas are truly new for me, and I want to make sure that I am at least reasonably accurate in delineating her important contribution to thinking through our overall topic.

One of the reasons I am so drawn to thinking about law and religion is that I am obsessed with the notion of “sovereignty,” a concept whose origin involves submission to Divine commands. That was the topic of my Touro lecture that Mark cites. It explained, among other things, why I began my own courses on the concept of sovereignty by assigning the story of Abraham’s being ordered to kill Isaac, viewed by some Christians as the prefiguration of Jesus’s own sacrifice at the best of his Father. Both set out the basic phenomenology of submission to one’s sovereign. As is well known, Divine Sovereignty, including the “divine right of kings,” suffers irreparable injuries in the West in the 17^th and 18^th centuries, to be replaced with theories of “popular sovereignty” and of states presumptively based on that sovereign and, as the sovereign’s agent, entitled to make demands on the citizenry. But what if there is a sizable population that in fact continues to view themselves as bound by duties to a Divinity that quite directly challenges notions of what is to be rendered unto Caesar? What then? The “two masters” problem has been with us now literally for millennia.

John Olusegun Adenitire asks a key question. Why pay special attention to religious claims at all, especially if one in fact regards them as some version of Bentham’s reference to claims of “natural right,” i.e., “nonsense on stilts”? Doug Laycock and Michael McConnell were instrumental in my willingness to support RFRA. But why exactly should we be concerned only about the freedom of those identified as “religious.” That is, even if one rejects the view that all of us have some duty unequivocally to bow down and obey the demands of the state, why, if at all, should only religious persons receive special attention? 

Prof. Adenitire makes reference to an essay that I co-authored with my daughter Rachel—just as Nomi notes another essay co-authored with my other daughter Meira—where we try to wrestle with this distinction between secular and sectarian claims for legal recognition. Why should a religious-based claim take priority over one based on secular “conscience”? One answer, of course, relies on a brute textual positivism; that’s just what the Free Exercise Clause means and requires. But, of course, if that is the explanation, it can have no purchase on the rest of the world, which wisely borrows less and less from the US. Constitution. 

Rachel and I suggested that the only non-positivistic reason for paying special attention to religious claims is that at least some obedience to religious commands is based on a fear of divine punishment for transgression. It is, that is, a basic conflict-of-laws issue, and I am reluctant to require people to put what they believe to be their immortal souls at risk. No secularist can plausibly evoke such a fear. “To thine own self be true,” whatever we think of it as a maxim, simply cannot be accepted as an operative principle for a complex, pluralistic society. Any such society indeed relies on compromise and a concomitant willingness to behave in accordance with laws that require considerable adjustment of what one believes is “one’s true self” as part of an ongoing polity authorized to make what Justice Scalia in Smith called “general laws of neutral application.” 

Professor Neo altogether rightly notes that there are many more religions throughout the world than even the so-called “Abrahamic” ones. As she suggests, the time is rapidly coming in the United States when it will no longer be politically possible to use the term “Judeo-Christian” tradition, as members of the Islamic-American community become an ever more impressive number of the overall population. But that’s just another parochial American point. “Abrahamic religions” do not come close to encompassing the vast array of religious possibilities throughout the world. Given the failure of the Supreme Court to offer a cogent definition of “religion,” one can only wonder what the future will bring if, as Carol Nackenoff suggests, becomes ever more protective of “the rights of the religious”? 

Mark Scarberry notes the obvious fact that “the Court” today really refers to what some would describe as a militantly Catholic majority (depending on how one describes the Episcopal convert Neil Gorsuch, who apparently refuses to answer questions about his religious identity). Does the No Test Oath Clause really prohibit asking nominees who wear their religion on their sleeves what the implications of that fact may be? I see no good reason to refrain from such questions, even if I am absolutely dismayed at the basic incapacity of members of the Senate Judiciary Committee to ask truly intelligent questions. 

I want to conclude with some brief words about Sally Gordon’s new project. I am, of course, familiar with her invaluable work on the legal treatment of the Mormon Church in the 19th century. Surely, save perhaps for the hanging of some Quakers by Puritans in old Boston, the relentless persecution of members of the LDS is the most systematic such episode in American history. Even now, though, one can surely generate significant classroom argument as to whether Reynolds was “wrong the day it was decided” insofar as it criminalized the doctrine of polygamy (which, of course, accounted for the fact that Congress refused to admit Utah as a state until the doctrine was changed, via an alleged revelation, in 1890). And would anyone argue that only Mormons (or certain Moslems?) should today have a right to engage in polygamy, or is Chief Justice Roberts basically correct that the ultimate entailment of Obergefell is the legitimacy of polygamy and other forms of polyamory based on much more libertarian (or libertine) notions of sexual freedom or notions of family? 

But Sally is now studying the embeddedness of many so-called Black churches within what turn out to be white corporate structures, where the corporations are religious ones. One of the things I think is especially important about her project is that it requires recognizing the relatively limited relevance of the United States Constitution until sometime in the 20th century (save for persecuting Mormons) and the manifest importance of state constitutions and state laws in aiding the perpetuation of white supremacy via an interesting emphasis on “separating” church (i.e., basically God talk) from “state” (i.e., a confrontation with the injustices tolerated or required by the state and subject, perhaps, to political resistance). A theme of one of the other gatherings in this series is the desirability (indeed, necessity) of paying more attention to what John Dinan calls the American state constitutional tradition. Even in our considerably more nationalized United States of America, there is still opportunity for these differences among states to manifest themselves, as we are daily realizing with regard to abortion after Dobbs. 

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at slevinson@law.utexas.edu.